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 File and Parties

Court File No.: Orangeville 203/2010 Date: 2012-07-17 Ontario Court of Justice

Between:

Children's Aid Society of the County of Dufferin, Applicant,

— AND —

A.T. (Mother) and S.S. (Father) Respondents.

Before: Justice P.W. Dunn

Hearing for Summary Judgment Motions: 28 June 2012

Reasons for Judgment released: 17 July 2012

Counsel:

• Ms. Kathleen O'Grady for the applicant society
• Ms. Gillian Shute for the respondent mother
• Larry Haskell, Esq. for the respondent father

Judgment

P.W. DUNN, J.:

Overview of the Motions

[1] There are two motions for summary judgment before the court. One was brought by the Children's Aid Society of the County of Dufferin ("the society") dated 7 June 2012. The respondents were A.T., aged twenty-seven, and S.S., aged twenty-nine, who are the parents of N.T., born […]2006 (now six years four months old). This is called "the society's motion".

[2] The second motion dated 4 May 2012, was initiated by S.S. and the respondent was A.T. ("Mr. S.'s motion").

[3] The society's motion requested identification findings for N. and that he be found in need of protection. The grounds were that N. suffered emotional harm demonstrated by serious anxiety depression, delayed development (etcetera) and Ms. T. did not provide, or refuses or is unable to consent to services to remedy the harm. The second ground was that N. is likely to suffer such emotional harm resulting from the actions or failure to act, or pattern of neglect by Ms. T. in her capacity as N.'s principal caregiver. The disposition recommended by the society was an order placing N. in the custody of Mr. S pursuant to section 57.1 of the Child and Family Services Act (the Act).

[4] Mr. S.'s motion requested a final order for custody of N. to him, with Ms. T. to have specified access.

Identification Findings

[5] Turning first to the society's summary judgment motion, on consent, identification findings are made as follows:

Name of child: N. [Tr.] Date of birth: […]2006 Mother's name: A. [Tr.] Father's name: S. [St.] Religion: Not identified Native status: Not an Indian or Native person

Background and History

[6] The court now addresses the society's request that N. be found in need of protection and that he be placed with Mr. S. The society's recommendation for N.'s placement dovetailed with Mr. S.'s motion for custody. In preparation for receiving argument on the motions, I read the following:

1. Affidavit of Jennifer Taylor, sworn 9 December 2010, with exhibits A to E inclusive. (Vol. 1, Tab 3)
2. Affidavit of Catherine Hunter, sworn 9 December 2010, with exhibits A to C inclusive. (Vol. 1, Tab 4)
3. Affidavit of Ms. T., sworn 22 December 2010, with exhibit A. (Vol. 1, Tab 5)
4. Affidavit of Mr. S., sworn 7 January 2011, with exhibits A and B. (Vol. 1, Tab 7)
5. Affidavit of Catherine Hunter, sworn 25 January 2011. (Vol. 1, Tab 8)
6. Affidavit of Barbara Vos, sworn 15 November 2011, with exhibits A and B. (Vol. 1, Tab 14)
7. Affidavit of Mr. S., sworn 3 May 2012. (Vol. 1, Tab 15)
8. Report by Dr. Kalia, dated 14 December 2011. (Vol. 1, Tab 17)
9. Affidavit of Amanda Slade, sworn 22 December 2011. (Vol. 1, Tab 19)
10. Affidavit of Susan Kalliecharan, sworn 18 June 2012. (Vol. 1, Tab 20)
11. Affidavit of Tracey Morse, sworn 19 June 2012. (Vol. 1, Tab 21)
12. Affidavit by Ms. T., sworn 21 June 2012, (Vol. 1, Tab 22) together with:
    • Exhibit A. – Dr. Balmer's Report, dated 18 June 2012
    • Exhibits B. and C. – letters from Mr. Moreland with the John Howard Society
    • Exhibit D. – parenting courses taken by Ms. T.
    • also Exhibits E., F. and H.
13. Affidavit of Mary Br., sworn 21 June 2012. (Vol. 1, Tab 23)
14. Affidavit of R.T., sworn 22 June 2012. (Vol. 1, Tab 24)
15. Affidavit of J.T., sworn 22 June 2012. (Vol. 1, Tab 25)
16. Affidavit of Chrystyna Burko, sworn 22 June 2012. (Vol. 1, Tab 26)
17. Affidavit of J.W., sworn 22 June 2012. (Vol. 1, Tab 27)
18. Affidavit of Ms. T., sworn 22 June 2012. (Vol. 1, Tab 28)
19. Affidavit of Ms. T., sworn 22 June 2012, (Vol. 1, Tab 29) together with:
    • Exhibit A. – letter from Dr. Cole, dated 10 January 2011
    • Exhibit B. – letter from Dr. Cole, dated 18 August 2011
    • also Exhibits C., D. and E.
20. Affidavit of S.T., sworn 22 June 2011. (Vol. 1, Tab 30)
21. Affidavit of Ms. T., sworn 22 June 2011, with exhibits A to D inclusive. (Vol. 1, Tab 31)
22. Affidavit of A.T., sworn 22 June 2012. (Vol. 1, Tab 32)
23. Affidavit of Dawn Franks, sworn 26 June 2011. (Vol. 1, Tab 33)

Parental History

[7] In this case, an understanding of the parties' lengthy history is paramount. Because of the case's extensive background, the number of society workers involved and disputed facts, if I err on dates or persons or times, I apologize. According to the fact finding of Monik Kalia, Ph.D., C. Psych., who did a psychological assessment of Ms. T., N.'s parents dated for two years when Ms. T. was eighteen. Ms. T. has consistently complained about Mr. S in that he allegedly had problems with:

• abuse of marijuana and cocaine;
• mental health issues including violent temper and being a pathological liar;
• being abusive to Ms. T. emotionally and physically.

The relationship broke off before N.'s birth, but resumed again for six months when the boy was about two years old. At the time, Ms. T. understood that Mr. S had addressed his shortcomings through counselling. However, according to Ms. T.'s recitation to Dr. Kalia, further disputes arose and Mr. S was charged with criminal harassment.

Initial Custody and Access Orders

[8] Ms. T. began an application for custody and child support in June 2006. There were temporary orders for N.'s mother to have custody and Mr. S to receive access and pay child support.

[9] From June 2006 until 17 March 2010 when final orders were given, there were four years of discord between the parents over access. In her affidavit sworn 21 June 2012, Ms. T. claimed that Mr. S.:

(a) was involved in numerous criminal cases involving drugs, theft and assault; for these he was incarcerated for ninety days;

(b) was absent from N.'s life and missed many access visits;

(c) should be an important person in N.'s life and the father and son ought to have a close relationship, despite a litany of her complaints against Mr. S.;

(d) Had a deleterious effect on N.'s behaviour after access to Mr. S.

[10] Final orders were given by Justice Maund on 18 March 2010. Ms. T. obtained custody and $300 monthly child support which Mr. S paid regularly. Mr. S received graduated access from days in March 2010 to alternate weekends from 30 July 2010, with shared holidays. In anticipation of difficulty for Mr. S obtaining regular access even after the final orders, Mr. Haskell requested an order for police assist with visits, but the court declined the request.

Allegations of Abuse and Society Involvement

[11] Bearing in mind that Mr. S did not even start alternate weekend access until July 2010, Ms. T. had concerns about N.'s treatment by Mr. S on day access:

• N. had broken capillaries around his eyes after visits with Mr. S.;
• N. grieved that his father "punched him in the face".

Ms. T. denied access despite the rulings in Justice Maund's orders for Mr. S to see his son regularly. N.'s mother believed that she was protecting her son from dangerous encounters with his father.

[12] Ms. T. took her child protection concerns to the society in the person of Jennifer Taylor, an intake child protection worker. Ms. Taylor's affidavit sworn 9 December 2010 set out the early history of the society's involvement with this family.

[13] Ms. Taylor recounted how Ms. T. attended the society's office on 10 January 2010 and related her child's physical abuse allegations against Mr. S. In a joint society and Orangeville police interview on 18 January 2010, N. told the investigators (with Ms. T. insisting on being present in the room):

S. [i.e. Mr. S.] is mean to me…[He] punched me in the face…I did not want to go to his house.

[14] The investigators observed that N. was not upset in relaying his story; he could not give details and he did not know if his father's "punches" were in play or whether he was angry at the time. Mr. S denied any harm to his son and no charges were brought against him.

Society's Early Observations

[15] Through Ms. Taylor's involvement from May to August 2010, in her affidavit sworn 9 December 2010, the social worker observed that Ms. T.:

(a) Repeatedly had verbal disputes with Mr. S in N.'s presence;

(b) Frequently denigrated N.'s father with the child in attendance;

(c) Continually and consistently withheld access in opposition to Justice Maund's orders;

(d) Coached and persuaded N. to make false and inappropriate remarks, including maintaining allegations of abuse against Mr. S.;

(e) Unnecessarily involved police and medical professionals in access disputes, with the ensuing investigations stressing N.;

(f) Constantly shared adult information with N., thus causing him anxiety, worry and concern;

(g) Made a concerted effort to undermine the father-son relationship, in particular by encouraging N. to refer to his agnate grandfather as his father, and creating a poor image of Mr. S in N.'s mind;

(h) Was not meeting N.'s developmental and emotional needs in a timely manner;

(i) Was unwilling to accept assistance or direction;

(j) Did not recognize the seriousness of her behaviour and actions and irrational thought processes on N., and this inhibited her ability to meet the child's needs.

[16] The society delivered a letter to Ms. T. on 10 August 2010 (which was prepared earlier on 9 July 2010). The letter stated:

(i) It was the society's assessment that N. was suffering emotional harm, and was at risk of being subjected to further emotional harm due to the conflict over access;

(ii) N. has high anxiety prior to access;

(iii) The child was regressing with episodes of urinating and defecating in his pants, three to four times a day;

(iv) Ms. T. did not obtain treatment for N.'s mental health and development;

The letter then set out the society's requirements for Ms. T. to correct her parenting deficiencies. The society advised her that if progress was not made, or if she continued to fail to follow through, it would seek a supervision order. However, by the end of Ms. Taylor's involvement with the family in late August 2010, it was that worker's assessment that N. could not be adequately protected by a supervision order with N. in his mother's care. The society was moving to obtain an order placing the boy with his father under supervision, which is what transpired.

[17] It should be noted that by August 2010, the society had ample opportunity to work with Mr. S. The society never found any basis for the respondent mother's allegations. It found him to be cooperative, reasonable and committed to N.'s welfare, and very able to address his son's special needs. All of the personal failings about which Ms. T. complained were not apparent to the society in its dealings with him. Throughout the history of this case, from 2006 up to the time of the society's motion, Ms. T. has insisted that Mr. S in an angry threatening man and a danger to N. The police and the society chose to view Mr. S in a very different light.

Continued Society Involvement

[18] Ms. Catherine Hunter was a child protection worker with the society, who supervised the family from August to November 2010. Ms. Hunter assumed the case from Jennifer Taylor, whose information was previously related. In Ms. Hunter's affidavit sworn 9 December 2010, she made similar observations about Ms. T. frustrating Mr. S.'s access, and causing emotional harm to N. by her actions and accusations. Ms. Hunter also recommended that N. be placed with his father under supervision.

[19] Ms. Hunter swore a subsequent affidavit on 25 January 2011. Inter alia, that worker made the following points. Ms. T.:

(1) Was uncooperative with the society's recommendations to promote N.'s relationship with his father;

(2) Still withheld access on occasion, particularly during a society investigation;

(3) Was non-compliant in arranging meetings with the society, and behaved inappropriately on occasion when she did meet Ms. Hunter;

(4) Was adamant that she never harmed N. emotionally;

(5) Accused Ms. Hunter and Ms. Taylor of bias against her and favouring Mr. S.

Initial Court Proceedings

[20] The society brought a protection application dated 9 December 2010 in which it requested that findings be made under the Act and that N. be placed with Mr. S for nine months under the society's supervision. It also brought a motion for similar relief returnable 22 December 2010. The motion requested that access by Ms. T. and her family be in the society's discretion. Service on Ms. T. was on 9 December 2010.

[21] The first return date was 22 December 2010 before Justice Maund. Ms. T. sought an adjournment of the motion to obtain a lawyer. The request was denied because of the seriousness of the circumstances. The court gave a temporary supervision order with the child's continued placement with Ms. T. (not with Mr. S as the motion recommended). Full argument was adjourned to 12 January 2011 and on 22 December 2010 Ms. T. was ordered to cooperate with the society, meet with its representatives as required, and file responding materials by 10 January 2011.

[22] On 12 January 2011 the society's motion did not proceed. Ms. T. had engaged a lawyer, but her responding materials were not filed. Justice Pugsley observed that Ms. T. avoided the society's supervision in the prior week by being unavailable. There was an adjournment to 26 January 2011 at 2:00 p.m. for an abbreviated court hearing on the society's motion between the hours of 2:00 p.m. and 3:30 p.m. At the 12 January 2011 court attendance, Justice Pugsley set out strict times when Ms. T. was to allow access, and to serve and file materials by 21 January 2011.

[23] On the return date of 26 January 2011, Ms. T. had still not filed materials, and Justice Pugsley outlined her unacceptable excuses for not doing so. He wrote in his endorsement, "The Respondent mother's materials are not before the court due to her own negligence". His Honour set out the numerous times Ms. T. failed to comply with court orders and did not cooperate with the society. The society and Mr. S had filed their materials and were ready to proceed with the society's motion to place N. with his father. Ms. T. requested an adjournment to reply, but the society's motion proceeded.

[24] In argument before myself on the society's summary judgment motion, Ms. Shute, on behalf of Ms. T., urged that Justice Pugsley's ruling on the society's earlier motion was undermined in its validity because he did not have full materials from Ms. T. I dismiss that argument. Ms. T. flaunted the court rules just as she disregarded Justice Maund's orders. Her plea for sympathy falls on deaf ears.

[25] Justice Pugsley granted the society's motion and placed N. with his father under nine months supervision.

[26] Justice Pugsley wrote in his support for the society's position:

37. I am convinced however that the Respondent (mother) has simply not understood nor accepted that her relentless attack on the father's access is harmful to her son, and that unless the court actively and drastically intervenes now, N. will be so alienated from his father that the alienation will be irreversible.

Justice Pugsley observed that Ms. T.:

(1) Will make decisions about N. despite court orders and professional advice;

(2) Instigated 'trumped up' allegations of abuse by Mr. S upon N. to stop contact between father and son;

(3) Continued to hold the inflexible obstinate view that Mr. S is a danger to N.;

(4) Her stance has been to deny, blame others and accuse the society and police of pro-father bias, although the society worked tirelessly with her for a year before its court intervention to try to bring its concerns to her attention.

Supervised Access Observations

[27] Ms. Amanda Slade was the society's family support worker supervising Ms. T.'s access from February to November 2011 and approximately fifty such visits were observed. Ms. Slade talked to Ms. T. after most visits to reflect on her parenting and to suggest remedies for the society's concerns. In her affidavit sworn 22 December 2011, Ms. Slade set out her observations about N.'s mother's interactions with her son. Ms. T.:

(A) Shared adult information with N. that caused him to worry and be stressed;

(B) Would not receive medical professionals' recommendations;

(C) Overfed N. during access causing him to be sick;

(D) Could not understand the harm she did to N. in alienating him for his father;

(E) Did not acknowledge that N. suffered health issues in her care, and would not accept educational assistance or direction from society personnel;

(F) Inappropriately pursued conversational subjects with N., such as insisting to him that he was not feeling well;

(G) Did not address behaviour issues with N. when he pushed her to the ground, threw items at her or banged on windows. At other times he was rude and demanding Ms. T.'s attention and was non-compliant with her direction.

Child's Weight and Health Issues

[28] Of very serious importance was N.'s excessive weight, which was gained when he lived with his mother. When the boy started residing with his father on 1 February 2011, he weighed seventy-four pounds. The average range for a five-year-old boy is between thirty-one and fifty-seven pounds. Dr. Candusso, N.'s family doctor, described the boy as being morbidly obese and he recommended specific nutrition to be followed. Mr. S observed those guidelines and brought his son's weight down to twenty-nine pounds, a loss of forty-five pounds.

[29] Ms. Slade observed Ms. T. to be giving the boy excessive food during access, which lead N. to choke and feel ill. Ms. T. did not accept that this over consumption was a problem. She said she had taken N. to a paediatrician at the Hospital for Sick Children, who told her the boy would grow out of his overweight with the passage of time. She preferred this alleged advice from a paediatrician over Dr. Candusso's, who was "only" a family doctor. Then when N. started to lose weight from Mr. S.'s careful diet regime, she complained to Ms. Slade that the boy was losing too much weight and that was unhealthy for him.

[30] Dr. Riddell was N.'s ear, nose and throat specialist. N. had ear problems for which a special diet was recommended. Although the society advised Ms. T. of the foods to be avoided, she brought them anyway for N. to eat during access.

Later Supervised Access

[31] Ms. Tracy Morse was a family support worker for the society who assisted the family from November to May 2012. In that period, she supervised some twenty visits between Ms. T. and her family and N. She also met with the respondent mother (and the respondent father) to discuss parenting issues.

[32] In her affidavit sworn 19 June 2012, Ms. Morse was complimentary to Ms. T. The worker found that N.'s mother accepted and followed advice and engaged very appropriately with N. In her summary, Ms. Morse wrote:

…[Ms. T.] has made progress in her access with N. and has been open to learning and implementing new parenting skills. She has acquired some insight into how her parenting and behaviour impacts upon N. N. enjoys his access with his mother and looks forward to it. (emphasis is mine)

Then the worker recommended that regular unsupervised access continue for Ms. T., but that because N. had been thriving in his father's care, custody should still be awarded to him. I believe that Ms. Morse was acknowledging that although Ms. T.'s understanding of N.'s health and emotional issues had ameliorated, but there was still much progress needed to be made, the society still held that it was in N.'s best interests that placement should be with Mr. S.

Psychological Assessments of the Mother

[33] Because of Ms. T.'s failure to understand her child's needs and her inability to work with the society and Mr. S over access issues, the society speculated whether N.'s mother had mental health issues. Also at times she gave irrational responses, with yelling and excessive argument and claims a society worker will be fired. Dr. Monik Kalia, a certified psychologist, tested Ms. T. in October and November 2011. Dr. Kalia had numerous materials from the society, including court documents at her disposal and she interviewed collaterals.

[34] Dr. Kalia found that Ms. T. did not suffer from any major mental illness or psychosis. Her general style of coping was characterized by denial, repression and projection of blame. This would certainly match the society's observations. Dr. Kalia recommended that Ms. T. see a clinical psychologist presumably on a regular basis, given her personality structure and difficulties with anxiety and depression. In particular, Ms. T. needed a new way to process thoughts during crisis, and understand how her emotions can undermine her ability to think rationally during stress.

[35] Dr. Kalia was supportive of Ms. T.:

There are a number of strengths that the respondent mother possesses…I got the impression that she now recognizes her responsibility as mother, and would like to see herself as an improved parent. She understands her role as a caregiver. She accepted responsibility for her behaviour in the past, and has been able to recognize the impact of her alienating behaviour on her son to a great extent.

However, Dr. Kalia never saw Ms. T. with N. nor did she interview Mr. S.

[36] Ms. T. arranged for an assessment by Dr. Leslie Balmer, clinical psychologist, to follow up on Dr. Kalia's recommendations. Dr. Balmer had no information from the society nor the courts. She did not see N. with his mother and did not interview Mr. St. Dr. Balmer's Report was dated 18 June 2012 and was received by the society just a few days before this hearing. Dr. Balmer criticized some of Dr. Kalia's findings, but the overall conclusion of the two assessments was similar, in that Dr. Balmer did not conclude that Ms. T. suffered from any diagnosable disorder of mood or personality. Further, Dr. Balmer observed:

(1) Ms. T.'s hardy personality would permit her to manage and care for N.;

(2) Ms. T. has the intellect, psychological mindedness and personality and capability to manage her emotions in high stress situations;

(3) There was no evidence before Dr. Balmer that Ms. T. was not able to be a fully capable and active parent in N.'s life;

(4) Dr. Balmer was concerned about N.'s mental health in being "abruptly" removed from his mother's care.

Supporting Evidence from the Mother's Physician

[37] Dr. Peter Cole has been Ms. T.'s family physician since 2001 and he was supportive of her ability as a caregiver. Dr. Cole wrote a letter dated 10 January 2011 addressed "To whom it may concern". Dr. Cole has seen Ms. T. and N. during office visits. He observed:

(1) There was a loving relationship between N. and his mother, and Ms. T. disciplined her son appropriately;

(2) N.'s behaviour was appropriate for his age;

(3) Ms. T. complained about the following when N. was in his father's care:

(a) Mr. S force fed N. to the point of gagging;

(b) The boy was not allowed to act independently;

(c) N. slept in the same bed as Mr. S and Ms. C.;

(Points (a) to (c) above are similar to Mr. S.'s accusations against Ms. T.)

(d) Mr. S made promises to N. that were not kept;

(e) N. was left alone too often with Ms. C.;

(f) Mr. S was abusive to Ms. T.;

(g) Ms. T. attempts to act in N.'s best interests at all times, but based on what Ms. T. told Dr. Cole about Mr. S., apparently N.'s father did not do the same.

Mother's Parenting Courses

[38] Ms. T. took the following courses:

(1) On 21 March 2011, Mr. Lee Moreland, with the John Howard Society, wrote to state that Ms. T. engaged in three two-hour intense counselling sessions in conflict resolution, effective communication, coping mechanisms and identifying triggers.

(2) On 16 November 2011, Mr. Moreland wrote to state that Ms. T. completed a twelve week programme for anger management and emotion awareness. Mr. Moreland wrote:

In my respectful opinion, [Ms. T.] will be a loving mother that now has additional supports and skills to address her past parenting issues. The writer has no concerns for safety or parent alienation with respect to Ms. T. …

In Ms. T.'s affidavit sworn 21 June 2012, Exhibit D, she stated that she completed seven parenting courses.

Analysis of the Society's Motion

Mother's Perspective

[39] An important concern to Ms. T. was that when she was the primary caregiver for N. before the society's intervention, Mr. S was a serious danger to N. It was her view that N.'s father was indifferent to her direction as the child's custodian; that he hurt his son physically and simply did not know how to care for a young child. Ms. T. faulted the society for not appreciating her efforts to protect the child, and for accepting Mr. S as the better caregiver. The eighteen months the child was placed with his father should not have been compared to the five "effective" years her son was in her care, in Ms. T.'s opinion.

Father's Perspective and Demonstrated Improvement

[40] In his pleadings for these motions, Mr. S did not deny that he behaved inappropriately as an adult and father in the past, but he believed he had matured, and now took responsibility for his obligations as a parent. I accept that Mr. S is a different person from that described by Ms. T., and I suspect that he was never the contemptible person portrayed by N.'s mother. The society saw Mr. S.'s actions as exemplary after he gained custody. For example, he:

• Regularly facilitated all access to Ms. T.;
• Complied with medical professionals' recommendations;
• Enrolled N. in activities to build his esteem and physical prowess;
• Worked cooperatively with the society;
• Intermingled his schedule with N.'s activities;
• Planned with his partner, Ms. J.C., on a co-parent basis.

The society found that whatever failings Mr. S may have had in the past, they were non-existent now.

[41] Mr. S.'s affidavit sworn 3 May 2012 is strong evidence that N. began to thrive and continues to do so, after placement with Mr. S on 1 February 2011. The respondent father stated in his affidavit that:

(i) N. now has a routine for school, meals and bedtime that he did not have at his mother's;

(ii) The boy's diet being low in saturated fats and processed foods controls his weight;

(iii) N.'s teeth have been fixed, his ears attended to and his mental health issues improved, which were all concerns when the boy was living with Ms. T.;

(iv) N. has healthy exercise including swimming, soccer, baseball and karate;

(v) N. was gaining independence; he now slept in his own bed, took responsibility for brushing teeth, getting dressed and caring for belongings;

(vi) N. understood his family relations, specifically that his paternal grandfather was not his father, as Ms. T. lead him to believe;

(vii) The boy's social skills improved; shyness and anxiety in group settings have diminished;

(viii) When N. came to live with Mr. S., he mimicked Ms. T.'s feelings and emotions. However, he has now learned to express his own needs.

[42] In short, Mr. S and Ms. C. deserve much credit for bringing a necessary transformation in N.'s life.

Supporting Affidavits from the Mother's Family

[43] Ms. T. filed supportive affidavits from her father, R.T., her sister, J.T., a friend Chrystyna Burko, J.W. (Ms. T.'s boyfriend) her mother S.T., and from a friend, A.T. Some of these deponents accompanied Ms. T. on visits. Their evidence was that:

(a) Ms. T. very adequately cared for N. during access;

(b) There was reason to complain about the society's workers;

(c) They never saw Ms. T. do anything inappropriate with N. during access.

Mother's Affidavits

[44] Ms. T. filed affidavits sworn 21 June 2012, 22 June 2012 (Tab 28), 22 June 2012 (Tab 29) and 22 June 2012 (Tab 31). In her affidavit sworn 21 June 2012, the respondent mother stated:

8. … I unintentionally may have overreacted, based on the history of my relationship with [Mr. S.].

…I do not believe I was alienating [N. from Mr. S.]. I do know that I was a very overprotective mother who believed every word my child said to me, which some of the time should have been further investigated…I am definitely aware I could have handled these safety issues differently.

(a) I cooperated with Children's Aid and followed all reasonable recommendations requested.

(b) I met with the society workers when asked.

19. I find that [Mr. S and Ms. C.] have not dealt with N.'s mental health needs…

20. I am concerned with [Mr. S.'s] involvement in N.'s life as it seems he is pawning N. off to [Ms. C.] and his family members all the time…

21. I do want to address N.'s weight concern…When it became a medical concern, I did address it…

[45] For the most part, the contents of the affidavits were self-aggrandizing by Ms. T. Her statements in her affidavits tried to depict a mother who believed she did all she could to address N.'s needs and concerns.

[46] Ms. T.'s affidavit sworn 22 June 2012 (Tab 28) did not add anything significant. Her affidavit sworn 22 June 2012 at Tab 29 was a criticism of the way Ms. Slade and Ms. Susan Kalliechanan treated her, in contrast to the approach of the society's worker Tracey Morse, whom Ms. T. respected. However in this affidavit, Ms. T. stated:

Paragraph 31 – I was never a risk to N.…

Paragraph 32 – I cooperated with the workers…

[47] Ms. T.'s affidavit sworn 22 June 2012 (Tab 31) offered further explanations of her actions in a justificatory manner.

Legal Test for Summary Judgment

[48] I now address the society's request in its summary judgment motion, for findings to be made that N. is in need of protection. The court must determine that pursuant to Rule 16 of the Family Law Rules, that there is no genuine issue for trial. Further, Ms. T. in her materials may not rest on mere allegations or denials, but shall set out specific facts showing there is a genuine issue for a trial.

Findings Regarding Need for Protection

[49] The following important points need to be addressed:

1. Timing of Assessment

The court looks to the time of the society's application to determine whether the child should be found in need of protection, namely at 9 December 2010, and over a year and seven months have elapsed since that date. The request for findings in the normal course would have been addressed long ago, but significant delays were caused by Ms. T.:

(1) Initially declining to give consent to the society to consult with professionals who had information about her. When such consents were given eventually, considerable intervals had passed;

(2) Failing to file court documents at prescribed times;

(3) Delaying progress in the resolution of the case by refusing to meet with society representatives, and then protesting against the advice they offered;

(4) In the words of Mr. Haskell, taking action "at the last minute".

2. Emotional Harm Finding

At the time of the society's intervention, it is irrefutable that N. was in need of protection under clause 37(2)(f) which states:

The child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child.

3. Evidence of Emotional Harm

The evidence was clear that N. suffered emotional harm. See the society's concerns set out in paragraph 15 herein. I particularly mention:

(1) Ms. T. undermined the father and son relationship in a consistent manner, while at the same time emphasizing the importance of Mr. S to be a significant part of his son's life;

(2) The respondent mother could not or did not understand her son's emotional and physical needs;

(3) Ms. T. would not accept professional advice to improve N.'s condition, and made her own uninformed decisions about the boy's best interest;

(4) Ms. T. allowed her antipathy for Mr. S to adversely affect her proper caregiving ability.

Harm Need Not Be Intentional

[50] It is relevant to observe that at all times, Ms. T. loved N. I do not believe that she ever intended to hurt her son by her actions or lack thereof. However harm to a child in a protection proceeding need not be intended by the caregiver. See Children and Family Services for York Region v. A.S. Newmarket Court File No. 86-07-027993-00 Date 12 November 2009. Justice McGee wrote in paragraph 20:

The harm occasioned to a child within a protection proceeding need not be an intentional act or an intentional failure to act in the mind of the parent or caregiver, provided that the act is casually connected to the harm suffered by a child. The standard for determining whether there is a causal connection between the emotional harm suffered by a child and parental conduct or neglect has been established as a lesser standard than the civil balance of probabilities.

[51] The harm suffered by N. was caused by Ms. T.'s failure to act, despite a year of attempts by the society prior to its intervention of trying to induce the respondent mother to modify her parenting techniques. The court makes a finding under clause 37(2)(f) of the Act.

Risk of Future Harm

[52] The society also requested a finding under clause 37(2)(g) of the Act. It states:

…there is a risk that the child is likely to suffer emotion harm of the kind described in subclause (f)(i),(ii),(iii),(iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child.

[53] There is the possible appearance of a change in direction in Ms. T.'s caregiving ability, as witnessed by Dr. Kalia, Dr. Balmer and the observations of Ms. Tracey Morse and Mr. Moreland. I say it is a "possible" change, because Ms. T. can be adept at giving an appearance of cooperation which is not actualized. If Ms. T.'s caregiving ability improves, that is all well and good. If it does not, further court action may be needed under the Act or the Children's Law Reform Act to limit the respondent mother's contact with N.

[54] Ms. O'Grady submitted that N. is still at risk from his mother's failure to understand her son's needs because she:

(A) Has not yet taken full responsibility for the harm she caused; hence without that realization, there is the risk of further harm;

(B) Minimized her parenting defects and deflected blame onto others except herself;

(C) Had not fully addressed the substantive issues leading the society's intervention in her counselling and parenting courses;

(D) In her materials, did not challenge the society's concerns and did not contradict its allegations.

[55] By way of example of Ms. T. not directly taking full responsibility and minimizing the effect of her own actions, I considered the respondent mother's words in her affidavit sworn 21 June 2012 (cited previously in paragraph 44 herein). She allowed as how she "unintentionally may have overreacted", based on the history of her relationship with Mr. St. She believed she was only being "overprotective of N." in denying access to Mr. S. Ms. T.'s assertions in that recent affidavit about cooperating with the society and following its reasonable recommendations was a distortion of history. Her claim that she met with society workers when asked was a fabrication.

[56] I cannot find that there is a genuine issue for a trial with respect to the society's request for protection findings. Ms. T.'s materials contain denials and allegations, but there were no specific facts indicating a genuine issue for a trial. Any suggestions of recent improvements in her parenting ability by the psychologist and counsellor are too recent to have proven validity, and in any event are irrelevant because they do not relate to the evidence at the time of the society's intervention.

[57] The court finds that N. is in need of protection pursuant to clause 37(2)(g) of the Act. However, the issue of disposition in the society's motion has yet to be addressed.

Analysis of the Father's Motion

[58] The court will now address Mr. S.'s summary judgment motion, as well as disposition for the society's motion.

[59] The court has only two choices, either grant the motion and place N. on a final basis with his father or order a trial. At this point custody cannot be granted to Ms. T. because there is not a cross-motion in that regard before the court.

Assessment of Professional Opinions

[60] Ms. Shute argued that Dr. Balmer's recommendations and those of Dr. Cole and Mr. Moreland should be issues for a trial. The thrust of those professionals' positions was that Ms. T. was viewed as accepting of fault in past parenting and was becoming open to suggestions for caregiving improvement. More particularly:

(A) Mr. Moreland's letter dated 16 November 2011 said Ms. T. has acquired tools such as better self talk, adopted a new belief system, understands her triggers, has tools for healthy communication (etcetera). He had no concerns for N.'s safety or for alienation (see paragraph 38 herein);

(B) Dr. Balmer believed Ms. T. could be a fully capable and active parent in N.'s life;

(C) Dr. Kalia thought the respondent mother recognized her responsibility as a mother and understood her role as a caregiver;

(D) Dr. Cole supported Ms. T. as a parent.

[61] I do not find that the opinions of these professionals are genuine issues for trial in the respondent father's summary judgment motion because:

(1) Their statements, although complimentary to Ms. T.'s present outlook:

(a) Have no historical perspective; those professionals relied on Ms. T.'s opinions about her past problems with Mr. S and her own minimal shortcomings;

(b) Did not take into account N.'s needs in the past and present;

(c) Did not consider Mr. S.'s involvement with N. since the boy's placement with him;

(d) Their assessments, sometimes based on psychological testing, sometimes founded on observation while participating in courses or on office attendances, all fell far short of a parenting capacity assessment;

(2) These professionals liked Ms. T. She was cooperative, timely, relevant and articulate and appeared to understand why she solicited their help. They were supportive of her cause to obtain the return of her son. They became in a sense her advocates;

(3) The psychologists' opinions did not and could not explain the respondent mother's illogical thinking and failure to cooperate with professional advice, her defiance of court orders and her deflecting all blame onto others.

Best Interests of the Child

[62] The crucial issue in all matters involving children is what is in their best interests. In this case, the concern is N.'s welfare. However, no trial is needed for information about that. There is already comprehensive evidence from the society and Mr. S that the boy is thriving in his father's care. Ms. T.'s materials did not successfully refute that state, although she tried to suggest that it is Mr. S.'s partner and family members who are N.'s real caregivers. No weight shall be put on that notion because Ms. T. has no good way of knowing what transpires in the St. household.

Credibility and Minutiae

[63] Throughout Ms. T.'s long history with the society, she has been adept at trying to refute allegations brought against her, and with giving sundry explanations for each of her actions or lack thereof with countervailing allegations against others. For example here are some mentions of concern raised by Ms. T.:

(i) a social worker practiced yoga during access supervision;

(ii) Ms. T. disputed the number of sandwiches she brought for N. to eat during access;

(iii) a social worker referred a Peterborough lawyer's name to N.'s paternal grandfather to help the family with its case;

(iv) alleged evidence of Ms. T.'s malevolent behaviour was not available to her because it was on a broken DVD;

(v) Ms. T. denied failing to intervene during N.'s jumping off a table at the society's office during a visit.

I mention this minutiae as likely being evidence sought to be introduced by Ms. T., which would lengthen a trial in an unnecessary manner. Every detail in the lengthy history of this case was important to the respondent mother.

Granting the Father's Motion

[64] I find no genuine issue for a trial in Mr. S.'s summary judgment motion, which motion will be granted.

Disposition

[65] Disposition under the society's motion will be an order under section 57.1 of the Act, as follows:

Final order to place N. [Tr.] born […] 2006 in the sole custody of S. [St.].

Hence Mr. S.'s motion has been granted, and his motion and that of the society are now complete. These orders are deemed to be custody and access orders under section 28 of the Children's Law Reform Act.

Access Orders

[66] Mr. Haskell proposed that Ms. T. have the same access granted to Mr. S in the Final Orders of Justice Maund dated 18 March 2010. I find there should be some modification of those orders as follows:

Final Orders:

1. A. [Tr.] shall have access:

(a) On alternate weekends, from Fridays at 5:00 p.m. until Sundays at 5:00 p.m., extended to Mondays at 5:00 p.m., if it is a holiday weekend.

(b) Alternate Wednesdays, from 4:00 p.m. to 6:00 p.m. in the week when there is no weekend access.

(c) The parties will share Christmas equally. In even numbered years, the child will reside with A. [Tr.] on Christmas Eve, beginning at 2:00 p.m., until Christmas Day at 2:00 p.m., at which time he will reside with S. [St.] from Christmas Day at 2:00 p.m. until Boxing Day at 2:00 p.m. The opposite schedule would apply to odd numbered years.

(d) The parties will share equally the child's Christmas school break. The child will reside with A. [Tr.] for the first half of the break in even numbered years, and with S. [St.] for the first half in odd numbered years. The first half will start at 3:30 p.m. on the child's last day of school in December. The second half will end in the morning the child returns to school in January. The March break, PD days and other school holidays will be shared equally between the parties.

(e) S. [St.] will have the child on Hallowe'en and the child's birthday in odd years. A. [Tr.] will have the child on Hallowe'en and the child's birthday in even years.

(f) If not otherwise with S. [St.], the child will be exchanged at 9:00 a.m. on Father's Day. If not otherwise with A. [Tr.], the child will be exchanged at 9:00 a.m. on Mother's Day.

(g) In addition to the regular access, the child will reside with each parent for two weeks (not necessarily consecutive) during the summer school vacation. The parties will advise each other by May 1st of their chosen weeks, with A. [Tr.] to have first choice in even numbered years, and S. [St.] to have first choice in odd numbered years.

(h) A. [Tr.] may have such further access as the parties may agree upon.

(i) Access exchanges will be at the Headwaters Visit Centre.

2. Orangeville Police, Ontario Provincial Police, and all other police forces having jurisdiction, are ordered to assist Mr. S to obtain the return of the child after access from Ms. T., if requested by Mr. S to do so.

3. The parties shall exchange their income tax returns and Notices of Assessment or reassessment each year by July 1st, starting 1 July 2013.

4. Order to terminate Mr. S.'s obligation to pay $300 a month child support, as required by Justice Maund on 18 March 2010, effective 1 February 2011. Any arrears owing under this order are expunged.

Any funds held by the Family Responsibility Office paid by or on behalf of Mr. S will be returned by the Family Responsibility Office to Mr. S.

[67] There was no request for Ms. T. to pay child support nor to contribute to special expenses.

Conclusion

[68] I thank Ms. O'Grady, Ms. Shute and Mr. Haskell for their very careful presentations.

Released: 17 July 2012

Justice P.W. Dunn