WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 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

Ontario Court of Justice

Date: 2015-06-01

Court File No.: Halton C136/15

Between:

The Children's Aid Society, Region of Halton Applicant

— AND —

G.K. (Mother)

B.R.K. (Father) Respondents

Before: Justice Sheilagh M. O'Connell

Heard on: March 9th, March 13th, April 21st, and May 14th, 2015

Reasons for Decision released on: June 1st, 2015

Counsel:

• Diane Skrow — counsel for the applicant society
• Robert K. McQueen — counsel for the respondent mother G.K.
• Geoffrey J. Carpenter — counsel for the respondent father B.R.K.

O'CONNELL J.:

Part 1 — Introduction

[1] The Halton Children's Aid Society ("the society") has brought a motion seeking an order that the children of this protection application, S.M., age four, and B.M., age three, ("the children", or "S." and "B."), be placed in the temporary care and custody of B.R.K. ("the father"), subject to the supervision of the society. The society also seeks a temporary order that access between the children and G.K. ("the mother") to be supervised in the discretion of the society.

[2] The mother opposes the society's motion and seeks the dismissal of the protection application. In the alternative, she seeks an order that the children be returned to her temporary care and custody, in accordance with the custody and access regime that existed prior to the society's intervention, subject to the supervision of the society.

[3] The father supports the society's motion and also seeks an order that the children be placed in his temporary care and custody, subject to society supervision, and that the mother's access to the children be supervised by the society.

[4] The father was also seeking an order that the older child's school be changed to a school in the father's catchment area. Currently the older child's school is in Oakville in the mother's catchment area and the father resides in Burlington. The father is seeking an order that the older child's school be changed to Burlington. The society did not support that aspect of the father's motion and the father did not pursue this during the course of the argument of the temporary care and custody hearing.

[5] The society removed the children from the mother's care and custody on February 6, 2015.

[6] The society issued the protection application on February 11, 2015, seeking a finding that the children are in need of protection because there is a risk that they are likely to suffer emotional harm while in the care of their mother, pursuant to section 37(2)(g) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended, ("the Act").

[7] The first court attendance on the protection application was February 11, 2015. At that time, both parents sought adjournments to file responding materials. A temporary 'without prejudice' order was made placing the children in the care of the father, subject to society supervision. The court also ordered that the mother have access to the children at a minimum two to three times per week, to be supervised by the society at their office.

[8] The proceeding was adjourned to February 27, 2015 for a temporary care and custody hearing. Unfortunately the hearing could not proceed on that day as the mother was unable to file her lengthy responding materials with the court office. The court ordered that all responding materials were to be accepted by the court filing office. The matter was adjourned to March 9, 2015 for the temporary care and custody hearing.

[9] The temporary care and custody hearing proceeded on March 9, 2015, March 13, 2015 and April 21, 2015. After hearing submissions, I reserved my decision to May 14, 2015.

[10] In making my determination, I considered the following evidence:

a. the affidavit of child protection worker, Anna Maria Lancia, sworn February 10, 2015;

b. the affidavit of the mother, sworn February 22, 2015;

c. the affidavit of the father, sworn February 24, 2015;

d. the affidavit of society supervisor, Jeff Laforet, sworn February 25, 2015;

e. the affidavit of Anna Maria Lancia, sworn February 26, 2015;

f. the affidavit of the mother, sworn March 3, 2015;

g. exhibits attached to all of the above affidavits;

h. the Report of the Children's Lawyer, dated February 7, 2014;

i. the Report of Dr. Herbert Joseph Bonifacio, a general pediatrician and adolescent medicine specialist who is a specialist in gender issues, dated December 28, 2014.

[11] On May 14, 2015, with written reasons to follow, I made a temporary order returning the children to the care and custody of their mother and their father, pursuant to the custody and access regime that existed prior to society's intervention, subject to the supervision of the society. I set out the terms and conditions of society supervision in my endorsement on that day. These are my written reasons.

Part 2 — Position of the Parties

The Society's Position

[12] It is the society's position that based on the older child's disclosures to the child protection worker and the conflict between the parents, the children are at risk of emotional harm in their mother's care.

[13] The society submits that the older child S. (a boy), made disclosures to the investigating worker that demonstrate that the mother may be forcing him to be a girl against his wishes while he is in her care and that the mother has hit him and physically disciplined him when he does not act like a girl, or dress like a girl. According to the society, the mother is unwilling or unable to accept that S. does not want to be a girl and at this age and stage of his development (age 4) he is not able to develop a female (or any) gender identity nor should this be imposed upon him.

[14] The society is further concerned that the mother is refusing to follow the recommendations of Dr. Bonifacio, the gender specialist jointly retained by the parents regarding the older child's gender expressions or gender variance. Specifically, the mother was continuing to refer to S. with female pronouns or as a girl and that the mother is "socially transitioning" the child to be a girl, contrary to Dr. Bonifacio's recommendations, and thereby placing him at risk of emotional harm.

The Father's Position

[15] It is the father's position that the mother is forcing S. to be a girl contrary to S.'s wishes and that this is emotional abuse. The father submits that he learned that the mother was forcing S. to dress like a girl and sending him to school dressed in girl's clothing, which was causing him to be bullied and beaten up by other children. The father further submits that the mother actively hid this from him for almost two years and that she is emotionally harming S.

[16] According to the father, S. is nothing other than "a normal boy" who likes stereotypical male things. In the father's view, as set out at paragraph 108 of his Affidavit, sworn February 24, 2015, "[the mother] has fabricated the entire thing because…she has always wanted to have a girl and during our relationship remarked to a family friend that S. would have made such a pretty girl."

[17] The father also agrees with the society that the mother is refusing to comply with the recommendations of Dr. Bonifacio.

The Mother's Position

[18] It is the mother's position that she has not caused emotional harm to the children nor are the children at risk of emotional harm in her care. She submits that she has never forced S. to be a girl, to act like a girl or to dress in girl's clothing. She has never hit her children, and in particular S., to coerce him to act like a girl.

[19] The mother submits that she noticed S.'s gender variant expressions over a significant period of time and that S. was seeking out and choosing girl clothes and girl activities on his own, including "sparkly pink shoes" and pink clothing. She submits that she actively sought out assistance and information with respect to S.'s gender identity issues and that she has tried to respect his choices and be supportive of his gender creative behaviors and expressions in a safe and age-appropriate manner. She submits that she tried to discuss this with the father in her emails to him and his reaction was hostile and adversarial.

[20] The mother further submits that it is not in the children's best interest to be placed in the care of the father at this time. She submits that the father does not support S.'s wishes to be a girl or S.'s desire to express gender variant behavior. She submits that S.'s gender expression requires the support of both parents and that the father is attempting to actively suppress S.'s gender expression through coercive means.

Part 3 — Background Facts

[21] The mother and father are the parents of the children. The parents are currently separated. The mother is 28 years old. The father is 32 years old. The parties began a relationship in 2006 and married on August 23, 2007. They separated on February 2, 2013, in Burlington, Ontario.

[22] The mother is a homemaker and volunteer and the father is a technical writer and currently a student, having returned to school after the parties separated. The father was diagnosed with a bipolar disorder as in his early twenties and struggled with past substance abuse, including alcohol. He is under the care of a psychiatrist and is prescribed lithium. The psychiatrist's report was filed by the father and states that the father has "a bipolar affective disorder, most recent episode hypomanic, in full remission" and that he has been mentally stable for the past ten years.

[23] It is not disputed that the parents have a long-standing conflictual relationship due to the custody and access issues between them. The parents have been involved in matrimonial litigation in the Superior Court of Justice since May of 2013. The litigation has been lengthy and protracted.

[24] Prior to the most recent intervention of the society leading to this protection application, the parents had a shared parenting schedule of the children pursuant to a temporary order of Justice Douglas R. Gray of the Ontario Superior Court of Justice, dated May 23, 2013. That Order provided that the children reside with the father every other week from Wednesday at 5 PM to Friday at 5 PM and on every other weekend from Wednesday at 5 PM to Sunday at 5 PM. And all other times, the children shall reside with the mother.

[25] Justice Gray referred the custody and access issues to the Office of the Children's Lawyer for a social work investigation and report of the issues of custody and access (the "OCL" report). The investigation and report was conducted and completed on February 7, 2014. The report was filed in these proceedings as an exhibit by the mother. The report recommended that the mother be granted sole custody and primary residence of the children. The report recommended that the parenting or access schedule ordered by Justice Gray to continue. The OCL report was filed as an exhibit in the child protection proceedings.

[26] The clinical investigator made the following comments and findings at pages 15 to 17 of her Report in support of her above custody and access recommendations:

"[The father and the mother] present as loving and dedicated parents that are committed to ensuring the overall safety and well-being of their children. The children present as happy, well-adjusted and relaxed in the care of both parents. Based on the evidence provided it appears that both parents have been able to adequately ensure the safety and well-being of the children while having equal access.

[The mother] reported concerns with [the father's] ability to care for the children, specifically during extended periods of time and described concerns that may be attributed to [the father's] mental health diagnosis. There is no evidence to support that [the father] is unable to care for the children due to a mental health issue and/or had harmed the children due to being unable to control his anger/frustration. [The father's] psychiatrist, Dr. Gray reported that [the father] does an extremely good job managing his bi-polar and is very forthcoming with providing information and is knowledgeable about his symptoms. Dr. Gray reported that at one point [the father] requested for his medication to be decreased but later advised that he was not feeling well and went back to his normal amount prescribed. Dr. Gray explained that [the father] has a good knowledge of warning signs of relapse and will seek assistance if having symptoms. Dr. Gray indicated that [the father] has had no relapses since he was initially assigned in 2006.

In addition, [the paternal grandfather] reported that he spends a significant amount of time with [the father] and the children and provides support to [the father] as needed. It appears based on the evidence provided that [the father] is successfully managing his bi-polar and is supported by the paternal grandparents when needed. There have no concerns during his access time…

Since Court ordered access has been arranged access has been consistent. There has been no evidence to support that [the mother] has interfered or prevented the children from having access with [the father]. In addition, based on emails and correspondence presented it appears that [the mother] has made a meaningful effort to ensure that [the father] is included and informed regarding all areas pertaining to the children despite expressing and fear towards [the father].

Although, an equal access schedule is not always conducive to young children specifically a 2 and 3 year old, it appears the children have been managing the current access for the last six months without any significant issue. Based on disclosures from parents and observations, exchanges are with minimal disruption and the children are able to transition with the other parent without issue. The children presented as comfortable in both home environments. In addition, parents expressed a desire to be consistent with schedules and routine in order to ensure comfort for the children during their access time. …

To ensure that the current access schedule continues to be effective for the children both parties should ensure that effective strategies are in place to avoid ongoing conflict. Ongoing conflict will not only have devastating effects on the children's overall emotional health and wellbeing but it will also create a significant imbalance to the children's current access schedule. To prevent conflict or issues between parents, specifically in the presence of the children it is recommended that parents utilize a communication log and/or email system. The communication log or email system is to be used strictly to provide updates on the children and their overall health and well-being. The log is not to be used to address custody and access issues and or to become an outlet for conflict.

It appears based on a significant amount of emails and text messages that have been reviewed, emails and texts are not child focused and in many instances are inappropriate and harassing in nature. Based on police records, [the father] has been cautioned regarding the volume of emails that have been sent to [the mother] and will be criminally charged if inappropriate emails continue. [The father] recognized that he has been reactive when sending emails due to frustration and hurt. He denied intentionally attempting to present as intimidating or create fear for [the mother].

Based on emails reviewed and concerns reported by Halton Women's Place, [the father] has conducted himself inappropriately which could easily be viewed and felt as intimidating, verbally abusive and controlling. To ensure that inappropriate emails, texts and other methods of communications are not used inappropriately both parties are encouraged to develop strategies through individual counselling on how to conduct themselves appropriately and in the best interest of their children during this stressful time.

To decrease conflict and also respect [the mother's] request not to have direct contact it will be recommended that the parents will be responsible to ensure children attend appointments, recreational activities and important events individually during their access time. In the event of an important appointment or event such as a school celebration, recreation event or important medical or psychosocial appointment both parents should be permitted to attend despite the access schedule.

Given [the mother's] discomfort having contact with [the father] it will be recommended that all exchanges continue to take place in the community. The mother should be permitted to have a support person present at exchanges. This person of support should not be responsible for interfering at the exchanges or engaging [the father] in conflict."

[27] The parties were not able to resolve the custody and access issues after the receipt of the OCL report. The emails and texts referred to above in the OCL report were sent by the father to the mother and to staff members at Halton Women's Place. It is not disputed that in August of 2013, while the mother and the children were residing at Halton Women's Place, the father contacted Halton Women's Place a number of times by telephone and by email, accusing the staff of teaching his children to hate him and sent a number of angry texts to the mother as well. The contents of the telephone conversation, texts and emails, as reported in the OCL report, are angry, threatening, and abusive. Due to safety concerns, the OCL social worker contacted Halton police regarding the emails sent by the father. The police attended the father's home to discuss these incidents. The father was cautioned and the police reported that he was immediately apologetic, advising that he had let his emotions get the better of him. (See pages 26-27, 35-36 of the OCL Report.)

[28] At the time of the society's most recent intervention leading to this protection application, the custody and access issues had been scheduled for a trial during the April 2015 trial "blitz" weeks of the Ontario Superior Court of Justice.

[29] The society first became involved with the family on February 13, 2013, the date of separation, due to conflict in the family home. Both parents called the society on that occasion. Ms Shannon Drake, a child protection worker attended at the home and the mother and children moved to a shelter, with the father's acquiescence. Protection concerns with respect to conflict and emotional harm were not verified, however protection concerns related to the father's mental health and strategies employed by the father manage the children's behaviour were verified by the society.

[30] The society became re-involved with the family on June 18, 2013 due to concerns of inappropriate discipline by the father, as reported by a family friend. These concerns were investigated by the society and were not verified.

[31] On May 22nd, 2014 the society re-opened the child protection file upon receipt of a report from a worker at Halton Women's Place who was calling on behalf of the mother. The worker reported concerns of inappropriate discipline by the paternal grandmother. During the course of this investigation, the mother also brought up concerns relating to the father's mental health and his ability to care for the children.

[32] The society investigated these concerns and concluded that the concerns of inappropriate discipline by the grandmother were not verified nor with the concerns pertaining to the father. The father's psychiatrist had reported to the society that the father's bipolar disorder was under control.

Part 3 (continued) — Events Leading to the Society's Protection Application

[33] The father deposes that the matrimonial litigation became more high conflict in September 2014 when the mother sent him a "shocking" email alleging that S. was really a girl and that S. "would benefit greatly from being able to fully transition socially to her true gender identity"

[34] A copy of the mother's email, dated September 19, 2014, was attached to the father's affidavit. The mother does not dispute that she sent this email to the father on September 19th, 2014. Excerpts read as follows:

"For a couple of years now I have been noticing a pattern in S. Many tendencies toward stereotypical female things or activities. I have noticed these behaviors becoming stronger and more consistent as time passes.

I choose to listen to S.'s wants, needs and desires and allow for as much choice and autonomy as possible.

S. expresses the desire to me often to be referred to in feminine pronouns... S., when presented with choice has consistently chosen clothing from 'girl' sections in stores and tells me that wearing 'boy' clothes makes her feel upset.

She tells me quite often that she is a girl in her heart. She also tells me that you don't want her to be a girl and that she doesn't want to tell you what she really is in her heart.…

S. is very insistent on what she wants. I often watch and noticed the requests over a period of time to be sure it is not a phase or fleeting request. These tendencies have been quite persistent.

I have gone to ROCK [Reach Our Centre for Kids] to educate myself and to discuss how I can better support S. The person I talked to at ROCK is named Christine Johnston. She would be willing to meet with you if you would like to become more educated on gender creative children and how to support S. through life and especially now as a young child. Her phone number is… There is also a man named Marcus who would be quite a good resource for you to talk to if you wish who has a lot of experience with the LGTBQ community and families in our region who are going through similar situations…"

[35] The father states that he was shocked to receive this email and that he had no knowledge of the child's alleged gender expressions and that the mother had been hiding this from him for a period of two years. The father deposes that he later learned that the mother had been dressing the older child and referring to him as a girl for some time.

[36] The father further states that shortly before this email, he did notice that the S. was being sent to school wearing pink and feminine clothing. He also noticed that the mother was putting pink nail polish on both of the boys and he had sent her emails asking her to refrain from doing this. The father also states that S. disclosed to him that he was being bullied at school and that the bullying was continuing on a daily basis as a result of the mother sending the child to school in girl's clothing and that he did not like it.

[37] The father states that he immediately requested that the children, in particular S. to be referred for a psychological assessment and that the mother refused to consider this. According to the father, the mother "fought against any order to have professional involvement with S."

[38] On September 25, 2014, the father then brought an emergency motion in the Superior Court of Justice before Justice Antonio Skarica for an order for that the child be assessed, that the mother refrain from using female pronouns when referring to the child, and that the mother refrain from dressing the child like a girl, among other relief. The motion was adjourned to allow the mother to file responding materials.

[39] On the same date, the father's family lawyer also contacted the Halton Children's Aid Society to report the following:

a. The previous Friday the mother told the father that the older boy is transgendered;

b. The children are being dressed and girl's clothing and the mother is referring to the children using female pronouns;

c. The mother refuses to take the children to see a counselor or therapist;

d. The issue of transgender was never raised with the father before or with the OCL clinical investigator despite the fact that there was a lengthy OCL investigation during the custody and access proceedings;

e. The OCL custody and access report did not make any references to the children being transgendered;

f. The older child is being beaten at school daily by other children because he is being dressed like a girl;

g. The mother says that the older child expresses female tendencies and wants to be a girl and refuses to provide any other information;

h. The mother refuses to disclose the counselor that she is seeing and refuses to consent to CAS disclosure.

[40] The society commenced its investigation of these allegations. At the conclusion of the society's investigation, protection concerns with respect to the mother were not verified however concerns with respect to the father's response to the older child's mental and emotional needs were verified.

[41] In a letter dated November 24, 2014, the society provided a closing letter to the mother with respect to their investigation of the father's protection concerns set out above. The letter was attached as an exhibit to the mother's materials and provided as follows:

"This letter is to advise that the Halton Children's Aid Society has concluded the child protection matter referred to us On September 25, 2014. The Society became involved with your family to address concerns regarding mother dressing the children in female clothing, referring to the children using female pronouns, as well as refusing to have the children seen by a mental health or other professional.

Based on the information obtained through the investigation, please be advised that we have not verified the above child protection concerns, as you and father have had indicated that [the older child S.] has an upcoming appointment with medical doctor Dr. Bonifacio. Additionally, you and father are currently involved in family court proceedings to address custody and access arrangements.

Please be advised that we have added concerns regarding father not supporting and embracing [the older child S.'s] wishes. These concerns were verified as [the child S.] reported that the child wants to be a girl but father wants the child to be a boy. At this time, the Society has now closed your file; however I strongly encourage you to follow the safety plan created in the best interests of your children. As a reminder, the safety plan includes that you and father support and embrace both children's preferences and wishes, you and the father do not expose the children to conflict, and you and father do not speak negatively about each other to- or in front of the children."

[42] Dr. Bonifacio, the doctor referred to in the society's letter, is a doctor that the parents jointly retained to conduct an evaluation of the children, or in particular, S. regarding the gender identity issues. On October 7, 2014, the father's motion in the Superior Court returned before the Justice Kendra D. Coats. With the court's assistance, the parties agreed to retain Dr. Bonifacio to conduct the evaluation and provide services to the children if necessary.

[43] The father states that the agreement to retain Dr. Bonifacio was clearly premised on the understanding that the mother would not take the children to the doctor that she wanted to retain, a Dr. Caryn Massarella, although this condition was not actually set out or stipulated in the October 7th Court Order.

[44] During the course of Dr. Bonifacio's assessment, the mother did bring the older child to see Dr. Massarella. The father brought a further urgent motion for sole custody, supervised access and a finding that the mother be cited in contempt of Justice Coats' Order. This motion was heard before Justice Gisele M. Miller on November 17, 2014. Justice Miller dismissed the father's motion for sole custody and supervised access but cited the mother in contempt of Justice Coats' Order.

[45] Dr. Bonifacio completed his investigation and report on December 28, 2014. His report was filed as an exhibit by the parties in these proceedings.

[46] Dr. Bonifacio is a general pediatrician and adolescent medicine specialist. He completed a social pediatrics fellowship with gender variant children at the Montréal Children's Hospital and was transgendered adolescents at a Montréal clinic. He then completed his adolescent medicine fellowship and subsequently became the head of the Transgender Youth Clinic (TYC) at the Hospital for Sick Children. He also sees younger children with gender concerns at his pediatric office at St. Michael's Hospital in Toronto, Ontario.

[47] In his report Dr. Bonifacio states the reasons for the consultation are as follows:

"S.'s parents are presently involved in court regarding how to address S.'s gender issues. After speaking with both lawyers for each party, the main issue was to clarify the possible diagnosis of gender dysphoria for S. Second, if S. was being coerced by either parent in adopting certain gender preferences or gender identity. Third, if there were any recommendations regarding S.'s gender identity."

[48] Dr. Bonifacio met with S. and interviewed him on two occasions. At his first visit, S. was brought by his mother and father and the mother's friend. S. was wearing stereotypical male clothing during that visit. During that visit, Dr. Bonifacio observed that S. was interested in a variety of stereotypical male and stereotypical female toys, games and activities. S. told Dr. Bonifacio that he wanted to be Dorothy from Wizard of Oz at Halloween but that his father did not like the costume and made him be another superhero instead. When Dr. Bonifacio asked S. what are his favorite colours, S. stated purple and pink. He spontaneously told Dr. Bonifacio that, "My father does not like me wearing purple or pink." At the conclusion of this visit, S. was offered the choice of a variety of stickers from cartoons and movies that are stereotypically male or female. S. chose "Rainbow Dash" from "My Little Pony" and the "Little Mermaid" for his brother.

[49] In his second visit with S., S. was brought by his mother and his mother's friend. The father arrived later as he was delayed in traffic. During this visit, S. was wearing stereotypical female clothing, with a "Hello Kitty" top and sweatpants, and boy boots. When asked who chose his clothing, S. replied that he had done so. During this visit S. again expressed interest in both stereotypical boy and stereotypical girl activities. During a game of 'Power Rangers', he chose the "girl" Power Ranger. When asked why he wanted to be the girl Power Ranger, S. stated, "Because she's pink." He then stated. "I want to be a girl." When asked why he stated, "Because they have long hair". He further stated that "Girls get to do girl things." When asked what "girl things" are, he replied, "Girl things are purple and pink and long hair."

[50] Dr. Bonifacio spent a considerable time exploring with S. whether he was being forced to wear girl clothes or boy clothes by either parent. S. expressed that he felt comfortable wearing girl clothes and boy clothes in front of his mother but he did not feel comfortable wearing girl clothes in front of his father. However S. did not express that his father made him feel bad about wearing girl clothes or that his mother made him feel uncomfortable or bad about wearing boy clothes. S. expressed again that he wanted to be a girl "because girls have long hair."

[51] At pages 10 and 11 of his report Dr. Bonifacio set out his clinical impressions and formulations regarding S. as follows:

"I have concerns as to what S. has truly been feeling and expressing over the last few years, especially in the context of his parents' divorce and disagreement regarding his gender expression. From the appendices it is clear that each parent's version conflicts with the other and this may affect his overall expression of his true feelings to others and even his own overall development. Because of these contradictory versions, I am basing my clinical opinion on my direct encounters with S.

I do believe that S. has some stereotypical female preferences such as color preferences (ex. pink and purple) and presentation (ex. desired hair length) and he also has stereotypically male interests (ex. Transformers and Captain America etc.).

From speaking with S., neither parent is directly enforcing their gender views on him. I tried numerous permutations of questioning as can be seen in the above consultation. That being said, S. does feel that he has to wear stereotypical boy clothing in front of his father. But I would like to point out that during my clinical encounters, S did not express to me that his father had tried to correct his stereotypical female preferences. Moreover, S did not express that his mother was also telling him to have stereotypical female preferences. It is quite evident that S. loves his mother and father very much.

At the same time, I will stress that gender expression is different than gender identity. Based on my clinical time with S., his desire for long hair and purple pink preferences were attached to statements that associated long hair and purple/ pink as "girl things". S. only expressed affective statements that were tied to gender expression such as, "I want to be a girl. Girls have long hair."

Gender development usually begins during the toddler years. At this time they start to be able to identify gender labels such as boy/girl and this is called gender labeling. Their understanding that gender continues and that gender roles continue is called gender stability and occurs after gender labeling at around age 4 - 5. At the same time however children may assume that superficial changes denote gender changes. The understanding that gender continues despite superficial changes occurs after gender stability and is called gender constancy.

Based on my current clinical encounters, S. is at the gender stability stage of gender development and is likely associating feelings of wanting to have some female gender expression with the need to change genders. From my encounters, as said above, he is incorrectly associating desires for some stereotypical female gender expression with the need to change to a female identity. Please note that S. also has many masculine preferences as well.

Based on the above, my overall impression is that S. is an extremely intelligent four-year-old young biological male who presents with conflicting histories from both parents who are going through a divorce regarding his gender preferences, who during my clinical encounters with him, has a wide variety of interests and expressions that include those that are both stereotypical female and male. Although S. has a variety of gender expressions/ preferences, I feel that his level of understanding of gender is at a level that is associating stereotypical female gender expression with the requirement of the female gender identity.

As in all my interactions with parents who have children with atypical gender preferences, I suggest that preferences should not be attached to one specific gender. Children should be offered a variety of toys and clothes. Moreover I caution parents that gender variant preferences do not automatically indicate issues with gender identity and a need for social transition. For such reasons, I have reservations concerning the current approaches that are assuming that S. is of the other gender (i.e. female) and treating him as such.

I will also stress that ongoing follow-up is necessary by those who specialize in gender as S.'s understanding of gender will develop and there is a possibility, although small, that such cross-gender behaviors and preferences may lead to cross-gender identification."

[52] Dr. Bonifacio then made the following recommendations:

1. S. be allowed a variety of ways of expressing himself and not ascribe to one particular way of expressing himself with one particular gender (i.e. avoid pink as only a "girl thing" and blue as a "boy thing"; he should be given a variety of choices from which he can choose);

2. Greater communication between S. and both parents so that S. feels comfortable in expressing his gender, as in Point 1.

3. Greater communication between both parents as their conflict may be having an effect on S.'s openness to talk with others regarding current and future gender concerns.

4. Refrain from the current social transitioning (i.e. female pronouns are being used) that is occurring at school considering that S.'s understanding of gender is more associated with a desire to change superficial features, ex. colour and hair length, than gender identity. At present this would include avoidance of change in name or gender markers etc. My professional opinion is that S. should be called S. and male pronouns should be used.

5. Playgroups and settings that are able to support S.'s interests whether or not they are gender-conforming, again without emphasizing that preference is tied to one gender.

6. Follow-up with a support team who are able to assess S.'s gender preferences and with whom he can build rapport. S. does feel that he has to regulate his gender expression in front of his parents (particularly his father) despite the fact that he does not say that each parent is directly enforcing their views on him. Ongoing follow-up with a social worker, for example, may facilitate greater insight into whether or not he does feel pressured or is pressured by either of his parents.

7. Follow-up with a support team in the future to assess S.'s gender identity at later times is important as his gender preferences and identity may evolve over time.

8. Further current evaluation should be performed if there is still continued disagreement between parents but should be weighed against S. having to see multiple professionals again. He has seen many professionals already in my worry is that such encounters may have a negative effect (i.e. self-shame) on S.'s preferences for self-expression of his gender.

[53] Dr. Bonifacio provided some verbal feedback regarding his findings and recommendations to both parents on December 13, 2014 before releasing his report on December 28, 2014.

[54] It is not disputed that the father became very upset with Dr. Bonifacio upon receiving his verbal feedback and raised his voice a number of times during a verbal confrontation. He made a number of statements that were concerning to Dr. Bonifacio, including criticizing Dr. Bonifacio for failing to save his children from "the abuse" that they were experiencing and accusing him of giving S. "girl stickers" and being "buddy-buddy" with the mother and her friend and would "go along with what they said".

[55] After the verbal confrontation, the father does not dispute that he then sent numerous emails to Dr. Bonifacio on December 13th and the early morning hours of December 14th regarding Dr. Bonifacio's findings. Dr. Bonifacio attached the father's emails to his complete report. Some excerpts from a number of the emails are as follows:

"Just remember Joey, I know who your dad is and I will make sure that he knows what kind of person you are. I'm going to make friends with him, and he's going to hate you for the kind of person you are and for the kind of things you do to children…

Keep hunting the men that fight for their kids and keep transing children that hate this. That's the kind of person you are.

But when my son gets older and he wants to find you, and I'll tell him what you did to him.…

Just so you know I'm going to be contacting your dad and telling him what you did to my children. You can take my children away from me and you can destroy them, but your own father will hate you for the kind of person you are and for the way that you treat children that you are in charge of. So will the rest of the society.…

I'm going to get a degree in social media and make sure that you are my special project. Because you abuse children and make money off it.…

You should also know that unless I'm in jail, you are my new special project because you make so much money off of looking after children and you just hurt them over and over and over again. You can stand up to me and lie about my son all you want but it's only going to hurt you.

All of those degrees are not going to stop all of the people I know from wanting your blood for what you do to children.…

You go right ahead and lie about him and see how it goes. Go right ahead and send this to the courts and see how it goes. You might be able to take away my children but I will take away so much more from you for the awful things that you do to the children on a daily basis.…

…You castrate children under 10. How could I ever expect you to be reasonable with the child. You never cared in the first place."

[56] Another email questioned "why people like you are allowed in Canada."

[57] On December 15, 2014, the father sent an email apologizing to Dr. Bonifacio for his outburst during their clinical encounter and the emails that he sent. The father explained that his reaction was a result of his own struggle with gender issues in the past, and states the following in his email to Dr. Bonifacio:

"I wanted to sincerely apologize to you for my outburst.… I'm struggling with my own personal gender views and this journey with S. has opened up my eyes to the fact that there are a lot of feminine things that I enjoy about myself but that I haven't really been honest about with myself.

I've worked really hard to define myself as a male, but at the same time, I've always been interested in feminine things, and I normally just make excuses to fit in when my feminine side comes out…

As I told you when we met, as a kid… I was so happy when my grandma dressed me in a dress and makeup. Throughout my teens, I had long curly hair, and I often dyed it blonde. I loved the wavy curls and even though my friends would tease me for looking feminine.

Even when I was married, I dressed in women's clothing often when at home with G., and even sometimes when we were in public… [Etc.]"

[58] On February 4, 2015 the parties entered into a Consent Order before Justice Kofi N. Barnes of the Superior Court of Justice regarding the implementation of the recommendations of Dr. Bonifacio's report. The father deposes that the mother initially refused to agree with Dr. Bonifacio's recommendations and that she refused to agree to a court order incorporating those recommendations, as she did not believe the recommendations were in S.'s best interests. The mother disputes this and submits that she was simply seeking clarification of the wording that the father sought in the order.

[59] The relevant portions of the Order of Justice Barnes, dated February 4, 2015, are as follows:

1. The parties shall comply with the recommendations of Dr. Bonifacio pending further clarification from Dr. Bonifacio or other involved professionals agreed upon by the parties.

2. The parties shall communicate with one another regarding gender related issues for the children, ensure that the other party is updated with respect to what is occurring with the children's gender and that they respond to one another in a timely matter manner.

3. The children shall not be socially transitioned which includes not referring to S. or B. with female pronouns.

4. Neither party shall take unilateral action with respect to the children's gender, which shall include dressing B. a girl.

5. The parties shall see Gary Direnfeld for counselling with the cost paid entirely by the Respondent (father).

Part 3 (continued) — Events Leading to Removal of the Children from the Mother's Care

[60] On January 19th and January 30th, 2015, after the release of Dr. Bonifacio's report, the society received two calls from the community on behalf of the mother expressing concerns about the father's reaction to the older child's gender variance and expressions. The first call was from a worker at Halton Women's Place, who indicated she was calling for the mother due to fears of repercussions by the father if she contacted the society. The second caller was from a community professional who asked to remain anonymous.

[61] Both callers reported that the older child had reported the father was verbally abusive to him if he chooses girl activities or girl clothing, that the father threatened to hit him if he chooses girl clothing or girl activities, and that the father forced him to burn his girl clothes at a bonfire at the father's home. The mother also reported to both community professionals that the father disciplines the child and make him have multiple 'time-outs' if he chooses girl activities or girl clothing.

[62] As a result of these community referrals, the society became re-involved with the family. Ms. Anna Maria Lancia was assigned as the child protection worker. During this investigation, Ms. Lancia met with both parents separately in home visits, met with the principal and vice-principal at the older child's school, and interviewed the older child on three separate occasions.

[63] Ms. Lancia conducted the home visit at the mother's home on February 3, 2015. The home was clean and well-kept with age-appropriate toys. Only the mother and the younger child were present as the older child was at school. Ms. Lancia observed that the interaction between the mother and the younger child was appropriate and affectionate. The mother described the history including the litigation between the parties and her concerns regarding the older child and the father's lack of support for his gender identity or expression. The mother described the counseling services that she had engaged including gender creative children support groups, Dr. Massarella, a gender specialist referred by ROCK (Reach Out for Parents and Children counselling centre), a parenting group, Halton Women's Place, the YMCA, ROCK, her family, and Dr. Bonifacio. She described her children in detail.

[64] During that home visit, Ms. Lancia observed that there were two neat piles of clothing for the older child in his room. The mother explained that she had asked the child to arrange a 'keep' pile and a 'give away' pile of clothing. Ms. Lancia observed that the 'keep pile' was girl clothing and that the 'giveaway pile' was boy clothing. Ms. Lancia questioned why the mother had asked S. to give away some of his clothing. Ms. Lancia advised the mother that she should keep both piles of clothing, to ensure that she had both boy and girl clothing for S., and that the mother should not identify the clothing by their gender. The mother responded that it was not her that divided the clothing by gender, but she agreed to keep the boy clothing.

[65] Ms. Lancia conducted a home visit at the father's home on February 6, 2015. Both children were present. The father's home was also clean and well-kept with age-appropriate toys. Ms. Lancia observed that the interaction between the father and both children was appropriate and affectionate. The father also described the history between the parents, the supports that he had in place and both of his children in loving and descriptive detail.

[66] Ms. Lancia observed that in the father's home, the older child had both boy clothes and girl clothes, divided and contained in separate drawers in his room.

[67] The father told Ms. Lancia that the older child, "does not like this"… to be "forced to be dressed like a girl… he feels terrible when his mother tells them" to do this. He further stated that "S. does not want to get into trouble by his mother." The father stated that S. had been complaining to everyone about his mother telling him he's a girl.

[68] The father denied physically threatening or disciplining the children. In response to the allegation that the father forced S. to burn his girl clothes, the father reported that the children asked to do this. After S. asked to burn his clothes then the younger child wanted to burn his clothes as well. The father stated he told the children that they could each pick one thing and that S. chose his girl clothes. They then burned the clothes in a small fire pit in the backyard.

[69] Ms. Lancia also contacted and met with the school principal and vice principal at S.'s school. The school principal and vice principal advised Ms. Lancia of the following:

1. They are aware that there is an ongoing custody and access issues between the parents;

2. The school is caught in the middle between the parents' views and that they cannot take a position with respect to the older child's gender due to possible litigation;

3. The parents were trying to sort things out for S.;

4. The school had received Dr. Bonifacio's recommendations and moving forward, they are looking at S.'s best interests. They are implementing Dr. Bonifacio's recommendations;

5. No child protection concerns have been reported by the child regarding either parent;

6. The child's basic needs are being met by both parents;

7. The school has no concern with the child's attendance, and they will contact the society if any concerns arise or are reported;

8. S. typically wears more female type of clothing during the beginning of the week when he is in the mother's care and more male type of clothing during the end of the week when he is in the father's care;

9. The school does not have any concerns with S. socially and he has friends;

10. S. has a great disposition and gets along well with everyone.

11. S. plays with all toys, i.e. at the kitchen center and with blocks.

12. The school has two goals with S.: 1. learn how to interplay; and 2. less hands on; S. is doing well with both goals.

[70] During the course of her investigation, Ms. Lancia met with S. privately on three occasions in February of 2015, prior to intervention: February 3 at school; February 6 at school, and again on February 6, 2015 at the father's home. On Tuesday, February 3, S. was in his mother's care and custody. On Friday, February 6, S. was in his father's care and custody. (Monday to Wednesday with this mother, Wednesday to Friday with his father.)

[71] During her first meeting with S. on February 3, 2015, Ms. Lancia observed no concerns with S.'s appearance. S. presented as a healthy and articulate child. S. was wearing stereotypical female clothing and shoes.

[72] What follows is a summary of the relevant disclosures by S. on Tuesday, February 3, 2015:

1. When asked if he is safe at school, S. stated, "Yes and at Mom's. At Dad's I don't feel safe there because he calls me a boy and I want to be a girl and that's the truth."

2. S. also stated, "one time me and my Dad went to the park and when I told him that I want to be a girl, he said piece of shit and darn it, and when I said that I want to be a girl again… That was a sad time."

3. When asked if he helps Dad out around the house, S. stated, "I help him do laundry because I love my Dad… I love my Dad even though he makes me a boy."

4. S. stated, "I don't feel safe with Dad, only with Mom." S. worries "about being a boy because I hate being a boy".

5. When asked who picked his clothes out today, S. stated, "me… Mom wants me to pick… Dad lets me pick out clothes but at Dad's there's only boy clothes. At Mom both… my brother wears the boy clothes because he's a boy… I'm a girl because my mother lets me be whoever I want."

6. When asked if Dad had thrown out clothes, he stated, "One time, he threw out a girl t-shirt and girl pjs in the campfire and then we ate raw marshmallows."

7. S. stated that, "Mom told me about my heart and heart tells me at my Mom's that I'm not a boy… Heart tells me at my Dad's that I'm not a boy."

[73] On Friday, February 6, 2015, Ms. Lancia attended S.'s school unannounced and interviewed S. in private again. On that day, S. was wearing stereotypical male clothing and shoes.

[74] Ms. Lancia deposed that both parties and S. were unaware that she was attending his school on Friday February 6th. However, it is not disputed that S. was in his father's care and custody at that time, having been in his father's care the night before and that S. and the father were aware that she was coming to his father's home that same day after school for a home visit.

[75] S. made the following relevant disclosures on Friday, February 6, 2015 at school:

1. When asked what don't you like about school, S. began talking in a lower voice, whispering and leaning closer to Ms. Lancia and stated, "If I tell anyone I'm a boy she gets mad at me… She gets mad at me if I told you I'm a boy… I want to be a boy;

2. When asked what do you want to tell Daddy, he stated, "that I want to be a boy"; when asked what you want to tell Mommy, he stated, "that I want to be a boy"; when asked what you want to tell S. [himself], he said, "that I want to be a boy;"

3. S. stated, "when I get back to Dad's house I'm going to tell him that I told you that I'm a boy because I want him to feel happy like me;"…. "I told you that I wanted to be a girl because Mom will get mad at me;"

4. When asked what does Mommy do when she is mad, he stated, "she sends me to my bedroom… One time Mom hit me on my knee";… "she was mad at me because I told someone I was a boy";

5. When asked who picks your clothes at Mommy's house, he stated, "no Mommy picks my clothes". When asked who picks your clothes at Daddy's house, he stated, "I picks my clothes";

6. When asked if he feels safe at Mommy's, he stated, "no because she wants me to be a girl." When asked if he feels safe at Daddy's he stated, "no… because my dad lets me be whatever I want";

7. When asked if he had one wish, he stated, "being a boy;"

8. When asked if his Dad told him that Ms. Lancia was coming to the house today, he stated, "yes Dad told me that you were coming Friday at home";

[76] Later that afternoon on the same day, Ms. Lancia attended the father's residence for the scheduled home visit. The father and both children answered the door. Ms. Lancia interviewed S. again at the father's home. S. again reiterated that he is a boy and that he wants to be a boy and that his mother gets angry at him if he wants to be a boy. He also reiterated that his mom hit him one on the knee when she was mad.

[77] After this interview with S., Ms. Lancia went outside the father's home and consulted with her supervisor. Upon explaining to her supervisor that S. had told her twice that day that his mother had hit him on the knee and had forced him to be a girl which he did not want to be, it was decided that the society would seek placement of the children in the father's care under a court order. The society decided to bring a child protection application before the court within five days given the society was interfering with the parents' custody and access order.

[78] In its protection application, the society sought a finding that the children were need of protection under 37(g) the Act. Section 37(2)(f) and (g) of the Act state as follows:

"37(2) A child is in need of protection where,

(f) 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;

(g) there is a risk that the child is likely to suffer emotional 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;"

[79] The mother became understandably tearful and distraught at the society's decision. The mother questioned why foster care was not an option due to her concerns that the father was forcing S. to be a boy and that the father was coaching the boy in his care. Further meetings were scheduled with the mother and her parents regarding the society's decision.

[80] After the children were removed from the mother's care, the mother had a supervised visit with both children at the society's offices on February 9, 2015. The children happily greeted the mother and the mother responded affectionately. Ms. Lancia observed that the visit was positive in nature and that the mother responded to the children's needs appropriately. The mother brought the boys healthy snacks and treats. Throughout the visit, both children were seen playing with various toys and books and the mother allowed them to initiate the play. No discussion of gender identification or expression was heard or seen during the entire visit. At the end of the visit although the children did not want to stop playing, the mother appropriately redirected the boys and affectionately said goodbye.

Part 4 — The Statutory Framework and Applicable Legal Principles

[81] Temporary care and custody hearings are determined in accordance with subsections 51(2), (3), (3.1) and (3.2) of the Child and Family Services Act, R.S.O 1990, c. C.11, ("the Act") which read as follows:

Custody during adjournment

51(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.

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). [Emphasis added]

Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

Terms and conditions in order

(3.2) A temporary order for care and custody of a child under clause (2)(b) or (c) may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

[82] The onus is on the society at a temporary care and custody hearing to establish on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the children are returned to a parent or parents, it is more probable than not that the children will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms or conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply put, the society has to meet a two-part test at the temporary care and custody hearing. See Justice Stanley Sherr's decision in Children's Aid Society of Toronto v. C.S., [2015] O.J. No. 1031 at para. 45.

[83] The legislative scheme provides that pending the child protection hearing, the court must make an order that is the least disruptive or intrusive order consistent with adequate protection of the child (subsection 1(2) of the Act). See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.

[84] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. See: Catholic Children's Aid Society of Toronto v. J.O.1, 2012 ONCJ 269.

[85] Subsection 51(7) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Family and Children's Service v. R.O., 2006 O.J. No. 969 (Ont.C.J.).

[86] The test in subsection 51(2) is designed to set up a rigorous standard for society intervention in the life of a person who has charge of a child. The court does not and should not lightly eliminate the subsection 51(2) rights of the person who may have had charge of the child. See Catholic Children's Aid Society of Toronto v. W.I., 2014 ONCJ 62 and in Children's Aid Society of Toronto v. C.S., [2015] O.J. 1031 at para. 52.

Part 5 — Application of the Law and Analysis

[87] As indicated, the society must meet a two-part test in the temporary care and custody hearing: 1) that there are reasonable grounds to believe that there is a likely risk of harm to the children in the mother's care; and 2) that the children cannot be adequately protected by the terms and conditions of a temporary supervision order in their mother's care.

1. The First Part of the Two-Part Test: The Harm Test

[88] I find that the society has met the onus of establishing that they had reasonable grounds to believe that there is a likely risk of emotional harm to the children when they intervened in this case.

[89] However, I find that the likely risk of emotional harm to these children was caused by the conduct of both parents, not only the mother. I disagree with the mother's counsel's submission that at this early stage in the protection proceeding, expert evidence is required to demonstrate the likely risk of emotional harm.

[90] There is overwhelming evidence that the conflict between these parents is creating a likely risk of emotional harm to these children. The OCL Report states as follows:

"To ensure that the current access schedule continues to be effective for the children both parties should ensure that effective strategies are in place to avoid ongoing conflict. Ongoing conflict will not only have devastating effects on the children's overall emotional health and wellbeing but it will also create a significant imbalance to the children's current access schedule." [Emphasis added.]

[91] There is also evidence that the conflict between the parents and the obvious disagreement between the parents regarding S.'s gender expressions is creating a risk of emotional harm to S. Indeed, in the society's affidavit supporting the apprehension and removal of the children from the mother's care and custody, Ms. Lancia deposes as follows at paragraph 60 of her affidavit, sworn February 10, 2015:

"The parents have a long-standing conflictual relationship due to the custody access of the children. Although both children appeared to be affected by the conflict, S. appears to be particularly affected by it, as demonstrated by his gender expression and his need to please both parents. The parents' serious disagreement in S.'s gender views, as reported in Dr. Bonifacio's report, may affect his overall expression of his true feelings to others and even his own development."

2. The Second Part of the Two-Part Test

[92] The onus is on the society in the second part of the two-part test to demonstrate that the children cannot be adequately protected in the mother's care under a supervision order. I find that the society has not met the second part of the test set out under section 51(3) of the Act.

[93] The society's decision to remove the children from the mother's care based on the society interviews with S. on February 6, 2015 is concerning. It is not disputed that S. was in his father's care and custody on February 6, 2015. During Ms. Lancia's interviews with S. earlier the same week, S. expressed very different views about his gender identity while in his mother's care.

[94] Even if Ms. Lancia's visit to the school on February 6th was unannounced, it is not disputed that S. was in his father's care the evening before and that S. was aware that he was meeting with Ms. Lancia that same day at his father's home after school.

[95] As Dr. Bonifacio pointed out in his assessment and recommendations, and it is not disputed by the parties, S. is acutely aware of the conflict between his parents and their differing views about his gender expressions or identity. S. is no doubt aware of his father's views about S.'s variant gender expressions. S. loves both parents very much. S. wishes to please both parents and make them both happy.

[96] There is evidence that the father is deeply upset by the thought that his child could have different gender expressions. The father's reaction to Dr. Bonifacio's report was extremely concerning to the court. The numerous emails that he sent to Dr. Bonifacio after receiving the verbal report can only be described as harassing, threatening and intimidating.

[97] The society's decision to remove the children from the mother's care based on the interviews with S. on February 6th suggests that they made the determination that S. was being forced to be a girl by his mother notwithstanding the different views that S. has expressed in both parents' care, and to the society worker, and contrary to the independent expert evidence of Dr. Bonifacio. Dr. Bonifacio did not find that S. is being coerced by either parent to express different gender preferences against his will.

[98] At best, Dr. Bonifacio found that, "S. does feel that he has to regulate his gender expression in front of his parents (particularly his father) despite the fact that he does not say that each parent is directly enforcing their views on him." [Page 12 of his Report, emphasis added.] Dr. Bonifacio also found that "S. does feel that he has to wear stereotypical boy clothing in front of his father." [Page 10 of his Report.]

[99] According to the father's counsel, this motion hinges entirely on credibility, as each parent is suggesting that the other parent is influencing the child and "one must be true." He submits that the mother has been entirely without credibility and therefore, I must prefer the evidence of the father that the mother is forcing the child to be a girl against his wishes. With respect, I do not agree. Based on the evidentiary record before me, I had difficulty with the credibility of both of the parents.

[100] The difficulty that I had with the father's evidence is as follows:

1. The father deposes that he is supportive of S.'s gender expression and that he will support whatever S. wishes to express. As noted above, the father's reaction to Dr. Bonifacio's report and recommendations, his threat to sue S.'s school and his emails to various family members and friends do not support the father's statements. The father deposes that he has seen no indication whatsoever while S. is in his care that he "anything other than a normal boy." Dr. Bonifacio found that S. does feel that he has to regulate his gender expression in front of his father and that S. does express both stereotypical female preferences (such as preferred colours and hair length) and stereotypical male preferences.

2. The father deposes that he has never acted in an abusive or threatening manner to the mother and that the mother has lied and made false statements about his alleged abusive behaviour to gain an advantage in the matrimonial litigation. The father's contact and emails to Dr. Bonifacio, to staff members at Halton Women's Place, and to the mother, support the mother's perception of the father as abusive and intimidating at times. The court, as indicated, was very concerned with the contents of some of these emails/texts, which were referenced and appended to the reports filed and which the father admitted to sending.

3. The father statement that S. is being "bullied and beaten" by other children at school as a result of the mother dressing S. as a girl is not correct. Reports from the child's school do not support this. Indeed, the school reported quite the contrary to Ms. Lancia, who had interviews with the school principal and teachers (both before and after the removal of the children). There were no reports that S. was being bullied or beaten, but rather that S. was a happy child with a great disposition who got along with everyone.

4. The father deposes that the mother continued to force S. to be a girl and to whisper to S. during supervised visits at the society office that he is is "a good little girl". The evidence of society workers with respect to supervised visits between the mother and S. do not corroborate the father's statements. The visits were closely supervised by society workers at the society office. Neither Ms. Lancia nor other workers supervising the visits heard or observed this. Ms. Lancia deposed that the visits were generally positive and that the mother reacted appropriately.

[101] The difficulty that I had with the mother's evidence is as follows:

1. The mother's reaction to immediately assume that S. wished to become a girl, to treat him as a girl and to only refer to S. using female pronouns because he likes stereotypically 'girl' things and had gender variant expressions is concerning. Despite the mother's statements to the contrary in her affidavit, it is clear from the email that she sent to the father on September 19, 2014 that she was doing this.

2. The court was concerned about the mother's decision to use female pronouns when referring to S. and to actively engage in socially transitioning him to the female gender prior to having any real discussions with the father about this or in seeking expert advice as to the appropriateness of socially transitioning S. when he was only four years old. In his report, Dr. Bonifacio has made it clear that at this age and stage of development, a child is too young to be socially transitioned as their concept of gender is not fully developed and that "gender variant preferences do not automatically indicate issues with gender identity or a need for social transition."

3. The mother deposes at paragraph 14 of her affidavit sworn February 22, 2015 that she "noticed S.'s gender variant behavior is in the spring/summer of 2014". This contradicts her email to the father on September 19, 2014 that she has been noticing "for a couple of years now a pattern in S. …and many tendencies toward stereotypical female things are activities." If so, the court did not understand why the mother did not discuss this with OCL clinical investigator at the time of the custody and access investigation and report. However, in fairness, the mother does state that she noticed these behaviors "becoming stronger and more consistent as time passes".

4. The mother's statements to third party professionals and to Dr. Bonifacio that S.'s school also refers to him as a girl and uses female pronouns is not correct. In a letter from the school to the father's counsel dated November 6, 2014, counsel for the school advised that staff members have maintained a "gender neutral" approach when communicating to and about S. by using the student's name only and avoiding pronouns. Further, the staff at the school have not taken any position regarding S.'s gender.

[102] In my view, the most credible and trustworthy evidence before me is the report of the expert in gender issues, Dr. Bonifacio, the OCL report, the reports from S.'s school and the evidence of the child protection worker, all independent third party professionals. This evidence demonstrates that:

1. S. has expressed a number of different gender preferences, including stereotypical female and male preferences. He has expressed conflicting views about his gender preferences to a number of different adults, including both parents.

2. Neither parent is directly enforcing their gender views on S., although S. does feel that he has to regulate his gender expressions, particularly in front of his father, and he feels that he has to wear stereotypical typically boy clothing in front of his father. The father's reaction to S.'s gender variant expressions is concerning, as set out in Dr. Bonifacio's report and the emails attached.

3. At this stage in S.'s development, it is too early to make a determination about his gender identity. Prior to Dr. Bonifacio's involvement and recommendations, the mother's reaction to S.'s gender expressions and preferences is also concerning in that she appeared to actively engage in social transitioning S. and to refer to him with female pronouns, as referred to in Dr. Bonifacio's report, and which is not recommended by him at this age.

4. S. loves his parents very much and is acutely aware of the conflict between them and their differing views about his gender expressions.

5. S. is generally a happy child at school. There is no independent evidence that he is being bullied or beaten by other children at school.

6. The conflict between the parents is harmful to the children. Some of the emails and text messages sent by the father to the mother and other third parties are inappropriate, intimidating, and harassing in nature and do not assist communication between the parties about issues affecting their children.

[103] The society also submits that the mother is not complying with Dr. Bonifacio's recommendations, notwithstanding that these recommendations are incorporated into a court order made by the Superior Court of Justice.

[104] The Superior Court of Justice Order implementing Dr. Bonifacio's recommendations was made on February 5, 2015. The society removed the children from the mother's care on February 6, 2015. It is not certain how the society could determine that the mother was not following the Superior Court order in such a short period of time. The court read the affidavit of Ms. Lancia very carefully and there was no evidence that the mother ever referred to S. using female pronouns or as a girl during her interviews with Ms. Lancia, nor was there evidence that she was continuing to attempt to socially transition S. against Dr. Bonifacio's recommendations.

[105] The father's suggestion that the mother is deliberately forcing the child to be a girl against the child's wishes to gain some sort of advantage in the Superior Court litigation strains credulity. The father's counsel did concede during his closing arguments that it is possible that the mother simply came to the wrong conclusion about the child's gender identity. However he submits that the mother cannot let go of the idea that the child is transgendered and this is causing emotional harm to S. Father's counsel also submits that the father has now embraced the possibility that the child may have different gender expressions and that he has gone out and purchased 'girl' clothing for the child and has let him be open to different expressions of gender.

[106] I find that the children can be adequately protected in their mother's care under a supervision order and that the decision to remove the children from the mother's care was made without exploring a lesser disruptive or intrusive alternative, based on the credible and trustworthy evidence before me. The mother has deposed that she is willing and able to fully implement Dr. Bonifacio's recommendations. She deposed that she is not forcing S. to transition to a girl or a female gender identity and that she will respect his gender expressions.

[107] I find that the children can be adequately protected in both parents care by the strict terms and conditions of a supervision order and that this is the least intrusive order which will adequately protect the children.

Part 5 (continued) — Events Following my Ruling

[108] After receiving my ruling, the father through counsel immediately advised that he was bringing an emergency motion to stay my order pending an appeal of this decision. A motion to stay was commenced by the father.

[109] However, the parties appeared before me on May 28th, 2015 and advised that the parents and the society had reached an agreement regarding certain terms. As a result of that agreement, the father agreed to abandon his appeal.

[110] The parties asked me to amend my ruling to incorporate their agreement. The first two provisions of the agreement were adjustments to the parenting schedule and to the exchange of the children that would minimize contact between the parents, thereby reducing the conflict between the parents. These provisions made good sense.

[111] The third provision that the parties asked me to include in my ruling as a condition of the father abandoning his appeal reads as follows:

"Neither party shall unilaterally address or allow the children to dress as a girl. In the event either child expresses the desire to dress as a girl the party in whose care he is all contact the other party and the society and the involved parties shall agree as to how to proceed."

[112] I expressed concerned to the parties about this provision. The meaning of the phrase "dress as a girl" in the above provision was unclear. Did this mean that if S. chose to wear a purple or a pink shirt or pants one morning, then the other parent and the society must be notified immediately so that the parties could agree as to "how to proceed"? What kind of message did that send to S.?

[113] I was advised by the parties that the phrase "dress as a girl" did not mean purple or pink shirts or clothing but more obviously conventional girl clothes, such as a dress or a skirt or clothing from the girl's section in a clothing store.

[114] I am still concerned that the wording of the above provision eliminates S.'s ability to express himself in a variety of different ways without somehow feeling there are negative consequences, in accordance with Dr. Bonifacio's recommendations. I have however agreed to incorporate this provision into my ruling with some minor revisions as follows:

"Neither party shall unilaterally dress S. as a girl or force S. to take on certain gender roles. In the event that S. expresses a desire to dress as a girl, then the party in whose care S. is shall respect S.'s desire to dress as a girl and shall contact the other party and the society to notify them of S.'s wishes and the parties shall agree as to how to proceed. This provision applies to B., the other child as well."

Part 6 — Order

[115] For the above reasons, I make the following temporary order:

1. The children shall be returned to the care and custody of their mother or both parents care, pursuant to the custody and access regime that existed prior to the society's intervention and in particular the following parenting schedule:

   a. Mondays after school until Wednesday's after school with the mother;

   b. Wednesdays after school until Friday's after school with the father; and

   c. The parties shall alternate weekends from Fridays after school until Mondays after school.

2. Until the younger child starts school in the fall and in the event that there is no school, exchanges shall take place at the offices of the Halton Children's Aid Society at 4 PM. In the event that the Halton Children's Aid Society is closed, the exchanges shall take place at Little Monkeys at 3250 Harvester Rd., Unit 5 in Burlington, Ontario. The children shall be taken into the play area by one parent and picked up from the play area by the other parent. This provision shall also apply with respect to holiday access.

3. The above temporary care and custody order shall be subject to the supervision of the Halton Children's Aid Society and subject to the following terms and conditions of supervision:

   a. The parents shall cooperate with the society's authority to have access to the children and the home as may be considered necessary by the society worker, to monitor and assess the family situation, including scheduled and unscheduled visits;

   b. The society worker shall have the right to interview the children alone on an announced or unannounced basis at any location, including the homes, the children's schools and the society's offices, if this is considered appropriate by the society worker;

   c. The parents shall maintain regular communication with the society worker and shall attend any scheduled and unscheduled appointments with the worker, with the frequency and duration of such meetings to be determined by the worker;

   d. The parents shall notify the society of any changes to their address and/or telephone numbers prior to the change taking place;

   e. The parents shall ensure that the children receive regular medical attention from the family physician and/or pediatrician as deemed necessary by the physician or society worker and shall follow through with any recommendations made by any medical professionals involved with the children;

   f. The parents shall sign all consents to release information and/or exchange of information between the society and collaterals;

   g. The parents shall follow through with Dr. Bonifacio's recommendations which include S. being allowed a variety of ways of expressing himself, that there is greater communication between S. and both parents so that S. feels comfortable in expressing his gender and refraining from the current social transitioning which includes not referring to S. with female pronouns;

   h. Both parents will participate in a follow-up assessment and evaluation with Dr. Bonifacio and follow through with any further recommendations that he makes, if any;

   i. Neither parent shall unilaterally dress S. as a girl or force S. to take on certain gender roles against his wishes. In the event that S. expresses a desire to dress as a girl, then the parent in whose care S. is shall respect S.'s desire but shall contact the other parent and the society immediately to notify them of S.'s wishes and the parties shall agree as to how to proceed. This provision applies to the other child B. as well;

   j. The parents shall see Gary Direnfeld or another interaction consultant approved by the society for counseling;

   k. The parents shall ensure that both children are involved with playgroups and settings that support their interests;

   l. The parents shall follow through with the society's recommendations for their participation in assessments and/or treatment plans;

   m. The parents and the children shall follow the direction of the society worker and attend any reasonable services recommended by the society worker, including counseling;

   n. The father shall refrain from possessing and/or consuming alcohol while he is in a caregiving role and shall ensure that no other individual who appears to be in an intoxicated state as access to the home while the children are in it;

   o. The father shall consent to drug/alcohol testing if deemed necessary by the society worker;

   p. The parents will ensure that the children are not exposed to any conflict related to their custody and access dispute;

   q. The father will continue to take his medication as prescribed by his psychiatrist; the parents shall ensure that the children's needs are met and that S. attend school on a consistent and regular basis and on time unless the child is ill or with society approval;

   r. The parents shall refrain from making inaccurate reports about one another to the society.

Part 7 — Conclusion

[116] S. will be five years old in June of this year. By all accounts, S. is a wonderful little boy. Dr. Bonifacio described S. as "an extremely intelligent four-year-old", "a very articulate child", and that "his speech was remarkably advanced for his age". S.'s teachers describe him as having a "great disposition" and a child who gets along well with everyone. The father described him to Ms. Lancia as "incredibly intelligent, active and loving." The mother described him as "very logical and technical in his thinking" and has "a plan for everything."

[117] The parents love S. and both of their children very much. In many respects, they are both loving and dedicated parents. However, each parent needs to permit S. a variety of ways of expressing himself and S. should be supported but not encouraged towards any gender preference. If the mother is forcing S. to be a stereotypical girl against his wishes, then this no doubt will cause him emotional harm. If the father is forcing S. to be a stereotypical boy against his wishes, then this no doubt will also cause him emotional harm.

[118] S. has the right to express himself the way he so chooses and it is hoped that each parent will accept, respect and support S. as he develops, in whatever way he develops.

[119] Finally, I wish to thank counsel for their thorough and well-organized presentation of the evidence and their representation of the parties.

Released: June 1, 2015

Signed: "Justice Sheilagh O'Connell"