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.

(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.

(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: 2016-04-25

Court File No.: Dryden, Ontario FO-15-0063-00

Between:

Kenora Rainy River District Child and Family Services Applicant

— AND —

N.F.D. and G.A.P. Respondents

Before: Justice Peter T. Bishop

Heard on: March 29, 2016

Reasons for Judgment released on: April 25, 2016

Counsel

David Elliott — Counsel for the Applicant society

Michael Cuppello — Counsel for the Respondent R.N.F.

Beth White — Counsel for the Respondent G.A.P.

Michelle Simone — Counsel for the Office of the Children's Lawyer, legal representative for the children

BISHOP J.:

Background

[1] This matter comes before me by way of the applicant (the Agency) commencing a motion for the leave to withdraw its protection application for two children, M.C.D., date of birth […], 2001 and E.M.D., date of birth […], 2003.

[2] The parents began living together in 1991 and were married February of 1998. They separated on December 14, 2014 after living together for twenty three years.

[3] There are two children of the marriage, M.C.D., date of birth […], 2001 and E.M.D., date of birth […], 2003.

[4] Initially the parties agreed that they would share parenting of the children on a week-on/week-off basis.

[5] The mother began dating another man, R.P. in mid-March of 2015; at which time problems arose with the mother exercising access and unwanted contact and the children not wanting to be in the presence of their mother.

[6] The mother commenced an application in Superior Court in June, 2015 originally seeking joint custody of the children but amended her application to seek sole custody.

[7] The Agency commenced this application December, 2015 on information received from the mother alleging that the children had suffered emotional harm or were likely to suffer emotional harm contrary to Section 37 (2) (f) and 32 (2) (f.1) and 37 (2) (g) of the Child and Family Services Act.

[8] Since the involvement of the Agency the mother has had minimal contact with the children and communication is strained both with the father and the mother, and the mother and the children.

[9] The mother alleges that the children have now become racists as her current boyfriend is an African Canadian.

[10] The mother also alleges that there is parental alienation at the hands of the father against her.

[11] On December 21, 2015 this Court ordered a Temporary Supervision Order be granted and counsel be appointed to represent the children with the children placed with the father with terms and conditions as follows:

Terms and Conditions for N.F.D.

(a) Meet with the designated Society worker a minimum of once a month for announced and unannounced visits to the home;

(b) Allow the designated Society worker to meet with E.M.D. and M.C.D. a minimum of once a month for announced and unannounced visits at home or at school;

(c) Sign all consents to release and obtain information as required by the Society;

(d) Enroll in and only use "The Our Family Wizard Program" for all communication, other than emergency situations;

(e) Ensure that all the children's schedules and activities, medical appointments, school achievements/challenges/meetings, activities are inputted into the Wizard calendar in a timely manner. Destination and contact information for out of town travel is to be detailed for at least 48 hours in advance;

(f) Ensure that Ms. G.A.P. is informed immediately by text of any injury or illness requiring medical attention;

(g) Seek input from Ms. G.A.P., through the Family Wizard, for all significant decisions for the children related to religion, education or health;

(h) Allow the Society worker to monitor communication on the Wizard;

(i) Ensure that the children attend access visits with Ms. G.A.P. as specified by the Society;

(j) Not allow the children to spy on their mother nor send messages to her through the children;

(k) Not allow the children to ignore or be disrespectful, insulting, or degrading to their mother;

(l) Not allow the children to be disrespectful, insulting, or degrading to Mr. R.P.;

(m) Be respectful to Ms. G.A.P. in the community and at the children's events;

(n) Refrain from disrespectful, negative, and undermining communication or body language about Ms. G.A.P. in the presence of the children;

(o) Refrain from disrespectful, negative, and undermining communication or body language to Mr. R.P. nor denigrate him in the presence of the children;

(p) Refrain from discussing his relationship with Ms. G.A.P. and custody or court matters with the children;

(q) Not encourage his children to keep secrets or deliver messages to Ms. G.A.P.;

(r) Not question his children about what happens at their mother's home. If the children engage in conversation regarding the mother's home or activities, ensure the conversation in positive;

(s) Refrain from interfering or influencing the children's relationships with other extended family members;

(t) Participate as require by the Society and overtly support an intervention to reintegrate the children with their mother. This will include not scheduling activities for the children during therapy or access times;

(u) Complete an educational session identified by the Society to learn how high conflict situations between parents is demonstrably adverse for children and their outcomes;

(v) Ensure that both children attend counselling as required by the Society and follow through with all recommendations and assessments;

(w) Ensure that E.M.D. attends an assessment with Firefly if she has thoughts of suicide and follow through will all recommendations and assessments;

(x) Participate in regular Family Centred Conferences organized by the Society and cooperate with the intervention;

(y) Attend personal counselling to address his stress management, anger, coping skills, and grief and loss issues related to his relationship until discharged by his counsellor.

Terms and Conditions for G.A.P.

(a) Meet with the designated Society worker a minimum of once a month for announced and unannounced visits to the home;

(b) Allow the designated Society worker to meet with E.M.D. and M.C.D. for announced and unannounced visits at her home;

(c) Sign all consents to release and obtain information as required by the Society;

(d) Enroll in and only use "The Our Family Wizard Program" for all communication, other than emergency situations, with Mr. N.F.D.;

(e) Ensure that all the children's schedules and activities, medical appointments, school achievements/challenges/meetings, activities booked by her are inputted into the Wizard calendar in a timely manner;

(f) Ensure that Mr. N.F.D. is informed immediately by text of any injury or illness requiring medical attention;

(g) Respond to consultation from Mr. N.F.D. within 24 hours, through the Family Wizard, for all significant decisions for the children related to religion, education or health;

(h) Allow the Society worker to monitor communication on the Wizard;

(i) Be available and provide undivided attention to the children during access visits;

(j) Be respectful to Mr. N.F.D. in the community and at the children's events;

(k) Refrain from disrespectful, negative, and undermining communication or body language about Mr. N.F.D. in the presence of the children;

(l) Ms. G.A.P. to refrain from discussing her relationship with Mr. N.F.D. and custody or court matters with the children;

(m) Encourage the children not to keep secrets;

(n) Do not question the children about what happens at their father's home. If the children engage in conversation regarding the father's home or activities, ensure the conversation is positive;

(o) Refrain from interfering or influencing the children's relationships with other extended family members;

(p) Participate as required by the Society and overtly support an intervention to reintegrate with the children;

(q) Complete an educational session identified by the Society to learn how high conflict situations between parents is demonstrably adverse for children and their outcomes;

(r) Participate in regular Family Centred Conferences organized by the Society and cooperate with the intervention;

(s) Attend personal counselling to address stress management, coping skills, communication and grief and loss issues related to her children until discharged by the counsellor.

[12] These long detailed terms disclose a high conflict custody/access case with attempts to resolve those conflicts.

Position of the Parties

[13] The applicant is of the view is its involvement is exacerbating the situation and is not in the best interests of the children to continue. Both parents are at loggerheads and are uncooperative and the children have refused services both from FireFly and other counselling services offered to be provided to them. The continued involvement of the Agency is making matters worse and will not and cannot be resolved in this form.

[14] The father is of the view that the Agency's involvement is not warranted as this is really a custody access dispute with both parties best able to put their position forward in a different court without the involvement of social workers being intrusive and interfering in their daily lives.

[15] The mother wants the continued involvement of the Agency with a view to finding that there has been parental alienation and that the Agency should pay for the costs of a parental assessment.

[16] The children through their lawyer supports the position of the Agency in that continued involvement is not warranted nor in the best interests of the child.

[17] I have reviewed all of the case law filed by the parties and note that they are distinguished on the facts and accept the principles contained therein.

Decision

[18] Leave is granted to Kenora Rainy River District Child and Family Services to withdraw its protection application for the following reasons:

1. This is not a unilateral withdrawal by the Agency. It is supported by the father and the children through their counsel appointed by the Office of the Children's Lawyer.

2. There is an existing action which preceded this matter in the Superior Court, specifically to determine custody/access and the issue of parental alienation; if at all, can more effectively dealt with in that forum.

3. The litigation ongoing here is not in the best interest of the children as they are of such an age that they can express their views well, and are able to frustrate the process and be uncooperative with any services offered through Child Protection. The Court cannot force individuals to cooperate. The children have stated unequivocally that they will start behaving more appropriately once the Children's Aid Society is out of their home and interfering in their lives.

4. It is not in the best interest of the children that they be apprehended and placed in a foster home. This would be detrimental to their best interests.

5. There are allegations by the mother of parental alienation, but this has not been proven, and it is speculative on Dr. Stanbrook's part where he firstly defines parental alienation and then states that the information that he presently has, is most likely consistent with this process being in place in this case. This is speculative on Dr. Stanbrook's part as he has not interviewed the father or the children nor will they consent to being interviewed.

6. There is conflict between both parents and the Children's Aid Society with each of them frustrating the remedies and services provided and each has expressed dissatisfaction with the Agency's services.

7. The children have refused voluntarily to go to FireFly, a counselling service for children, and they will not be forced to do so, nor will FireFly accept them unless they consent.

8. This is a high conflict case where both parties appear to be engaging in destructive behaviour towards each other with the use of foul language and the frustration of access. It serves no useful purpose to continue on with this protection proceeding.

9. The Agency verified protection concerns with regards to the risk of emotional harm to the children in July and August of 2015. These are concerns and observations of a protection worker make approximately ten months ago without the benefit of the family history and efforts make by the society subsequent to those observations and have not been proven in court. The mother is relying on the speculation of a psychologist who has not and cannot make a finding or assessment without the cooperation of the parties which is not forthcoming. The mother and the father are equally contributing to the dysfunction of this custody/access case.

10. The children have some emotional issues but there is no external digression. Their emotional difficulties arise from the parental conflict. Their contact, and the desire for contact with the mother ebbs and wains and has been condoned and exacerbated by text messages and phone calls from the mother.

11. The Agency has been ineffective and frustrated in trying to set up access where the mother, father and the children actively resist each other. Both children are doing well in school and in their extra-curricular activities.

12. A parental assessment can be more effectively and expeditiously accomplished in the Superior Court action as this is really a high conflict custody access dispute.

[19] For all of those reasons the Motion to allow Kenora Rainy River District Child and Family Services to withdraw the Protection Application is granted.

[20] All other motions are dismissed.

[21] There will be no Order as to costs.

Released: April 25, 2016

Signed: "Justice Peter T. Bishop"