WARNING

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

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

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

The court may make an order:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Court File No.: Thunder Bay, FO-06-0439-02

Date: 2012-06-12

Ontario Court of Justice

Between:

Children's Aid Society of the District of Thunder Bay, Applicant,

— And —

L.K., H.S., S.G., Respondents

Before: Justice A. T. McKay

Heard on: July 18, 19, 20, 21, 2011; November 3, 4, 2011; March 21, 22, 2012

Reasons for Judgment released on: June 12, 2012

Counsel:

• James L. Murray — for the applicant society
• Roy Karlstedt — for the respondent H.S.
• L.K. on her own behalf
• Jean Olibris — for the Office of the Children's Lawyer, legal representative for the children

MCKAY J.:

BACKGROUND

[1] Ms. K. is the biological mother of the following six children: KS, ES, VS, VS, MG, and MG. The children can be placed in groups based upon their biological fathers. H.S. is the biological father of KS, age 16, ES, age 15, and twins VS and VS, age 13 (the "S" children). SG is the biological father of twins MG and MG, age 12 (the "G" children). For many years, Ms. K and Mr. S have had a relationship characterized by significant hostility. The children, particularly the S children, have been in the middle of numerous court proceedings for many years. Ms. K first obtained an order of custody related to the S children January 23, 2001. Another order in 2005 confirmed the custody arrangement.

[2] The involvement of the Children's Aid Society has also spanned a significant number of years. In 2006, a temporary order was made placing the S children in the care of their father subject to the supervision of the Society. Ms. K was given supervised access to the children. At the same time, the G children were placed in the temporary care of their maternal grandparents, subject to the supervision of the Society. Conditions included the fact that the children would not be left alone in the care of their mother, Ms. K, and that her access to the children would be supervised at all times. On November 14, 2008, Justice Kunnas made a final order finding the children in need of protection. That order placed the S children in the care of their father, subject to the supervision of the Society. Ms. K. was to have access to the S children, monitored as deemed appropriate by the Society. The G children were placed with their maternal grandparents, subject to the supervision of the Society, with a term that the children were not to be left alone with their mother, Ms. K. The order also provided that the G children should have access with their father, to be monitored and supervised by the Society at its discretion. Access between the six children was to be continued.

[3] Mr. S has a bipolar condition which is stabilized by medication. Ms. K has a long history of mental health issues, along with an earlier history of addiction concerns. The level of mistrust and hostility between Ms. K and Mr. S is so extreme as to be unusual in its intensity and scope.

[4] Since the order of Justice Kunnas, the G children have continued to live with their maternal grandparents. Ms. K lives in the same household. The S children, except for one brief period of time when Mr. S discontinued his medications, have lived with their father. For a brief period, one of the S children moved in with Ms. K. She later returned to the home of Mr. S. Access between the six children and between Ms. K. and the S children has been problematic.

THE COURT ACTIONS

[5] The Society brought an application for status review related to all six children. Ms. K brought an application for status review related to the S children. Mr. S brought an application under the Children's Law Reform Act for an order giving him custody of the four S children. That action also claimed child support from Ms. K. Justice Elder made an order on March 10, 2010 consolidating all three court actions and requiring them to be heard together. Mr. S obtained a temporary order for custody June 9, 2010.

POSITIONS OF THE PARTIES

[6] With respect to the S children, the Society has taken the position from the outset of the status review that the children are no longer in need of protection in their current situation. It is the Society's position that a custody order should be made in favour of Mr. S with respect to the four S children. The Society works cooperatively with Mr. S, and is prepared to continue to assist Mr. S without the need of any supervision order.

[7] With respect to the G children, the Society takes the position that they are no longer in need of protection. The Society has limited knowledge of what occurs within the household of the maternal grandparents, due to the level of hostility workers face from Ms. K and her parents. However, there have not been any indications that protection concerns currently exist. Indeed, it is the Society's position that Ms. K. and her parents are so hostile to the involvement of the Society that it is actually counterproductive and it is not in the children's best interests for the Society to have any further involvement. Attempts at supervision of the G children are simply results in those two children being dragged into the conflict between the Society and Ms. K and her parents. There is no useful role for the Society to play.

[8] Ms. K took the position in her status review application that the S children are in need of protection as long as they reside with Mr. S. If they are to reside with Mr. S, she stated that they should be supervised by the Society. If she was to be awarded custody, Society supervision would not be warranted. Regarding the status review related to the G children, Ms. K takes the position that there are not any protection concerns, and the order should be terminated.

[9] With respect to the custody application, Mr. S wants custody of the four S children. Ms. K opposes that and wants an order of custody in her favour. Mr. G did not participate in the trial, other than to appear as a witness to voice his support for Ms. K. There is no application by any party for custody of the G children. Prior to Society involvement, they resided with Ms. K.

[10] There is an issue with respect to access to the S children. If Mr. S is awarded custody, Ms. K wants access. The position of the children, as expressed by their counsel, is that the children do not want access to Ms. K. If Ms. K is awarded custody, the issue of access by Mr. S would surface.

[11] The children and the parties were represented by counsel in the trial, other than Ms. K. Ms. K has been represented by a number of different lawyers throughout these proceedings and earlier proceedings. However, she represented herself at trial.

ISSUES

[12] The following issues need to be decided:

i) are the G children still in need of protection? If not, the current order should be terminated, and the children returned to Ms. K, who is the person who had care and custody of them prior to Society involvement;

ii) are the S still in need of protection? If not, the current order should be terminated, and a decision made as to which parent shall have custody of the children. The access issues which arise from the placement of the children must be dealt with;

iii) regarding the S children, the claim for child support must be dealt with;

iv) given the frequency and duration of litigation between the parties, Mr. S wants an order that prevents further litigation in this court by Ms. K without leave of the court.

EVIDENCE

[13] This matter was lengthy and I do not intend to comment on all of the evidence in detail. A significant amount of evidence was in the form of documents which were filed. The documents go back over a significant period of time and provide much of the background which was before the court in the original protection application, along with updated information.

EVIDENCE RELATED TO THE CHILDREN

[14] The court heard evidence from a number of sources regarding the children. With respect to the S. children, Ms. Hardy, the primary Society worker, described the children. She indicated that all of the S children have issues, and can be difficult at times. They would be a challenge for any parent to manage. She described KS as very emotional, and easily set off. ES has anger issues. The twins, VS and VS, tend to torment each other and are very high needs emotionally. She sees the S children every week. However, she indicates that, all in all, the children are doing well.

[15] Dr. Magee-Adams, the family physician who cares for the S children. Dr. Magee-Adams described the various issues that she deals with the children, but her evidence was that they are generally in good health. In her words, she did not observe any "red flags". Her evidence was also that she observes "a pretty typical parent child relationship" between the S children and Mr. S.

[16] Mr. S gave extensive evidence regarding the children and his relationship with them. In my view he presented himself as a caring parent who is doing his best to deal with the challenges of parenting four children who do have some issues and needs. He appears to be doing so effectively.

[17] Ms. K portrays the S children in a different light. She maintains that all four of them have significant issues. She maintains that all four have attempted suicide. She alleges sexual activity and drug use. Ms. K's evidence related to the S children is completely inconsistent with the other evidence available to the court. The only witness who supported her view of the issues faced by the S children was her 16 year old nephew. He gave evidence that KS is sexually active, uses drugs and alcohol and is a liar. He testified that KS told him that she was pregnant. Similarly, he testified that he would now describe VS as an alcohol and drug abuser and seller, and that VS "looks dead". In cross-examination, he indicated that the last time that he saw VS was from 20 to 30 feet away in August of 2011 when VS was sitting in Mr. S's car. While this witness was apparently well intentioned, it was obvious that his perception about everything was based upon a mistrust of the Society which has been passed onto him by others. He specifically indicated that he did not trust the Society, and that all of the children should be with Ms. K. His evidence was based upon rumour, guess work and innuendo. It cannot be given any weight.

[18] With respect to the G children, the evidence of Ms. Hardy can be summarized as follows. The G children appear to be doing fairly well in the placement with their maternal grandparents, where their mother also resides. Home visits do not take place because of the high level of conflict between the maternal grandparents, Ms. K and the Society workers. The last visit took place approximately two years ago. It resulted in Ms. K calling 911 and the police attending. The Society felt that it was very traumatic to the children. Since that time all visits with the children take place at their school in order to avoid trauma to them. Ms. Hardy meets regularly with the G children at their school for 30 to 45 minutes. She described her relationship with the children as positive. Nothing of concern has been disclosed by the children. Their attendance at school is good, the school has no concerns, and there are no referrals from any other source. The Society continues to have concerns regarding both Ms. K and her parents, but Society involvement is counterproductive because of the level of conflict. In her view, there is no need for further supervision at this time.

EVIDENCE RELATED TO MR. S

[19] Ms. Hardy portrays Mr. S as very cooperative with the Society. The Society has no concerns, and no need to further supervise the S children in his home. He was getting respite care two times per month. That ended some time ago. In her view, Mr. S does "amazingly well". Her opinion is that the children would really be struggling without his consistency and effort. The children have a loving relationship with him. Mr. S takes his medication consistently and is followed by his doctor. His bipolar condition is under control. He is described as being perceptive, and knowing his children's needs.

[20] The evidence of Mr. S portrays an individual who parents in a fashion consistent with the way described by the Society worker. He appears caring and committed and appears to use the resources available in the community to assist him as needed as a parent. The evidence of Ms. K portrays him in a very different light, and I will comment on that later.

EVIDENCE RELATED TO MS. K

[21] Ms. Hardy described a very difficult relationship with Ms. K. In her view, the Society simply cannot work with Ms. K due to her level of hostility towards the Society. Similarly, the Society cannot work with Ms. K's parents for the same reason. Ms. K's parents simply will not cooperate with the Society. The Society has continued to receive professional reports regarding Ms. K. In Ms. Hardy's view, Ms. K has no understanding of the S children's needs, and could not deal with the children. Having the S children reside with their mother would be an unsupportable risk.

[22] Ms. Hardy indicated that she has not had a face to face meeting with Ms. K for more than a year. Ms. K communicates by leaving messages with her. Many of the messages are unintelligible, and cannot be understood by Ms. Hardy. The messages which can be understood tend to be messages such as "I want your job", or "I will haunt you forever". The evidence of other witnesses also portrays Ms. K as aggressive and hostile to the Society and its workers.

[23] Mr. S describes his relationship with Ms. K as one in which it is impossible to sit down and have a reasonable, rational conversation.

[24] Ms. K called Dr. Seymour as a witness. Dr. Seymour is a clinical psychologist at St. Joseph's Care Group in Thunder Bay. Ms. K has been participating in the Tides Program, which is run by St. Joseph's Care Group. That program treats people with borderline personality disorder. Dr. Seymour indicated that Ms. K has several traits of borderline personality disorder, but did not reach the full diagnosis. In her view Ms. K has made considerable progress in the group and is approaching the discharge state. I also note that the substance abuse problems which were at one point part of Ms. K's life do not appear to continue to be an issue. That evidence suggests that Ms. K is making progress with her mental health issues. However, there is one obvious exception to that. Ms. K has locked herself into conflict with the Society. That appears to bring out the worst in her, including from her mental health perspective. When she is dealing with the Society, she seems to completely lose perspective and her mental health suffers.

[25] Ms. K's evidence focussed less on the children and the issues in the case, more on her conflict with the Society and Mr. S. Her evidence was not consistent with the other evidence led in the trial. In addition, her entire approach, in the giving of her evidence and in cross-examining other witnesses, focussed upon attacking the Society and its workers and Mr. S. She attempted to demonize them, and interprets all information which she receives about the S children in a way that allows her to perceive everything in a way which casts Mr. S and the Society in a negative light. Her evidence focussed upon furthering her claims that she has been conspired against. She seems to take the position that all of her issues relate to improper conduct by Mr. S and the Society, and the assignment of workers to this case which had a personal conflict with her.

[26] At one point in the trial Ms. K indicated "I need my children with me". That statement was telling. It is obvious that Ms. K focuses upon her need to have the children, rather than the needs of the children. Everything that she sees and does, from rumour to email messages to Facebook postings, is interpreted in a way that would indicate that the children have huge problems and that all of that is the fault of Mr. S and the Society. She has no perspective when looking at the needs of the children, or their relationship with their father. She has no concept of the destructiveness of trying to change the life that the children have settled into. Her evidence is not credible.

[27] This is far from a perfect situation for these children. However, the S children have settled into a life with Mr. S which is stable and supportive. The children do have some issues, but nothing on the scale which is portrayed by Ms. K. Mr. S has worked hard to provide for the children's needs. He has done so effectively in a challenging situation.

[28] With respect to the G children, they appear to have settled into a stable routine living with their grandparents and their mother. Further involvement by the Society does appear to be counterproductive, given the deep hostility between Ms. K, her parents, and the Society.

FINDING WITH RESPECT TO THE STATUS REVIEWS

[29] In the current situation, there does not appear to be evidence which supports a finding that the children continue to be in need of protection. Therefore, the supervision order with respect to both the S children and the G children shall be terminated. The G children shall be in the custody and care of Ms. K.

CUSTODY OF THE S CHILDREN

[30] The Court is required to make an order of custody with respect to the S children which reflects the best interests of the children. Factors are outlined within the legislation. Given the ability to care for the children which has been demonstrated by Mr. S, the long period of time which the children have had a stable situation in his care, the children's views and preferences, and Ms. K's inability to focus on the children's needs, it is in the children's best interest that an order of custody be made in favour of Mr. S.

ACCESS

[31] Based upon all of the evidence, I am satisfied that at this point, none of the S children want access with their mother. I accept the evidence that if that situation changes, Mr. S will not stand in the way of the children. Given the age of the children, it would be impractical to attempt to do so. I accept the evidence that given Ms. K's interactions with the S children, access is not in the children's best interest at this point. Therefore, the order shall be silent as to Ms. K's access to the S children.

CHILD SUPPORT

[32] Ms. K recently left her longer term employment and accepted a job as a taxi driver. She indicated that she anticipated that her earnings would be $15,000.00 plus tips for the year 2012. Counsel for Mr. S. suggests annual income of $19,800.00 be imputed. The court accepts that. Ms. K shall pay child support to Mr. S in the guideline amount for four children. Based upon that income, the guideline amount for four children is $423.00 per month. That amount will be payable effective July 1, 2012.

ORDER REQUIRING LEAVE FOR ADDITIONAL COURT PROCEEDINGS

[33] Counsel for Mr. S points out the lengthy period of time that the parties had been litigating before this court. He asked for an order requiring Ms. K to obtain leave prior to commencing any further proceedings in this court. In cross-examination, Ms. K did indicate the following:

• She may stop working altogether in order to work on "these court cases" regarding the children.
• She will work on the Child and Family Services Review Board case when this case is complete.
• Her children have asked her to bring further legal proceedings against the Office of the Children's Lawyer.
• If this court awards custody to Mr. S, she will appeal in order to complete the investigations of Mr. S.

Ms. K's father appears to agree with that approach. In his evidence, in cross-examination he indicated that all of the children should be with Ms. K and that he "would tell his daughter to fight to the bitter end whatever happens in this court case".

[34] There is evidence that the constant court proceedings have been stressful to the S children and that they exhibit behaviours which reflect the constant stress and uncertainty of their involvement in court cases.

[35] Counsel for Mr. S raised this issue in his submissions. The power of this court to make such an order is limited. With respect to the Family Law Rules, Rule 14 (21) allows the court to order that a party may not make any further motions in a case without the court's permission if a party is attempting to delay a case, add to costs, or otherwise abuse the court's process. Rule 14 (23) allows the court to postpone or dismiss a case if a party has failed to obey an order made on a motion. Neither of these sub-rules apply to this situation. Vexatious litigant orders under section 140 of the Courts of Justice Act are reserved to the Superior Court of Justice, and, in view of the decision of the Ontario Court of Appeal in Lukezic v. Lukezic, 2012 ONCA 350, must be sought by way of application to obtain that relief, not by motion within an action.

[36] Therefore, in spite of the destructive effect of further litigation on the S children, I conclude that this court does not have jurisdiction to make the order requested.

COSTS

[37] I understand that costs are an issue for Mr. S. He may serve and file written submissions regarding costs within the next 15 days. Ms. K shall serve and file any response regarding the costs issue within 7 days of being served with Mr. S's submissions.

Released: June 12, 2012

Signed: "Justice A. T. McKay"