Court Information

Court File No.: C55736/11

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

In the Matter of: The Child and Family Services Act, R.S.O. 1990, c. 11

And in the Matter of: J.B., born […] 1997, and S.B., born […] 1999

Parties

Between:

Jewish Family and Child Services of Greater Toronto – Applicant

and

L.K. (mother) and M.B. (father) – Respondents

Judicial Information

Before: Justice Robert J. Spence

Motion Heard: 14 March 2012

Reasons for Judgment Released: 20 March 2012

Counsel

• Mr. Lorne Glass – for the applicant society
• Mr. Jeffery Wilson – for the respondent father
• Mr. Ian Mang – for the respondent mother
• Ms. Katharina Janczaruk – for Office of the Children's Lawyer, legal representative of the child J.B.
• Mr. William Sullivan – for Office of the Children's Lawyer, legal representative of the child S.B.

Nature of the Case

This is a temporary care hearing held pursuant to subsection 51(2) of the Child and Family Services Act ("Act"), in respect of two children, namely, J.B., age 14 years, and S.B., age 12 years.

On January 5, 2012, the parties consented to a temporary without prejudice order placing J.B. in the care of the Jewish Family and Child Service ("society"), and an order placing S.B. in the care of his mother, subject to society supervision.

On January 12, 2012 the court ordered counsel to be appointed from the Office of the Children's Lawyer, one for each child.

Position of Each Party on This Motion

The following sets out the position of each of the five parties, as articulated by their respective counsel prior to the commencement of argument on this motion:

1. The Society

The society seeks an order maintaining J.B. in the care of the society, with access to the parents supervised in the discretion of the society. It seeks an order that S.B. remain in the temporary care of the mother, supervised by the society, with access to the father in accordance with a pre-existing order of the Superior Court of Justice.[1]

2. The Mother (Mr. Mang)

The mother supports the society, with one exception, namely, that the parents' access to J.B. be in accordance with J.B.'s treatment needs.

3. The Father (Mr. Wilson)

The father seeks to have J.B. placed with his father, with or without a supervision order. He seeks an order placing S.B. with each parent, preferably without a supervision order.

4. S.B.'s Counsel (Mr. Sullivan)

On behalf of S.B., counsel argues for S.B.'s continued placement with his mother, but without the need for a supervision order.

5. J.B.'s Counsel (Ms. Janczaruk)

On behalf of J.B., counsel argues for the placement of J.B. with his father and, only if necessary, pursuant to a supervision order.

Preliminary Matter

Prior to the commencement of argument on the merits, Mr. Wilson sought to have certain paragraphs of the affidavit of the society dated March 2, 2012 struck out or, in the alternative, be accorded minimal weight by the court. In support of that argument, Mr. Wilson relied on subrule 14(20) of the Family Law Rules ("Rules"). That subrule states:

Restrictions on Evidence

(20) The following restrictions apply to evidence for use on a motion, unless the court orders otherwise:

1. The party making the motion shall serve all the evidence in support of the motion with the notice of motion.
2. The party responding to the motion shall then serve all the evidence in response.
3. The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion.
4. No other evidence may be used. O. Reg. 114/99, r. 14 (20).

Mr. Wilson argued that when the society filed its March 2, 2012 affidavit, it breached subrule 20(3) which allows only for reply evidence. The argument raised by Mr. Wilson is that much of the evidence contained in the impugned affidavit was not reply but, instead, was evidence known to the society and could have been provided by the society prior to Mr. Wilson conducting his cross-examination of the society worker on February 9, 2012.

However, the chronology of the filings was more complex than simply the typical initial temporary care motion and supporting affidavit filed by the society, followed by a response from the father[2] and a reply by the society. Instead, the various filings proceeded in the following manner:

• The society's motion for temporary care and custody, together with its supporting affidavit, both dated December 30, 2011;
• The father's affidavit dated January 10, 2012 in response to the society's affidavit;
• Then followed the father's own motion on February 6, 2012, seeking certain relief pertaining to access, supported by a further affidavit from the father, also dated February 6, 2012;
• Following this filing, the society filed its impugned affidavit on March 2, 2012;
• Subsequent to this, the father filed his second motion, seeking to strike out certain paragraphs of the impugned affidavit, together with another affidavit of the father sworn March 4, 2012; and
• On the same date, March 4, 2012, Mr. Wilson, on behalf of the father, filed a further affidavit sworn by the father's brother, responding to certain allegations previously made by the society.

The cumulative result of all these various filings was: one motion brought by the society, together with two society affidavits; and two motions brought by Mr. Wilson on behalf of the father, with three affidavits from the father, all filed at different points in time, and a further affidavit sworn by the father's brother.

The court is unable to conclude from this chronology that the impugned affidavit was merely a reply to the father's first affidavit dated January 10, 2012, particularly as the father also delivered his own motion, together with a further affidavit on February 6, 2012.

Furthermore, it is important to note the wording at the outset of subrule 14(20), namely, "unless the court orders otherwise", which confers on the court a discretion to relax the restrictions on the filing of evidence.[3]

As well, Mr. Wilson complains of a fundamental unfairness[4] by the society, in that it delivered affidavit evidence following his cross-examination of the society worker. He argues that he should have had that affidavit evidence prior to the commencement of his cross-examination. However, the society advised Mr. Wilson in writing prior to the date of that cross-examination that it was intending to deliver a further affidavit, and suggested postponing the cross-examination for a few days. This would have enabled Mr. Wilson to have all of the society's evidence in place prior to the start of his cross-examination. Despite this, Mr. Wilson insisted on going ahead with the cross-examination, as scheduled, rather than acceding to the society's request.

In the court's view, the concern raised by Mr. Wilson could have been addressed by accepting the society's suggestion for a brief adjournment of the cross-examination. While the court is not critical of Mr. Wilson's decision to proceed with the cross-examination as scheduled, he was well aware that the society would be filing a further affidavit, and he cannot now complain that his cross-examination was somehow prejudiced by reason of his own decision to proceed post-haste.

Nor, in the court's opinion, was it improper for the society to deliver its affidavit on March 2, 2012, following cross-examination. Subrule 20(8) does not prohibit the party who is being questioned from delivering an affidavit subsequent to questioning. That subrule provides [emphasis added]:

Questioning or Disclosure - Preconditions

(8) A party who wants to question a person or obtain information by affidavit or by another method may do so only if the party,

(a) has served and filed any answer, financial statement or net family property statement that these rules require; and

(b) promises in writing not to serve or file any further material for the next step in the case, except in reply to the answers or information obtained. O. Reg. 114/99, r. 20 (8)

As is apparent from this subrule, the restrictions on delivering further material following questioning are placed on the party who is doing the questioning – in this case, the father – not on the party who is being questioned – in this case, the society.

In the court's view, if Mr. Wilson felt that there was some unfairness in the sequence of events, the better approach would have been to argue for either an adjournment and/or costs thrown away if a second cross-examination were necessitated through no fault of his client. While his motion, as filed, did seek an adjournment of the present motion for the purpose of a further cross-examination of the society worker, Mr. Wilson did not pursue that request and, in fact, sought to have the within motion heard sooner rather than later.

In view of the foregoing, the court has concluded that there were no breaches of the Rules resulting from the way in which the various affidavits were filed, or the evidence contained in those affidavits. Nor, in the court's opinion, was there any fundamental unfairness visited on the father by the society.

Moreover, the evidence that was contained in the impugned affidavit was relevant[5] to the issue of risk of likely harm.[6] Having regard to the Paramount purpose of the Act,[7] it would be inappropriate for a court to deprive itself of relevant evidence, evidence which goes to the very heart of determining whether such risk exists.

The Merits of the Temporary Care Motion

a. Background to the Society's Protection Application and Motion

The parents have been separated and divorced for a number of years. The evidence makes it abundantly clear that there is a lengthy history of conflict between them, perhaps as long as eight or nine years. As noted earlier, the parties consented to a Superior Court order in August 2011 whereby both children would have their primary residence with mother, and mother would have sole custody, and sole decision-making authority with respect to "major decisions" concerning the children.

At the beginning of the current school year, mother made a decision to change J.B.'s school. The father objected to this decision and brought the issue to court, seeking an order to prohibit the mother from making this decision. The father's proceeding was dismissed. J.B. then became embroiled in the dispute about which school he should attend. Around the beginning of October, J.B. unilaterally decided to move to his father's home. Father subsequently informed J.B.'s school that J.B. had threatened to commit suicide. The school social worker advised the society that on or about October 12, 2011, she had recommended to the father that he take J.B. either to the North York General Hospital or the Youthdale Treatment Centre, in order to assess J.B. and address the obvious emotional distress that J.B. was experiencing. Father did not follow through on that recommendation at that time.

On October 12, 2011, mother contacted the society to advise of J.B.'s emotional distress and his threat to commit suicide, as well as his threat to run away from home if he were forced to return to live with his mother. Mother indicated her wish that J.B. be immediately taken to Sunnybrook Hospital for assessment. She also expressed the concern that father was influencing J.B. over the issue of which school J.B. ought to attend, thereby placing J.B. into a conflict with his mother. Father continued to oppose mother's decision about J.B.'s schooling, notwithstanding that a court had dismissed the father's objections, and had ordered the father to pay costs for that failed court proceeding.

On October 13, 2012, father did take J.B. to Sunnybrook Hospital, but brought him home on the same day.

The society then became involved, and spoke with both parents in an attempt to gain a better understanding of the events that were unfolding in this particular dynamic. During the course of this investigation, on October 18, 2011, J.B. told the society that he was refusing to return to his mother because, in J.B.'s view, mother was saying bad things about the father and, in addition, mother wanted J.B. to go to a school that J.B. did not wish to attend.

S.B. was also interviewed by the society. He made it clear that he was aware of his parents' conflict. However, he did not appear to the society to be as affected by the conflict as J.B.

By the beginning of November 2012, the school social worker perceived that J.B. had become very aligned with his father and that J.B. was openly hostile toward his mother. On November 7, 2011 J.B. told the society worker that his mother was "unfit", and that he did not wish to see or speak with his mother or anyone in his mother's family.

On November 8, 2011, father advised the society that he had taken J.B. to the North York General Hospital after J.B. again threatened to kill himself. By this date, mother had not seen J.B. for about one month. Mother attempted to visit J.B. at the Hospital but, despite her attempts, J.B. was refusing to visit with her.

On November 21, 2011, the society worker transported J.B. from the Hospital to the Youthdale Acute Support Unit ("ASU"), where he was admitted.

The Youthdale Admission report states [emphasis added]:

[J.B.] continues to endorse suicidal ideation . . . [and has] symptoms consistent with depression of an approximate two month duration. The onset of his symptoms coincides with significant conflict between his parents around the choice of school, as well as by court proceedings initiated by his father about choice of school. Overall, this appears to be a very high conflict family and certainly J.B. appears to have often been caught in the middle of his parents' accusations and retaliations of one another.

On December 1, 2011, Dr. Cate Cochrane-Frank, a psychiatrist at Youthdale, concluded that J.B.'s plan to return to his father's home and engage in day treatment was not realistic and, instead, the more realistic clinical plan would be for J.B. to consent to a residential treatment setting.

Dr. James Deutsch is a treating psychologist at Youthdale. Dr. Deutsch was of the view that J.B. did not wish to be caught up in his parents' conflict with one another. Dr. Deutsch told both parents to set aside their differences in order to better parent J.B., who he described as "difficult and troubled". Dr. Deutsch also said that J.B. made it clear to him that he could not "handle it, navigate it or categorize it"[8] [his parents' conflict].

As further evidence of J.B.'s entanglement in the parental conflict, Dr. Deutsch stated that in his discussions with J.B., J.B. asked him questions pertaining to issues of custody and support payments.

J.B. was unable to remain in the ASU beyond December 21, 2011. However, in the society's opinion, J.B. could not return home at that time, given J.B.'s emotional fragility and the lack of evidence that the parents' conflict had abated.

On December 19, 2011, J.B. was transferred to the Youthdale Transitional Psychiatric Unit ("TPU"). J.B. made clear his preference that he did not wish to remain at Youthdale. And because the society believed that the risk of harm to J.B. was too great were he to return home, the society worker advised J.B. that the society would be commencing a child protection application so that it could "apprehend" J.B. The society's plan was to maintain J.B. in care at Youthdale so that he could continue to receive treatment and, additionally, to keep him away from the ongoing fulltime care of either of his parents, specifically, to shield him from the parental conflict.

J.B. remained in Youthdale TPU until his discharge on February 3, 2012. In the discharge summary, Dr. Adam Enchin, staff psychiatrist, stated [emphasis added]:

J.B.'s stay on TPU was most productive. Clinically he was much improved from time of arrival. Family challenges remain the most prominent issue for J.B. . It is my sense that time away from these various challenges in addition to our creating a working visitation arrangement for J.B. that took the burden or responsibility away from him was most beneficial. . . . From a diagnostic perspective at the time of discharge . . .

AXIS 1 – Adjustment reaction with mixed disturbance of emotion and conduct, parent-child relational difficulty , possible Mood Disorder.

AXIS IV – Numerous recent stressors with respect to housing, school choice, and recent change of school setting.

AXIS V – Global assessment of functioning had been poor in the few months leading up to J.B.'s admission to Youthdale. However, functioning seemed greatly improved at time of discharge.

Because J.B. was refusing to remain at Youthdale, he was discharged on February 3, 2012 and, although he legally remained in the temporary care of the society, the society placed him with a maternal aunt and uncle which the society perceived as a neutral setting,[9] where J.B. would be able to avoid the ongoing parental conflict. J.B. has remained with the aunt and uncle – and his cousins – since that date.

b. Legal Test for Custody During Adjournment

Subsections 51(2) and (3) of the Act provide:

Custody During Adjournment

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

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

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

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

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

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

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety. R.S.O. 1990, c. C.11, s. 51 (2) ; 2006, c. 19 , Sched. D, s. 2 (9); 2006, c. 5, s. 8 (1, 2).

Criteria

(3) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b). 1999, c. 2, s. 13.

The oft-cited case of Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. S.C.J.), is a decision of Justice Jennifer Blishen, which succinctly interprets the legislative test in the following terms:

Therefore, the test in my view is as follows. The Children's Aid Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if the child is returned to his parents, it is more probable than not that he will suffer harm. Further, the Society must establish that the child cannot be adequately protected by terms of an interim supervision order to the parents.

c. Discussion of Test as Applied to the Facts

The court encapsulates the father's arguments, as well as responses, which are expanded on below:

Argument 1: Mere suicidal ideation is not, in and of itself, a sufficient basis for the court to conclude that J.B. cannot live with his father.

Response: The court agrees with that statement. It will depend on what the cause of that suicidal ideation is, and whether the father can protect against the resurgence of that ideation.

Argument 2: The fact of the long parental conflict is not a reason for J.B. not to live with his father.

Response: The court would agree that parental conflict, per se, would not necessarily require a child to remain away from a parent. It will depend on the role of the particular parent in that conflict, and the ability of that parent to shield his child from the ongoing conflict.

Argument 3: There is no evidence to conclude that J.B. is at risk of harm in his father's care.

Response: The court disagrees with that argument.

Argument 4: Just because mother is unable to care for J.B., is not a reason to conclude that J.B. would be at risk of harm in the care of his father.

Response: The court disagrees with this argument, on the facts of this case.

Argument 5: There is no evidentiary causal connection between J.B.'s suicidal ideation, and the formulation of risk of harm, were J.B. to live with his father.

Response: The court disagrees with this as well.

Argument 6: J.B.'s expressed, and consistently held views are to live with his father. Given his age, his views and preferences ought to be accorded very significant weight.

Response: The court does agree that the evidence regarding J.B.'s views are consistent. The court also agrees that J.B.'s views are a factor to be taken into account. However, they are but one factor that the court must consider, in addition to all of the other factors which are relevant to the risk of likely harm.

Analysis of Parental Conflict

It is beyond dispute that the parental conflict has been a long-standing problem. In his first affidavit sworn January 10, 2012, the father himself deposed, inter alia, to the following [emphasis added]:

1. "together we [mother and I] have failed as parents";
2. "I necessarily admitted [J.B.] to NYGH in November";
3. "I support the involvement of the JFCS";
4. It is important for J.B.'s voice to be heard, but "I am not suggesting J.B. decides what is best for him";
5. "I support the involvement of the JFCS and am prepared to support [the following] plan":
   • a. A transition back to the community by placing J.B. either with this maternal aunt and uncle or paternal uncle and aunt;
   • b. J.B. can return to the school of his choice;
   • c. J.B. to resume his therapeutic relationship with Dr. Helen Radavonovic;
   • d. Access to father to continue;
   • e. Both parents attend for a psychiatric assessment; and
   • f. J.B. has his own lawyer.

Of the foregoing, a., b., c. and f. have all transpired. There is a dispute about the amount of access father is having, or should have. As to e., no one has yet to bring a motion to require the parents, or either of them to attend for a psychiatric assessment.

To father's credit, he clearly recognized that parental failure had led to J.B.'s suffering and his need to be admitted to hospital. And, implicitly, he recognizes that the emotional difficulties have not yet resolved, as he supports the need for J.B. to continue to obtain therapy.

In the face of all this, it is inconsistent to acknowledge on the one hand the existence of this parental failing, a failing that has led to emotional harm, and then to argue on the other hand that the child should be restored to the very home from whence he came,[10] without evidence that the conflict has ceased or that the child can be shielded from that ongoing conflict.

Not only is there no evidence that the conflict has ceased but, on the contrary, the father himself provides the best evidence that he is determined to foster the conflict. Further, he has yet to recognize the importance of shielding his child from this conflict. Instead, he prefers to actively involve J.B. in his open warfare with the mother. On February 8, 2012, before settling into bed for the night, J.B. spoke with his aunt D..[11] The following is excerpted from Aunt D.'s email to the society [emphasis added]:

Before bed, [J.B.] asked to speak with me. First time all night he wouldn't look at me when talking. He asked "If I know if the court case has been moved up"? I said I didn't. J.B. told me that his dad said "that it's moved up, like an emergency." He said his dad said that "his lawyer has huge stuff he's doing and has a whole bunch of big things planned." He said "that the lawyer is getting an emergency court date because of all the stuff [the society worker has] done." Smiling, innocently, J.B. said " we're taking him [the society worker] down ". He said "his dad's lawyer is taking care of lots of stuff like . . . [and] there's lots going to happen soon, his lawyer's taking care of it."

Father did not dispute any of this. The court asked Mr. Wilson what the court should conclude from these statements by the father to J.B. Mr. Wilson acknowledged the statements were inappropriate.

Mother points a finger at father, accusing father of "alienating" J.B. from her. Father points a finger at mother and places the blame primarily on her shoulders. While they both acknowledge that parental conflict has been a significant contributor to J.B.'s emotional distress, only the mother is prepared to recognize the importance of J.B. remaining in a neutral setting, with his aunt and uncle and cousins, at least for the time being and, certainly, until the risk of harm to J.B. has significantly abated.

This court is not privy to the various bad behaviours of the parents over the past number of years. However, on the evidence before the court it was the father who attempted to either influence or foster a change in J.B.'s schooling, contrary to the existing Superior Court order. It would have been one thing for the father to raise this privately with the mother, and confine his opinions to exchanges with her alone; but to involve J.B. in the process demonstrated poor judgment on his part. And, in the court's view, he exacerbated the conflict over the school issue when, after failing in his attempt to persuade the Superior Court to support his position, he continued to press the issue, not privately with the mother but, again, openly. The result of this was that J.B. not only became fully aware of what was transpiring but, he himself, took up the cudgel to engage in battle, primarily against his mother.

The father's comments in the above-quoted email from Aunt D. are so starkly revealing of the lengths to which father is prepared to go, that there is very little editorial commentary the court needs to add. If father is prepared to drag his son into this conflict, in the manner indicated in that email while court proceedings are ongoing and while the eyes of the court are on him, one can only imagine the lengths to which he might go were J.B. living with him, or if he and J.B. were having unsupervised contact with one another.

Findings on Risk of Harm

The more than ample evidence necessarily requires the court to conclude that:

• J.B.'s serious emotional disturbance that resulted in his admission to hospital and then to Youthdale was as a direct result of the parental conflict;
• By the time J.B. was admitted to hospital in November 2011, he had not even seen his mother for about one month and, hence, there was a direct link between J.B. living with his father and the need to "necessarily"[12] admit J.B. to hospital;
• J.B. would in fact be at risk of harm were he permitted to live with his father. As between the mother and the father, the evidence points to the father as being the greater contributor to the toxic dynamic that exists between the parents. Moreover, the father demonstrates no present intention of shielding J.B. from this toxicity.

Weight to be Given to J.B.'s Views and Preferences

The remaining argument raised by Mr. Wilson that the court has yet to address is the extent to which the court ought to give weight to J.B.'s views and preferences. No one disputes that views and preferences are a factor that the court ought to take into account. That is one of the reasons for appointing counsel for the child under section 38 of the Act.

However, views and preferences are only one factor, not the sole determining factor. Mr. Wilson argued that by the time a child reaches the age of 14 years, assuming he is mentally competent and able to make certain kinds of decisions for himself, including treatment decisions,[13] it would be dangerous for a court to order something different than what the child wishes. J.B.'s lawyer also argued in support of the same position, making it clear that J.B. did indeed prefer to live with his father. The argument is that by forcing J.B. to live somewhere which is not his first choice could possibly do more harm than good for him.

The problem with this argument is that it is based on speculation, not evidence. The evidence, as the court has concluded it to be, is that it is more probable than not that J.B. would be at risk of harm were he to be placed with his father. The speculation is that denying J.B. what he desires, could result in a greater harm. Speculation cannot be the basis for making court orders under subsection 51(2) of the Act.

Furthermore, the weight of the evidence suggests that J.B. has been doing very well since going to live with his aunt and uncle and cousins more than one month ago. On February 27, 2012 J.B. reviewed his Plan of Care, together with his own lawyer, Ms. Janczaruk, after which J.B. signed off on it. The following are a few excerpts from that document [emphasis added]:

• "J.B. is confused and frustrated by the conflict his parents continue to have over their 8 years of being divorced. J.B. has been impacted by this conflict."
• [since being placed with his maternal aunt and uncle, and cousins, J.B.'s aunt] "has observed . . . that J.B.'s self-confidence has increased . . . . J.B. is smiling, joking around and laughing regularly, as well as engaging in conversation . . . . J.B. is starting to talk about future plans, such as going [to] University. J.B. can articulate very clearly why he is in care but, struggles with how the conflict between his parents impacts him."
• "In his current placement J.B. has appeared to be comfortable with all family members. J.B. spends a lot of time with his cousins hanging out and playing sports. . . . and appears to be comfortable to speak his feelings or opinions freely to his aunt and uncle."

At the time this Plan of Care was prepared, J.B. had been with his aunt and uncle for almost one month. The overall tenor of that Plan of Care was that J.B.'s mental state had begun to improve significantly. In the court's view, it is not simply a coincidence that J.B., having been removed from the brunt of the conflict between his parents was now beginning to show signs of emotional revival, and beginning to lead a more normal, teenage life.[14]

To argue, as father's counsel did, that there is no evidentiary link between J.B.'s distressed mental state and his parents' conflict, or that J.B. living with his father did not expose J.B. to risk of ongoing emotional harm, runs counter to the totality of the evidence.

As the court noted earlier, J.B.'s views and preferences, namely, his wish to live with his father, are to be considered by the court. However, they are but one factor to be considered. While those views may continue to be consistently expressed by this young man, the court cannot permit his preferences to prevail in circumstances such as this where to accede would likely expose J.B. to risk of emotional harm.

Application of A.C. v. Manitoba

Father's counsel filed a brief of authorities and, in his submissions, relied primarily on A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30. That case was about whether a mature 14 year-old child should be afforded the legal autonomy to decide to reject medical treatment, without which there was a strong likelihood of serious harm, possibly death. That decision does not assist father. First, that case revolved around the question of "best interests", whereas the present case focuses on "risk of harm" under section 51 of the Act. Furthermore, while the Supreme Court of Canada did recognize and accord importance to the decision-making capacity of young persons, the Court was clear that deference to the young person is not absolute, and must be looked at on a sliding scale and considered in the broader context of the issue in dispute.

Here, J.B.'s wishes are clear and consistent, namely, that he would prefer to live with his father. However, that preference is but one factor that the court is obligated to consider in deciding risk factors under section 51 of the Act. One can only imagine the potential for harm if the views of young persons were accorded absolute deference. Consider, for example, a 15 year-old who wishes to live with his father, a drug dealer, who regularly has illicit deals transpiring in his home, with individuals who carry weapons, and who have demonstrated a propensity to use them. No matter how closely bonded that young person is to his father, no matter how strongly-held are his wishes to remain with his father, it is doubtful that any court, applying the risk test under section 51 of the Act, would permit such a living arrangement to continue.

And here, where the evidence overwhelmingly points not only to risk of emotional harm, but actual emotional harm to J.B., the court cannot accede to J.B.'s wishes to live with his father.

In fact, given father's demonstrated willingness to continue to pull J.B. into father's dispute with the mother, even while this litigation is ongoing, persuades the court that it would be too risky to permit father to have unsupervised access to J.B. Father's comments to J.B., such as "we're taking him down",[15] demonstrate to the court that father has a way to go before he can be trusted to have unmonitored interaction with J.B.

Analysis Regarding S.B.

Father argues that even if the court finds actual harm or risk of harm to J.B., the evidence does not disclose either actual harm or risk of harm to S.B. Doubtless, S.B. has shown himself to be far more emotionally resilient than J.B. He has managed to avoid the worst of the emotional fallout from the toxic parental dynamic. Mr. Sullivan, S.B.'s counsel, provided the court with a picture of this engaging boy who appears to be doing relatively well. S.B. is artistic, he enjoys singing, and he is particularly happy to be in a leading role in an upcoming musical at his school. That said, Mr. Sullivan did advise the court that S.B. has no strong feelings about having the society immediately out of his life and, in fact, is content – at least for the time being – to have a lawyer representing his interests in this child protection proceeding.

It is important to note as well, that S.B. is continuing to see his therapist, and there is no evidence that he is strongly opposed to this ongoing therapy.

Nor can the court lose sight of the fact that J.B. and S.B. both grew up in the same household. Both of them have lived with the parental conflict over the past 8 years. Both of them have been having regular therapy sessions. The difference between them is that J.B.'s suffering has clearly and dramatically manifested itself, whereas S.B. has managed, at least overtly, to avoid much of the fallout. However, that does not mean that S.B. is not at risk of emotional harm.[16] In fact, it would be ignoring the obvious were this court to conclude otherwise, given the ongoing therapy and the 8 years of parental conflict.

That said, the level of intervention required by the society for S.B. need not be as intrusive as that required for J.B. The society is not seeking to place S.B. in care; nor is it seeking a supervision order with extensive terms and conditions. It wishes simply to monitor S.B.'s progress to ensure that he continues to remain stable and that the risk of harm does not evolve into actual harm.

Conclusion

On the evidence before the court, the following order is required:

Order

1. J.B.

J.B. shall remain in the temporary care and custody of the society. Mother's access to J.B. shall be supervised, in the discretion of the society. Father's access to J.B. shall be supervised by the society. Pending further court order, the society will have no discretion to permit unsupervised access between J.B. and his father. For both parents, the frequency and duration of access shall be in the discretion of the society, having regard to J.B.'s treatment needs, if any.

2. S.B.

S.B. shall remain in the temporary care and custody of his mother, supervised by the society. The only term the court would impose is that mother shall allow the society to have announced and unannounced visits. Father's access to S.B. shall be in accordance with the consent order of the Superior Court of Justice, dated August 11, 2011, except insofar as any such access might otherwise conflict with the society's ability to fulfill its mandate under this supervision order, in which case the supervision order will prevail.

Remarks to the Parents

The court has a few words for both parents. Father was not far off the mark when he stated in one of his affidavits "we have failed as parents". On the one hand, that observation might suggest that the light had finally gone on and there would be an about-face in terms of how the parents would proceed from that point forward. However, as the court has noted in these reasons, father's subsequent actions reveal otherwise.

The society's goal in this case is to ultimately reunite both children with their parents and to get out of the life of this family. However, that will not happen until it is safe to do so. And it will not be safe until the parents themselves, particularly the father, can demonstrate an ability to put spousal hatred on the back burner, and concentrate on being a loving and protective and nurturing parent.[17]

In father's case, that will include accepting the finality of the consent order of the Superior Court of Justice; it will mean not running back to court to continue to fight with the mother over her decision-making responsibilities with respect to schooling, or any other issue over which she has the decision-making authority, by virtue of that order. What the father must eventually realize is that the endless fighting does far more damage to his children, than any decision mother might make about which school the children will attend. It does not matter that father might disagree with mother's decision. What is important is that he not engage her in conflict and, at all costs, he must shield his children from any disputes he may have with the mother. If he has an issue about mother's decision-making responsibility, he needs to take this up privately with the mother.[18] And if, after engaging in private conversation, the father is unable to persuade the mother to make a different decision, he must accept what she has decided, even if he believes that his decision would be the better one.

The court recognizes that section 29 of the Children's Law Reform Act gives father the right to seek a change to the existing Superior Court order;[19] and that section confers authority on the court to make such a change where it is in the best interests of a child to do so. However, in the particular circumstances of this case, and especially given the high level of conflict, and the damage that conflict has inflicted on J.B., the court strongly urges the parents to avoid any such court proceedings for the foreseeable future.

Finally, the court wishes to thank all five counsel for their thoroughness and organization in the presentation of argument, as well as their civility, in this high conflict case.

Justice Robert J. Spence

20 March 2012

Footnotes

[1] On August 11, 2011, the Superior Court of Justice made a consent order incorporating the terms of a Final Consolidated Arbitration Award of Philip Epstein, which provided for a detailed parenting plan, including a provision that mother have sole custody of the two children, as well as primary residence, with detailed and specified access to father.

[2] For the purpose of deciding this issue there is no need to refer to the mother's filings.

[3] Although the court is not suggesting that the court should routinely depart from the normal restrictions imposed by the Rule; rather it should do so only when there is good reason. See, for example, the decision of Justice Stanley B. Sherr in Fakhim v. Shirazi, 2007 ONCJ 126.

[4] And specifically a breach of section 7 of the Canadian Charter of Rights and Freedoms.

[5] Father's counsel did not suggest that the evidence was not relevant.

[6] The test under subsection 51(3) of the Act on a temporary care and custody motion.

[7] As set out in section 1, namely, "to promote the best interests, protection and well being of children".

[8] J.B.'s own words.

[9] The father does not dispute the "neutrality" of this setting and, in fact, in one of his affidavits, he proposed that particular placement as one option, at least on a temporary basis.

[10] In this case, the father's home.

[11] The maternal aunt in whose home the society had placed J.B., and where J.B. presently remains.

[12] As stated by the father.

[13] The court accepts that J.B. does have this level of competence.

[14] Ms. Janczaruk, J.B.'s lawyer, made it clear to the court that while J.B. does not perceive the society as a positive factor in his life, he does get along well with this aunt, his uncle and his cousins, where he is currently living.

[15] As noted earlier, by the aunt in her discussion with J.B.

[16] Clause 37(2)(g) of the Act.

[17] While they may appear otherwise, the court's comments are not intended to place all of the blame on the father's shoulders. Generally, it takes two parents to keep conflict going for a long period of time. In this case, however, the court's comments are directed to the most salient aspects of bad parental behaviour which, on the record before the court, is the behaviour of the father.

[18] Despite the history of conflict, both parents need to explore how they will go about re-opening the lines of civil communication with each other.

[19] Once the child protection proceedings are concluded.