WARNING

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

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

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court File and Parties

Court File No.: C80327/15

Date: 2015-08-06

ONTARIO COURT OF JUSTICE

Between:

CHILDREN'S AID SOCIETY OF TORONTO

SIMON FISCH, for the APPLICANT

APPLICANT

- and -

C.S. and K.J.

RESPONDENTS

THE RESPONDENT, C.S., ACTING IN PERSON BENJAMIN O. VINCENTS, counsel for the RESPONDENT, K.J.

LISA LABORDE, for the OFFICE OF THE CHILDREN'S LAWYER, acting for the children

Heard: August 5, 2015

Justice: S.B. Sherr

Endorsement

Background and First Motion

[1] The society has moved to suspend the access of C.S. (the mother) to the two subject children of this protection application (K.E., age 6 and K.I., age 4). The motion is supported by K.J. (the father) and the children's counsel. The mother opposed the motion and brought her own motion for the protection application to be dismissed. The motions were heard on August 5, 2015.

[2] This is the second recent motion by the society to suspend the mother's access. For oral reasons the court dismissed the first motion brought by the society on July 14, 2015, but added four conditions to the mother's access, being:

1. She is not to bring any recorders to visits.
2. She is not to question the children about what is happening in the foster home.
3. The mother is not to discuss the court case or any concerns about the society or the foster home in front of the children.
4. The mother is not to bring anyone to visits without prior permission of the society.

[3] The court endorsed that the society may cancel any visit if the mother is not complying with these expectations.

Prior Court Decision and Expectations

[4] The court's written decision of March 2, 2015, on a temporary care and custody motion (see: Children's Aid Society of Toronto v. C.S., [2015] O.J. No. 1031) set out in detail the risk concerns about the mother and why her access had to be supervised by skilled society staff. It also set out the court's expectations of the mother. In paragraph 99 the court wrote that the mother needed to:

a) Demonstrate that she can work cooperatively, openly and honestly with the society.

b) Demonstrate that she can act appropriately on access visits. She shouldn't be questioning the children at visits about the father or their foster home. She should not engage in discussions about the case in front of the children.

c) Engage in counseling to understand the impact of aggressive behaviour on children.

d) Establish stable and suitable accommodation for the children.

Legal Test and Findings from July 14, 2015 Motion

[5] In the court's oral decision of July 14, 2015, the court set out the legal test for the society to meet on its motion to change the mother's access (the same test on this motion) pursuant to subsection 51(5) and section 58 of the Child and Family Services Act and made the following findings:

a) The protection concerns had intensified since March 2, 2015.

b) The mother was not working cooperatively with the society.

c) The mother was not acting appropriately at many access visits. She was communicating to the children that the society workers are the devil and they want to take them away from her. She told the children not to be nice to workers. She was undermining the children's sense of security with the society.

d) The mother was unable to change this behaviour despite redirection.

e) The mother felt that much of the society's evidence was false and they were "out to get her". This was a continuation of the theme that institutions "had it in for her". She has made similar claims against the children's school, Durham Child Protection Services, the Durham police and the judge in North Carolina who heard her case.

f) It was more probable than not that the mother is the issue – not everyone else.

g) The mother had a lack of insight into the protection concerns.

h) The mother's behaviour was not without consequence. In particular:

i) There had been a decline in K.E.'s behaviour – he was struggling. He would demean himself and threaten to hurt himself. He was often sad.

ii) K.E. was anxious and guarded on visits with the mother. He was described as very vigilant about the mother's reactions. He told one society worker, "you can't talk or play with me or Mommy will be mad".

iii) K.E. was confused and destabilized by the mother's behaviour.

iv) Dr. Daniel Fitzgerald provided a psychological report describing K.E. as a very emotionally troubled young boy. He has a broad range of social, emotional and behavioural difficulties. He has hyperactivity, impulsivity, fluctuating mood and will disassociate. Dr. Fitzgerald observed that K.E. is anxious and vigilant and clearly fearful of the mother and her reactions.

i) K.E. is a very vulnerable child – particularly vulnerable to a flawed mother with little insight into the impact her behaviour has on him.

j) Although K.I. is not currently openly expressing distress, he is being exposed to the mother's problematic behaviour.

Balancing Considerations

[6] The court balanced these risk concerns with the following considerations:

a) The visits are important to the children and they wished to see the mother.

b) The children are bonded to the mother. She is the closest person in their lives.

c) The mother has been the constant parenting figure for the children.

d) The mother is an important link to the children's culture and religion.

e) Very importantly, there had been a recent improvement in the mother's visits. The court had adjourned the society's first motion with a strong message to the mother that she had to stop discussing the society, the foster home and the court case with the children. She had appeared to have listened to the court's comments. The court wanted to give her and the children the opportunity to build on these gains.

Deterioration and Breach of Conditions

[7] Sadly, the evidence indicates that the mother's behaviour on visits has deteriorated again. Her visit on July 29, 2015 was suspended due to her behaviour. The evidence indicates on a balance of probabilities that:

a) The mother is inappropriately interrogating the children about what goes on in the foster home.

b) The mother is inappropriately discussing the father with the children.

c) The mother was asking K.E. whether he was scared of her – an issue in the court case.

d) The mother told K.E. to speak to her lawyer that he was not scared of her.

e) The mother spoke to the children in a manner which would likely make them feel concerned for their safety in the foster home.

f) K.E. reacted very badly to this questioning.

g) The mother could not be redirected by the society.

[8] The court finds, on a balance of probabilities, that the mother has breached the conditions about not discussing the court case, the foster home or her concerns about the society in front of the children.

Court's Analysis

[9] The mother was given a chance to show that she could comply with very modest expectations. Her blatant disregard of them confirms the society's submission that she is ungovernable at visits. It also informs the court (given that she was so close to having her visits suspended before and was given another chance by the court) that she is not capable of controlling her behaviour in the presence of the children for a sustained period.

[10] The evidence also indicates that the mother's anger is escalating. She is of the firm belief that there are no protection concerns, the children were improperly apprehended and the society has apprehended the children for financial purposes. This anger is reflected in her actions. She has written hostile, abusive and arguably threatening correspondence to society staff. Her material filed and her contention that the society is acting illegally reflect this anger. It also informs the court that she is unlikely to change her behaviour in the near future.

[11] The society submits that the emotional risk to the children of continuing visits, particularly to K.E. is very high; that the society's right to end a visit does not protect the children, because the emotional damage to them has already been done. The evidence supports this submission.

[12] It is informative that the children's counsel, who supported the mother's position on the first motion to suspend the mother's access now supports the society's position. She submits that the mother's behaviour is too emotionally harmful to the children for access to continue.

[13] The court gave consideration to reducing, rather than suspending the mother's access. In fact, this was one of the reasons the decision was reserved overnight, so the court could carefully review the evidence again and determine if this was a realistic option. If the court believed that the mother would use such an opportunity to reevaluate and change her behaviour, it would make such an order. However, the evidence indicates that the mother would view such a decision as further proof that she is being misunderstood and persecuted. If anything, it is more likely than not that her anger and poor behaviour would further intensify, with negative consequences to the children. An order that merely reduces access is not in the best interests of the children.

Decision on Access Suspension

[14] This is a very difficult decision to make due to the benefits of access set out above. The court has no doubt that the mother loves the children and they love her. An order suspending access is an order that should not be made lightly. The court has tried to preserve the relationship between the mother and the children. Sadly, at this stage, the evidence supports a finding that the risk of emotional harm to the children of continuing visits outweighs its benefits.

[15] The court finds that there has been a sufficient change in circumstances affecting the risk to the children to warrant a change in the existing access order. It is not in the children's best interests to have access to the mother at this time. An order will go that the mother's access to the children is suspended.

Therapeutic Access and Sibling Access

[16] The society should explore whether this would be a suitable case to start therapeutic access. This decision might turn on whether there is a tangible improvement in the mother's relationship with the society in the next few weeks. If she continues on this path of hostility and confrontation, she is at high risk of permanently losing her children.

[17] The mother raised the issue of her eldest son having access to the children. The court asks that the society and the children's counsel discuss this issue and evaluate if some sibling access can be facilitated. If not, the mother has leave to bring a motion for this relief on the return date.

Dismissal of Mother's Motion

[18] There is no absolutely no merit to the mother's motion to dismiss the society's protection application. Her motion is dismissed.

Matters for Return Date

[19] On the return date the court will address:

a) The father's motion for access.

b) The determination of how the Hague Convention and child protection cases should proceed.

c) The structure of the hearings in the child protection and Hague Convention cases.

Directions to the Society

[20] The society should carefully consider if this is a suitable case for a summary judgment motion.

[21] The society should also have active discussions with child protection authorities in North Carolina as to whether they will accept the children into care, if so ordered, in the Hague Convention case. There should be a definitive position presented on the return date.

[22] The society should also clearly ascertain its position with respect to the Hague Convention case.

Administrative Directions

[23] The court also expects the parties to complete and file the Trial Management Endorsement Form handed out to them by September 10, 2015.

[24] The court will deal with both this case and the Hague Convention case on the return date.

[25] The cases are returnable on September 17, 2015 at 2 p.m.

[26] The child protection case remains on the Assignment Court list for October 14, 2015 at 2 p.m.

Justice S.B. Sherr

Released: August 6, 2015