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 45(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:

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: 2015-05-15

Court File No.: Halton C92/14

Between:

The Children's Aid Society, Region of Halton

Applicant,

— AND —

L.S., M.S. and R.G,

Respondents.

Before: Justice Victoria Starr

Heard on: March 12 and 20, 2015

Reasons for Judgment released on: May 15, 2015

Counsel:

Jeff Hart — counsel for the applicant society
Logan Rathbone — counsel for the respondent L.S. (mother)
Christina Doris — counsel for the respondent R.G. (father of L.M.P.G.)
M.S. — on his own behalf (father of M.J.K.S.)

STARR J.:

INTRODUCTION

[1] The court's decision and final order with respect to the Society's motion for summary judgment on a protection application was released on April 17, 2015, with written reasons to follow. These are the written reasons. The children in this case are L.M.P.G., born […], 2008, and M.J.K.S., born […], 2004.

[2] The Society sought an order confirming the statutory findings regarding the children and an order that each child is in need of protection pursuant to s. 37(2)(b)(i) and s. 37(2)(g) of the Child and Family Services Act, R.S.O. 1990, c. C.11, (the "CFSA"). As well, an order is sought that they be placed in the care of their respective fathers, subject to the supervision of the Society for a period of seven months and on certain terms and conditions. The Society also seeks an order that the mother's access to the children be suspended, or in the alternative, supervised by the Society and subject to various conditions.

THE FAMILY

[3] L.M.P.G. is almost 7 years old. M.J.K.S. is 10½.

[4] The Respondent mother, L.S., is the biological mother of L.M.P.G. and M.J.K.S. She has a third child, R.C.P., born […], 1995 (19½ years old) who is the half-sister to both boys. L.S. is of Vietnamese descent and Buddhist. Both boys are biracial.

[5] The Respondent, R.G., is the biological father of L.M.P.G.

[6] The Respondent, M.S., is the biological father of M.J.K.S.

[7] None of the parents were living with each other at the time when the children came into care, January 22, 2015.

LITIGATION BACKGROUND

[8] L.M.P.G. and M.J.K.S. were apprehended by the Society from their mother's care on January 22, 2015, and placed in the care of their respective fathers.

[9] The Society brought this protection application and this temporary care and custody motion. The motion was heard on April 16, 2014, by Justice R. Zisman. The Court placed each child in the care of his respective father subject to the supervision of the Society and various terms and conditions. The Court also made an order for the mother to have supervised access to her sons at the discretion of the Society. These are the other terms and conditions of that order that are most relevant to this motion:

"The mother will complete a mental health assessment and follow through with the recommendations of the assessment;"
"The mother will work with Bridging Families and follow through with all recommendations;"
"The mother and father shall discuss only age-appropriate matters with the children and will refrain from exposing the children to adult conflict and conversations;"
"The mother shall attend at a parenting program as recommended by the Society;"
"The mother will advise the Society as to the name of any mental health professional she is involved with and sign any necessary consent to permit the Society to share and receive information from any such mental health professional;" and,
"The mother will cooperate with any family support worker or supervisor of the access visits and follow any recommendations made by the worker."

[10] The Court heard a subsequent motion brought by the mother for specified access on September 18, 2014. The Court varied the mother's access to provide for an increase in the duration of her visits to be followed by a move (if certain conditions were met) from supervision by the Society, to access in the community supervised by a mutually agreed upon third party with professional experience supervising access. The order also contained a contingency plan in the event that community access did not occur. In that event, and again providing certain conditions had been met, access was to increase.

[11] A trial management conference proceeded on October 2, 2014, and this Court made various orders on consent, relating to the conduct of the trial. One of the terms was that the children be interviewed by a child protection worker with a view to presenting the Court with the children's evidence by way of affidavit. The matter was set down for trial for the week of May 11, 2015.

[12] On March 2, 2015, the Society brought an urgent motion to suspend the mother's access to the children and sought leave to bring a motion for summary judgment. At that time it was clear that the trial was unlikely to proceed as scheduled. The parties agreed that the Society's motion for summary judgement and its motion to suspend the mother's access would be heard together.

POSITION OF EACH PARTY

[13] Both the Society and the fathers submit that no genuine issue exists as to material facts requiring a trial and thus, all of the issues should be dealt with summarily.

[14] Both the Society and the fathers submit that the children are in need of protection pursuant to sub clause 37(2)(b)(i) and clause 37(2)(g) of the CFSA. The mother takes the position that there is a triable issue for a finding that the children are each a child in need of protection. She submits that none of the Society's concerns rise to the level of a protection concern. She argues that in most instances this is either because there is no legitimate concern, or, there is an insufficient nexus between the concern and the children and thus, no risk of harm.

[15] Both the Society and the fathers submit that the appropriate disposition is for the children to remain in the care of their fathers, subject to the supervision of the Society for seven months. The mother submitted that in the event that the Court makes a finding that the children are in need of protection, the children should remain in the care of their respective fathers.

[16] Neither of the fathers nor the mother made any submissions with respect to whether the terms of supervision sought by the Society are appropriate. As such, there is no triable issue with respect to what terms and conditions should attach.

[17] Both the Society and the fathers take the position that continued access between the children and the mother is contrary to the children's best interests. They argue that the mother's access should be suspended until the mother attends for a mental health assessment, follows any recommendations of the assessor, has attended a parenting course, and has demonstrated progress in addressing the protection concerns. In the event that access is not suspended, they seek an order that access be at the Society's discretion.

[18] The mother submits that there are material facts in issue and a trial is required. In any event, the mother asks that her access continue. She asks that the methods available for her to confirm or cancel visits, be expanded.

THE ISSUES TO BE DETERMINED

[19] The issues for this Court to determine are these:

(a) Is there a triable issue for a finding that the children are each in need of protection under sub clause 37(2)(b)(i) or sub-clause 37(2)(g) of the CFSA?

(b) Is there a triable issue with respect to access by the mother to the children?

MATERIAL REVIEWED AND RELIED UPON

[20] I have read and relied on the evidence set out in all 25 affidavits relied upon by the parties on this motion. These are:

(a) Affidavit of Meghan Leigh Seto, Child Protection Worker, sworn February 10, 2014;

(b) Affidavit of Cecilia Devas, Child Protection Supervisor, sworn February 13, 2014;

(d) Affidavit of L.S., Respondent mother, sworn March 3, 2014;

(e) Affidavit of M.S., Respondent father of M.J.K.S., sworn March 3, 2014;

(f) Affidavit of Meghan Leigh Seto, sworn March 5, 2014;

(g) Affidavit of Meghan Seto sworn April 15, 2014;

(h) Affidavit of R.G., Respondent father of L.M.P.G., sworn February 27, 2014;

(i) Affidavit of R.G., sworn February 27, 2014;

(j) Affidavit of L.S., sworn July 10, 2014;

(k) Affidavit of K. L. H. (friend of L.S.), sworn July 8, 2014;

(l) Affidavit of Donna Miles, Child Protection Supervisor, sworn July 30, 2014;

(m) Affidavit L.S., sworn August 11, 2014;

(n) Affidavit of Meghan Seto, sworn August 19, 2014;

(o) Affidavit of L.S., sworn August 21, 2014;

(p) Affidavit of M.S., sworn August 20, 2014;

(q) Affidavit of R.G., sworn August 20, 2014;

(r) Affidavit of L.S., sworn September 11, 2014;

(s) Affidavit of Meghan Seto, sworn February 4, 2015;

(t) Affidavit of Michele Anderson, Child Protection Worker, sworn February 26, 2015;

(u) Affidavit of R.G., sworn February 28, 2015;

(v) Affidavit of L.S., sworn March 1, 2015;

(w) Affidavit of R.G., sworn March 7, 2015;

(x) Affidavit of M.S., sworn March 9, 2015;

(y) Affidavit of L.S., sworn March 9, 2015;

EVIDENTIARY ISSUES

A. Hearsay, Opinion Evidence and Unsubstantiated Inferences

[21] Immediately following the completion of the Society's and the fathers' submissions, the mother objected to the use of hearsay and opinion evidence and evidence based upon unsubstantiated inferences. The mother relies on Rule 16(5) and the decision of McSorley J. in Children's Aid Society of Oxford County v. O. (J.), 2014 ONCJ 146. She urges the Court to deal with the evidence, in the same manner as if the issue was being determined at trial. That is, if the evidence in the affidavit could not be provided orally at trial by the deponent for the truth of its contents, it should not be accepted as evidence on a motion for summary judgment for that purpose.

[22] In dealing with this same issue, McSorley J. followed the approach that Bondy J. followed in the case of Windsor-Essex Children's Aid Society v. D. (S.M.), [2011] O.J. No. 2858, 2011 ONCJ 311 (Ont. C.J.). Both adopted and applied the 4 prong test set out in the decision of MacKenzie J. in Children's Aid Society of Huron-Perth v. H. (C.), 2007 ONCJ 744. At paragraph 12, McSorley J. states:

Justice Bondy referred to a decision of MacKenzie J. where he devised the following test for the admission of hearsay in an affidavit before him in the case of Children's Aid Society of Huron-Perth v. H. (C.), 2007 ONCJ 744:

Firstly, the deponent should identify the source of the information and identify that the source is the original source of the information, or that that person is the person with the personal knowledge or observation of the fact alleged;

Secondly, the deponent must explain the reason why the original source of the information has not sworn his or her own affidavit and therefore why it would be necessary for the court to accept hearsay evidence on those facts as opposed to the direct evidence of those facts;

Thirdly, the deponent must explain the circumstances of how the hearsay evidence was obtained, why the source would have knowledge of the information and the full details of the information and the source so that the court can ascertain the soundness of the information and the source and assess some kind of level of reliability to that evidence; and

Lastly, the deponent must explain not only that they believe the evidence from the hearsay source; they have got to give for every piece of hearsay, reasons why they and the court should believe and rely on that untested evidence.

[23] In Children's Aid Society of Oxford County v. O. (J.), supra, McSorley J. declined to draw a negative inference, as the Society had served and filed a Request to Admit the business records of various individuals and agencies involved with the mother along with a Notice of Intent to rely on those business records so that they could be admitted for the truth of their contents. As most of the hearsay evidence of the workers was based on the business records, the original source was identified. Further, the deponents indicated that they believed the information to be true. In addition, she required the Society to reference the information in the business records relied on by the deponents. This was done after a short adjournment. The majority of the evidence referred to in the affidavits that relied on information from other parties that ended up being corroborated and verified by the business records and was therefore admitted.

[24] In the case of Windsor-Essex Children's Aid Society v. D. (S.M.), Bondy J. dismissed the Society's motion for summary judgment because the affidavit of the Society worker was largely unhelpful, made no effort to sever inadmissible hearsay evidence, contained opinion evidence and unsupported inferences about the mother and the child. Bondy J. found that the record before her contained an unfortunate constellation of errors, reflecting poor and ineffective draftsmanship, lack of focus and thematic organization, and, a failure to adhere to basic rules relating to affidavits and the fundamentals of admissible evidence.

[25] In this case it cannot be said that the hearsay evidence is unhelpful or that the deponents made no effort to sever inadmissible hearsay evidence. Here the child protection worker, Ms. Seto, relies very heavily upon what she has been told and what she has read from the notes of other Society workers, but primarily those of Kathy Kim. Kathy Kim supervised quite a lot of the mother's visits with the children. She met with the mother to help her gain more insight and a better understanding of the needs of the children. She was to help the mother and to develop appropriate parenting strategies. Ms. Seto's evidence also included information provided to her by third parties such as L.S.'s family doctor, a school Principal, the director of a learning centre one of the children attended, and the fathers. While Ms. Seto was very careful and in most instances the hearsay evidence she submitted, met the 1st, 3rd and 4th prong of the test, the hearsay evidence did not meet the 2nd prong. She did not explain the reason why the original source of the information had not sworn his or her own affidavit. Also she did not indicate why it would be necessary for the Court to accept hearsay evidence on those facts as opposed to direct evidence of those facts.

[26] The evidence of Ms. Anderson and the fathers is more problematic. Ms. Anderson relies heavily on second hand information and she did not consistently ensure that sufficient information was provided to meet the 1st, 3rd and 4th prong of the test. She almost never provides the information required to meet the 2nd prong. Also, much of her evidence consists of opinion evidence. The evidence of both fathers consists of some hearsay. Most of that evidence fails to meet any of the prongs in the test and none of it meets all 4. The fathers' evidence also contains opinion evidence and unsupported inferences about the mother and the children. For example, the evidence of M.S. contained information that had been conveyed to him by M.J.K.S.'s therapist. Additionally, in his evidence, R.G. says: "The mother is sexually promiscuous and brings various sexual partners to the house" but he does not state the source of this information.

[27] I note that all parties, except for M.S., were represented by counsel. No one asked for the motion to be adjourned to permit the Society and the fathers to correct these issues.

[28] I agree with McSorley J., that the way the Court deals with the evidence should be as if the issue was being determined at trial. I find that the hearsay evidence fails to meet the 4 prong test. I find that the opinion evidence and evidence consisting of unsubstantiated inferences is improper. Such evidence could not be provided orally at trial by the various affiants for the truth of its contents. It cannot be relied upon on this summary judgement motion. In deciding the issues on this motion I have disregarded all such evidence.

[29] This ruling does not apply, however, to either the children's hearsay statements or the documentary evidence consisting of such things as e-mails and text messages.

B. The Children's Hearsay Statements

[30] The evidence of the Society and both of the fathers includes statements that the children are reported to have made to them about such things as: what occurred on January 22, 2014; the mother's use of physical discipline on the children when they were in her care; and, L.M.P.G.'s state of mind.

[31] As I have noted at the trial management conference, the parties agreed, and the court ordered, that statements made by the children would be admitted into evidence at trial through the affidavit of the child protection worker who would interview them for this specific purposes. Despite the passage of almost 6 months and a subsequent agreement upon who exactly would interview the children, the interviews had not yet occurred by the time of this hearing.

[32] The mother submits that, despite this failure, it is not necessary for the Court to make as significant of an adverse inference when dealing with this particular type of hearsay evidence as she asks the Court to do when dealing with other hearsay evidence. She consents to the admission of the children's statements into evidence for the truth of the contents of such statements. She argues that where the children's statements conflicts with the mother's, a triable issue is raised the Court must make credibility findings. For reasons that will become clear later in these reasons, I have found that it is not necessary for this Court to determine the facts in dispute with respect to the altercation that took place on January 22, 2015, in order to determine the issues before it on a summary basis.

C. Emails and Text Messages

[33] The mother relied upon a number of text messages sent or received by R.G. There is one text message in particular that the Society referenced in its submissions and upon which I rely. It reads as follows:

06 28 2008

R.G. personal

Text: Ur not getting another fuckn cent from me than you fuckn whore! See you in fuckn cunt!

[34] R.G. objected to the admission of the text messages on the basis that there is poor evidence that R.G. sent them. I have had an opportunity to take a much closer look at the text messages and find that the quality of the copies is not so poor as to prevent me from reading the name of the sender and the substance of each text. Nowhere in R.G.'s evidence does he deny sending the text messages that show his first name as the sender or this particular text message. His counsel's objection makes clear that he knows the admission of this evidence could be prejudicial to him. This awareness, coupled with his failure to deny sending the text messages that show his first name or the sender leads me to conclude that he sent them. I have admitted these text messages into evidence.

[35] There was no issue with the admissibility of email. In fact all of the parties relied on the various e-mails in evidence.

SUMMARY JUDGMENT - THE LAW

[36] Rule 16 of the Family Law Rules O. Reg. 114/99 (the "Rules") permits a party to make a motion for summary judgment. The following sub-rules in Rule 16 are relevant in this case:

When Available

16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defense presented in the case.

Evidence Required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring trial.

Evidence of Responding Party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

Evidence Not From Personal Knowledge

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

No Issue for Trial

(6) If there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.

[37] Rule 16(6) is mandatory:

If the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[38] The case law on summary judgment was summarized by Justice Ruth Mesbur in Native Child and Family Services of Toronto v. D.C., 2010 ONSC 1038, at paragraphs 4-6:

[4] This motion is framed under rule 16 of the Family Law Rules. It is common ground that on a motion for summary judgment such as this, the court should not be assessing credibility, weighing the evidence or finding the facts. Instead, the court's role is narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility, weighing evidence and drawing factual inferences are all functions for the trier of fact. Bedard v. Huard, [2000] O.J. No. 969.

[5] The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court is required to make a final order and grant summary judgment. F.I. v. K.F., 2000 CarswellOnt 455 (ONSCJ). When the court looks at whether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party's position, but rather whether the evidence is sufficient to require a trial. Children's Aid Society of the County of Dufferin v. J.R..

[6] Rule 16 (4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in an affidavit or other evidence, specific facts showing there is a genuine issue for trial.

[39] A party answering a motion for summary judgment cannot just rest on mere allegations, or blanket denials. A party must put their best foot forward, showing that there is a genuine issue for trial. Self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial will be insufficient to defeat a claim for summary judgment. (Children's Aid Society of Metropolitan Toronto v. A. (M.), [2002] O.J. No. 2371 (Ont. C.J.)). One puts his or her best foot forward by providing evidence of specific facts showing that there is a genuine issue for trial.

[40] A submission that the Society's evidence must be tested through cross-examination is akin to the "bald allegation" or "mere denial" referred to in Rule 16(4.1) (Children's Aid Society of Hamilton v. M.A., [2007] 23334 (ON SC) at paragraph 65).

[41] Because of the requirement on all parties to provide evidence of specific facts showing that there is or is not a genuine issue for trial, the Court is entitled to assume that the record contains all the evidence that the parties would present at trial (Toronto-Dominion Bank v. Hylton, 2012 ONCA 5, 2012 ONCA, para. 5).

[42] Courts are not to speculate as to possible evidence or elaboration and must instead rely on – and evaluate - the sufficiency of the evidence put before them on the motion, or, put another way, disclosed to them by the affiants in their affidavits (Children's Aid Society of Toronto v. C.H., 2004 ONCJ 224, [2004] O.J. No. 4084; Children's Aid Society of Hamilton v. C.R., [2006] O.J. No. 3442); Children's Aid Society of Niagara Region v. S.J.W., S.W., M.B. and J.W., 2011 ONSC 5842).

[43] In considering a motion for summary judgment, the first step for the court is to review the entire evidentiary record, to determine whether in that evidence there are specific facts to support a triable issue in any of the determinations required to be made by the court (Children's Aid Society of Waterloo (Regional Municipality) v. S.(R.) at paragraph 22).

[44] In reviewing the evidence, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial (CAS Dufferin v. J.R., [2002] O.J. No. 4319). As Justice Pazaratz stated at para. 43 of Children's Aid Society of the Niagara Region v. S.C., [2008] O.J. No. 3969 (Sup. Ct.), "No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant."

[45] It is no longer necessary that every case be "the clearest of cases". Caution is called for but if the evidence does not raise a triable issue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the child's future (Jewish Child & Family Service v. A.(R.), [2001] O.J. No. 47 (S.C.J.) at paragraph 20).

[46] In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (Children's Aid Society of Ottawa v. C.(S.), 2003 CarswellOnt 9373 (SCJ) at paragraph 18).

[47] Child development does not wait. Multiple issues of parental dysfunction cannot be quickly changed. The child is not to be held in limbo waiting for change in a parent that is unlikely to happen. The parent's right to correct parenting inadequacies must be balanced with the child's right to appropriate development within a realistic timeframe, if damage to the child is to be minimized (Children's Aid Society of Toronto v. R.(H.) supra, at page 4).

[48] This is the legal framework and legal principles that I have adopted and applied to decide whether the Society's motion for summary judgment should be granted.

THE EVIDENCE - ADMITTED, UNOPPOSED, OR BALDLY DENIED

[49] In deciding each of the issues I have relied on the facts that follow except where stated, these facts are either admitted, unopposed, or only baldly denied.

A. Prior to and at the Time of Apprehension

[50] Prior to the apprehension of the children and this protection application, L.S. had to cope with significant life stressors and pressures. For example, she had to cope with:

(a) Instability in her relationship with R.G. – the history of her relationship is marked by repeated separations and reconciliations;

(b) Acrimony and conflict with R.G., particularly in and around breakdowns in their relationship;

(d) Multiple unverified reports to the Society leading to their involvement, albeit briefly, ⅔ of which were initiated by M.S.;

(e) Income and financial instability.

[51] In the weeks leading up to the children's apprehension L.S. faced almost all of the forgoing stressors more. For example:

(a) In December 2014, she and R.G., who had reconciled in October 2014, again separated;

(b) Her stress levels over the breakup and its aftermath rose so high that her skin broke out in psoriasis and she had the book out of the agency she was modeling for completely. This not only resulted in a loss of immediate income but was viewed by her as jeopardizing her future opportunities at The Shopping Channel to make money;

(d) She had her cell phone stolen and had to resort to communicating with R.G. by e-mail. He did not respond to her e-mails; and,

(e) She had no way of confirming R.G.'s plans to return from Alberta and thus, the arrangements for his upcoming access.

[52] L.S.'s anxiety skyrocketed and her response to it escalated. Her response included threats. She threatened to sabotage R.G.'s employment. For example in an e-mail sent January 13, 2014 and the two separate e-mails she sent on January 14, 2014, the mother wrote:

"as such your family will be ruined and so will your occupation and the entire operation of CP services I am a Montgard. The mystical, magical mod cards who directed warriors in the path of the holy and gave them sacred talismans and amulets to protect the Warriors and give them dominion. I am the leader. I will not be led by you anymore, you had our family you let her family into ruin and continue to do so. The moment I tried to pull us out of this suffering there you are waiting to kick me right back down the ladder. Me. The one person who loves you more than anyone besides your parents and son. The one person who sacrificed everything to keep your son safe and you protected from being put in jail while she was pregnant with her son. No respect. So I am done with this. May this letter serves as a curse. A curse that you very much deserve and a curse that will come to fruition if you do not help me. I give you my word as a person who is enlightened that all I have described to you lately will come true."

"you will help me and help me soon," "you want to put pressure on me and make me lose everything? I will make sure there is no return for any of you. Furthermore, you will give notice and find another job. I will be writing to the Council of women in sacks that employs the chief Vern and urge them to replace him. I will also urge them to let you out of their control because I told you already that stupid lanyard is how they control you. You're not in your territory. Your in theirs."

"we are having a reversal of fortunes people. I have asked numerous times for help and I have been denied. So here's the deal. Everything that has come from Ryan working in Alberta will be lost. He got out there on my luck because this was an opportunity that was not available to him before he met me. His fate was to contract STDs in Thailand, get gang raped and beaten and left for dead on the beach. He is my partner and soulmate as it is determined by natal charts and my research in astrology, all my predictions from two years ago are true."

[53] This is the context in which the incident on January 22, 2015 occurs.

[54] There is no dispute that the children were home at the time of this incident. There is also no dispute that:

(a) When R.G. arrived to pick the children up to take them to school, L.S. began screaming at him;

(b) A bowl of egg salad was spilled, ruining the lunch that L.S. had been planning to make for the children;

(d) R.G. collected the boys, put them in the car and took them to school; and

(e) The children were present in the car with R.G. while he spoke to the 911 operator.

[55] Although L.S. says that it was R.G. who knocked the bowl of egg salad to the ground and that she picked up the broom and began waiving it to ward off his advance on her, L.S. admits that her reaction to R.G. upon his arrival, was inappropriate. While there is an issue about whether the children actually saw the altercation, there can be no doubt that they were exposed to its aftermath directly to the conflict once collected by R.G. to be taken to school.

[56] L.S. boldly denies that prior to the apprehension the children were ever directly or indirectly exposed to any conflict between her and the fathers. She claims that there is no nexus between this conflict or any of the other difficulties she was experiencing and the children and thus, nor risk of harm to them.

[57] There is clear evidence to the contrary. I note three unchallenged examples of this. The first and best example comes from R.G.'s unchallenged evidence that on one occasion L.S. forced all three children to pack suitcases and told him that she was kicking them out of the house permanently because she was a bad mother. She dropped all three children off at his parent's home. She called R.G. four hours later demanding that he return the children to her. She threatened that if he did not return them immediately, she would call the police. All three children were extremely upset.

[58] There is also no dispute that M.J.K.S. was well aware of the financial stress on the family. During his private meeting with Ms. Seto on January 22, 2015, he reported to her that: his mother was under a lot of pressure; that he knew of financial issues his mother was having; there was a possibility of being homeless; and that he did not know if he would have a home.

[59] L.S. also resorted to using the threat of withholding L.M.P.G. from his father as a means to try and achieve her goal. The best example of this comes from an email that she sent to R.G. on January 15, 2014, in response to his telling her that he would pay for a program to help L.M.P.G. catch-up academically. In this e-mail the mother says: "I will notify Florence meares of this decision and that they may give the spot to another child. Please cancel everything else. No help. I will not participate and this is your last day with L.M.P.G. for the rest of both your lives."

B. Post Apprehension

The Mother's Mental Health

[60] After the boys were apprehended, the mother sent a number of e-mails that alarmed the fathers and the Society and caused them to question her mental health. The Society also submits these contained threats of physical harm to R.G. These are some examples:

(a) On January 23, 2014, the mother wrote (in an e-mail referred to in submissions as the "Avalanche e-mail"):

"and so it begins, my screams at you for help followed by my cry that was so loud the Angels heard me and made the ancient mountain shake. The mountains that will crash in on you and those who support you,"…. "because you called the police, children's aid will be on their way and last I spoke to them they wanted you cut out. The women's shelter representative was summoned and we went to legal counsel,"…. "You may never speak a whisper in my ear for me to carry your dream to have and I may hear your words, but I will not fly to the greatest spirit to help you because you don't deserve it."

(b) On January 23, 2014 the mother sent an e-mail to R.G. wherein she states:

"What did I tell you? Boy, you better run! Someone just died. Frankly, I do not believe it was foul play. Sounds like your muskeg store. That could be used next. You are certainly well hated. If you're not already, you soon will be. The mountain will not protect you. You are running ruining my son's karma and you make me suffer." The e-mail added links to deaths occurring in Alberta.

[61] L.S. had her mental health assessed, as she was required to do pursuant to Justice Zisman's order. This assessment was done by a mental health professional, psychiatrist, Dr. Colonne. Dr. Colonne is a psychiatrist at the Joseph Brant Hospital, Mental Health Ambulatory Services Department. L.S. submitted the Consultation Report written by Dr. Colonne and dated April 28, 2012 into evidence.

[62] Dr. Colonne's diagnostic formulations were as follows:

Axis I: no diagnosis.
Axis II: personality disorder and NOS [a person who is emotionally vulnerable attempting to be self-sufficient and "in control"].
Axis III: psoriasis.
Axis IV: multiple life stressors including relationship, financial and stressors of being a single mother.
Axis V: GAF in the range of 60 to 70.

[63] Treatment wise, Dr. Colonne did not see any indication for pharmacotherapeutic intervention, but felt that L.S. would benefit from counseling [supportive, cognitive] which would help her deal with the stressors she is harboring under and also help her gain insight into her personality vulnerabilities.

[64] He made other observations, one of which is particularly relevant to this motion; L.S.'s emotional reactions towards her partner should be taken in the context of the stressors she was harboring under at the time [mainly financial], as well as her relationship with her partner.

[65] There is no evidence that L.S. has followed, taken any steps in an attempt to follow, or intends to follow the treatment recommendation of the psychiatrist upon whose opinion she seeks to rely. She has not received counselling [supportive, cognitive] to help her deal with the stressors she is harboring under and gain insight into her personality vulnerabilities.

[66] The only community support L.S. appears to have accessed is Halton Women's Place. She does not say they provide cognitive or supportive counselling. L.S.'s evidence is that from time to time she has met with, and been accompanied to court by, a worker from that organisation.

Financial and Housing Concerns Persist

[67] Over the course of the period that the children have been in their fathers' care the following has occurred:

(a) The mother was evicted from her home in October 2014, and had to go and live at a friend's home with her daughter R.C.P.;

(b) On or about August 21, 2014, the mother ceased to be an active member with her agent and was no longer for hire in the casting business;

(c) The mother no longer has her own phone and relies upon others to loan her their phone. This has made it difficult for the mother to communicate with the society and vice versa.

(d) The mother does not have her own vehicle. She relies on the Society to provide her with bus tickets to get to and from visits with the children because she often cannot afford to buy the tickets herself. When the mother does not have bus tickets she must rely upon third parties to drive her to and from access visits. Her inability to find someone to give her a ride and at other times, her inability to do so in a timely way, has resulted in her being late for or cancelling access visits. This also applies to meetings with the Society workers;

[68] The mother's evidence as to her current financial circumstances and housing situation is set out in her March 9, 2015 affidavit. There she says:

i. "I am currently of no fixed address;" and,

ii. "Starting March 10, 2015, I will be starting a retail job with True Religion at minimum wage. It will be part-time work at hours to be agreed upon by the employer and me."

[69] There is no other evidence from the mother as to her current financial means, her plan for housing for the children if they are returned to her care, or what her plan is for the financial support the children.

Persistent Mistrust of the Fathers and Society Workers

[70] The mother's view, according to her own evidence, is that the fathers are alienating the children from her by telling them things that are either not true about her and their experience of her, or, reviving old negative experiences. Her belief is that this is done by creating false or misleading memories in the minds of the boys so that they both, say things that are not true and become estranged and afraid of her. The mother's view is that the father's motivations have nothing to do with protecting the children, but rather, with gaining custody so as to avoid paying child support.

[71] The mother's evidence about the Society workers is that she has done nothing but complain about her workers in this case; and that she feels they do not help or support her. Instead, she says, they treat her unfairly, pick on her, and sabotage her efforts to address the protection concerns. L.S. finds Ms. Seto particularly problematic and her mistrust of her is profound.

[72] The mother has allowed her mistrust of the Society and the fathers to negatively impact the children. For example, there is no dispute that It has caused her to cancel at least one visit; to say inappropriate things to the children about the Society and the fathers; and to dampen or darken her mood and thus, the quality of visits with the boys. She has also failed to restrain herself and challenged worker, Ms. Seto in front of the boys, particularly when she has felt her intervention during a visit is unwarranted, or unnecessarily intrusive. At times, the children have become so upset that they cry. At other times the remainder of the visit has gone badly or the visit has ended early.

[73] The evidence about two visits illustrates this. First there is the visit on August 6, 2014. According to Ms. Seto, the mother was "badgering" M.J.K.S. with numerous inappropriate which was making M.J.K.S. visibly uncomfortable and to which he was not responding. When Ms. Seto intervened and attempted to give her direction, the mother immediately interrupted and began to escalate. She would not allow Ms. Seto to finish and made the decision to not speak for the rest of the visit. That is, she went back into the room, slammed the door and began crying. When M.J.K.S. tried to console her she told M.J.K.S. to put his book away and that she got brought out of the visit because of him, because he was reading his book and she told him to put it away. Ms. Seto again intervened as M.J.K.S. was upset that the mother was crying. The mother then said to M.J.K.S. that it was his entire fault. The visit had to be terminated early and both M.J.K.S. and L.M.P.G. were very upset. L.M.P.G. was in tears and Ms. Seto had to explain to M.J.K.S. that it was not his fault. The mother's response to this evidence is not to deny her reaction but rather to blame Ms. Seto for it. In the mother's view Ms. Seto misinterpreted her behaviour as "badgering" and the situation as one requiring intervention. The mother also challenges the appropriateness of the way in which Ms. Seto intervened. She does not challenge the evidence about how she handled the situation. Her suggestion is that her reaction was both justified and unavoidable on her part.

[74] Second, there is the visit on February 26, 2014. During this visit the mother had a conversation with Rachel, who was also at the visit with the boys, about the next week after court, e-mails that the father was sending to Rachel, R.G.'s failure to respond to the mother's e-mails, and how they will have to wait for anything until after next week. When Ms. Seto stepped in and asked the mother not to speak about adult issues in front of or with the children, the mother minimized her behaviour by saying that L.M.P.G. was not even listening, that they were having a family discussion, and that she is not going to hide things from her children. Ms. Seto explained that it was not appropriate for their age. The mother took the position that this was family time and she should be able to say anything to the children. For the remainder of the visit, the mother's demeanor appeared angry as she sat with her arms crossed and a scowl on her face.

Missed Access Visits

[75] L.S. has missed many access visits. To paraphrase L.S., she has missed so many visits she has lost track. L.S. lays the blame for many of the lost visits at the feet of the Society workers. It is true that not all of these visits have been cancelled by L.S. There have been times when L.S. clearly has had a legitimate reason for cancelling a visit such as the day she was evicted from her home, or the day she was in court dealing with the eviction. One time a visit was missed due to a misunderstanding. L.S. told Ms. Seto that she planned to attend a visit before she left for Texas but did not understand that Ms. Seto required her to reconfirm that the visit was proceeding upon her return from Texas. When she did not do so the visit was cancelled. There have been times when the society was closed (due to holidays). By and large however the majority are cancelled by L.S. L.S.'s excuses vary, are that she did not have a ride or bus fare, had a work or had other commitments, was celebrating Vietnamese New Year and according to the directions of her faith was prohibited from going anywhere with negative energy.

[76] Many of the visits that have been cancelled have been cancelled with little or no notice. M.S.'s evidence is that he has noticed the last six consecutive scheduled access visits [all in 2015 [January 19, January 26, February 2, February 9, February 16, February 23] were cancelled in addition to six access visits missed over the course of 2014. R.G.'s evidence is that L.S. has canceled more access visits that she has attended, often without notification

[77] When this happened it has often happened after the boys are on their way to the access centre or after they have arrived for their visit. The evidence about the impact this has had on the boys is unchallenged.

[78] The impact on M.J.K.S. is significant. M.S.'s evidence in this regard is as follows:

(a) Due to M.J.K.S.'s struggles with Autism Spectrum Disorder (ASD), M.J.K.S. requires stability and routine;

(b) M.J.K.S. genuinely looks forward to each scheduled access visit. M.S. observes him to build up in excitement during the car ride to the CAS office in anticipation of the visit. From M.S.'s perspective it is very a very positive emotion for him to be feeling when it occurs;

(c) As visits have continued to be missed M.J.K.S. has became more distraught and upset when leaving the CAS office without a visit;

(d) After leaving the CAS office when the February 23, 2015 visit was cancelled (visit where L.S. did not show up), M.J.K.S. was completely silent and would not talk to his father for the whole ride;

(e) These cancellations (the more recent ones in 2015) are very different from the cancellations by L.S. in 2014. The 2014 cancellations were all done with notice which allowed M.S. time to communicate the facts to M.J.K.S., to which M.J.K.S. typically responded with a simple "okay" and happily went on with his day;

(f) The difference between these two types of visits is the exciting emotional rise of driving to the visit with high hopes, connected with the crushing disappointment of L.S.'s lack of emotional involvement. In M.S.'s view for M.J.K.S., this is an emotional rollercoaster that is completely unfair for a 10-year-old to suffer through;

(g) M.J.K.S. has recently communicated to his father that he would prefer to visit with L.M.P.G., rather than spend time with L.S.; and,

(h) M.J.K.S. has demonstrated, however, that if access is canceled in advance, he can cope.

[79] R.G. also gives evidence about the impact the missed access visits has had on L.M.P.G. The highlights of his evidence in this regard are:

(a) L.M.P.G. is very confused about the access visits, because every week when his father takes him to the Children's Aid Society Center it is not known whether he will be having an access visit or not.

(b) It is very difficult to explain to L.M.P.G. that he has to go to the Children's Aid Center and then leave once it is determined that his mother is not showing up;

Inappropriate Handling of L.M.P.G.'s Reaction to Previous Physical Discipline

[80] L.S. admits that at one time she used corporeal punishment to discipline the boys. She says, however, that she stopped using this form of discipline before these proceedings started.

[81] There is no dispute that:

(a) L.M.P.G. has, on several occasions during access visits, raised the issue of his mother having hit him when they lived together; and

(b) L.S.'s response to L.M.P.G. is either to tell him there will be no discussion about this, or, to question him as to who told him this.

[82] An example of this is what occurred at the February 21, 2014 visit. During the visit L.M.P.G. said to his mother, "you spanked me" and the mother replied "I don't want to hear this talk, not why we're here" and she told him to "stop and be quiet and only talk about school and other things".

[83] The evidence that the mother's use of physical discipline has affected L.M.P.G. is as follows: First, there is L.M.P.G.'s disclosure on January 22, 2014 that:

(a) His mother is mean;

(b) His mother spanks him on the butt and on his hands sometimes. It makes him upset and scared; and,

[84] Second, there is R.G.'s evidence about what L.M.P.G. has told him which includes:

(a) He's scared of his mother;

(b) His mother hit him on his hands, face and on his bum; and,

[85] The mother's evidence is that she responds in the way that she does because:

(a) L.M.P.G. has been alienated from her at this point and is losing his knowledge from information he received from third parties;

(b) When she asks him who told him things she does so because that is the method that she has adopted to try to get L.M.P.G. to open up and show her how his mind is shaped and where his ideas and thoughts come from; and,

(c) She is trying to find out whether it is an opinion he has formed on his own or something that he has been imposed upon him by third parties.

[86] There is no evidence that the mother has ever responded to L.M.P.G. in a way that is empathetic towards him or that is responsive to his emotional needs.

L.M.P.G.

[87] R.G. reports that when L.M.P.G. has access visits with L.S. he has observed that L.M.P.G. is very stressed about these visits. For example, L.M.P.G. has expressed to him that he likes going to the visits only because it gives him an opportunity to see M.J.K.S., and he likes seeing Ms. Seto. After the visits, he observes that L.M.P.G. is very quiet and not his normal talkative vibrant self. Also, if R.G. asks him how the visit went, he changes the topic right away.

[88] R.G. reports that there has been a consistent pattern of L.M.P.G. wetting the bed the same night after his access visits with his mother. If the visit has been canceled, L.M.P.G. does not wet his bed.

[89] R.G. has placed L.M.P.G. on the waiting list for the Radius therapy program. Therapy is expected to begin very shortly.

[90] The mother is not supportive of such an intervention, suggesting instead that therapeutic support should wait until these proceedings are over.

C. The Children in Their Fathers' Care

[91] There is no dispute that despite everything, M.J.K.S. has been thriving in his father's care.

[92] Despite all of the emotional difficulties that L.M.P.G. is having, the evidence is that he too is doing extremely well in R.G.'s care. He and L.M.P.G. live with R.G.'s parents in Burlington. R.G. travels back and forth between Ontario and Alberta as R.G. works in Alberta. Since L.M.P.G. came into his care, R.G. has changed his work schedule. He is away from Mondays until Friday every other week. L.M.P.G. loves and is loved by his grandparents and they take great care of him when R.G. is in Alberta.

[93] When L.M.P.G. was initially placed in his care he had a number of issues at school and was behind in his reading levels and comprehension. R.G. arranged relatively quickly for L.M.P.G. to get extra academic support to help him catch up with his peers. He enrolled L.M.P.G. in the Ryerson ELDC program [Early Learning Development Center program]. L.M.P.G.'s report card of February 2015 shows that he has now met and surpassed his grade level reading and that his teachers are very happy with his progress.

D. Society's Efforts to Assist

[94] The Society has made numerous attempts to work with and support L.S. in addressing the protection concerns. They have sent her multiple letters outlining their concerns and expectations of her. They have set up and held several meetings with her. The Society has facilitated and supervised the mother's access. It also recently assigned a different worker than Ms. Seto to liaise with the mother. The Society also assigned special worker, Ms. Kim, from the Bridging Families program to work with the mother.

[95] However, the Society could have provided more and earlier support for the mother. For example, it takes issue with the fact that the mother has not taken a parenting course but the evidence does not suggest that the Society may have pointed the mother in the right direction but it does not appear to have made any effort to assist the mother with actually finding and getting into such a program.

[96] The workers could also have arranged to meet with her at times when she is more readily available, at her home or locations closer to it. The mother found it very difficult getting to the Society offices. It required a four hour round trip commute by bus followed by a long walk. This must have been even harder on the mother in the winter months. This is not to say that the workers never met with her elsewhere. Certainly Ms. Kim had made such efforts and the mother acknowledges this. It could, however, happen more often and with other workers.

[97] The Society could have offered the mother alternate ways to confirm or cancel access sooner. I note that the Society waited over a year to advise the mother that it could provide her with a 1-866 number to call to confirm or cancel access, similarly it waited over a year to let her know that it would be willing pay for a taxi to get her to and from access occasionally. In addition, the Society has refused to allow the mother to confirm or cancel access via e-mail, a method the mother indicates will be more effective and easier for her to manage. Other than added work for the worker who would have to check if her phone does not receive email to determine if an email has been received, it is not clear why they have refused. They have allowed M.S. to communicate with them by e-mail.

STATUTORY FINDINGS

[98] The evidence of the parties does not indicate that there is dispute regarding the statutory findings as plead by the Society in their materials. There is therefore no genuine issue for trial regarding the statutory findings. Accordingly, an order will go that the statutory findings required pursuant to section 47(2) of the CFSA are found to be as set out below.

FINDING IN NEED OF PROTECTION

A. Legal Principles

[99] The Society seeks a finding that L.M.P.G. and M.J.K.S. are each a child in need of protection pursuant sub-clause 37(2)(g) of the Act.

[100] The jurisprudence offers several guiding principles, some of which are:

(a) Risk of harm must be real and not speculative: Children's Aid Society of Ottawa-Carlton v. T. and T., 97 A.C.W.S. (3d) 939, [2000] O.J. No. 2273, 2000 CarswellOnt 2156 (Ont. Fam. Ct.).

(b) It is not necessary for the Society to prove an intention to cause the child harm before finding that a child is in need of protection. A pervasive pattern of exposing a child to adult conflict is sufficient: Children's Aid Society of Niagara Region v. T.P. and R.G., 35 R.F.L. (5th) 290, [2003] O.J. No. 412, 2003 CarswellOnt 403 (Ont. Fam. Ct.).

(c) A child protection proceeding is unlike ordinary civil litigation and court can choose a flexible approach that would admit evidence arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties (see CAS Brant v. T (JA.) 2005 ONCJ 302). Justice Czutrin set out the following as reasons for adopting such a flexible approach in the case of CAS of Hamilton-Wentworth v. K.R. and C.W. 2001 O.J. No. 5754:

(a) Only facts related to disposition are statutorily excluded at the finding phase;

(b) Best interests are paramount. Child welfare legislation is different from general legislation and litigation in this regard;

(d) To be overly technical could put the child at risk;

(e) It prevents multiplicity of proceedings;

(f) It could bring the administration of justice into disrepute;

(g) It allows parents as well to bring in evidence;

(h) A rigid approach makes it more of a game.

B. FINDING AND ANALYSIS – SECTION 37(2)(G) – RISK OF EMOTIONAL HARM

No Genuine Issue Requiring a Trial

[101] Having considered all of the evidence, and for the reasons that follow, I find that the Society has met its onus of proving there is no genuine issue for trial on the issue of the protection finding. That portion of the motion for summary judgment is granted.

Risk of Harm from Mother's Inability to Cope with Life Stressors and Pressures

[102] In the years, months, weeks and days leading up to the children's apprehension, the mother was under considerable financial, emotional, and relationship stress as well as the stress of being a single mother. As these stressors and pressures increased, the mother's judgment and ability to regulate her emotions and behaviours decreased. When the mother's ability to exercise sound judgment and her control of herself was impaired, the risk that the children would be exposed to inappropriate adult situations and adult conflict increased.

[103] On several occasions when the stress and pressures on the mother were at their highest, the mother was unable or unwilling to shield the children and as a result, the children were exposed, both directly and indirectly, to adult conflict and situations. Her actions have put the children at risk of emotional harm. It has also caused the children emotional harm as evidenced by the statements made by the children and their physical reactions (i.e. crying and confusion).

[104] For these reasons, and given the heightened stress levels existing at the time of apprehension I find that the risk that the children would suffer emotional harm at the time of their apprehension was real, pressing and likely.

Protection Concerns and the Mother's Mental Health

[105] There is necessary a factual dispute about the mother's mental health. This factual dispute does not raise a triable issue. I find that when the evidence is looked at in its totality (the mother's behaviours before apprehension, during access visits, with the workers outside of access visits, etc.), there is little doubt that the mother is likely suffering from some type of emotional vulnerability or disturbance caused by, or, exacerbated by multiple life stressors. This conclusion is consistent with the evidence and with Dr. Colonne's findings.

The Sources of the Original Risks of Emotional Harm Persist

[106] Almost all of the life stressors that existed in the years, months, weeks and days leading up to the children's apprehension continue to exist. On the relationship side, the mother's animus towards the father's has not dissipated. On the financial side of things, the mother's situation is worse today than it was at the time when these proceedings started. She is now of "no fixed address" and has only a part time job.

[107] The evidence shows little or no progress in the mother's rehabilitation concerning the problems that led to the children coming into care in the first place, and little or no motivation to improve her situation so that she would be able to care for the children.

[108] The mother has done nothing to address these life stressors or her inappropriate ways of managing them. She has not secured affordable housing and has not obtained employment that will yield a steady income. She has not presented the Court with a financial or housing plan.

[109] She has not followed through with Dr. Colonne's recommendations for treatment counselling or advised of any other steps that she has taken to help her find alternate ways of handling these life stressors.

[110] The persistence of significant life stressors coupled with the mother's failure to seek out treatment to help her better manage her reactions to such stressors leads me to find that if the children are returned to the mother at this time, with or without supervision terms, it is highly probable that the children will be at risk of emotional harm.

Additional Protection Concerns

[111] Since the children were apprehended several new concerns about the mother have arisen, most of which relate to her parenting. I find that there is a risk that both L.M.P.G. and M.J.K.S. are likely to suffer emotional harm as a result of these concerns. I make this finding based on the following conclusions drawn from the evidence:

(a) By cancelling and missing so many access visits, by failing to give timely and proper notice of visit cancellations, and in failing to properly confirm visits, the mother has shown a profound lack of understanding of the children's need for a connection to her and their need to have her be a stable person in their lives;

(b) The mother has shown poor judgment during access, and she has demonstrated a lack of understanding and empathy for L.M.P.G.'s needs. There is no evidence that the mother is willing to take steps to obtain additional insight into or to even address the specific emotional needs of L.M.P.G.;

(c) The mother has shown, through her interactions with the children and in front of the children during access visits, a lack of knowledge about what is and what is not appropriate information for children the age of her sons;

(d) The mother has shown, through her interactions with and in front of the children during access visits, that she is unwilling or unable to regulate her behaviour so as to shield the children from her own negative reactions and from adult conflict. This behaviour has resulted in early termination of visits, deterioration in the quality of the visit, and outright emotional distress and harm to the children;

(e) The mother has shown, through her interactions with and in front of the children during access visits, that she is unwilling or unable to recognize the emotional needs of the children; and,

(f) The effect of the mother's profound mistrust of the Society, minimal cooperation with the Society, and of her failure to take a parenting course, is that she has been unable to receive the full benefit of feedback and assistance from professionals with respect to parenting issues.

The Children are Children in Need of Protection

[112] The evidence is conclusive and I find that L.M.P.G. and M.J.K.S. are each a child in need of protection from risk of emotional harm pursuant to section 37(2)(g) of the CFSA. Many of the concerns present at the time of apprehension have continued after the apprehension. New concerns have also surfaced. Returning the children to the mother's care at this time would place the children at significant risk of harm.

ISSUES THAT NEED NOT BE DETERMINED

[113] Having made a finding that the children are each in need of protection pursuant to section 37(2)(g) of the CFSA, it is not necessary for the court to deal with the evidence relied upon by the Society and the fathers in support of a finding pursuant to section 37(2)(b)(i). As a result, there is no need for the Court to rely upon the evidence about the mother's alleged neglect, failure to supervise, and physical discipline of the children. Similarly there is no need for this court to determine, with respect to the January 22, 2014 incident, any of the following issues:

a) Whether it was L.S. who threw the bowl of egg salad at R.G. or it was R.G. who knocked the bowl out of her hands;

b) Why L.S.'s picked up the broom, or

c) Whether the children saw or were physically present when the violence was committed and thus at risk of physical harm.

ACCESS

A. Statutory Authority

[114] The relevant provisions of the CFSA are set out below:

Access: where child removed from person in charge

(1) Where an order is made under paragraph 1 or 2 of subsection 57 (1) removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with him or her would not be in the child's best interests.

[115] This section makes clear that L.S. retains a presumptive right of access to both boys. To rebut the presumption and suspend access, the Society must show that it would not be in the child's best interest to have continued contact with L.S.

[116] Section 37(3) defines best interests of the child.

[117] It is within this statutory framework and with these legal principles in mind that I have considered and determined whether there is a triable issue with respect to the mother's access, and if a trial is not required the issue of access.

B. Analysis

[118] This is a case where continued access is not only presumed to be in the best interests of each child but I find that it is in their best interests. Below are the main reasons behind my finding.

[119] L.S. is far from perfect but she is the boys' mother and she is the only mother they have. She was their primary caregiver for their whole lives. She is an important person in their lives. Access maintains their connection to her and their shared history.

[120] When they occur, the visits are generally a positive experience for these boys. They play and have fun together and with their mother. While she is not as affectionate as the Society would like her to be, she does show affection towards the boys and they towards her. While L.S. is not always able to hide her unhappiness, her unhappiness is rarely related to the boys.

[121] Access provides the boys with an additional opportunity each week to see and play with each other. One must remember that until January 2014, they had always lived together. They are also closely bonded. In addition, it appears to be the only time they get to see their sister R.C.P. R.C.P. is their half-sister and while much older, she has been part of their lives since their births. She has also cared for them. Up until they were apprehended and separated from her, she was an important part of their lives. Access by the mother maintains at least some connection between the boys and their sister and their shared history.

[122] L.S. is of Vietnamese heritage and the children, based on my observations of their fathers in the courtroom, are biracial. Neither the Society's materials nor the father's contain any reference to the boys' biracial identity. Neither do they indicate that they are doing or will do anything to acknowledge and foster their connection to their Vietnamese heritage and culture. The law has long recognized the importance of race and culture to one's identity. At this point in their lives, the only connection that the boys have to their Vietnamese culture is through their mother.

[123] L.S. is also a practicing Buddhist with very strong religious beliefs. The children have spent the majority of their lives being raised in a Buddhist home and thus, exposed to Buddhist religious beliefs and practices. There is no plan whatsoever to preserve or foster either of these boys' connection to this faith. Again, at this point in time, their mother is their only connection to it.

[124] I am not persuaded that the access visits are emotionally harmful to the boys or that any potential for such harm outweighs the forging benefits. M.S. evidence is that M.J.K.S. looks forward to seeing his mother and that his excitement in the car ride to the centre mounts as he gets closer and closer. The evidence of M.S. makes it clear that it is not the visits that are or may become emotionally harmful but rather their cancellation without notice or with insufficient advance notice.

[125] With respect to L.M.P.G., I find that there is no clear causal connection between L.M.P.G.'s upset and access with his mother. No expert evidence linking L.M.P.G.'s behaviour to access with his mother was presented to support such a conclusion. It is an oversimplification of a very complicated situation to draw such a casual nexus. I reach this conclusion for several reasons. First, a lot has happened and continues to happen in this child's young life. He was subjected to the frequent bouts of his father and mother living together and then separating. He has been the subject of physical discipline. He was exposed to, at minimum, the aftermath of the January 22, 2015, incident and has memories of it. He has been apprehended and separated from his brother, sister, and his lifelong primary caregiver, his mother. He has had to adjust to a new home, new school, new activities, new friends, new routine, and new primary caregivers. He has also gone from growing up with infrequent and inconsistent contact with his father, to living with him. Now he has to separate from him every other week when his father leaves him from Monday to Friday to go and work in Alberta. In all the circumstances, there is insufficient evidence to make the casual connection the Society and R.G. ask the court to make.

[126] I am also not convinced that the level of upset is as great as R.G. reports because R.G.'s response has been inconsistent with the high degree of upset he reports. For example, when R.G. learned that L.M.P.G. was behind academically, he immediately enrolled him in a special education program so that L.M.P.G. would catch up. He has also made concerted efforts to get L.M.P.G. involved in all kinds of activities. Yet when L.M.P.G. began exhibiting signs of upset in August 2014, R.G. did not do very much. He did not get L.M.P.G. into immediate therapy; he put him on a wait list for services with Radius, and has left seven months go by without putting supports in place to help L.M.P.G.

[127] Even if I am wrong and L.M.P.G.'s upset is caused by access with his mother, I would not terminate access because I have already found that continuing contact with his mother is in his best interests and because any harm from such contact or support he needs will likely be addressed in the therapy he receives from Radius. Therapy, that I understand, is about to begin.

[128] For all these reasons I find that there is no possibility, at this time, of an outcome other than one where the mother's access continues. As the evidence does not raise a triable issue as to where the best interests of the children lie, those best interests call for a resolution now without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the children's future.

[129] The real issue is not should access continue but how to structure it to make sure that it occurs regularly, consistently, and positively. I have enough evidence about the history of access and the children to decide that issue. These children should not be held in limbo waiting for the mother to change.

[130] Suspending access as the Society and the fathers suggest is one option. My concern with this option is that no one has presented a plan setting out such things as: for how long; how will success be measured; what will be done before and during the period of the suspension to ensure the each boy is equipped to cope with the sudden and complete loss of any connection with the mother and R.C.P.; what will be done to ensure that the boys connection to their Vietnamese heritage and culture is preserved; what will be done to maintain the boys' connection to Buddhism. A plan that addresses these cancers needs to be developed and ready for implementation before access is suspended. For that, some time is needed.

[131] Finally, I am not persuaded that the entire fault for the missed visits or cancellations with little or no notice lies solely at the feet of the mother. The Society can do more to support and assist the mother in getting to and from visits. It can still do more to make it easier for the mother to cancel or confirm visits with adequate notice. If providing the mother with the 1 (866) number and occasional taxi services in addition to bus services may work. My order provides some time to try these potential solutions.

[132] I am not unsympathetic to the additional burden my order places on the workers or on the resources of the Society. However, I want to make sure, for M.J.K.S.'s and L.M.P.G.'s sake, the mother has as many avenues open to her to provide sufficient advance notice of a cancellation as possible. If allowing the mother to confirm or cancel visits via email is what it takes to avoid upset to these children, then that is the order that is in the best interests of these children.

[133] The terms of my order that deal with cancellations and confirmations are designed to reduce the confusion, uncertainty, and upset when visits are missed or cancelled by ensuring that there is adequate advance notice. If the mother is unwilling or unable to put the needs of her children first even with these additional supports and cannot follow these guidelines, then access will need to be suspended to avoid emotional harm. I have made provision for that as well.

[134] There is no evidence to support an order that the mother's access be increased, become unsupervised, or that it move to the community. Protection concerns are abundant and the mother has done little, if anything, to address the underlying causes. Until she does, and until she shows greater awareness and insight about the emotional needs of her children and some level of dedication to meeting their emotional needs (i.e. by attending at visits regularly and shielding the children from conflict with the workers or the consequence thereof upon her, there will be no reason to do so. In the meantime, such changes to access are not in in the best interests of these children.

AMENDED ORDER

[135] For all of the forgoing reasons, this Court makes the following final order which amends the order released on April 17, 2015:

(1) Society's motion for summary judgment is granted;

(2) Pursuant to section 47(2) of the Child and Family Services Act, the Statutory Findings regarding the identity of the child are made as follows:

(a) Child's Name: L.M.P.G.

(b) Child's Age: 6 years old, born […], 2008

(d) Child's Religion: not Catholic

(e) Child's Status: not Indian and not native

(f) Mother's Name: L.S.

(g) Father's Name: R.G.

(3) Pursuant to section 47(2) of the Child and Family Services Act, the Statutory findings regarding the identity of the child are made as follows:

(a) Child's Name: M.J.K.S.

(b) Child's Age: 10 years old, born […], 2004

(d) Child's Religion: not Catholic

(e) Child's Status: not Indian and not native

(f) Mother's Name: L.S.

(g) Father's Name: M.S.

(4) The child, L.M.P.G., born […], 2008, is found to be a child in need of protection pursuant to s. 37(2)(g) of the Child and Family Services Act;

(5) The child, M.J.K.S., born […], 2004, is found to be a child in need of protection pursuant to 37(2)(g) of the Child and Family Services Act;

(6) The child, L.M.P.G., born […], 2008, shall be placed in the care and custody of the Respondent father, R.G., subject to the supervision of the Society for a period of seven months, and subject to the following terms and conditions:

(a) The mother and father shall sign all necessary and relevant consents for the Society to communicate with collaterals, as requested by the Society;

(b) The mother and the father will notify the Society of any change in their address;

(c) The mother will follow through with the recommendations made in the mental health assessment of Dr. Colonne, for counseling (supportive, cognitive to help her deal with the stressors she is harboring under and also help her gain insight into her personality vulnerabilities);

(d) The mother will work with Bridging Families and follow through with all recommendations;

(e) The mother and father shall discuss only age-appropriate matters with the child and will refrain from exposing the child to adult conflict and conversations;

(f) The mother shall attend at a parenting program as recommended by the Society workers;

(g) The mother will take such steps as are recommended by the Society to help her gain insight into the needs of the child and how her actions impact on those needs, and ways in which she can better meet those needs;

(h) The mother shall work cooperatively with the Society workers;

(i) The mother will advise the Society as to the name of any mental health professional she is involved with, and sign any necessary consents to permit the Society to share and receive information from any such mental health professional;

(j) The Society worker (or designate) shall meet privately with the child in his school or elsewhere as deemed appropriate and necessary;

(k) The father will arrange with the child M.J.K.S.'s father for the children to spend time together in the community on a regular basis;

(l) The mother will cooperate with any family support worker or supervisor of the access visits, and follow any recommendations made by the worker.

(7) The child, M.J.K.S., born […], 2004, shall be placed in the care of the Respondent father, M.S., subject to the supervision of the Society for a period of seven months, and subject to the following terms and conditions:

(a) The mother and father shall sign all necessary and relevant consents for the Society to communicate with collaterals, as requested by the Society;

(b) The mother and the father will notify the Society of any change in their address;

(d) The mother will work with Bridging Families and follow through with all recommendations;

(e) The mother will work cooperatively with the Society workers;

(f) The mother will take such steps as are recommended by the Society to help her gain insight into the needs of the child, how her actions impact on those needs, and ways in which she can better meet those needs;

(g) The mother and father shall discuss only age-appropriate matters with the child and will refrain from exposing the child to adult conflict and conversations;

(h) The mother shall attend at a parenting program as recommended by the Society;

(i) The mother will advise the Society as to the name of any mental health professional she is involved with and sign any necessary consents to permit the Society to share and receive information from any such mental health professional;

(j) The Society worker (or designate) shall meet privately with the child in his school or elsewhere as deemed appropriate and necessary;

(k) The father will arrange with the child L.M.P.G.'s father for the children to spend time together in the community on a regular basis;

(l) The mother will cooperate with any family support worker or supervisor of the access visits, and follow any recommendations made by the worker.

(8) The Respondent mother, L.S., shall have access to the children named above each week for a period of two consecutive hours commencing immediately and subject to the following terms and conditions:

(a) The visits will be supervised by the Society or an individual approved in advance by the Society. The location, structure of the visits, and level of supervision shall be subject to the discretion of the Society or further order of the court;

(b) The mother is to confirm, by no later than 11:00 a.m. on the day before the visit is scheduled to occur, and again a second time no less than 1½ hours before a scheduled visit is to occur to reconfirm her attendance for that scheduled visit.

(c) Confirmation of a visit or cancellation of same may be, at the mother's election, by e-mail to an e-mail address provided by the Society for this purpose, by speaking to a Society representative, or, by leaving a message on the voicemail or answering service at a number provided by the Society for this purpose.

(d) Should the mother fail to confirm or reconfirm her attendance for a scheduled visit, all parties are to consider that particular visit cancelled;

(e) To facilitate confirmations and reconfirmations as well as timely cancellations of a visit by the mother, the Society is to provide the mother with an e-mail address to send these confirmations and cancellation notices to. Neither party shall name the children in the e-mail and email may not be used to discuss any matters other than these confirmations or cancellations of visits except with the written consent or invitation of a Society representative.

(f) If the mother misses two consecutive visits or 4 non-consecutive visits during the period of the supervision order, her access to both children shall be immediately suspended pending further agreement of the Society and the mother or order of this Court. Visits missed due to emergency, medical issues, or circumstances beyond the mother's control, or because the Society or one of the fathers cancels the visits will not count as a missed visit for the purpose of suspending the mother's access;

(g) if the mother is of the view that the Society is unreasonably withholding its consent to the reinstatement of access, she may bring a motion to have the issue dealt with by the Court.

(9) The teleconference scheduled for today shall not proceed and the date is vacated.

(10) The trial dates in this matter, May 11 – 15, are vacated.

Released: May 15, 2015

Signed: "Justice Victoria Starr"

[i] Although the Society's evidence is that L.S. failed to comply with Justice Zisman's order by failing to undergo a psychological assessment, this is a mischaracterization of what Justice Zisman actually ordered. Justice Zisman did not order a psychological assessment but rather, a mental health assessment.

WARNING

Court Information

STARR J.:

INTRODUCTION

THE FAMILY

LITIGATION BACKGROUND

POSITION OF EACH PARTY

THE ISSUES TO BE DETERMINED

MATERIAL REVIEWED AND RELIED UPON

EVIDENTIARY ISSUES

A. Hearsay, Opinion Evidence and Unsubstantiated Inferences

B. The Children's Hearsay Statements

C. Emails and Text Messages

SUMMARY JUDGMENT - THE LAW

THE EVIDENCE - ADMITTED, UNOPPOSED, OR BALDLY DENIED

A. Prior to and at the Time of Apprehension

B. Post Apprehension

The Mother's Mental Health

Financial and Housing Concerns Persist

Persistent Mistrust of the Fathers and Society Workers

Missed Access Visits

Inappropriate Handling of L.M.P.G.'s Reaction to Previous Physical Discipline

L.M.P.G.

C. The Children in Their Fathers' Care

D. Society's Efforts to Assist

STATUTORY FINDINGS

FINDING IN NEED OF PROTECTION

A. Legal Principles

B. FINDING AND ANALYSIS – SECTION 37(2)(G) – RISK OF EMOTIONAL HARM

No Genuine Issue Requiring a Trial

Risk of Harm from Mother's Inability to Cope with Life Stressors and Pressures

Protection Concerns and the Mother's Mental Health

The Sources of the Original Risks of Emotional Harm Persist

Additional Protection Concerns

The Children are Children in Need of Protection

ISSUES THAT NEED NOT BE DETERMINED

ACCESS

A. Statutory Authority

B. Analysis

AMENDED ORDER

Judge

Counsel

Parties

Areas of Law