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:

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

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

45.— (8) Prohibition: identifying child.

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

45.— (9) Idem: order re adult.

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

85.— (3) Idem.

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

Court Information

Ontario Court of Justice

Date: 2016-03-01

Court File No.: Halton 439/15

Between:

V.F. (Applicant)

— AND —

Halton Children's Aid Society

J.F.

A.T.-F. (Respondents)

Before: Justice Marvin Kurz

Heard on: February 12, 2016

Reasons for Judgment released on: March 1, 2016

Counsel

Lorne Glass — counsel for the applicant

Diane Skrow — counsel for the respondent Society

Martha McCarthy, Jenna Beaton — counsel for the respondent J.F.

A.T.-F. — on her own behalf

DECISION

Kurz J.:

Overview

[1] On November 9, 2015 V.F. ("V.F." or "the child"), 13 years old, did something exceedingly rare in Canadian legal history. She commenced this, her own child welfare proceeding, against her parents and her local children's aid society.

[2] V.F.'s father now moves to have this proceeding dismissed. He argues that it is either an abuse of process or that it raises no genuine issue for trial. The motion is supported by the Halton Children's Aid Society ("HCAS" or "the Society"), and opposed by V.F.'s counsel and her mother.

This Child Welfare Application

[3] V.F.'s application requests a finding that she and her two younger siblings are in need of protection from both of her parents. She relies on s. 37(2) (f), (f.1), (g), (g.1), or (h) of the Child and Family Services Act ("CFSA"). Those provisions read as follows:

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

(f.1) the child has suffered emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

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

(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and that the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm;

(h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child's development and the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition;

[4] V.F. blames the high level of conflict between her parents for her need for protection. She pleads that her need arises "despite" her parents' Superior Court of Justice ("SCJ") custody proceedings. She pleads that she:

• feels at risk of harm,
• has lost her sense of self-esteem,
• has recurring thoughts about the conflict, and
• lives in fear of being taken from her mother again.

[5] While claiming a need for protection from both of her parents, V.F. requests that she and her siblings nonetheless be placed with one of them: her mother. She seeks that placement under the supervision of the Society. Despite requesting the Society's supervision, V.F. seeks to exercise a veto over her access to her father. She does so in a pleading issued when she was refusing virtually any interaction with him.

[6] V.F. pleads that she cannot trust her father. She adds that "the situation is urgent because her father opposes her "… right to have her own independent lawyer …" in the SCJ custody proceeding. Her father's position in the SCJ custody proceeding has caused V.F.:

… to worry and believe that she may be left with no recourse for being fairly heard and having her views and preferences considered and her own interests and those of her siblings considered [other than in this proceeding]...

[7] V.F. seeks relief on behalf of her siblings as well as herself. On their behalf she seeks independent counsel in this proceeding. However she does not plead that she consulted with them about any aspect of this application. She also does not plead that her siblings share her views and preferences regarding either of her parents. Her counsel, Mr. Glass, placed himself on the record as counsel for V.F. alone.

[8] Both V.F.'s father and the Society say that V.F. is the victim of parental alienation by her mother against her father. Accordingly they argue that her views and preferences are not independent. That view is supported by a number of professionals who have been involved with the F. family.

Background to this Application

[9] J.F. ("the father") married A.T.-F. ("the mother") (collectively "the parents") on May 1, 1999. They have three children, V.F., born 2002, T., born 2005, and J., born 2007.

[10] The parents separated on January 7, 2014 but continued to live together in the matrimonial home. On February 22, 2014, the mother was arrested as a result of a domestic incident with the father. The charges were later dropped. The mother's arrest had a traumatic effect on both herself and V.F.

[11] In mid-March, 2014 the father moved out of the matrimonial home. The parties then exercised a temporary shared custody arrangement.

[12] In 2014 the father commenced family law proceedings in the SCJ. On March 6, 2014, Gray J. of the SCJ ordered a custody and access assessment under s. 30 of the Children's Law Reform Act ("CLRA").

[13] On December 3, 2014 Gray J. ordered that the father have temporary sole custody of all three children, in addition to the shared custody arrangement in place. This was in accord with Phase I of plan of the parents' custody and access assessor, Howard Hurwitz.

[14] The trial of the parents' case took place over 11 days between November 23 and December 16, 2015. Trimble J. of the SCJ issued his reasons for judgment on February 5, 2016.

[15] The key issue in the SCJ trial was custody of the children. That issue centered on the concern that V.F. had been alienated from her father by her mother. The father was concerned that the other two children would follow in V.F.'s footsteps. The assessors who testified at trial shared that concern.

[16] V.F. refused to live, even part time, with her father, despite an order for temporary shared custody. She got to the point where she refused virtually any meaningful contact with him. The only exceptions appear to be contact that assisted her mother's position in court.

[17] Despite residing exclusively with her mother in Oakville, V.F. managed to retain a lawyer for this proceeding, Mr. Glass, in Toronto. V.F.'s mother drove the child her first lawyer's appointment, and some or all of her subsequent appointments with Mr. Glass.

[18] On a number of occasions, V.F.'s mother removed or allowed her to be removed from school to meet with Mr. Glass. This was contrary to the expressed wishes of V.F.'s custodial parent, her father.

[19] On December 10, 2015 V.F. was brought to this court by her lawyer. Neither parent was present, although V.F.'s mother must have condoned, if not made, the arrangements. V.F.'s father was unaware of this event. The HCAS worker present at court was concerned by her attendance without either parent.

[20] V.F. pleaded that she was commencing her application because she did not feel that she was being heard in the SCJ proceeding. Yet her counsel, who appeared at the hearing of opposing motions in the SCJ proceeding, never sought leave to represent her at the trial of that proceeding.

[21] The Society chose not to commence a child welfare proceeding regarding this family. It believes that its concerns regarding the family do not require it to seek court involvement. The HCAS has written to the parties that it would not remain involved with this family if V.F. were placed in the care of her father. If she were placed with her mother, the Society would seek voluntary involvement.

Litigation History of this Proceeding

[22] The history of this child welfare proceeding is inextricably intertwined with its SCJ custody and access cousin. This application was commenced on November 9, 2015, two weeks before the SCJ trial began.

[23] Two months before V.F. signed her application, Howard Hurwitz had issued his updated custody and access recommendations. He called for V.F. and her siblings to be placed in the custody of their father. He also recommended a three month blackout period during which the children have little or no contact with her mother.

[24] On October 14, 2015, Lorne Glass, wrote to V.F.'s parents. He indicated that he had been retained by V.F. "…to make sure that you and any decision maker, such as a judge or arbitrator, know what her wishes and preferences are concerning the issues of custody and access." He added that he wished to meet with the parents. He requested that each of them provide him with a $3,390.00 retainer. The mother provided that retainer to Mr. Glass. The father refused.

[25] Mr. Glass' letter was written one day before Gibson J. of the SCJ heard the mother's motion to adjourn the custody trial. On October 15, 2015, Gibson J. dismissed the motion. He cited the allegations of parental alienation and the need to have the allegations promptly tried in the best interests of the children. He ordered that the matter remain on the Milton SCJ's November, 2015 trial "blitz" list. It was not to be called before November 17, 2015.

[26] The father's counsel wrote back to Mr. Glass on October 16, 2015. Ms. McCarthy stated that, as V.F.'s sole custodial parent, J.F. did not consent to Mr. Glass meeting with or acting for V.F.

[27] Eleven days later, Mr. Glass responded to express his surprise that a parent objected to his retainer. His surprise arose, he wrote, because of the importance of making children's views and preferences "… known to all parties and the Court." He added that he did not require J.F.'s consent to meet with V.F. Ms. McCarthy replied, reiterating her client's position.

[28] On November 18, 2015 the father moved in the SCJ for various "emergency" relief. He sought an order that the parents proceed with the custody trial despite this proceeding. He also asked the SCJ to dismiss or stay this proceeding.

[29] The mother opposed the father's motion. She requested an adjournment and brought a cross motion of her own. She requested an order granting the children "the opportunity to have their views and preferences considered…" at the custody trial. She also sought an 11th hour change of the temporary sole custody order, into a joint custody order.

[30] On November 22, 2015 the Honorable Mr. Justice Trimble ruled on the motions. He refused to adjourn or stay either proceeding. He dismissed both motions other than the request to proceed with the SCJ custody trial. He started that trial the following day.

[31] Trimble J. left any remedy regarding this proceeding up to this court. He stated that a judge of this court "…is in the best position to control his own process."

[32] Despite refusing to stay it, Trimble J. found that this proceeding is an abuse of process. He stated that it was commenced "… for tactical purposes in the SCJ proceedings … to effect a result in the SCJ proceedings." In other words, he found that this proceeding was commenced to delay or avoid the impending SCJ custody trial.

Evidence at SCJ Custody Trial

[33] Trimble J. heard evidence from both parents and numerous collateral factual witnesses. He also heard from two experts on the custody and access issues before him, Mr. Hurwitz and Ms. Geraldo. Those experts in turn heard from the children's therapist, a number of their teachers, the two youngest children's school principal, the children's pediatrician, the child psychologist who assessed the children, a parenting coordinator and an HCAS worker. Trimble J. also heard directly from an HCAS supervisor.

[34] The views and preferences of all three children were clearly front and centre at the custody trial. Trimble J. wrote at par. 55 of his trial decision:

The children's clear views and preferences were received in this Court, notwithstanding [the fact that children's counsel was not appointed for the trial]. The views and preferences of each of the children were presented to the Court by Mr. F. and Ms. F., the T. and F. family members who testified, Donna Hutchins (children's therapist), Ms. Magill (V.F.'s teacher in 2014), Ms. Kortiko (V.F.'s teacher in 2015), Tazeem Kara (T. and J. Kumon teacher in 2015), Mr. Vigna (Principal at T. and J. school in 2014), Dr. McDonald (the children's pediatrician), Section 30 [of the CLRA] Assessors, Lourdes Geraldo and Howard Hurwitz, Megan Seto (Halton CAS worker), Linda Chodos (V.F.'s therapist), Dr. Fiorini (V.F.'s pediatrician), and Michelle Hayes (parenting coordinator).

[35] Some of that evidence was presented directly (i.e. the parties, family members, expert assessors, Mr. Hurwitz, and Ms. Geraldo). Other evidence was offered indirectly through the notes and records of the two experts and reports submitted to them. Despite the hearsay nature of some of that evidence, Trimble J. accepted it as necessary and reliable.

[36] Trimble J. found that "[o]verall, there was no dispute about the children's views. The dispute lies in what was behind their views."

[37] It is worth noting that Trimble J. did not confine his consideration of views and preferences to V.F. He wrote of how worried her siblings were about their mother, who often cried in her phone calls with the children.

[38] Unlike V.F., ten year old T. was more bewildered and sad than angry with his father. He still had unanswered questions about the parental breakup. Eight year old J. was simply sad over the breakup and wanted her parents back together again.

[39] Both T. and J. are happy to spend time with their father. However they are confused when V.F. acts out with regard to her father. They have tried in the past to calm her down when she was having a melt down over her father. They spoke of not wanting V.F. to accompany them on visits with their father. They felt that they needed to cheer her up because they want their sister to be happy. But they are bothered by her emotions.

[40] Both Mr. Hurwitz and Ms. Geraldo felt that V.F. is alienated by her mother against her father. They warned that without urgent action, T. and J. were at risk of becoming alienated from their father as well.

[41] The HCAS offered oral evidence at trial that mirrors its position in this motion. That position followings from its investigation. The Society has "…concerns about the children's emotional well-being with the children in Ms. F.'s custody and residence." Further it does not support the continuation of this proceeding. It feels that its concerns about this family do not merit a child welfare application. It feels that this proceeding puts V.F. in the middle of her parents' dispute.

Trial Decision of Trimble J.

[42] Trimble J. granted immediate full custody of the three children to the father. He simultaneously ordered the implementation of Phase II of the plan of assessor, Howard Hurwitz. The plan calls for a 90 day blackout of contact between the three children and their mother and their father's right to move with the children from Oakville to Toronto.

[43] Trimble J. recognized that he was imposing "… extreme or last resort … [and] intrusive…" measures on V.F. and her family. He ordered those measures because he found that V.F.'s mother "…has engaged in conduct that has alienated V.F. from her father, and that this alienation is severe." If that behavior "… does not change, the remaining two children may also become alienated from their father."

[44] The expert evidence at trial "overwhelmingly" concluded that the alienation was real and that it resulted in V.F.'s alignment with her mother against her father.

[45] Despite help from numerous professionals, Ms. T.-F. "… has not altered her alienating behaviours." She "…has shown that she is unable or unwilling to change her views of Mr. F. or her alienating behaviour."

[46] Trimble J. ordered that he remains seized of the case following his judgment. All non-urgent motions brought by either parent are to be heard before him, at least until the reunification therapy is completed, if not longer.

Issues for this Motion

[47] This motion raises three issues:

1. What use may be made of Trimble J.'s findings in both the pretrial motions and the trial?
2. Is this proceeding an abuse of process?
3. Does V.F.'s application raise a genuine issue for trial?

Issue No. 1: The Use to be Made of the Findings of Trimble J.

[48] Ms. McCarthy, counsel for Mr. F., argues that I am bound by or at least required to place great weight on the findings of Trimble J. She places particular emphasis on Trimble J.'s motion finding that this proceeding is an abuse of process. She argues that the doctrine of issue estoppel applies or that the situation of this case is close to that of issue estoppel.

[49] Mr. Glass, argues to the contrary. He states that the doctrine of issue estoppel does not apply because the parties and issues before Trimble J. were not the same as those in this case. Neither V.F. nor the HCAS were parties before the SCJ.

[50] Mr. Glass points out that the key issue in a child welfare case, the protection of neglected or abused children by the state, is different than that of a custody case. A custody case generally looks to the best interests of a child in the context of a private dispute between parents.

[51] Mr. Glass points to this comment by Trimble J. at par. 64 of his motion decision to buttress his point:

Since the protection of children as defined in the CFSA is different than the best interests of children in this proceeding, it is better for the stay question to be determined in the OCJ [Ontario Court of Justice].

[52] As Mr. Glass further points out, Trimble J. found that a judge of this court, rather than himself, is in the best position to determine the father's motion.

[53] None of the parties mentioned it, but the starting point of this analysis is s. 50(1) (b) of the CFSA. It states:

Past conduct toward children

50. (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. [emphasis added]

[54] This provision explicitly allows me to consider all of Trimble J.'s findings. However it does not say that I am required to follow them.

[55] As the Ontario Court of Appeal affirmed in Minott v. O'Shanter Development Co. the three requirements for issue estoppel are that:

1. the same question has been decided;
2. the judicial decision which is said to create the estoppel is final; and
3. the parties to the judicial decision or their privies were the same persons or parties as the parties to the proceedings in which the estoppel is raised or their privies.

[56] Mr. Glass is correct when he points out that the parties and the issues before Trimble J. and myself are not the same. The doctrine of issue estoppel does not bind me to accept the findings of Trimble J.

[57] That being said, I cannot avoid the fact that both Mr. Glass and counsel for the Society appeared before Trimble J. when he found that this proceeding is an abuse of process. Mr. Glass states that his role was a limited one in the two motions. That is true, but as Trimble J. stated:

Mr. Glass filed no materials, but made submissions on discrete parts of the Father's motion in his personal capacity as the object of the claimed injunctive relief, and as purported counsel for A in the OCJ protection proceedings.

[57] Mr. Glass made submissions to Trimble J. with regard to a number of issues, particularly:

(a) Mr. F.'s claims against him (which were dismissed by Trimble J., with leave to bring them in this court);

(b) a stay of the SCJ proceedings in light of this proceeding;

(c) V.F.'s right to counsel, which he supported, but in this proceeding. Mr. Glass's failure to apply to represent V.F. in the SCJ was notable for Trimble J. The absence of child's counsel in the SCJ proceeding was ostensibly one of the ills that this proceeding was commenced to rectify.

(d) Mr. Glass argued in favour of V.F.'s right to bring this child welfare proceeding, and for himself to act for her without the father's consent.

[59] The HCAS filed an affidavit and offered brief submissions in the motion. It took no position regarding the relief requested by either party and did not express any concerns that the SCJ proceedings posed any risk to the children.

[60] In the pre-trial motions, Trimble J. heard from all parties now before me. He heard many of the same arguments that I heard. With the exception of the evidence of Michael Blugerman, which I discuss below, Trimble J. was completely aware of the evidence and the substance of the arguments that were presented to me in this motion. However his advantage is that he saw the evidence live, in the witness box.

[61] In other words I have no advantage over Trimble J. in assessing the evidence or arguments about both the best interests and protection of the children. To the contrary, at trial he had a far richer evidentiary tapestry laid before him than I have before me in this motion.

[62] While Trimble J. did not have Mr. Glass before him at the trial, he was fully aware of V.F.'s views and preferences, and the reasons for them. The trial began just over three months ago. The last evidence was taken about two and a half months ago. The final decision was released just one week before I heard this motion.

[63] In conclusion, while I am not bound by the findings of Trimble J., I am entitled to give them great weight. As set out below, I do just that.

Issue No. 2: Is this Proceeding an Abuse of Process?

[64] Relying on the finding of Trimble J., the father argues that this proceeding is an abuse of process because it was begun for a collateral purpose – to influence the SCJ proceeding – either to prevent it from occurring or to assist V.F. to obtain counsel in that proceeding.

[65] Trimble J. offered three reasons to justify this position:

a) the HCAS did not commence a child welfare application in this case on its own;

b) this proceeding has "dubious merit" on its face;

c) the timing of events shows that this case was brought as a "tactical measure."

[66] The first two points speak to the merits of this application, which I will deal with below, as part of a consideration of whether it raises a genuine issue for trial. The third asserts that this proceeding has a collateral purpose in regard to the SCJ proceeding.

[67] Mr. Glass denied that this proceeding is an abuse of process. He argued that V.F. has every right to bring it. She seeks a result not available in the SCJ proceedings – a finding that she is in need of protection under s. 37(2) of the CFSA. Had the Ontario Legislature wished to prevent a child such as V.F. from bringing a proceeding such as this, it could have clearly done so.

[68] Although Trimble J. found that this proceeding is an abuse of process, Mr. Glass argues that Trimble J. did not hear from him on the subject. Even so, Trimble J. refused the father's request to stay this proceeding. In fact Trimble J. dismissed all of the father's requested relief other than an order requiring the custody trial to immediately commence.

[69] Mr. Glass also argues that I should not rely on the decision of Trimble J. as the doctrine of issue estoppel does not apply here, for reasons discussed above.

[70] In Canam Enterprises Inc. v. Coles the Ontario Court of Appeal explained that the doctrine of abuse of process is a broad one that is unencumbered by the notion of issue estoppel. Goudge J.A., writing in a dissent that was adopted by the Supreme Court of Canada, stated:

[55] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

[56] One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined.

[71] Here I agree with Trimble J. that this proceeding is an abuse of process. But I do not say so simply to echo or adopt his position. Rather I rely on the following facts cited in the evidence of Mr. F. before me and the two decisions of Trimble J:

1. V.F. is under the control of her mother;
2. V.F.'s retainer of Mr. Glass and her bringing of this proceeding are intimately related to the actions of the mother in the SCJ proceeding;
3. The object of this proceeding is collateral to the SCJ proceeding;
4. To allow this proceeding to continue would amount to a rehearing of the SCJ proceeding.

[72] I offer details of those facts below.

1. V.F. is Under the Control of Her Mother

[73] V.F. has been found by the experts that testified in the SCJ trial to have aligned herself with her mother in rejecting her father. Mr. Hurwitz pointed out that V.F. refused to have any contact with her father, including on any family trips. But the child's criticism of her father for taking her siblings on those rejected family holidays"…is identical to Ms. T.-F.'s response and criticism of Mr. F."

[74] While V.F. claims that she has independent views, both Lourdes Geraldo and the mother herself said that "… V.F. does what Ms. T.-F. tells V.F. to do."

[75] Multiple incidents cited by Trimble J in his trial decision demonstrate the consistent extent to which the mother is able to control V.F.'s behaviour. Ms. T.-F. does this by deriding the father, misrepresenting his motives, encouraging V.F. to break rules set for the father's contact with her, or the rules of an assessment observation of a visit between father and daughter. She even rewards the child for behaviour that rejects her father.

2. V.F.'s Retainer of Mr. Glass and Her Bringing of This Proceeding Are Intimately Related to the Actions of the Mother in the SCJ Proceeding

[76] Before both Trimble J. and myself, the mother makes much of the notion that V.F. needs to have her voice heard by the court. It is perhaps no coincidence that the child's views and preferences one-sidedly favour the mother's position. Mr. Glass' position in this motion perfectly aligns with the position that the mother offered to first Trimble J. and now this court.

[77] In the months leading up to the SCJ trial, the mother tied the issue of V.F. having her voice heard to assisting her own custody claim against the father.

[78] Ms. Geraldo reported that the mother only ostensibly encouraged V.F. to have contact with her father. The mother told the child that if she did not see her father, she would not have her voice heard by the judge.

[79] But rather than cooperating, the mother was both subtly and overtly offering the opposite message. First, the mother was able to demonstrate apparent cooperation without really offering it. Second, she further enlisted V.F. as an ally in the campaign against the father obtaining custody. She effectively framed themselves as allies in the battle against the father's custody claim.

[80] Trimble J. noted a similar dynamic in V.F.'s email professions of her desire to see her father but subsequent refusal to do so.

[81] Trimble J. refers to V.F. discussing the issue of having her voice heard in court with a lawyer named "George" as early as February 12, 2015. In her argument before me, Ms. T.-F. maintained that the reference to George was not to a lawyer she had retained for V.F., but to her own counsel. That of course is not evidence.

[82] But even if Ms. T.-F.'s assertion can be taken as true, the point is still made. V.F. had been pulled by her mother into a discussion about her role in the custody trial. That discussion directly or indirectly included reference to the mother's lawyer.

[83] Mr. Glass is well-known in child welfare circles. The mother denied pointing V.F. in Mr. Glass' direction. But despite close questioning by Ms. McCarthy prior to trial, she was unable to articulate how her 13 year old child, living with her in Oakville, came to choose and retain such a lawyer in Toronto.

[84] It was the mother who drove V.F. to Mr. Glass' office in Toronto for her first appointment, behind the back of the father. She then unconvincingly claimed that taking the child to Mr. Glass' office was akin to taking her to a friend's house for a play date or to a haircut.

[85] The mother claimed that she did not have to seek Mr. F.'s consent to take V.F. to Mr. Glass' office because it was a "day-to-day" decision. That explanation is disingenuous.

[86] The mother continued to allow Mr. Glass to meet with V.F. despite the custodial father's objection and lack of a court order appointing Mr. Glass.

[87] Ms. T.-F. paid half of Mr. Glass' retainer even though the father refused to pay the other half.

[88] She provided Mr. Glass with certain court orders and confidential assessment reports that involve the father without his consent.

[89] Trimble J. concluded that the mother:

…knowing that she did not have custody, encouraged and facilitated V.F. in retaining counsel, Mr. [Glass], and in bringing the Ontario Court of Justice application for the protection of the children…

[90] The arguments that V.F. raises, of harm and the need to have her voice heard, are close echoes of the arguments that the mother raised in the SCJ proceedings.

3. The Object of This Proceeding is Collateral to the SCJ Proceeding

[91] In his email correspondence to Ms. McCarthy and the mother, Mr. Glass asserted that his concern was to allow V.F. to be heard in the SCJ proceeding. He stated that he was seeking the child's instructions regarding "… the necessary steps to make that possible". Mr. Glass later described himself as counsel for V.F. "… with respect to the litigation now going on between her parents and the results that might follow from this litigation."

[92] Yet, as set out above, Mr. Glass never explained why he did not move under Rule 4(7) to represent V.F. in the SCJ proceeding.

[93] The only conceivable explanations for that failure were that Mr. Glass forgot to make the request or that he was instructed not to do so. The first option is extremely unlikely for an experienced counsel like Mr. Glass. So the omission must have been deliberate and strategic.

[94] The only strategic reason to refrain from moving to be appointed counsel for the SCJ trial is to avoid the SCJ trial altogether. Coincidentally or not, that was the mother's aim.

[95] Trimble J. found that the mother's 11th hour attempt to adjourn the SCJ trial to appoint counsel for the children was a stall tactic. She could have requested that relief in the year and a half since the commencement of the proceeding.

[96] Recall that the mother was facing a trial without counsel. The father was represented by a formidable lawyer. The weight of expert evidence was firmly against her. She was facing the strong possibility of losing custody and not seeing the children for some time. This application served her ends.

[97] The point was made explicit when Mr. Glass wrote a series of emails suggesting that the custody proceeding had to be stayed because of this proceeding and the operation of s. 57.2 of the CFSA. As Trimble J. wrote:

Mr. Glass, in his email of November 13 to the Mother and to the Father's counsel, states clearly and unequivocally that the purpose of the OCJ protection proceeding was to stay the SCJ. He says " the [SCJ] proceeding, insofar as it deals with the issue of custody of and of and (sic) access to any of the children in this matter, must be stayed pursuant to section 57.2 of the Child and Family Services Act ", and " I am hopeful that there will be an agreement not to proceed with the trial on the issues of custody and access until the child protection matter is concluded .", and " Clearly [V.F.] and her siblings have a great interest in the [SCJ trial and will be very much affected by any orders that are made with respect to custody and access. As such I believe that if you choose to proceed, the children should be represented by counsel ." Having made this position clear, he brings no request to represent the children in the SCJ proceedings.

[98] V.F.'s application pleading is most telling. It speaks of V.F.'s fears, arising out of her parents' conflict. Yet a few things are missing that one would expect if V.F. were seeking HCAS intervention.

[99] V.F. begins paragraph 6 of her application with a preamble stating that she feels at risk harm because of the "… continuing, prolonged and relentless conflict between her parents…" Yet she does not ask to be taken out of that conflict and, say, placed in HCAS care. Instead she inserts herself square in the middle of the conflict. She asks that this court place her with one of the conflicting parents, her mother, albeit under HCAS supervision.

[100] While V.F. says that the Society should have a say over her access to her father, she seeks to reserve to herself a veto over contact with her father. Since she was not willing to see her father at the time, despite a court order, she was using this proceeding to legalize that arrangement.

[101] Considering the control that the mother exercised over V.F., her intimate involvement with V.F.'s retainer of counsel and the clear parallels between Mr. Glass' representation of V.F. and the interests of the mother, only one conclusion is possible. V.F. retained counsel and commenced this application in league with or consciously attempting to assist her mother in the SCJ matter. She hoped to either forestall the custody trial while further extending a status quo of no contact with the father, or sought to undermine the almost inevitable conclusion of that trial.

[102] In essence these are the reasons that Trimble J. found that the mother encouraged V.F. to bring this proceeding as "… a tactic designed to derail these [SCJ] proceedings."

4. To Allow This Proceeding to Continue Would Amount to a Rehearing of the SCJ Proceeding

[103] Despite the fact that Trimble J. refused to stay the SCJ proceeding and determined the issues at trial, V.F.'s counsel opposes this motion to dismiss this child welfare proceeding. That could only be because she is hoping for a different result.

[104] It is true, as Mr. Glass argues, that child welfare and custody proceedings have somewhat different aims: public protection vs. private best interests. But in this case that is a distinction without a difference.

[105] V.F. is a 13 year old child. There is nothing before me that shows that she understands the difference between the two family law processes. What she aims for in this proceeding is to avoid being required by the SCJ to live with her father. All the rest, including the request to force both parents into counselling, has the same flavour as her cooperation with access to her father. It is all in service of her common goals with her mother.

[106] Mr. Glass began his submissions before me by stating that V.F. brought this child welfare application forward because she could see no other way for her voice to be heard. That assertion is not in the evidence. Even if I had such a statement from V.F. before me, it would simply buttress the point about V.F.'s goal in this proceeding.

[107] What V.F. seeks is a new process because she is unhappy with the old one. Through her counsel, she complains that the trial did not deal with her request to be represented.

[108] But V.F. had a lawyer who had weeks to make the request. Instead she commenced this proceeding and argues that it trumps the SCJ proceeding. Having failed in the argument (although not the result) before Trimble J., she tries it before me.

[109] After a recent 11 day trial, Trimble J. is better situated that I to determine how V.F. should be protected from her parents' conflict. With the exception of Mr. Blugerman's limited evidence, he had before him all of the evidence that would presently be available to me. As I set out below, Mr. Blugerman's evidence is of little assistance in determining the issues before me.

[110] It is true that I do not have the evidence of how the children reacted to the change in custody and the blackout of their contact with their mother. But Trimble J. remains seized of the issue, so he can deal with any concerns that arise.

[111] I do not deny that the test for a finding of need for protection before me under s. 37(2) of the CFSA is somewhat different than the broad best interests test under the Divorce Act or the CLRA. However the CFSA is suffused with the notion of the best interests of children, which is inescapably linked to the protection of children. The point is made clear in s. 1(1) of the CFSA which declares that:

The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

[112] Further, the scheme of the CFSA calls for the court not to grant a disposition until a need for protection is established. But at that point the test becomes one of best interests, which is broadly defined under CFSA s. 37(3).

[113] In determining the children's best interests, Trimble J. was fully alive to the need to protect them from the effects of the conflict between their parents. He looked to the best expert evidence available to him to determine how best to protect them moving forward. That is why he took the drastic step of sole custody and a blackout period of contact with the mother.

[114] He wrote about the risk to the children of failing to immediately change the status quo. Quoting Ms. Geraldo, he stated:

… Alienated children are more prone to developing poor coping skills, poor problem solving skills and mental health problems such as low esteem, conduct issues, disregard for social norms and authority, depression and anxiety.

[115] V.F. claims that many of these concerns are the very basis of her child welfare application. Yet, as Trimble J. points out, child psychologist, Dr. Olga Henderson, states that V.F.:

… is developing many of these [problems] now. Her issues, both psychological and social, will continue to deepen if matters are not addressed immediately.

[116] When addressing V.F.'s siblings, T. and J., Trimble J. explicitly finds that they are at risk. Quoting the two primary experts in this case, he adds:

[190] Mr. Hurwitz and Ms. Geraldo said that T. and J. are at risk. They are confused and conflicted when V.F. acts out. For example in May, 2014, when V.F. was in the car screaming, banging the window and saying she wanted to kill herself, T. and J. tried to calm V.F., and asked Mr. F. to take V.F. swimming. Did they ask this because they were siding with V.F., or because they merely wanted to stop the hysteria? Perhaps it is a bit of both.

[191] T. and V.F. are quoted as saying that they did not want V.F. to come with them on access visits. Mr. Hurwitz said that T.'s and J.'s attachment to their father might not withstand the pressure from Mrs. F. and V.F.'s views. Ms. Geraldo said that T. and J. feel they have to cheer V.F. up because they want her to be happy. They are bothered, however, by her emotions.

[117] Mr. Glass asks me to place greater weight on the opinion of Dr. Henderson than he says Trimble J. accorded her. Dr. Henderson advocated more counselling for V.F. before she receives counselling for alienation. I will have more to say below about the weighing of Dr. Henderson's opinion against that of Mr. Hurwitz and Ms. Geraldo.

[118] However as set out above, Trimble J. did consider and even adopt some of the comments of Dr. Henderson. It also has to be recalled that her opinion was confined to the child's level of cognitive and emotional functioning. She offered no opinions on custody and access.

[119] For this court to consider the same evidence that was before Trimble J., but be open to a different conclusion, would amount to a rehearing of the case. Even if this were an appeal of the Trimble J. decision, the court would not be entitled to substitute its conclusions absent a palpable and overriding error. I do not see how another court, even ignoring the fact that it is of a subordinate level of authority to the SCJ, could do that.

[120] In Sangale v. Abdalla, Kiteley J. was faced with a situation somewhat analogous to this one: forum shopping. A wife who had commenced a divorce and custody application in Kenya (where her children and husband resided), brought another application for similar relief in Ontario. In response to the husband's motion for summary judgment, she withdrew portions of her Kenyan application. Kiteley J. was not amused. She wrote:

26 To allow the Applicant to achieve a tactical advantage by use of a strategy that can only be described as forum shopping to defeat this motion brought by the Respondent is inconsistent with the objectives of public policy against multiple proceedings and undermines the integrity of the adjudicative process and constitutes an abuse of process.

Conclusion on Abuse of Process

[121] For all of the reasons set out above, I find that this proceeding is an abuse of process. It was brought by V.F., while under the influence of her mother, in order to assist her mother to avoid the SCJ proceeding. Now that the trial in that case is over, it represents an attempt to have another court essentially re-litigate the issues already determined before the first court.

[122] I point out, somewhat parenthetically here, that a case such as this demonstrates the need for a unified family court throughout Ontario. Had there been one in Milton, the issues in this case could have been determined in the same court and by the same judge.

Issue No. 3: Does V.F.'s Application Raise a Genuine Issue for Trial?

[123] My finding that this proceeding is an abuse of process is sufficient to dispose of this proceeding. But this is a child welfare application that raises issues about the protection and best interests of the F. children. In case I am incorrect about the abuse of process issue, I have considered whether the facts of this case demonstrate a genuine issue for trial. On a review of the evidence, and for reasons set out below, I find that it does not.

Principles on a Motion for Summary Judgment

[124] Under Rule 16 of the Family Law Rules, either party may bring a motion for summary judgment or a final order without the requirement of a trial. The rule applies in child welfare cases. The test for such a motion is whether the evidence discloses a genuine issue requiring a trial of a claim or defence.

[125] The term "no genuine issue for trial" has been interpreted to mean "no chance of success" or "plain and obvious that the action cannot succeed", or "manifestly devoid of merit".

[126] 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 a trial.

[127] In response to the evidence of the moving party, the responding party may not rest on mere allegations or denials but shall set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[128] On a motion for summary judgment, the court is required to take a hard look at the merits of the case. The onus for proving that there is no genuine issue for trial rests with the moving party. No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.

[129] If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order. If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

[130] If the court does not make a final order, or makes an order for a trial of an issue, the court may also specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial, and impose conditions, if appropriate.

[131] The court's powers to consider the evidence before it has been expanded by R. 16 (6.1) which reads as follows:

Powers

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[132] In exercising its expanded powers, the court may hear oral evidence from one or more of the parties, with or without time limits, in the form of a mini-trial.

[133] In Hryniak v. Mauldin, the Supreme Court of Canada set out the process to be followed in applying the expanded civil summary judgment rules.

[134] These new rules expand the number of cases in which there will be no genuine issue requiring a trial. They do so by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences. I have considered the principles articulated in par. 44 – 78 of Hryniak.

[135] In keeping with the principles set out in Hryniak, the court must also consider Rule 2 (2) – (5) to ensure that a case is dealt with justly. It does so by ensuring the procedure is fair to all parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity.

[136] As Emery J. stated in Afolabi v. Fala, reflecting on the application of the Hryniak principles to family law before the recent changes to Rule 16:

If anything, family law in Ontario cries out for the summary disposition of issues in appropriate circumstances as much as in any other area of law. This accessibility to timely, affordable justice is as important to the parties in conflict as it is to the confidence of citizens in our court system that cases will be adjudicated efficiently and effectively according to law.

[137] That process is equally applicable to child welfare cases. A summary judgment motion is a tool that can contain and control a child's drift in litigation.

Application of Summary Judgment Principles to Facts of This Case

Evidence of Michael Blugerman

[138] The starting point of this exercise is, of course, the affidavit evidence of the parties before me and the findings at trial of Trimble J. (to which I attribute substantial weight).

[139] Mr. Glass filed no evidence of V.F. herself. He did file the affidavit and report of Michael Blugerman, a social worker who twice interviewed V.F. after the SCJ trial concluded. Mr. Blugerman produced a three page report to Mr. Glass from those interviews. He was cross-examined before me in open court.

[140] Mr. Blugerman is a very experienced social worker. While he has conducted CLRA s. 30 reports and CFSA parenting capacity assessments in the past, the main focus of his practice is adoption. He has been qualified as an expert witness in Ontario courts in a number of areas that primarily involve adoption. Those areas are, as set out in his report: "… Adoption and the Impact of Openness Orders; Psychotherapy; Attachment Issues and Adoption; Adoption and Permanency Planning; Attachment Issues; and Child Welfare and Adoption Issues."

[141] Mr. Blugerman spent 3.5 hours with the child over two interviews. He met no other party to this proceeding.

[142] He also read a number of documents, including three of the father's affidavits, the two reports of Mr. Hurwitz and three of the reports of Dr. Henderson (one for each F. child). Mr. Blugerman read Ms. McCarthy's notice of motion and O'Connell J.'s previous endorsement, both in this proceeding. He read Trimble J.'s motion endorsement. After he wrote his report, Mr. Blugerman skimmed Trimble J.'s trial reasons for judgment. He also read a report by an American social worker, Ms. Glottlieb Kase. Trimble J. refused to admit the report of Ms. Glottlieb Kase into evidence or to qualify her as an expert. He found that she lacked impartiality.

[143] Mr. Blugerman addresses his report of January 7, 2016 to Mr. Glass. Yet he was asked to become involved in this case by another lawyer, Jeffery Wilson. Mr. Wilson is counsel for Mr. Glass in regard to the relief that the father claims against Mr. Glass in this motion.

[144] Mr. Blugerman testified that he has known Mr. Wilson for 40 years and that they are friends. He also stated that he has known Mr. Glass for 30 years. Mr. Glass paid his fee for his report.

[145] Mr. Wilson sent Mr. Blugerman an email on December 23, 2015, which states that it follows their brief conversation. The email poses five questions for Mr. Blugerman. It also makes reference to Mr. Wilson sending him documentation to read.

[146] Mr. Blugerman's report to Mr. Glass refers to "your five questions," implying that they were posed by Mr. Glass. It does so even though they were posed by Mr. Wilson. The report makes no reference to the involvement of Mr. Wilson or their previous relationship.

[147] The December 23, 2015 email from Mr. Wilson to Mr. Blugerman was only produced with Mr. Blugerman's notes on the date this motion was argued. Ms. McCarthy had asked for them in advance. Counsel had agreed that Mr. Blugerman would be produced for questioning two days before the motion was argued. However Mr. Glass refused to produce him for reasons never explained.

[148] Mr. Blugerman did not sign an acknowledgment of expert's duty form in accord with Rule 20.1. Mr. Wilson told him that he would be asked to do so. Nonetheless I allowed Mr. Glass to ask Mr. Blugerman to confirm that he is in compliance with the duty set out in Rule 20.1(1) and (2). I did so over the objection of Ms. McCarthy. I did not wish to see evidence which was potentially relevant to the protection and best interests of a child lost because of a correctible technical breach.

[149] Mr. Glass clearly wished to rely on evidence of Mr. Blugerman as expert evidence. He questioned him in regard to the Rule 20.1(1) and (2) expert duty. Yet Mr. Glass did not attempt to tender Mr. Blugerman as an expert in any particular discipline or sub-discipline. I will have more to say about that below.

[150] In cross–examination, Mr. Blugerman admitted that he is not a member of the Ontario College of Social Workers and Social Service Workers. Thus he is not entitled to hold himself out as a social worker. He nonetheless considers himself one. I am unaware of any bar to him offering expert evidence merely because he does not belong to that college.

[151] Echoing instead the words of Mr. Wilson's email, Mr. Blugerman described his report as a litigation report to counsel. He never made the meaning of that term explicitly clear. From his evidence, I assume that Blugerman means that he intended his report to help counsel determine whether his client has the capacity to offer instructions.

[152] I note that Mr. Blugerman does not profess expertise or experience with capacity assessments such as those seen in capacity and estates matters.

[153] All that being said, Mr. Blugerman's evidence, considered as a whole, offered little that is new. In fact, at the end of the day, it did more to support the position of the father than that of V.F.

[154] In his report, Mr. Blugerman offered the following opinions:

a) V.F. is "… an intelligent, capable mid-adolescent…" She provided Mr. Blugerman with "…clearly articulated thoughts and feelings about what she needs as she finds herself in a high conflict access situation."

b) "V.F.'s thoughts are sufficiently independent to be able to express her views and preferences."

c) "She clearly has the capacity to articulate her thoughts and feelings and to instruct her lawyer."

d) V.F. "… will react badly if there were to be any intervention that appeared to be forced and beyond her capacity to contain her emotions."

e) "I think that ignoring V.F.'s wishes and preferences and simply settling the issue of custody and access arrangement will contribute to increased hopelessness in her mind about the whole situation and contribute to a withdrawal inward of her feelings at the same time as a display outward of negativity and defiance. I suggest that V.F.'s mental health needs have to have priority over a simple settlement of the issue of her refusal of her contact with her father."

[155] While those opinions seem to strongly contradict those of Mr. Hurwitz and Ms. Gerardo at the SCJ trial, that difference is more apparent than real. In cross-examination, Mr. Blugerman stated or admitted a great deal that supports the opinions offered by Mr. Hurwitz and Ms. Geraldo and adopted by Trimble J. In particular:

a) He knows Mr. Hurwitz and thinks highly of him as a custody and access assessor.

b) He feels that Mr. Hurwitz's recommendation of a 90 day blackout period of the children's contact with their mother is a good idea. So too is the involvement of the Family Bridges program to assist all family members to restore healthy relationships.

c) If an intervention were ordered by Trimble J., it would be a good outcome for V.F. Mr. Blugerman just thinks that she would react better to it if she felt that she had some input.

d) When he offers the opinion that V.F. is not fully understood, he is reflecting what V.F. is saying. He is not saying that Mr. Hurwitz failed to understand the child.

e) He is not offering a critique of Mr. Hurwitz, Trimble J., Dr. Henderson or Ms. Geraldo. He is not saying that they did not hear V.F. He is saying that V.F.'s perception is that she is not being heard.

f) From V.F.'s point of view there is more going on than parental alienation.

g) He is capturing what the child is saying. From that point of view he is really a fact witness, reporting what the child said.

h) Where V.F. says in her application that she has lost her self-esteem, that is not Mr. Blugerman's view.

i) In hearing from V.F., he is not necessarily accepting the truth of what she is saying. What is important to Mr. Blugerman is what she makes of it. In V.F.'s mind, her mother's arrest after the parties separated is an injustice for which her father must apologize.

j) He did not discuss with V.F. the fact that she commenced a child welfare application.

k) He did not raise the issues of alienation or maternal influence with V.F.

l) He has not dealt with the issue of parental alienation in his practice since the 1980s.

m) He did not respond to Mr. Wilson's question about the risk of harm to V.F. because he is not sure about it.

n) It would help if V.F. felt that she had the opportunity to speak to a judge or had some agency in this matter.

o) Yet he feels that V.F. will have the forum to express herself at the Family Bridges program (which is part of Mr. Hurwitz's Phase II plan for family reunification). They have a team of very competent people who will allow her to express herself.

[156] Despite the fact that much of Mr. Blugerman's evidence in cross examination generally supports her client's position, Ms. McCarthy asked me to exclude or ignore it. She stated that Mr. Blugerman is not qualified as an expert at all, let alone in a particular area of expertise. She states that his report says little. At best, it just repeats what the child says. It is fact evidence. Ms. McCarthy argues that Mr. Blugerman's opinion is thinly reasoned and not useful. She also points out that Mr. Blugerman saw V.F. without the father's consent, and in the absence of any authority to see the child.

[157] I do not accept Mr. Blugerman as an expert in this case for the reasons that follow.

[158] The starting point for the consideration of the qualification of an expert is R. v. Mohan. There, the Supreme Court of Canada laid out four criteria for the admission of expert evidence:

a) relevance;

b) necessity in assisting the trier of fact;

c) the absence of an exclusionary rule;

d) a properly qualified expert.

[159] Rule 20.1 (1) makes clear that a properly qualified expert requires more than academic or practical qualifications. The expert must provide evidence (and a signed certificate) that he or she is able to provide:

a) …opinion evidence that is fair, objective and non-partisan;

b) …opinion evidence that is related only to matters that are within the expert's area of expertise; and

c) …such additional assistance as the court may reasonably require to determine a matter in issue.

[160] In White Burgess Langille Inman v. Abbott and Haliburton Co. the Supreme Court of Canada expanded on the Mohan analysis. Writing for the court, Cromwell J. spoke about the "unmistakable trend of the jurisprudence" over the past 21 years, being to "… tighten the admissibility requirements and to enhance the judge's gatekeeper role."

[161] Adopting the analysis of Doherty J.A. of the Ontario Court of Appeal in R. v. Abbey, Cromwell J. found that there must be a second, gatekeeper, stage of the analysis of the admissibility of expert evidence. Even if an expert passes the four part Mohan analysis, that is just the preliminary step. The court must then exercise a second step discretionary gatekeeping role. In this role, the court balances the potential risks and benefits of admitting the expert evidence.

[162] Adopting the words of Doherty J.A. in Abbey, Cromwell J. stated that the

… trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of expert evidence.

[163] So the expert's lack of impartiality goes to admissibility and not just weight. It can be addressed at the "qualified expert" stage of the Mohan analysis as well as the gatekeeper analysis.

[164] Mr. Blugerman's evidence does not pass the first, third and fourth parts of the Mohan test. It cannot be relevant if it simply reports on the child's views. Mr. Blugerman displayed real candour in admitting that he was more a fact that expert witness in this matter. The opinions that he expresses in his report mainly reflect those of V.F.

[165] Even to the extent that he opines on V.F.'s capacity to retain counsel, his evidence raises two problems. First there is no evidence that he is qualified to opine on the subject. Equally problematic, he ignores the proverbial elephant in the room: the mother's influence on V.F. Mr. Blugerman did not even explore the issue with the child. He has not dealt with such an issue for decades.

[166] The issue of this 13 year old child's capacity to instruct counsel, without any reference to the context of this case, is unhelpful. As stated below, child psychologist, Dr. Olga Henderson, finds V.F. to be "cognitively competent". But she puts that finding into the larger context of V.F.'s problematic level of cognitive and emotional functioning.

[167] I also cannot see how Mr. Blugerman's evidence, which in this case is quite shallow, can assist a trier of fact. His analysis of V.F.'s ability to instruct counsel comes in a three sentence, four line paragraph. That paragraph expresses his opinion but not his analysis. His analysis of V.F.'s anticipated response to intervention contrary to her wishes is equally insubstantial. His answer is shorter than Mr. Wilson's question.

[168] I cannot ignore the fact that Mr. Blugerman's report violates Rule 20.1 (5) and (6), which requires:

5. The expert's opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert's own opinion within that range.

6. The expert's reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and

iii. a list of every document relied on by the expert in forming the opinion.

[169] Mr. Blugerman's report fails to respond to the opposing opinions of Mr. Hurwitz, fails to explain his factual assumption, if any, and fails to consider any research on any of the relevant issues on which he opines. As set out above, his report makes no reference to the issue of parental alienation, let alone consider the literature in the area.

[170] In conclusion, I cannot see how Mr. Blugerman is qualified to offer even the limited opinions which he offers. Accordingly I accept Mr. Blugerman's report and testimony as fact evidence only, which again sets out V.F.'s views and preferences. In that regard, he offers nothing new. V.F.'s views and preferences as reflected in the Blugerman report were closely considered by Trimble J.

Dr. Olga Henderson and the Role of Context in Mr. Hurwitz's Report

[171] A second source of expert evidence that Mr. Glass and Ms. T.-F. rely upon is the report of child psychologist, Dr. Olga Henderson, regarding V.F. They ask me to give more weight to what they consider to be the opinions of Dr. Henderson than they say she was accorded by Trimble J.

[172] Dr. Henderson assessed V.F. on June 4, 2015. There is no question that she is an expert child psychologist who is well known to this court.

[173] Mr. Hurwitz retained Dr. Henderson to assess V.F. He asked her to look at different aspects of the child's mental health, any safety concerns arising from her behaviour, her perceptions of her parents, how she is affected by her parents' conflict and what treatment would be suitable for the child. She was not asked to opine on V.F.'s custodial arrangements or the issue of parental alienation.

[174] In essence, Mr. Glass and Ms. T.-F. assert that Dr. Henderson contradicts Mr. Hurwitz. They say she does so in calling for V.F. to receive treatment rather than reunification with her father. Ms. T.-F. asserts that Dr. Henderson felt that forced reunification with her father would be harmful to V.F.

[175] With respect, I do not read Dr. Henderson's report as advocating the unambiguous stances that Mr. Glass and Ms. T.-F. ascribe to her.

[176] Dr. Henderson sees V.F. as being "…somewhat immature and naïve for her age, in spite of being cognitively competent." V.F. "…appears to have limited capacity for self-reflection or to manage her moods and feelings". She strongly relies on repression and denial to deal with unpleasant and uncomfortable feelings.

[177] These are "maladaptive defences". The "…serve the purpose of protecting V.F. from dealing with the realities of her family situation and her disruptive and disturbing feelings." They limit her ability to effectively deal with conflict or problem solve in stressful social or emotional situations. This may prevent her from developing the necessary skills to manage future social conflicts as she grows older.

[178] Dr. Henderson does, as Mr. Glass and Ms. T.-F. argue, speak of V.F.'s need for counselling that focusses on her issues as described above. Dr. Henderson says that this, rather than reunification, should be the focus. Here she is referring to the reunification counselling offered to V.F. by Ms. Geraldo. Dr. Henderson writes:

There have been a number of unsuccessful attempts at counselling to bring about a reconciliation with her father. Based on the current assessment, it seems likely that further counselling with such an emphasis will be successful.

[179] Dr. Henderson is not saying that V.F. must live with her mother or that she would be harmed if she were to live with her father. In fact Dr. Henderson says that, despite her denials and repression, V.F. wants a relationship with her father. Admittedly, Dr. Henderson questions whether she will ever have the relationship with her father that he wishes. That remains an open question.

[180] Mr. Hurwitz gave close attention to Dr. Henderson's report. He spends four pages of his October 9, 2015 report summarizing its findings and recommendations. He is aware that V.F. has what Dr. Henderson describes as a "paradoxical" view of her relationship with her father. He states:

She claims he doesn't provide care for her yet she is sad by the loss of this relationship. She wants some notion of a relationship, yet on the surface is critical of him.

[181] Mr. Hurwitz incorporates Dr. Henderson's views and observations within the larger factual matrix of the entire five member F. family. That wider canvas involves many factors. They include the following facts and clinical findings:

• the deterioration of V.F.'s behaviour towards her father in the past year,
• her refusal to engage in therapy to remediate that problem,
• V.F. is "highly influenced" by her mother, and
• in directing her mother's hostility towards her father, she is acting as her mother's "agent".

[182] Mr. Hurwitz also considers the mother's deteriorating ability to display resilience to the children following the trauma of the separation. The father and the children reported that she frequently cries when interacting with the children in person or by telephone. Mr. Hurwitz noted that that the mother cried in almost every interaction she had with him. Ms. Geraldo had similar experiences. This represents a deterioration of her behaviour in the previous year.

[183] That is not the only deterioration that Mr. Hurwitz noted in the mother. He writes that her criticism of the father had increased in the past year "…and she has engaged in a combative, rigid and inflexible parenting relationship with him."

[184] The mother's lachrymose behaviour has had an increasingly deleterious effect on the children. The two younger children seem to be parentified (my term) to the extent that they have to comfort their mother when she increasingly cries and displays her emotional upset to the children.

[185] V.F. is even more profoundly affected by her mother's behaviour than her siblings. She responds to her mother's manifestly anguished affect with a protective attitude and defiance towards her father. She "… carries her mother's responsibility for harbouring contempt …" for her father.

[186] Mr. Hurwitz believes that the mother gives V.F. verbal and non-verbal messages of disapproval of her relationship with her father. Those messages have damaged that relationship.

[187] Mr. Hurwitz then returns to Dr. Henderson's statement that V.F. wants to have a relationship with her father. But, Mr. Hurwitz adds, the mother's professed support for that relationship when professionals are within earshot, coupled with her private derogation of that relationship, is adversely affecting V.F.'s mental health.

[188] Trimble J. considered Dr. Henderson's report, including her findings of V.F.'s deteriorating level of cognitive and emotional functioning. He pointed out that Ms. Geraldo testified that this kind of behaviour is typical of alienated children. Considering the opinions of both Dr. Henderson and Ms. Geraldo, Trimble J. acutely observed that V.F.'s "…issues, both psychological and social, will continue to deepen if matters are not addressed immediately."

[189] A close look at Dr. Henderson's report within the context of the other expert evidence does not point to a present risk to V.F. and her siblings while in the care of their father. To the contrary, the evidence at the custody trial shows that the real risk is allowing the arrangements requested by the child to take place.

Impact of HCAS Position

[190] In a motion for summary judgment I am required to take a hard look at the evidence to determine whether there is a genuine issue for trial. The onus rests on the moving party.

[191] In an oft cited maxim, Osborne J.A., writing for the Ontario Court of Appeal, wrote that in a summary judgment motion, the responding party must "must lead trump or risk losing." In other words they have to put their best foot forward.

[192] In Afolabi v. Faba, Emery J. explained the reason for this obligation as follows:

The purpose behind this obligation is clear: to ensure that the motions judge has a full record that contains the best evidence available to the responding party. It is this obligation imposed on each party that enables the motions judge to assess from the motion materials whether he or she is confident that the factual record provides the evidence required by the court to take a good hard look at whether the claim or defence can be adjudicated justly without requiring a trial.

[193] What this obligation means in a child welfare context is described by Vogelsang J. in Children's Aid Society of London and Middlesex v. L.A. and H.C.:

In my view, the genuineness of the issue must arise from something more than a heartfelt expression of [the responding mother's] desire [to parent]. Ms. L.A. had ample opportunity to develop, in affidavit evidence, even an arguable notion that she faces some better prospects and has developed new technique or ability as a mother. Her weak affidavit falls far short of that. In Rogers Cable TV Ltd. v. 373041 Ontario Ltd, Justice Stephen Borins affirmed that Ms. L.A.'s responsibility was to provide a complete evidentiary record in response to this motion for judgment and to put her "best foot forward" in the material. He said at page 28 [O.R.]:

... I am entitled to assume, therefore, that the defendant has done so and that if this case were to go to trial it would present no additional evidence... The requirement that the parties put their "best foot forward" goes together with the requirement that the motions court judge "take a hard look at the merits of the action at this preliminary stage" to determine whether the moving party has succeeded in establishing that there is no genuine issue for trial.

Impact of HCAS Position

[194] I place great reliance (although it is not determinative) on the fact that the Society investigated this case at the behest of V.F.'s counsel and in response to her application. The Society found that there were some child welfare concerns in this matter, but that they were primarily in regard to the effect of the mother's behaviour on the children. The Society concluded that it would close its file if the children were placed with the father. Trimble J. has done just that. Even if the children were placed with the mother, it would first seek to work with her on a voluntary basis.

Conclusion Regarding Genuine Issue for Trial

[195] I have considered a wealth of evidence that leads me to the conclusion that V.F. and her siblings are not presently at risk of protection as described by ss. 37(2) (f), (f.1) (g), (g.1), and (h) of the CFSA.

[196] This litigation has served to exacerbate matters for V.F. I have found above that the child commenced this proceeding under the influence of her mother. The HCAS supervisor who testified at the custody trial offered the view that this proceeding put V.F. in the middle of her parents' litigation.

[197] From all of the evidence I conclude that this proceeding does not raise a genuine issue for trial. The only risk to V.F. illuminated by this proceeding would arise from its continuation.

Remedy

[198] For the reasons cited above, I dismiss this protection application under Rule 16 (12) (b) and (c) (iv).

[199] The father has requested further relief in his notice of motion, including costs and relief against Mr. Glass personally. There is also the issue of Mr. Wilson's alleged conflict of interest in representing Mr. Glass in regard to the claims against him. If the father wishes to proceed in regard to that relief, counsel including Mr. Wilson may arrange a conference call with the court's judicial secretary in order to discuss next steps and timelines.

One Final Note

[200] I wish to point out that I did not need to decide whether a child can commence a child welfare proceeding on her own or whether she requires the court appointment of counsel before doing so. I was able to decide the issue of whether to dismiss this application without having to determine those issues. I leave them for another day and another set of facts.

Released: March 1, 2016

Signed: "Justice Marvin Kurz"