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: 2017-04-27

Court File No.: Halton 75/14

Between:

HALTON CHILDREN'S AID SOCIETY

Applicant,

— AND —

J.T.

Z.B.

Respondents

Before: Justice Marvin Kurz

Heard on: September 19, 20, 21, 22, 23, 28, 29 and 30, October 24, 25 and 26, and November 2, 2016, February 1, 2017, March 23, 2017

Reasons for Judgment released on: April 27, 2017

Counsel

Diane Skrow — counsel for the applicant society

Maria Sirivar, Kimberly Muio — counsel for the respondent J.T.

Elliot Vine, Ann Stoner — counsel for the respondent Z.B.

KURZ J.:

INTRODUCTION

[1] The applicant Halton Children's Aid Society ("the Society" or "HCAS") seeks a finding that the child, L.A.T., born […], 2010 ("L." or "the child") is in need of protection under s. 37(2)(f) and (g) of the Child and Family Services Act ("CFSA"). With that finding, it seeks to place L. in the custody of his father, Z.B. ("the father") under s. 57.1 of the CFSA. The Society asks that the access of the mother, J.T. ("the mother") continue to be supervised, as it has been since he was apprehended on February 3, 2014. The father supports the Society's application.

[2] The mother disputes both a finding and L.'s placement with his father. In her pleadings, she requests that this application be dismissed and for L. to be returned to her care. In the alternative she seeks a joint and equally shared custody arrangement with the father. In her final oral submissions, her counsel argued for a joint and fully shared parenting arrangement with responsibility for decision making allocated between the parents.

[3] This case turns on the following points:

(a) Is L. a child in need of protection?

(b) If so, what custodial arrangements are in his best interests?

(c) If L. is placed in the sole custody of one parent, what access should the other enjoy?

(d) In that event, what form should the court's final order take, whether deemed custody order or supervision order?

BACKGROUND

Findings of Fact in Trial Before Justice Sheilagh O'Connell

[4] The background facts regarding the relationship of the father and the mother (collectively "the parents") are set out in par. 6-19 of the June 14, 2013 decision of Justice Sheilagh O'Connell regarding custody of and access to L. O'Connell J's findings of fact are not, strictly speaking, subject to issue estoppel in this proceeding (because of the involvement of the Society, a non-party in the custody proceeding). Nonetheless they are not disputed. In fact all of the parties rely upon aspects of them. Further, Justice O'Connell's findings related to past parenting are admissible evidence in his hearing under CFSA s. 50 (1) (b).

[5] For those reasons, other than as set out below, I adopt O'Connell J's background findings of fact. I add the following to highlight and update those findings.

[6] L. has been the subject of litigation for almost his entire life. The father commenced the custody and access proceedings that led to O'Connell J's order when L. was two months old. From that time onward, with the exception of approximately eight months between the date of O'Connell J's decision and the date that L. was apprehended, his parenting arrangements have been the subject of litigation.

[7] In the trial before O'Connell J., each of the parents made serious allegations against the other. The father claimed that the mother was attempting to unfairly exclude him from L.'s life by making "bizarre and unsubstantiated" allegations against him.

[8] The father was most critical of the mother's husband, A.T., to whom she returned after her breakup with the father. He claimed that the mother was controlled by her husband, whom he alleged to be a dangerous and violent man. The father claimed to be afraid that Mr. T. would kill him if he entered the mother's home. While the father originally sought joint custody of L., by the end of the trial before O'Connell J. he was seeking sole custody.

[9] The mother denied the father's allegations and aimed some very serious and even curious ones against him. The mother described the father as suffering from a variety of mental illnesses, including an undiagnosed and untreated paranoid schizophrenia. She stated that after the father lost his job, he spoke of getting a gun and shooting his former fellow employees.

[10] The mother made a number of critical allegations related to the father's parenting of L. She claimed that the father drugged the child in order to make him more compliant during access visits. She also claimed that L. was traumatized by his access to his father. She spoke of the child's great distress related to access changeovers and how they reflect the father's abuse of the child.

[11] In cross-examination the mother stated that she saw the father offering L. "no positive value." She added her view that L. does not identify the father as his parent. As a result, she argued that if his access continued, L. would suffer harm at the hands of his father.

[12] During the course of the custody and access litigation, the father's access was initially supervised at an access centre. After the access became unsupervised, the mother placed listening devices in the child's diaper bag and teddy bear. That is because the father denied her claims of the child's extreme distress during visits.

[13] In the end O'Connell J. had trouble accepting both parties' allegations and credibility. She found as follows:

(a) The mother is a good and loving mother. As primary caregiver, she had met all of the child's physical, emotional and material needs since birth. L. had a close and loving bond with his mother. However O'Connell J. offered a large and serious note of caution to this very positive finding.

(b) O'Connell J.'s caveat was that the mother felt that the father offered "no positive value" to the child. Instead she made a series of powerful but unfounded allegations of child abuse against him described above. While the mother's allegations were spurious, they were based on her sincere beliefs.

(c) O'Connell J. had no doubt that the mother, both consciously and unconsciously, communicated her unfounded anxiety and fear about the access to L. Any anxiety and fear that the child was experiencing at access changeovers was influenced by the conflict between his parents and his mother's anxiety about releasing him to the father. They were not related to fear of the father.

(d) As for the father, O'Connell J. found him to be a good and loving parent. Nonetheless she found his abuse allegations regarding the mother's husband to be unsubstantiated.

(e) Despite the trial judge's concerns regarding the mother's messaging to the child, sole custody to the father was not in the child's best interests. O'Connell J. made that finding for two reasons. First, the father's contact with L. had been very limited at that point. Second, the child was thriving in his mother's care at the time. O'Connell J did not wish to disrupt that status quo.

[14] O'Connell J. granted the parties joint custody of L. with primary residence to the mother. She granted the father generous unsupervised access that expanded from day to alternate weekend and midweek overnight access (with one further midweek dinner visit as well).

[15] Unfortunately, O'Connell J.'s decision did not resolve issues between the parties. It appears that their conflict actually accelerated in the eight months following her decision's release.

L.'s Apprehension

[16] L. was apprehended by the HCAS on February 3, 2014. The apprehension followed a series of troubling events. They included:

(a) On July 11, 2013, the mother contacted the police to report that the father was drugging the child. This call came less than a month after O'Connell J. released her decision stating that there was nothing to the mother's drugging allegations. The mother also told the police that the child was self-harming by cutting himself. The police refused to intervene because similar allegations had been investigated and not verified. The Society took the same stance in both opening and quickly closing a file.

(b) The Society re-involved itself with the family because of allegations that each parent was making against the other. The father alleged that the mother had mental health issues and was trying to keep the child from him. The mother claimed that the father was abusing the child, who in turn had some emotional problems and was harming himself.

(c) L.'s pediatrician, Dr. Zeba Ansari, called the Society's worker, Camille Morris, on September 6, 2013. During this call Dr. Ansari raised the mother's mental health. Ms. Morris understood that the pediatrician was raising her own concerns about the mother's mental health, while the doctor later said that she was just passing on the father's concerns. I will have more to say about that below.

(d) Dr. Ansari arranged for a consultation involving the parents and child with Dr. Burke Baird of the McMaster University Child Advocacy and Assessment Programme ("CAAP"). A copy of the Baird report was sent to Ms. Morris. Dr. Baird offered few conclusions other than that the child had not been drugged. He did provide a number of recommendations to reduce L.'s exposure to conflict and increase the child's visibility in the community. Dr. Baird also advised the Society to counsel the mother and for the mother to avoid behaviour that will negatively affect L.'s relationship with his father.

(e) The Society unsuccessfully attempted to get the parties to sign a voluntary service agreement beginning on November 20, 2013. Although the mother had promised to sign it, she had not done so by the time of the apprehension, about 2½ months later.

(f) In December, 2013 the Society heard from both a women's shelter and Dr. Ansari that the mother was either expressly or implicitly alleging that the father sexually abused L. As the mother recounted, the child was sticking items "up people's buns". The mother was asked about her sexual abuse concerns when she met with a Society worker and student on December 16, 2013. She stated that the child had touched her and a friend in the bum with a toy, but that she had no concerns. Nonetheless she alleged that L. was afraid of his father and that he was saying that his father had hurt him.

(g) The worker and student met privately with the child and discerned no signs of physical or sexual abuse. However they noted that the mother was experiencing difficulties controlling his behaviour.

(h) On January 1, 2014 the mother called the Society to report that she did not allow the child to go on an access visit the previous evening because of her concerns for his safety and well-being. She claimed that the child had put his hands in front of his face and appeared frightened. The mother went on to say that the father had previously hit the child in the face and arms.

(i) On January 6, 2014 the mother explicitly alleged to Ms. Morris that the father had sexually abused the child. She was certain because of a conversation in which she engaged with a woman she had met in the park. Despite the claim, she wanted the Society to close its file because she and the father were communicating better.

(j) The mother arranged to have the child assessed for autism. She did so without advising the father and contrary to an order granting him the right to consultation on all major issues and final decision making power regarding the child's health.

(k) On January 31, 2014 the mother aborted another access visit. Rather than allow the father to pick up the child at the daycare, she moved the exchange to a place where she attended with the child. She then refused to release him. The father claimed that she berated him in front of the child. He left without creating an incident, but later called the police.

[17] The Society apprehended the child on February 3, 2014. It acted after it received two police reports about the access denial incident and Ms. Brown spoke to the father. It did not speak to the mother before apprehending the child.

[18] On February 7, 2014, O'Connell J. upheld the Society's apprehension of L. She placed him in the interim care and custody of the father, subject to a without prejudice interim supervision order under the CFSA. O'Connell J. granted the mother limited supervised access. The mother's access to the child has been supervised since that date. On February 25, 2014, following a contested motion, O'Connell J. granted similar relief, but directed that her order was no longer "without prejudice".

[19] Some aspects of the mother's supervised access have evolved over time. While it was originally twice per week, O'Connell J. increased it by four hours per week on October 8, 2014. In June, 2015 those visits were moved from the Society's office to the mother's home. On December 18, 2015 O'Connell J. granted the mother three added overnight access visits. They were to take place in the mother's home or the community (as approved by the Society), supervised by two of her selected friends. By this time the mother was also exercising her access three times per week for two hours at a time.

[20] On February 24, 2016 I granted the mother once weekly overnight access, with a supervisor to be agreed upon by the parties.

Issue No. 1 – Is L. a Child in Need of Protection?

Legal Test

[21] The threshold issue in child protection proceedings is whether the child is in need of protection. Without such a finding, the child protection court does not have the jurisdiction to make any final orders. If a finding is made, the court has the jurisdiction to invoke a number of remedies. The criteria for making one of those decisions is the child's best interests.

[22] Under s. 37(2) of the Child and Family Services Act ("CFSA"), a child may be found to be in need of protection based upon a number of risk factors. The Society relies on those found in subsections 37(2)(f) and (g). They read as follows:

Child in need of protection

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

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

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

[23] CFSA s. 37(2)(f) speaks to actual emotional harm that has befallen the child while s. 37(2)(g) speaks to the risk of such harm occurring in the future. The emotional harm must be demonstrated by a serious form of one of the listed conditions or behaviours. The Society must show a real likelihood of harm on a balance of probabilities.

[24] It is not necessary to prove a parent's intention to cause that harm. It can be caused by an act, omission or pattern of conduct by a parent.

[25] While the civil evidentiary standard applies, the court must be "careful, deliberate and demanding" in considering the balance of probabilities.

[26] In order to substantiate a finding of emotional harm, a clinical diagnosis is not necessary, but expert evidence is usually required.

[27] Even when a child suffers or is at risk of emotional harm, absent expert evidence, the court should not assume that the harm or risk arises because of the conduct of the child's parents. The onus is on the Society to prove, on a balance of probabilities, that there is a real likelihood that the child will suffer emotional harm if returned to the care of his or her parent.

[28] The time frame for the court to consider with regard to risk of harm is the time of trial, not apprehension. The issue is one of present risk of harm. In assessing that risk, the court may consider any relevant evidence, whether prior to apprehension or up to the date of trial.

[29] Further, the court must assess the extent to which any need for protection found at the initial stage has been resolved over the course of litigation.

[30] The architecture of the CFSA requires a trial judge to consider evidence related to a finding before considering evidence that relates solely to disposition. Neither party raised the issue of bifurcation at this trial. Both were content with a blended hearing. That being said, the majority of the evidence that I have heard related to both a finding and disposition. I have relied on no evidence that relates solely to disposition in coming to a finding about the need for protection.

Society's Arguments Regarding Harm

[31] The Society argues that L. has been emotionally harmed by the very high level of conflict between his parents. It is most concerned by what it sees as the mother's conduct in demonizing the father and exposing the child to numerous unnecessary medical investigations. The Society argues that the common ground of this conduct is the mother's notion that the child is been compromised, mainly by the purportedly abusive conduct of the father. The mother has variously alleged that he drugged the child during access visits, that he sexually abused him, that he physically abused him, and that he threatened him with harm. The mother feels that the father is an abusive man who suffers from serious mental illness.

[32] The Society claims that these views were spread to the child while he was in the mother's care, and continue to be spread, even during supervised access. The mother's views permeated L.'s early view of his father to the extent that he was unable to control his behaviour at access changeovers. Further, at least two access visits were unilaterally terminated by the mother at the access changeovers. This occurred when the mother, citing the child's behaviour and alleged fear, refused to hand him over to his father.

[33] Even now, in the months leading to trial, the mother is saying that L. is making new abuse allegations to her during supervised access visits. The Society and even the Halton Regional Police have investigated these allegations and found them to be of no substance.

[34] The Society also relies on the expert opinions of CAAP and psychologist, Dr. Nicole Walton-Allen. The former conducted a parenting capacity assessment of both parties while the latter assessed the mother alone. CAAP found that the child suffered from significant emotional dysregulation and pointed to the mother's rigid and distorted thinking, particularly regarding the father.

[35] Dr. Walton-Allen found that the mother suffers from an adjustment disorder, and that she is unable to accept responsibility for her conduct and externalizes that responsibility. She finds that the mother is unable and unwilling to work with others who do not share her views.

[36] Accordingly the Society argues that the child suffered emotional harm at the hands of the mother and is at risk of further harm if returned to the mother. The father concurs with these arguments.

The Mother's Arguments

[37] The mother contends that the child is not and has never been in need of protection. She accepts that L. has been exposed to parental conflict. But she points to O'Connell J.'s decision to say that the child was doing well and should not have been apprehended.

[38] The mother concedes that there were things that, looking back, she would have done differently. But she states that her retrospective understanding could equally apply to the father. While she viewed the father as suffering from serious mental illness and being abusive, he held similar beliefs about her.

[39] The mother feels that the Society and the experts upon whom it relies have been unfair to her. They have focussed on her faults at the expense of a full examination of those of the father. She points to the fact that the father circulated a self-authored report (which the mother's lawyer has labelled "the B. Report"). It sets out the father's views of the mother's alleged mental illness and risk to the child. The report uses extreme language, with descriptions of the mother as a "ruthless child abuser", a "psychopath", a "parasite", and a statement that she "should be banned from children". It states that the father's lay diagnosis of the mother's psychopathology came as a result of a consultation with an unnamed psychiatrist.

[40] The mother does not withdraw her abuse allegations against the father. She presents alternately as recognizing through therapy that she may have been a bit overprotective, to being open to the veracity of the abuse claims, to actually believing them. I have more to say about that ambiguity below.

[41] In any event, she argues that she had reason to feel as she did when she made the abuse claims. She claims that the father was abusive towards her during their time together. It would be only natural to be concerned about his potential abuse of L. She was also a new mother with no previous training. She feels that her overprotectiveness is understandable in light of her inexperience, her prior treatment by the father, and the behaviour of the child.

[42] The mother states that she has entered into cognitive behavioural therapy with psychologist, Dr. Jean Szkiba-Day, as recommended by CAAP. The counselling was arranged and paid for by the Society. She feels that she has learned a great deal from the experience. She would like to be able to work with the father to co-parent L.

Finding that L. is in Need of Protection

[43] In considering all of the relevant evidence and the parties' arguments, I find that the child is in need of protection. I say so for the three following reasons, which I analyse in greater detail below:

(a) L. has been emotionally harmed by the parents' high conflict but in particular, the mother's negative views of the father.

(b) There is a risk that the mother could cause further emotional harm to the child in the future.

(c) While both parents hold negative views of the other, only the mother externalized her views to L.

CFSA s. 37 (2) (f): L. has been Emotionally Harmed by the Parents' High Conflict but in Particular the Mother's Negative Views of the Father

[44] L. has clearly been harmed by the high conflict between his parents. As set out below, this fact was alluded to if not directly cited in O'Connell J.'s trial decision. She chastised both parents for the level of animosity and conflict between them. She apportioned the responsibility to each party.

[45] But events since the time of that decision have offered this court a lengthier temporal horizon and consequently a broader perspective on the behaviour of the parties than O'Connell J. received. It is now clear that parental responsibility for L.'s emotional harm is not equal. There is clear evidence, both lay and expert, that L. has been directly harmed by his mother's view of his father. On the other hand, there is no evidence that the father has directly caused L. such emotional harm, despite his negative views of the mother.

[46] Almost from the start, the mother suspected nefarious behaviour by the father against the child. When offered two possibilities to explain L.'s behaviour, she always chose the one the assumed paternal maltreatment. This choice had serious consequences for the child.

[47] On September 11, 2012, when L. was two years old, the mother told the child's pediatrician, Dr. Zeba Ansari, that L. had been harming himself since he was five months old. She stated that he tugged at his ears, pulled his hair and banged his head, "typically after a visit with his father alone." The mother added that L.'s problems began after an unsupervised visit with his father. She alleged that he had become afraid of all white-haired men, like his father, since the unsupervised access began.

[48] It should be noted that there was no evidence that the child displayed such behaviour in the presence of anyone but the mother. The father adamantly denied its existence. The only collateral witnesses at the O'Connell J. trial who had observed the mother interact with the child, public health nurse, Nicola Renpenning, Society worker, Camille Morris (whose surname at the time was Brown), and Dr. Ansari, offered no evidence that they observed such behaviour.

[49] The mother also had trouble controlling L.'s behaviour. She had long felt that her difficulties with L.'s behaviour reflected the child's deep-seated emotional problems. That view was one of the reasons that she was referred to Dr. Ansari by her family doctor, Dr. Sabrina Ing. The mother was not only concerned by her difficulties controlling the child's behaviour and what she saw as self-destructive behaviour that began at L.'s infancy. She was also concerned by what she viewed (without using the term) as sadistic behaviour, such as deliberately stepping on bugs and smiling when doing something hurtful.

[50] The mother went further: she told Dr. Ansari that she believed that the father had drugged the child during access visits. She stated that the child appeared drunk, was slurring his words and bumping into things after a visit with his father. The mother assumed that the father, unable to handle the child, had drugged him to make him compliant.

[51] The mother took L. to various doctors and exposed him to five episodes of urine or blood testing to confirm the diagnosis. On one occasion she called 911 and had a paramedic who attended perform a blood test. None of these procedures showed evidence of drugs.

[52] The mother was unconvinced. Her view was not amenable to the lack of confirmatory evidence. It was not even swayed by the fact the O'Connell J. found that there was no substance to any of the mother's drugging or abuse allegations.

[53] The mother's continuing adamance on the point was one reason that Dr. Ansari, sought a consultation from Dr. Burke Baird, a staff pediatrician with CAAP. Dr. Ansari stated that she requested Dr. Baird's consultation in September, 2013 because of concerns that she had heard from both parents. She heard the mother's drugging allegations and the father's responding claims that the mother was trying to alienate L. from him.

[54] Dr. Baird interviewed both parents, the child, Ms. Morris (who was assisting the parties at the time) and Dr. Ansari. He found no evidence that the father had ever drugged the child. He did note L.'s defiant behaviour towards his mother during his interview with the child and the mother. He observed the child attacking and biting his mother. He also observed the child's speech and language to be age appropriate.

[55] Dr. Baird's recommendations involving L.'s health care, daycare and emotional well-being in the care of his mother were that:

• the HCAS provide guidance to the mother regarding L.'s behaviour, development, and home circumstances;

• L. have one pediatrician, Dr. Ansari, that he not be taken to unnecessary medical appointments, but that he obtain the appropriate vaccinations (the mother was expressing reluctance towards vaccinations);

• L. be enrolled in services that allow him to be monitored in the community, such as daycare and junior kindergarten;

• L. be sheltered from any domestic violence, corporal punishment or violent behaviour from adults around him; and that

• the mother refrain from any behaviour that will adversely affect L.'s perception of or relationship with his father.

[56] The mother made a further claim about L., that he was displaying symptoms of autism. She described symptoms to Dr. Ansari that the pediatrician felt to be consistent with autism. However Dr. Ansari did not see those symptoms herself. She saw L. as a normal child with language difficulties (his first language at the time was Hungarian).

[57] Nonetheless, the mother arranged for L. to be referred by the mother's family doctor, Dr. Ing, to Dr. Lillian Rojnica. Dr. Rojnica is a pediatrician at ErinOak Kids, a children's mental health centre. Dr. Rojnica's consultation took place without the father's knowledge. In arranging this autism assessment, the mother breached consultation and decision-making terms of the order of O'Connell J. That order granted the father the right to consult on all major decisions, and to have the final say on medical ones.

[58] It is telling that the assessment was arranged through Dr. Ing rather than Dr. Ansari. Dr. Ing had little contact with the father and was likely unaware of his consultation and decision-making rights. On the other hand, Dr. Ansari worked with both parents. She referred both parents to Dr. Baird. His assessment took place shortly before the mother took L. to ErinOak Kids.

[59] The mother raised the full panoply of her complaints against the father to Dr. Rojnica. She stated that L. had been displaying "negative behaviours" since he began visits with his father at six months of age. She spoke of his fear of men with gray hair, hitting his head, pulling his ear, worsened eating, and nightmares. She stated that when he began to speak, L. would hit his head and say "appa". He then, in the mother's recitation, proceeded to head banging and cruelty to dogs. The most recent behaviour change that the mother cited was L. hitting her and pulling her shirt. She associated those changes to increased visitation with his father (due to O'Connell J.'s order).

[60] Despite the mother's complaints and concerns, Dr. Rojnica found that L. was not on the autism spectrum.

[61] Whatever emotional problems L. experienced did not improve in the months following the two consultations. They reached their height at access exchanges. Those exchanges came to resemble staged dramas where the mother brought her witnesses to the exchanges and even asked them to record the exchanges. The father reciprocated by bringing his own witnesses.

[62] In front of these witnesses the same scenario would constantly play out. The father would attempt to take L. into his care while the child suffered what the father (and then Ms. Morris) described as a "meltdown". That is, L. suffered a powerful emotional reaction manifested by a loss of behavioural control and resistance to enter into his father's care. He would yell, kick, scream and otherwise resist the exchange. This behaviour would last from five to ten minutes before the father was either able to take control of the child and leave, or the mother would refuse to release him. On at least two occasions the mother refused to release him to the father.

[63] There is no real dispute between the parties that L. exhibited this type of behaviour at access exchanges. There is some dispute about how often access was actually refused. What is strongly disputed is the extent to which the access exchanges were amicable (the father said that they were not while the mother said that in the main they were) and why.

[64] The father felt that L.'s powerful emotional reaction was caused solely by the mother's attempts to alienate the child from him. The father explained his view that the mother set up the whole scenario. She would get out of the car surrounded by her friends. She would tell the father, in front of L., that the child did not wish to go on the visits. At times she would berate him. She would refuse to release L. while he experienced his emotional reaction to the transition. The child would present as confused, crying and at times shaking.

[65] I was offered no concurring evidence on behalf of either party as to the conduct of the pre-apprehension exchanges. I note this even though both brought witnesses to the exchanges. However I accept the father's narrative over that of the mother. I do so for two reasons. First because of my credibility findings in his favour, set out below. Second because of the evidence of Ms. Morris. The Society worker witnessed some transitions after the child's apprehension.

[66] Ms. Morris' evidence of the first visit after apprehension generally concurred with the father's description of the pre-apprehension exchanges. At the end of the visit the child was to transition back to the father. But the mother never attempted to soothe the child as he became increasingly upset over the prospect of the changeover back to his father. Ms. Morris believed that the mother was unable to calm the child down. Instead she stated, in what Ms. Morris described as a "panicked voice," that she hoped that Ms. Morris was recording the child's reaction and asked what she should do.

[67] Ms. Morris tried to calm the mother down. Instead the mother clutched the child to her. When the father came, L. tried to kick him while still clutched by his mother. Even when the father tried to calm the child down, the mother refused to release him. Ms. Morris had to insist that the mother leave. Ms. Morris then had to shoo the mother away when she remained on just the other side of the door she had just exited.

[68] Remarkably, L. calmed down just moments after the mother left. Ms. Morris asked the child why he had reacted in that manner. He was unable to answer. The father and son were soon amiably discussing the child's day. The father gave L. a cookie and a snack. As Ms. Morris described it in her trial affidavit, the meltdown exchange had this happy dénouement:

The child was happy and appeared to fully recover from his earlier meltdown. The child and father engaged further in some conversation and I walked them out of the access room. The child and father were holding hands and said good bye to me, and then the child stated happily "Bingo!" as they went out the door.

[69] In a discussion with Ms. Morris after this incident, the mother blamed the father for the child's behaviour at the exchange.

[70] I find that this kind of scenario played itself out at numerous access exchanges. It is certain that on at least two occasions, December 31, 2013 and January 31, 2014, the child was withheld from the visit after such a "meltdown". On neither occasion did the father engage in any manner of tug-of-war with the child. Instead he left without L., not creating a scene in front of the child.

[71] The mother refused to take any responsibility for the state of affairs that led to these access exchange problems. She placed the onus for the non-exchange, at least in part, on the father. As her counsel put it in her written submissions, when speaking of the non-exchanges:

The father who has labelled these access visits that did not occur as "denial of access," despite that [sic] on both dates:

(a) The mother arrived at the access exchange with L.;

(b) she came prepared with L.'s belongings;

(c) The father witnessed the behaviours L. was exhibiting; and

(d) He did not want to upset his son any further so he left without L. [emphasis added]

[72] For reasons set out below, I do not accept that the father voluntarily left the access exchanges empty-handed on the two occasions that the mother denied access.

[73] The mother was asked what she would now do differently about the access exchange problems, particularly in light of her 16 counselling sessions. Her answer referred to the January 31, 2014 access denial. She stated that she should not have walked behind the father while he was carrying the child to his car that day. If she were to do it again, she would leave it to the father to gather the child. She would just stand back.

[74] That is all well and good. But even in her own telling, the mother would not have taken any significantly different steps before or during the fateful exchange to encourage L. to go to his father. She would just have gotten out of the way while the child had his meltdown. While that is an improvement over clutching the child, the mother said nothing of reassuring the child of the safety of his father's home. Perhaps more importantly, she did not say that she would tell L. that she wanted him to see his father.

[75] The mother also stated that she learned from her therapy that the child's reaction was just natural anxiety. But she shifted rather than accepted any responsibility for L.'s problems transitioning to his father. She stated that her mistake was assuming that the father abused L. in the manner that he abused her. In the guise of accepting some measure of responsibility, she instead aimed an attack directly at the father. Her mistake, if it was one, was actually his fault.

[76] I add that there was no independent evidence adduced to this court that the father had abused the mother. In fact there is no reference in O'Connell J.'s decision to the issue even being raised before her in the custody trial. Surely if that were an issue it would have been front and centre before O'Connell J. That trial was far closer in time to the parties' cohabitation than this one.

[77] It is well to recall that O'Connell J. explicitly rejected all of the mother's allegations that the father had abused L. O'Connell J.'s decision left no room for error. She stated:

187 The mother made extremely serious allegations about the father that are completely unsubstantiated by the evidence. She continues to believe that the father is causing L. harm while caring for him, that he is possibly drugging him during his access to control his behaviour, that he may be abusing him as a result of what she describes as his "untreated paranoid schizophrenia", and that L. continues to be traumatized by access visits with his father.

188 In listening carefully to the mother's evidence at trial, I find that the mother appears to sincerely believe what she is saying about the father, despite there being absolutely no evidence to support any of these very serious allegations. It is greatly concerning to the court that the mother believes that the father is actually harming L. None of the independent collateral witnesses, including Mr. Prajapat, Camille Brown, Maryanne Duncan, and the supervisors at the supervised access centre expressed any concerns about the father's parenting. Mr. Prajapat observed a loving and affectionate relationship between L. and his father, as did several supervisors at the supervised access centre. Indeed, the mother acknowledged that she has never actually seen the father parent L., except shortly after his birth.

[78] It is at this point that O'Connell J. squarely points to the mother's responsibility for the child's emotional reaction to his father at access exchanges. She wrote:

189 There is no doubt, in my view, that [the mother's] unfounded anxiety and fear about the access between L. and his father is being relayed to L., both unconsciously and consciously. Camille Brown observed that [the mother] presented as very protective towards L. I find that if L. is experiencing anxiety and fear at the access exchanges, it is not because he is afraid to go his father. L. is upset and anxious before and after the access visits because of the conflict and tension between the parties (and A. [T.]) and the heightened anxiety and fear of his own mother in releasing him to [the father] . [emphasis added]

[79] O'Connell J's decision also makes reference to discussions between Ms. Morris and the mother about L.'s alleged reluctance to go to his father. The mother played for Ms. Morris some recordings that she had made at access changeovers. The mother felt that the tapes demonstrated L.'s reluctance to go to his father. Ms. Morris heard nothing of the sort in those recordings. She attempted to reassure the mother and discourage her from making further recordings. It turns out that she was not successful.

[80] Ms. Morris' reassurances and O'Connell J.'s explicit findings had no impact on the mother's fixed view of the father. She continued to believe that the father was an abuser and acted accordingly, to L.'s detriment.

CAAP Parenting Capacity Assessment of Both Parents

[81] In her February 25, 2014 order upholding L.'s apprehension and temporary placement with the father, O'Connell J. also ordered that:

The mother shall be assessed by professionals deemed necessary by the Society, including but not limited to a mental health assessment and an assessment of her parenting capacity by the CAAP team at McMaster Children's Hospital.

[82] CAAP is a multidisciplinary team that, among other things, investigates allegations of child abuse and neglect. The CAAP team includes members of the psychiatric, psychological, pediatric, nursing and social work professions.

[83] In her April 24, 2014 endorsement, O'Connell J. stated that both parents have agreed to participate in a parenting capacity assessment by CAAP. Further the mother agreed to participate in a psychological assessment by clinical psychologist, Dr. Walton-Allen. In pretrial decisions, I ordered that the reports of CAAP, CAAP pediatrician, Dr. Burke Baird, and Dr. Walton-Allen were admissible at trial.

[84] Pursuant to the agreement of the parents, the CAAP programme conducted a lengthy parenting capacity assessment that involved both parents and L., over a period of almost eleven months. The CAAP report relied on input from seven professionals and three training professionals. The parties, through counsel, agreed on what documents CAAP should review as part of its assessment.

[85] CAAP concluded that:

(a) L. has been "negatively impacted" by the "significant conflict" between his parents, which has resulted in his "significant [emotional] dysregulation", particularly in regard to the mother;

(b) Exposure to such conflict "…is emotionally harmful to children and places a child at risk for future difficulties in social relationships (peer, intimate partners, etc.) and potential psychopathology (internalizing and externalizing disorders)."

(c) The conflict is largely a product of the mother's animosity towards the father and her fixed negative beliefs about him; in particular her "… extreme preoccupation with uncovering evidence of L.'s maltreatment in his father's care…"

(d) The mother's "…'need' to uncover such evidence is so deeply entrenched…" that she was unable to objectively see how detrimental this false perception was to the child's well-being.

(e) The mother's ability "to provide an adequate and psychologically safe parenting environment for L." was a concern. CAAP referred to the mother's unsubstantiated concerns that the father was harming the child, that the father had mental health issues that affected his ability to parent, and that the father experienced behavioural problems with L. similar to those she described.

(f) The mother's behaviour and lack of insight into L.'s true medical and psychological state (i.e. her unsubstantiated belief that he suffered from serious physical and psychological maladies and her attempts to prove her thesis through unnecessary "…assessments and repeated medical examinations…") contributed to the child's negative behaviours in her presence.

(g) The mother's fixed beliefs, behaviour, and lack of insight places L. at risk of emotional harm.

(h) The mother would be unable to alter her "distorted thinking patterns" without therapy that explores the detrimental impact of her behaviour on L.'s well-being. CAAP felt that a cognitive behavioural based interpersonal therapeutic programme would be helpful to address her cognitive distortions.

(i) Notwithstanding all of the above, L. was doing well in his father's care.

(j) The fact that the mother was continuing to make allegations of the father's mistreatment of the child even after he was placed with the father is a further concern. CAAP felt that the repeated allegations of abuse and harm would have an emotional impact on L.

[86] The court received the evidence of CAAP from both its extensive report and the testimony of Dr. Harriet MacMillan. Dr. MacMillan is a psychiatrist and the former head of CAAP. She was qualified as an expert in pediatric medicine, psychiatry, parenting capacity assessments and child maltreatment (abuse and neglect). Like all experts who testified at this trial, she signed a Form 20.1 Acknowledgement of Expert's Duty, attesting to her independence and impartiality.

[87] Under questioning, Dr. MacMillan added a number of comments to the opinions set out in the CAAP report. She testified that:

(a) She personally participated in four one-hour meetings with the mother (3 interviews and 1 feedback session). She felt that she was able to get a good sense of the mother.

(b) The mother perseverated about the notion that the father was causing L. harm. She repeatedly referred to problems arising from L.'s contact with his father and her view that something was wrong with L. Dr. Simon Williams, a CAAP psychologist, tried to get her to consider some alternate possibilities and reflect on her own behaviour regarding the child. But the mother kept referring to the father and her belief that L. had experienced trauma from him.

(c) The CAAP team's view of the father was that he too perseverated in regard to his concerns. The team interviewed the father at extreme length, apparently because he had a lot to say. But the team found no concerns regarding the father's parenting. L. appeared to be doing well in his care. It should be noted that Dr. MacMillan did not participate in CAAP's interviews with the father. But she did participate in group discussions regarding the assessment, including the interviews with the father. She also reviewed the notes of those interviews before testifying.

(d) Dr. MacMillan did not agree with the opinion of Dr. Szkiba-Day. She is the clinical psychologist who offered the mother 16 sessions of cognitive behavioural therapy, the treatment modality recommended by CAAP. Dr. Szkiba-Day opined that the mother's conduct was not unusual for a mother of a first-born child; especially for one who gave birth relatively late in life and after suffering a miscarriage. Such mothers have a tendency to worry, perhaps obsessively, over the health and well-being of their first born.

(e) Dr. MacMillan felt that the mother's behaviour was far from usual, even for anxious first time mothers. The mother's steadfast refusal to accept that the father was not harming the child, and her insistence on unnecessary medical consultations represented extreme anxiety.

(f) Dr. MacMillan was clear in her view that CAAP had access to all necessary information and made an independent assessment.

[88] The mother takes strong issue with the CAAP report and evidence of Dr. MacMillan. In essence she argues that CAAP relied on biased and untrue information from Ms. Morris, and that it failed to independently confirm the evidence upon which it relied. She also alleged differential treatment in that the clinicians that interviewed her were different than those who interviewed the father. She argued that she was observed primarily by mental health experts (psychologist, Dr. Williams and Dr. MacMillan), while the father was observed by a (social work) clinical specialist and a child life specialist.

[89] Much of the mother's argument is premised on the notion that Ms. Morris has been biased against the mother and that she provided false or misleading information to CAAP. The mother claims that Ms. Morris provided a great deal of negative information about her while effectively white-washing the father. She points in particular to the fact that Ms. Morris did not provide what her counsel calls the "B. Report" to CAAP. That report would have showed that the father held as many negative and over the top beliefs about the mother, her mental health and the harm that she was causing to the child as she held against the father.

[90] She also relies on the evidence of a public health nurse that assisted her with L. before his apprehension, Nicola Renpenning. Ms. Renpenning spoke of L. as a happy and outgoing child who became increasingly suspicious of strangers. Ms. Renpenning was very positive about the mother's parenting skills, and noted no concerns with the mother's interactions with L.

[91] Having considered the mother's concerns, I accept the validity of the CAAP process, its report, and the evidence of Dr. Harriet MacMillan for the following reasons:

(a) Dr. MacMillan and the CAAP team are highly qualified. Theirs is a team approach, in which different persons with different specialities take on various roles in the assessment process. But they work together to arrive at a common opinion.

(b) While the mother complained about Ms. Morris, I did not find the Society's worker biased for reasons that I set out below.

(c) CAAP's opinion was heavily influenced by its own interviews and observations, particularly with the mother. The eminently qualified Dr. MacMillan participated in most of those.

(d) With regard to the father, the CAAP team was not provided with and did not hold a sanitized view of the man and his views of the mother. CAAP was aware of a number of the concerns that the mother raised about the father. While the team was not provided with the "B. Report" by the Society, Ms. Morris gave an unsanitized description of the high-conflict relationship between the parents to the team. CAAP also spent a great deal of time interviewing him. CAAP was aware that the father had made negative comments about the mother's mental health and her behaviour causing harm to L.

(e) While the mother's counsel raised the issue of the different professionals interviewing the two parents, there is no reason to believe that this resulted in an improper assessment. I say this for two reasons:

(i) First, there was some overlap in interviews. Dr. Niec, a pediatrician and co-director of CAAP, interviewed both parents; the father in person, and the mother by telephone. She also observed an interview with L. and one play session between the mother and the child;

(ii) Second, the mother's counsel did not confront Dr. MacMillan with the claim that CAAP's interview process is somehow unfair or improper. In the face of this non-confrontation, the mother's arguments of procedural improprieties breach the longstanding common law rule in Browne v. Dunn. As Justice David Watt stated on behalf of the Ontario Court of Appeal in R. v. Quansah:

In Browne v. Dunn, Lord Herschell, L.C., explained that if a party intended to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence …

Watt J.A. explained that the rule in Browne v. Dunn is rooted in considerations of fairness to the witness being examined, the party on whose behalf the witness is tendered and the trier of fact. Further the rule ensures the orderly presentation of evidence.

While the rule, being one of fairness, is not absolute, and can be avoided in appropriate circumstances with the proper exercise of judicial discretion, no such circumstances exist here. For that reason, I must apply the rule in the manner described by Watt J.A.:

Failure to cross-examine a witness at all or on a specific issue tends to support an inference that the opposing party accepts the witness's evidence in its entirety or at least on the specific point. Such implied acceptance disentitles the opposing party to challenge it later or, in a closing speech, to invite the jury to disbelieve it …

(f) While Ms. Renpenning, the public health nurse, did offer some positive observations about the mother's parenting, her evidence said nothing that would challenge CAAP's observations or findings. Ms. Renpenning's observations were quite limited and dated. She last saw the child in June, 2013. Even at that point she was only seeing the mother and child every 4 – 6 months. Thus she likely only saw them twice in the year prior to L.'s apprehension. She observed none of the troubling behaviours that the mother described. She only heard about them from the mother. Her evidence offered little assistance.

(g) CAAP's findings about the mother and her role in causing L.'s emotional distress accord with and expand upon the findings of O'Connell J following a lengthy custody trial. In particular they concur with the finding, set out above, that:

L. is upset and anxious before and after the access visits because of the conflict and tension between the parties (and A. T.) and the heightened anxiety and fear of his own mother in releasing him to [the father].

Camille Morris not Biased Against the Mother

[92] As already stated, much of the mother's objection to the Society's case and the findings of CAAP rest on the notion that Ms. Morris was biased against her. She goes on to allege that Ms. Morris effectively torqued her evidence to outside professionals and the court to favour the father. She added that Ms. Morris acted as a "bully" towards the mother. The mother herself described Ms. Morris as "negligent" and "incompetent". These are very serious allegations.

[93] I have given the mother's arguments my full consideration. For reasons set out below. I do not find that Ms. Morris is biased against the mother or that she lied about her to others, including CAAP and the court. I also have no reason to find that Ms. Morris was negligent in her dealings in this matter. I make these (non-)findings for the reasons that follow.

[94] First, although Ms. Morris was previously involved in proceedings between the parents, she did not take sides against the mother. She became involved because of the mother's false allegations that the father drugged the child during access visits. While Ms. Morris found that there was no substance to the allegations, she closed her file a number of times without making any negative findings against the mother. The Society opened and closed its file regarding L. and the parents ten times before the opening that led to this proceeding. Five of those openings were made because of referrals from the mother.

[95] At the custody trial before O'Connell J., Ms. Morris testified that the mother presented to her as very protective of L. She added that the mother was genuinely concerned about two things. The mother believed that something was happening to L. in his father's care and that the child was afraid to visit with his father. Having heard from Ms. Morris at some length, O'Connell J. accepted her evidence. O'Connell J. made no findings that the worker was biased against the mother.

[96] Second, the evidence of Dr. Ansari does not prove that Ms. Morris lied to the pediatrician about the mother. Ms. Morris reopened her file only after she received a call from Dr. Ansari. Ms. Morris testified that Dr. Ansari raised the issue of the mother's mental health with her. In her evidence, Ms. Morris relied on her notes of that conversation. They were made shortly after she had the conversation with Dr. Ansari.

[97] For her part, Dr. Ansari denied that she offered a concern about the mother's mental health. She did not claim a specific recollection of the conversation. She also had no note of the conversation, but stated that if she felt it important she would have made a note. She asserted that she would never have made a statement about the mother's mental health because, as a pediatrician, she would never have speculated about such matters. Rather, Dr. Ansari asserted, she was only passing on the father's concerns about the mother's mental health.

[98] There may have been some element of broken telephone in the conversation between Dr. Ansari and Ms. Morris. But it is clear that Dr. Ansari felt that the concerns she raised in her call, including those about the mother's mental health, merited a call directly to a child protection worker. Recall that Dr. Ansari also felt strongly enough about the issues in this case to call in another outside professional, Dr. Baird of the CAAP team, for assistance.

[99] Rather than find that Ms. Morris lied about the call, I find that she accurately recorded and described what she understood to be the gist of Dr. Ansari's call. While Dr. Ansari may have thought to herself that she was reporting someone else's concern, she likely did not make that clear to Ms. Morris. The protection worker would reasonably have understood that the doctor would not have reported the issue to her unless it was a concern to the doctor as well.

[100] A third argument made by the mother is a claim that Ms. Morris' case notes are not consistent with her evidence. But she raises only minor quibbles with the exact wording of Ms. Morris' note taking, which do nothing to show that Ms. Morris lied. Rather her notes show that Ms. Morris' view of and concerns with the mother changed over time; from a relatively benign to a more concerned view.

[101] A fourth argument made in favour of Ms. Morris' alleged bias is her possession of the so-called "B. Report". The mother's argument assumes that the document turned Ms. Morris against her. Having reviewed that so-called report, it is hard to see how it could have strongly influenced Ms. Morris or caused her to apprehend L. Further the father's evidence, untouched in cross-examination, supports Ms. Morris' evidence that she received the document after the child was apprehended.

[102] The next argument in favour of Ms. Morris' alleged bias is that she accepted the father's version of events in apprehending the child without considering the mother's side of the story. This argument would have more than a superficial attraction if the apprehension were the result of just one event rather than the culmination of numerous events.

[103] By the time of the apprehension there was a history of high conflict and false allegations. Ms. Morris had spent a great deal of time trying to work with the parents. Ms. Morris was aware of the problems in this case, which were not limited to access changeovers. Ms. Morris' evidence is that she felt that matters were escalating in a manner that required her intervention. The aborted January 31, 2014 visit, coming just a month after another aborted changeover, was the last straw. But it had been placed over a whole haystack of other concerns. Justice O'Connell obviously agreed, as she upheld the apprehension following a contested hearing. She also ordered the CAAP and Dr. Walton-Allen assessments.

[104] The final argument that the mother raises is the notion that Debbie Bridge, a community worker who has supported her, also agrees with her view of Ms. Morris. Ms. Bridge testified that she believed that Ms. Morris is oppositional, on guard and ready to be defensive in her dealings with the mother. Ms. Bridge was particularly taken aback by what she described as Ms. Morris' harsh response to the mother regarding counselling from Dr. Szkiba-Day.

[105] Ms. Morris had arranged for the mother to receive six and then a further nine sessions of cognitive behavioural therapy from the psychologist, Dr. Jean Szkiba-Day. After the first four sessions there was some confusion about whether L. and even the father should participate in subsequent sessions. Ms. Morris was insistent that the counselling was for the mother alone. That position was reasonable as CAAP recommended such therapy for the mother alone. It specifically recommended that L. not be the focus of any "formal individual therapy". Ms. Bridge took umbrage on the mother's behalf with Ms. Morris' statement to the mother in, as Ms. Bridge described it, an abrupt tone of voice, that "[n]o, you are the one that needs counselling".

[106] I did not find Ms. Bridge's evidence to be convincing. Her role is that of a support for the mother. I found that she took that role to great lengths. While she gave her evidence I was struck by the degree that she presented herself as her client's advocate. I was particularly struck by her comment that the mother's long-term supervised access is proof that the proceedings are biased against her.

[107] I also note that Ms. Bridge took a strong stance against Ms. Morris. She wrote a letter to the Society in August, 2016, supporting the mother's request to change workers. She made some very strong allegations in court about Ms. Morris' behaviour towards the mother. But it was really the tone of Ms. Morris' voice that seemed to have particularly concerned Ms. Bridge.

[108] Ms. Bridge's strong views about Ms. Morris rest on a very narrow foundation. From her strong criticisms of Ms. Morris, I had the impression that she observed many interactions between the worker and the mother. Only in cross-examination did Ms. Bridge admit that she only saw Ms. Morris interact with the mother twice. Once, Ms. Morris said nothing, as the worker was observing a supervised access session. So the entire repository of Ms. Bridge's experience with Ms. Morris and the mother together was one interaction. From that she felt that she could take the measure of Ms. Morris and her attitude towards the mother. She obviously allowed the mother to fill in the rest for her.

[109] Further, while listening to Ms. Bridge's evidence, I was struck by how de-contextualized it was. She seemed to be woefully unaware of the depth of concern that led to L.'s apprehension and continued supervised access. The fact that the mother was raising new abuse allegations in the months leading up to trial only led Ms. Bridge to empathize with the mother.

[110] Ms. Bridge's superficial knowledge of the matters in which she sought to opine was explained in part by her admission that she had not read the reports of either CAAP or Dr. Walton-Allen. Her critique of the Society's stance came from limited observations that were informed only by her conversations with the mother and her adopted stance as the mother's advocate.

[111] I offer two further points regarding the mother's claims about Ms. Morris. Her claim that the worker is a "bully" is hard to credit. When confronted in cross-examination, the mother spoke of three things: Ms. Morris' tone of voice, her statement that L.'s return to her care "[is] not going to happen", and that the worker once advised her to get used to the idea of being a weekend parent. Even if Ms. Morris was at times abrupt with the mother, her examples do not prove bullying, bias, or mendacity.

[112] Finally, I note that Dr. MacMillan supported Ms. Morris' bona fides. Dr. MacMillan felt that she had sufficient contact from two meetings with Ms. Morris to get a sense of the Society worker. She felt that Ms. Morris had a comprehensive grasp of the clinical situation and wanted to ensure that CAAP had as much information as possible. She had no concern that Ms. Morris was not neutral or impartial in imparting information to her.

Credibility

[113] There are a number of areas in which the evidence of the mother contradicts that of the father, Ms. Morris and the expert witnesses called by the Society. In considering all of the evidence presented to me, I have far greater concerns with the credibility of the evidence of the mother than that of the father, Ms. Morris and the experts called by the Society. I say this for a number of reasons.

[114] First, having considered the mother's allegations and arguments against her, I accept the honesty of the evidence that I received from Ms. Morris. Where they conflict, I prefer her evidence to that of the mother.

[115] Second, while the father's evidence has some flaws, they pale next to those of the mother. I had two main concerns with the father's evidence. He did not give a fully credible explanation for sending the report of Mahesh Prajapat, the OCL clinical investigator whom O'Connell J. referred to as "biased", to CAAP. His explanation seemed unresponsive and self-serving. The father also exaggerated the number of hours of access visits that he was denied.

[116] But those concerns were exceptions rather than a pattern in the father's evidence. While the father's exaggeration of the number of missed access hours is not helpful, it reflects more his subjective response to the mother's pre-apprehension behaviour than a willful intent to mislead. On the whole his evidence was internally consistent and consistent with other evidence called at trial. I note that the father's evidence in-chief was not diminished in cross-examination. That cannot be said for the mother.

[117] For her part, the mother's evidence was often unreliable, misleading, contradictory and unresponsive, if not obviously untrue. It was in great measure effectively undone in the cross examinations of Ms. Skrow and Ms. Stone.

[118] Some examples of the mother's misleading, deceptive or unreliable statements are:

(a) On November 8, 2012 the mother called Ms. Morris to say that she felt that the father had drugged L. on an access visit. The child had been taken to a hospital by ambulance and subjected to a blood test. She claimed that the test was "inconclusive". But in fact, according to Dr. Ansari, the test showed no evidence of drugs. The difference between the two descriptions is vast. At trial, the mother conceded the point but justified her claim with the allegation that the hospital did not sufficiently investigate her drugging allegation. The mother's entire presentation of this story during cross-examination was inconsistent, unresponsive to questioning and unbelievable.

(b) The referral form from the family doctor, Sabrina Ing, to Dr. Ansari said that the mother had sole custody of L. This was untrue. At no time did the mother have sole custody, and certainly not at the time of the referral. Dr. Ing could only have obtained this information from the mother. The mother offered a number of explanations at trial for Dr. Ing's assertion of her sole custodial status. They ranged from not recalling, to an ambiguity in the court order, to a change of her legal status as parent, to ignorance of the law, to expressing herself in a manner that was misunderstood. She finally conceded that she may have said that she was the custodial parent, but that it was not correct.

(c) It is well to recall that it was Dr. Ing, who was unaware of the father's parenting rights (believing that the mother was the sole custodian), who made the referral for an autism assessment behind the father's back. The fact that the mother choose to obtain the referral from Dr. Ing was likely no coincidence.

(d) On September 11, 2013, almost two months after O'Connell J. released her decision, the mother met with Ms. Morris. She produced pictures of L., which she said were taken after access visits. The child looked sad as he hid behind a plant. She also showed photos of L. with scratches and a bruise on his back. The mother failed to inform Ms. Morris that the photos did not depict any recent visits. In fact they were almost a year old and depicted a time when the father's access was quite limited. These photos had even been produced at the trial before O'Connell J. When asked at trial why she showed these dated and misleading photos to Ms. Morris, the mother claimed that they were relevant to what was happening. When confronted about whether she was trying to mislead Ms. Morris with the photos, the mother could only respond that she did not recall what she had said to the worker.

(e) The mother testified at trial that on December 31, 2013 she and the father agreed that the visit would not occur. That is clearly untrue. On January 1, 2014 she told the Society's after-hours worker that she would not allow the visit to occur because of her concern for L.'s safety and well-being. Further the father called the police after the access visit was aborted. It is unlikely that he would have done so had he consented to an access cancellation.

[119] The mother said a number of things at trial that were clearly contradictory, and which accordingly could not all be true. For example:

(a) During the course of her testimony, the mother maintained what can be characterized as a policy of strategic ambiguity towards her allegations of paternal abuse. She moved from an understanding, borne of therapy, that the child's behaviour does not bespeak abuse, to an openness to the notion of paternal abuse, to the need to believe her son's putative abuse allegations. But the different positions cannot all be true and the mother cannot believe all three at once.

(b) The mother cannot admit that she stubbornly maintains her discredited view of the father as an abuser. Instead she clouds the unreasonableness of her stance with the miasma of differing responses. Her true perspective comes into focus when she maintains that the father "might have" drugged L., despite numerous toxicological tests and the contrary finding of O'Connell J. It becomes sharper with her reference to, but failure to prove her new set of lurid abuse allegations. Finally the mother's true perspective comes into full focus with her insistence on two steps to further investigate the father. She testified that she believes that he should be subjected to a psychological assessment and to yet another child abuse investigation, this time by her therapist.

(c) Despite proclaiming the need to further investigate the father, the mother claims the desire to work closely and equally with him to parent L. She admits that the child is doing well with his father, and loves him a great deal. She accepts that the behaviour that concerned her was normal childhood anxiety for a child of separated parents. Yet, again, she maintains her strategic ambiguity.

(d) Further, despite her desire to co-parent him, the mother was unwilling to even mention the father by name. She often referred to him only as "the father". No other person she spoke of received such that impersonal third person description.

(e) The mother's explanation for her therapy with Dr. Szkiba-Day was contradictory at a number of levels. It began with her testifying that she does not know why see needed to see the therapist. She joked that she needed cognitive behavioural therapy just to understand why she was required to undergo that therapy. Yet she also admitted that she gained a great deal of necessary parental insight from Dr. Szkiba-Day; particularly that L.'s pre-apprehension behaviour regarding access was normal. She learned that her son needs both parents. She wished that she had seen Dr. Szkiba-Day earlier. Yet she maintained her strategic ambiguity regarding the father's abuse cited above.

(f) The mother complained that Dr. Walton-Allen based her whole report on what the Society told her. But she admits that the assessor accurately set out everything she told her.

[120] There were numerous areas in which the mother made allegations that were unsubstantiated in the evidence, but which were in her power to corroborate. For example:

(a) L. and his father went on a four-week trip to Hungary after the maternal grandmother died in the spring of 2016. After they returned, the mother took it upon herself to telephone (and surreptitiously record) the paternal grandfather. She told Ms. Bridge that the grandfather described such scenes of L.'s abuse in Hungary that she required an ambulance trip to the hospital. She tried to play the recording to her therapist (who refused to listen). Her allegations led to an HCAS and police investigation, which found no evidence of abuse. The mother testified that those investigations were biased and flawed. Yet she never attempted to play the recording or prove the alleged abuse at trial. If the abuse whose very mention sent her to the hospital existed, and if it merits an independent investigation by her therapist, surely it merited an airing at this child protection trial.

(b) The mother alleged that her access supervisors overheard horrendous tales of abuse from L. Yet the only supervisor she called was Ms. Bridge. That witness only overheard the child ambiguously whisper to the mother that the father had, at some singular point in the past, in some unknown context and with unknown force, hit him in the head. Ms. Bridge did not feel that the disclosure was serious enough to oblige her to report it to the Society. One would have thought that these other supervisors would have buttressed the mother's evidence about abuse if they had anything to say. Their absence at trial is telling.

(c) The mother had friends and supporters at all of the access exchanges that preceded the child's apprehension. If she wanted to dispute the father's descriptions of those exchanges she could have called one or more of them. But she did not do so.

(d) The mother claims to have no mental health issues. She challenges the findings of Dr. Walton-Allen and CAAP. Yet she admits to having retained a psychiatrist, Dr. Bearisto, to provide her with a mental health assessment. She did not call the psychiatrist to testify.

[121] One can only conclude that the evidence of these witnesses would not have assisted the mother's case.

[122] For the reasons given above, where the evidence of the mother is in conflict with that of the father, Ms. Morris or the professional witnesses called at trial, I prefer their evidence. Nonetheless with regard to the father, I have been careful to consider whether there is any element of exaggeration in his evidence.

L.'s Emotional Harm Directly Attributable to the Actions of the Mother

[123] Based upon the facts set out above, the court finds that L. meets the criterion of CFSA s. 37(2)(f). He suffered emotional harm demonstrated by serious anxiety, withdrawal, and self-destructive or aggressive behaviour while in the care of his mother. While that emotional harm was occasioned by the high-conflict relationship between L.'s parents, its strongest and most proximate cause was the mother's conduct.

[124] Each parent has long held a negative view of the other. The father has long believed that the mother is mentally ill and deliberately attempting to alienate the child from him. The mother has been and remains unable to accept that the father has not and will not harm the child. For most of the child's life she has raised unsubstantiated claims of the father's serious abuse of the child.

[125] As a result of the mother's inability to restrain her negative feelings towards the father in the presence of the child, L. exhibited a serious loss of emotional control during access changeovers in the last months of his term in her care. As the father testified, he would hit, kick and spit at his caregivers. While he would quickly calm down once he entered the care of his father, he first had to undergo those emotional paroxysms. The mother even claimed that L. exhibited self-destructive behaviour at other times. In sum, L. exhibited serious anxiety, withdrawal, and self-destructive or aggressive behaviour.

[126] However the child never demonstrated similar concerns when going from the father to the mother following his apprehension. He was able to maintain his relationship with his mother in the period following his apprehension. Those facts point to the difference between the parenting in the two homes. That is why the court places the greatest level of responsibility for the emotional harm that L. has suffered in the past on the mother. Whether intentionally or not, she communicated her fear and anxiety to the child in a manner that caused his great emotional distress. L. suffered the kind of emotional harm contemplated by CFSA s. 37(2)(f). There is no evidence that the father ever reciprocated.

CFSA s. 37 (2) (g): There is a Risk That the Mother Could Cause Further Emotional Harm to the Child in the Future

[127] While a finding that the mother had caused emotional harm to L. is sufficient to allow the court to move on to consider the appropriate disposition under CFSA s. 57 or 57.1, the Society has also raised the risk of the mother causing further emotional harm to L. in the future. Since I am required to consider whether the concern that led to the finding continues to exist, it is appropriate to also consider the issue of risk of further harm.

[128] There is no question that the mother loves L. and wishes only the best for him. She would do almost anything that she is capable of doing to get him back in her care. The relevant issue is whether there is a real likelihood that she will continue down the path of false accusations against the father and thus cause emotional harm to the child. I find that there is such a risk for the three following reasons:

(a) the mother's post-apprehension behaviour;

(b) the psychological assessment of the mother by Dr. Nicole Walton-Allen;

(c) the counselling that the mother has received from Dr. Jean Szkiba-Day has not ameliorated the concerns raised by the mother's behaviour.

The Mother's Post-Apprehension Behaviour

[129] From the time of apprehension to today the mother has not demonstrated a consistent understanding of the concern that she is causing emotional harm to L. by her unfounded allegations against the father.

[130] On the first access visit after L.'s apprehension, Ms. Morris reported that the mother was unable to modulate her behaviour to make the transition back to his father easier for the child. As Ms. Morris reported in her trial affidavit, which represented her evidence in-Chief:

The mother told the child that she was leaving and that the father was coming to get him, at which point the child's face and demeanor changed and he had a meltdown. The child clutched on to his mother and she clutched on to him, asking him why he didn't want to go. The child continued to get louder and was crying, saying 'no'. Instead of trying to soothe the child and make it okay for him to go with his father, the mother looked at me and said in a loud panicked voice, "I hope you are recording this" and "what should I do now?". I advised the mother to calm him down and make it okay for him to go with his father. The mother did not have an ability to do that.

[131] This set the stage for three years in which the mother was unable to fully accept responsibility for her behaviour or that she needed to make changes in her behaviour for the benefit of the child. It is not that each subsequent changeover featured the same drama as the February 7, 2014 exchange; it is just that the mother has demonstrated little ability to change or accept responsibility.

[132] In the months leading up to trial, the mother continued to make broad and even lurid abuse allegations against the father, claiming only that she is repeating what the child has told her and her access supervisors. She spoke of the father hitting the child with and pouring a bucket of urine over the child when he wet his bed, of him threatening to throw the child from a balcony and leaving the child alone in a garage. She spoke of her fears of reprisals against the child once her accusations were made public. There is no evidence that any reprisals following the airing of her abuse claims.

[133] These broad allegations properly caused the Society and even the Halton Police Service to conduct a thorough investigation. They found nothing to them. There was no physical evidence and the child never made those assertions to any independent third parties.

[134] While the court received no reliable evidence that L. was abused by his father, it did receive some that the mother denigrated the father to the child. Society worker, Nadia Skutelsky, was quite even handed in her evidence about the mother. She found many positive things about the mother - child interactions during access visits. Yet she stated that during visits she supervised, the mother made sarcastic and undermining remarks about the father in L.'s presence. If the mother could behave in this way in front of a HCAS worker, how much more so when the supervisor is a friend or supporter?

[135] The Society pointed out that during a September, 2016 access visit the mother had a book on child sexual abuse on display. The mother tried to downplay the presence of the book, describing it as one of a number of "medical" books given to her by a girlfriend that she was sorting through in order to give away. But two different workers, Danielle Stamm and Camille Morris, saw it in plain view in the home. It is not clear why the mother had it out unless she was still contemplating the father's purported abuse of the child. Recall that the mother had alluded to and then raised allegations of the father's sexual abuse of the child in the months leading to his apprehension.

[136] This points to the mother's unwillingness to admit at any point in her evidence that she was responsible for any of the events that led to L.'s present placement in the care of his father. She remained critical of the father and unwilling to accept responsibility for the child's circumstances. Ms. Skutelsky, who attempted to be even-handed, found the mother to be defensive and closed to feedback and suggestions.

Nicole Walton-Allen Assessment

[137] The concerns that I have regarding the emotional harm that the mother has caused to L., and the risk that her behaviour since the apprehension raises, are reinforced by the findings of Dr. Nicole Walton-Allen.

[138] Dr. Walton-Allen is a clinical psychologist who has administered psychological tests for over 30 years. She conducted a cognitive personality assessment of the mother that resulted in her report of July 27, 2014. Despite the mother's objections, I had earlier allowed Dr. Walton-Allen's report into evidence. At trial I qualified her as an expert in behavioural psychology, including the assessment of psychosocial functioning, clinical psychology.

[139] Dr. Walton-Allen interviewed the mother on two occasions for a total of 3½ hours. She administered six psychological tests. All of the tests that she administered to the mother but one were considered valid and reliable at a forensic level. The test results accorded with her interview findings. What was important was not simply the result of any individual test but the pattern that the tests established across a number of areas of functioning. Dr. Walton-Allen also reviewed about 34 relevant documents, including court documents, HCAS notes and various correspondence and reports.

[140] Dr. Walton-Allen found as follows regarding the mother:

(a) Her IQ is average. Her testing profile did not suggest any cognitive deficit that would impair her executive functioning. She would be expected to be fluent in problem solving, abstract reasoning, and informed decision making;

(b) Nonetheless her pattern of response suggests entrenched psychological adjustment issues and a possible adjustment disorder.

(c) She is rigid, dogmatic and prone to situationally determined feelings of disappointment, frustration and anger. Her sense of self-worth is dependent on her perception of feeling wanted and admired by others. She demonstrates emotional immaturity in engaging in relationships that are contrary to her best judgment.

(d) She appears to have limited coping skills to deal with psychological stressors (such as a break up) which leads to the probability of her acting out her problems.

(e) The mother is highly vulnerable to feelings of loss and rejection after relationships break down. She engages in defensive denial and repression to protect herself. She is unable to reconcile her high perception of self-worth with rejection by others, which causes her to externalize the cause of the rejection to others. She is unable to asses her own faults in those situations. As such she has a limited ability to receive and incorporate feedback from others that does not meet her self-perceptions. Her ability to assume the perspective of others is similarly limited.

(f) Dr. Walton-Allen posits two possible explanations for what she describes as the mother's behaviour that may have served to alienate L. from the father. On the one hand, the mother may have been unable to cope with the personal hurt and disappointment arising from the end of her relationship with the father. On the other hand, she may really believe her unproven allegations against him. (Dr. Walton-Allen did not attempt to opine on whether the manner in which the father treated the mother or to pass any judgment on the way that either parent contributed to the end of their relationship).

(g) In any event, due to her inability to accept any personal deficits or responsibility for the end of her relationship with the father, the mother has "willingly or unwittingly" villanized the father and placed all of the responsibility for L.'s perceived problems and behaviours on him.

(h) When faced with discomfiting information, the mother is prone to become more entrenched in her beliefs. For example she expressed the view that all of the parties, including the HCAS and the court, were biased against her in regard to L.'s apprehension and placement with his father.

(i) She is unable to see the impact of her own behaviour on L.'s emotional concerns. Rather, she perseverates about the father's parenting faults and sees a conspiracy against her.

(j) Despite all of that, she simultaneously expresses the contradictory view that she can co-parent with the father that has so wronged her. Dr. Walton-Allen sees the mother as transposing issues to suit her beliefs. This relates to the assessor's view of the mother as opportunistic, manipulative and possessing little tolerance for delayed gratification.

(k) At the end of the day, Dr. Walton-Allen does not see the mother as possessing the ability or motivation to work in a cooperative and open-minded and collective way with individuals who do not share her world view.

[141] In her testimony, Dr. Walton-Allen was not optimistic regarding the mother's ability to change her pattern of response. She sees the mother as highly reactive to information contrary to her views of herself. Her default position is to find a way to negate the source of the information. She looks outside herself to find ways to diminish the source of the information.

[142] Dr. Walton-Allen testified without contradiction that the age of her report (it is dated July 27, 2014) does not diminish the present validity of her opinions. The report looks at many core attributes that do not change. Dr. Walton-Allen stated that personality traits are 60% genetic and 40% environmental. These traits develop early in life; that is the first 15 years or so. After that, the patterns of behaviour become entrenched as one experiences life.

[143] Dr. Walton-Allen's findings and views with regard to the mother are not in themselves sufficient to make a finding of risk under s. 37(2)(g). However they confirm many of the observations of HCAS workers and many of the findings of CAAP. They help to explain some of the mother's most troubling behaviour. Dr. Walton-Allen's evidence supports the concern that the mother's behaviour, which has already emotionally harmed L., is caused by her own deep-seated concerns. Those are unlikely to change in the foreseeable future.

Dr. Jean Szkiba-Day

[144] The third reason to find that the mother remains at risk of emotionally harming L. arises from the questionable progress of her treatment by Dr. Jean Szkiba-Day.

[145] Recall that CAAP recommended that the mother undergo cognitive behavioural therapy to assist her in dealing with her cognitive distortions. Dr. MacMillan of CAAP testified that such therapy would be necessary to help the mother gain insight into her role in her son's behaviour. Yet Dr. MacMillan added a note of caution in stating that it would be difficult for the mother to change, even with such therapy.

[146] Ms. Morris arranged for the mother to obtain therapy from a Hungarian speaking psychologist, Dr. Jean Szkiba-Day. In total Dr. Szkiba-Day provided 16 sessions between February 2 and May 17, 2016.

[147] Dr. Szkiba-Day was not provided with any outside reports or other materials at the beginning of the therapy. After about four sessions, she requested and was provided with the CAAP assessment and Dr. Walton-Allen's report. Dr. Szkiba-Day appears to have seen no other materials that were before the court (save her own report). In her oral evidence, Dr. Szkiba-Day indicated that the two expert reports did not change her view of the mother's concerns or her therapeutic approach.

[148] Dr. Szkiba-Day provided a report to Ms. Morris of May 23, 2016. In that report she was very clear that she was not in a position to opine on issues of custody and access. Her role was simply to provide therapy and report on what she considered to be its progress.

[149] Two things stand out in Dr. Szkiba-Day's report regarding the beginning of the sessions. First, The mother entered the therapy expressing "…considerable confusion and frustration regarding the events that have led up to L. being apprehended and her access to him being limited and now supervised…" After more than three years of HCAS involvement, two years with L. in the care of his father, at least two significant decisions by O'Connell J., and the thorough reports of both CAAP and Dr. Walton-Allen, the mother still expressed confusion about the events that led up to the child's apprehension, placement and supervised access. It is unfortunate that this did not set off the therapist's alarm bells.

[150] Second, Dr. Szkiba-Day had a somewhat rose-tinted view of her new patient. After just four sessions with the mother, she told Ms. Morris and later wrote in her report of May 23, 2016 that:

… much of what I saw with [the mother] was not unusual for a mother of a first born child, that is a tendency to worry, perhaps obsessively, over the health and well-being of her young child, especially in light of the fact that prior to L.'s birth, [the mother] had suffered a miscarriage after being unsuccessful in bearing a child. [the mother] was almost 48 years old when L. was born.

[151] This concern is magnified by Dr. MacMillan's strong disagreement with Dr. Szkiba-Day's sanguine perspective on the mother's behaviour. Dr. MacMillan felt that the mother's behaviour was far from usual, even for an anxious first time parent. Dr. MacMillan pointed to two factors for this opinion: the mother's unwavering failure to accept that the father was a benign parent and her insistence on unnecessary medical consultations. It is unfortunate that Dr. Szkiba-Day did not pick these points out from the CAAP report when she received it.

[152] After the first four sessions, Dr. Szkiba-Day (in her own words) "mistakenly assumed" that her role was to assist the mother in a transition to unsupervised visits. She felt that L. and even the father should have been involved in the process. That was not the Society's intent or the recommendation of CAAP. I see nothing in the record that would have led Dr. Szkiba-Day to this mistaken assumption. The result is unfortunate.

[153] The course of her therapy and its results do not offer great hope that the mother has turned the parenting corner. She does not seem to have gained any profound insight into her son's needs or her own responsibility for his present circumstances. I say this even though Dr. Szkiba-Day described the mother's progress as "good".

[154] Dr. Szkiba-Day arrived at this positive description because mother was able to express some understanding of L.'s behaviour and emotional needs. She was also able to articulate the notion that some of L.'s behaviours were normal for a child his age, rather than the result of paternal abuse. She was even able to state an understanding that L. needs both parents in his life.

[155] The only reason that Dr. Szkiba-Day's description of the mother's progress was limited to the adjective "good", rather than "excellent" was the therapist's inability to monitor the mother and child together. Dr. Szkiba-Day also stated that she lacked access to external information to verify reports from the mother. In other words, the only information that she had to go on was the two expert reports and the narrative provided by the mother. That may explain the therapist's mistaken assumption about the proposed course of treatment.

[156] There is no evidence that Ms. Morris provided her own perspective on the mother's mental health to Dr. Szkiba-Day. This understandable reticence (in light of the mother's frequent bias allegations against the worker) may have created a misapprehension regarding the Society's proposed course of treatment.

[157] What is particularly concerning to the court is the fact that the mother, in her testimony following the 16 therapeutic sessions, seems unchanged. She testified to her puzzlement about the reasons that she was sent for cognitive behavioural therapy. She justified her views about the father's purported child abuse by blaming the father. She was unwilling to even to concede the truth of the toxicological tests that proved that the father had not drugged L. After the child returned from Hungary in the summer of 2016, she tried to prove that the father abused him there (and perhaps in Ontario as well).

[158] In May, 2016, the mother telephoned Dr. Szkiba-Day to report that the child was hurting himself and others. She stated that L. was chewing the ends of his fingers, hiding under a table if things were not going the way he wanted, and hurting kids at school. She added that the child was hurting himself by hitting his head and saying that he was stupid.

[159] On August 2, 2016 the mother phoned Dr. Szkiba-Day to report that the child had returned from Hungary but the father had withheld access. The mother wanted the child tested for Parental Alienation Syndrome. There is no evidence that the father withheld any access to the mother.

[160] During the same telephone call, the mother also reported that the child had poured hot water on her head when they were taking a bath (with bathing suits) together. She related that he asked a question to the effect of whether he would be taken to his father if she died. The mother complained that the water was "boiling", that she had suffered a muscle spasm and that it took a month to recover. Yet she had not sought medical treatment.

[161] The mother contacted Dr. Szkiba-Day two further times to make allegations that the father was abusing the child. It is not clear whether these events, subsequent to the end of the therapy sessions, raised any concerns for Dr. Szkiba-Day. But to be fair to the therapist, her role was not to assess or opine on custody and access matters.

[162] However the timing of these events greatly concerned Dr. MacMillan. She noted that nothing in Dr. Szkiba-Day's report speaks of the mother's new understanding of the events that led to L.'s placement change. The mother expressed no remorse about the manner that L. was harmed by the conflict and her behaviour.

[163] Dr. MacMillan pointed out that merely completing a set of therapeutic sessions offers no guarantee of improvement or understanding. She questioned whether the mother was simply undergoing the therapy to get her child back rather than coming to the point that she understands the need to change. The fact that she was again making unverified abuse allegations after sixteen therapy sessions was telling for Dr. MacMillan. They reinforce her concerns about the intractability of the mother's issues, and the need for firm supervised access recommendations.

Conclusion Regarding Risk of the Mother Causing Emotional Harm to L.

[164] The mother willingly participated in the therapy with Dr. Szkiba-Day. She openly stated that her goal was to cooperate in any way that she could to get her child back into her care. She said many of the right things to the therapist. She even said many of those things to the court. She has offered anodyne statements to the effect that she understands L.'s need for both parents and wishes to co-parent with the father. But other than the fact that he has the child in his care, it is hard to understand how she believes that she can co-parent with a man that she, at best, suspects to be an abuser.

[165] Considering the mother's historical pattern of false allegations and unnecessary investigations, the result of the Society's investigations of the most recent abuse allegations, the fact that they came after a course of therapy intended to instill greater insight into the mother, and the mother's ambiguous testimony at trial, only one conclusion is possible. She has not changed anything but some aspects of her presentation to people in authority. The risk of emotional harm that the mother poses to the child remains unchanged.

Disposition – Preliminary Issues

[166] Under CFSA s. 57(1), once the court makes a finding that a child is in need of protection, it next must look to whether court intervention is necessary. If it makes that determination it may choose from a roster of potential orders. They are: permanent Crown wardship, Society wardship for a period of time, or placement with a parent or community member subject to the supervision of the Society. In addition, there is the option of a custody order under CFSA s. 57.1. The determining factors for all such orders must be the best interests of the child as defined in CFSA s. 37(3).

[167] CFSA s. 57(2) requires the court to make enquiries in regard to the "efforts the society or another agency or person has made to assist the child before intervention under this part [of the CFSA ]". The court is also obliged by s. 57(3) to consider the least disruptive alternative adequate to protect the child before making an order removing the child from the person who had care of him or her prior to Society intervention.

[168] If the court finds that a supervision order is in the child's best interests, CFSA s. 57(8) allows the court to impose "reasonable terms and conditions relating to the child's care and supervision" upon the child's parent or caregiver, the child and the Society.

[169] I have considered all of the statutory criteria set out above in making my decision. In considering the decision making path mandated by the CFSA I find that intervention by way of a court order is necessary. If a court order is not made, the child's arrangements will revert to those in the June 14, 2013 decision of Justice O'Connell, calling for joint custody and primary residence with the mother. Those terms are neither tenable nor in L.'s best interests.

[170] Further I find that the Society has taken a number of steps to assist the child before intervention, including working voluntarily with the parties and experts who have assisted them and monitoring access changeovers. It has continued that work after apprehension through supervising access, attempting to assist the mother to understand the issues that lead to the conclusions in this decision, arranging for assessments, assisting with housing for the mother, and arranging for counselling by Dr. Szkiba-Day.

[171] I further find that the provisions set out below, which remove the child from the care of his mother and place him with his father, are the least detrimental alternative for L.

Issue No. 2 - What Custodial Arrangements are in L.'s Best Interests?

L. Should be Placed in Father's Exclusive Care

[172] There is no question that L. should be placed in the exclusive care and custody of the father. All objective evidence points to the child thriving in his father's care in a manner that he did not in his mother's care. He does not presently suffer the degree of emotional harm that he suffered when in his mother's care.

[173] Critically, L. has been able to maintain a strong relationship with his mother while in his father's care, notwithstanding the supervision of his access. The same was not true when the child was in the mother's care. The court fears that the child could regress were he to be returned to her care at this time, whether full or even half time. There is no reason to believe that she can or will stop her behaviour described in great detail above.

[174] In saying this, the court concedes, as the mother fervently asserts, that the father has expressed strong negative views about her. He has written graphically and spoken of her purported psychopathy and abusive nature. He has described her as delusional and an alienator, and as someone intent on shutting him out of his son's life. He does not trust her and does not wish her to enjoy unsupervised access to L.

[175] That being said, the key point is that there is no evidence that the father has visited his negative views of the mother on the child. In fact the evidence is clear that even now, after three years in his father's care, L. loves his mother and is eager to see her. Thus an order placing L. in the exclusive care of his father will not detrimentally affect his relationship with his mother. That remedy is the least disruptive alternative adequate to protect the child.

Issue No. 3 - If L. Is Placed in the Sole Custody of One Parent, What Access Should the Other Enjoy?

[176] The key access issue boils down to whether the mother's access should be supervised. The Society and the father say that it should, while the mother strongly rejects the notion. She feels that it represents a form of bias against her and that, if it is restricted to a supervised access centre, it will destroy her relationship with L.

[177] Both the Society and the father heavily rely on the opinion of CAAP and Dr. MacMillan. They opine that supervised access is necessary because of the mother's inability to understand the harm she causes to the child and risk she poses to him if she continues in her "current parenting pathway".

[178] The mother also seems to lack some basic skills in both understanding L.'s behaviour (i.e. her ongoing view that the child is demonstrating self-destructive behaviour, an opinion shared by no one else who has observed the child) and controlling the child's behaviour (as manifested, for example, in the incident she described to Dr. Szkiba-Day of L. pouring hot water on her head). There is no evidence that the father experiences similar problems controlling the child's behaviour.

[179] Over the time that the child has been in the father's care, the restrictions on the mother's access have been gradually loosened to the extent that she now enjoys alternate weekend supervised access, with one of her friends frequently supervising. No one has offered evidence that the child is reluctant to go on his visits to his mother or that he does not enjoy them. The evidence points to his robust and loving relationship with her.

[180] But the elephant in the room is the fact that the mother has not significantly changed. She still retains the power to emotionally harm the child by immersing him in her hyperactive abuse scenarios. While she is presumably not alone with the child during access, it is telling that none of the abuse "disclosures" that the mother claims were made during Society supervised access visits. Rather they were made in the presence of the mother's friends and supporters; people who believe in and trust her. They generally accept her narrative.

[181] I note that the mother, perhaps because of her charm and certainty, appears to have the ability to convince others of the rectitude of her position and the unfairness of her opposition. This ability extends beyond friends to some outside professionals like Ms. Bridge and even to some extent, Dr. Szkiba-Day. They appear convinced that the concerns about her are overblown or even false. Ms. Bridge takes things a step further by claiming that the supervision is proof of some bias against the mother.

[182] The mother's friends and supporters would likely give her more latitude to subtly influence the child than a HCAS professional. This is the opinion of Dr. MacMillan. She pointed out that the mother's friends and supporters would not likely be able to discern the subtle cues or potential exchanges between the mother and L. that could be harmful to the child. The proof of the past three years is that the mother's friends have done little to ensure that the mother avoids false abuse allegations or manipulate the child to potentially make such allegations.

[183] The Society, father, and Dr. MacMillan all appear to believe that a professional supervisor would be better able to discern this behaviour, and have the authority to intervene.

[184] Dr. MacMillan was also concerned that the mother's new set of abuse allegations followed her sixteen treatment sessions with Dr. Szkiba-Day. That fact reinforced for Dr. MacMillan the need for the access to be supervised. It equally reinforces the resilience of the mother's fixed views. At this point, they are highly resistant to therapy.

[185] There is a body of case law that states that supervised access is an exceptional remedy. Absent special circumstances, it is not generally meant to be a long-term solution. That point was made by the Ontario Court of Appeal in its brief ruling in Merkand v. Merkand. Although that is a custody and access rather than a child protection case, the concerns that led the court to uphold an indefinite term of supervised access are somewhat analogous to those in this case.

[186] The court found that evidence of "… the appellant's attempts to manipulate the children of the marriage concerning the custody and access regime, his demonstrated willingness to subject them to repeated professional assessments, and the concern that if access were expanded he would revert to pressuring the children to live with him..." were sufficient to support an indefinite term of supervised access. It added that the access parent could always apply to vary access if he could prove a material change in circumstances.

[187] Accordingly I find that the mother's access to L. must continue to be supervised.

[188] If, as seems to presently be the case, the mother is unable to change, the court is faced with a dilemma. On the one hand the mother has caused and remains at risk of causing L. emotional harm by exposing him to her abuse scenarios during access visits. On the other hand, L. loves his mother and has a close relationship with her. There is a risk that he would be emotionally harmed if his bond with her were severely diminished or terminated by very limited access. Looking back, that concern was not directly raised with any of the experts who testified before the court.

[189] Thus the question really should be which of two scenarios proffered by the parties offers the greatest risk of emotional harm for L.:

(1) A highly structured, time limited, and supervised relationship in which the mother is fully or partially constrained from raising her abuse issues with the child; or

(2) One in which the mother is more likely to raise her abuse fears with the child, but also better able to maintain their close relationship?

[190] In order to answer I must first consider whether the Society should remain involved with this family. In particular, it is necessary to determine whether a supervision order will offer greater opportunities for meaningful supervised access than a s. 57.1 order.

Issue No. 4 - What Form Should the Court's Final Order Take, Whether a Deemed Custody Order or a Supervision Order?

[191] The father and Society fairly point out, as stated at the beginning of this judgment, that L. has been the subject of very acrimonious litigation for almost all of his life. There is a need for the litigation to end.

[192] In this decision I have found that it is in L.'s best interests that the father have permanent care and custody of the child. That arrangement should not change absent a material change in circumstances. Further, having a new status review court date on the horizon may offer an invitation to further litigation, acrimony and allegations, none of which could benefit the child.

[193] On the other hand, the Society and father conceded that if I grant the CFSA s. 57.1 order they seek, the mother's access will be significantly curtailed. That is because the Society will no longer be involved with the parties. The mother's access will have to take place in an access centre or under the auspices of an independent access supervisor. That will restrict the location and volume of access visits. There will not be overnight visits and they will not likely take place in the mother's home.

[194] The mother argues that if I were to grant a s. 57.1 order, I would effectively terminate access. She makes this argument for four reasons:

(1) The father cannot support a relationship between L. and his mother. The mother points to the labels that the father has applied to her in the B. report.

(2) That order is "…not child focused and [has] no basis in reality".

(3) The mother says that she cannot afford to pay for a supervisor. That fact will likely limit the time available for such visits. I note that she is already contributing little to L.'s daycare costs. The issue of requiring the father to make a financial contribution to an access visit is not before me.

(4) Requiring L. to see his mother, with whom he has a close and loving bond, in a supervised access centre a few hours per week "… is cruel in the circumstances. Sadly it is consistent with the father's narrative that she is a ruthless child abusing psychopath who should be banned from children."

[195] As part of her request for joint and shared custody, the mother asked me to appoint an outside professional to assist with the access arrangements. She suggests only Dr. Szkiba-Day. While she claims to be unable to pay for any access supervision, she said nothing about who would pay for that professional. Even assuming without finding that I have the jurisdiction to order the referral, I am not convinced that this result will make things better. To the extent that she has a role in this case, Dr. Szkiba-Day should be working as the mother's therapist only. I am hopeful that these reasons will clearly identify for the mother and any treatment provider the concerns court finds in need of remediation.

[196] In response to the mother's somewhat overstated arguments, I do not accept that the father is unable to maintain a relationship between L. and her. He has done just that since the child came into his care, notwithstanding what he wrote in a document over three years ago. The argument about a s. 57.1 order not being "child focussed" and divorced from reality is too obscure to be helpful. Other low income people have exercised supervised access at access centres. They often have flexible rate schedules. Finally, while the court takes little pleasure in ordering supervised access, it is likely less cruel to L. than making him endure more conflict and unproven allegations arising from unsupervised access. Even with the mother's friends supervising, she can subtly manipulate the child.

[197] All of that being said, there is merit to the mother's concern that a s. 57.1 order will severely limit her relationship with the child. The mother/child relationship is meaningful and beneficial, albeit (and it is a strong albeit) emotionally risky for L. He loves his mother and by all indications, wants to see her regularly. Although no one raised any real evidence on the point, it is obvious that the sudden loss of that relationship raises a risk of emotional harm to the child.

[198] While I would have preferred to be able to make a final custody order in favour of the father while still maintaining the supervision of the Society, CFSA s. 57.1 is clear that I lack the jurisdiction to do so. The provision states that a custody order under that section can only be made "…if the court finds that an order under this section instead of an order under subsection 57(1) would be in a child's best interests…"[emphasis added]. While a permanent custodial order in the father's favour is in L.'s best interests, so too is access that balances protection and maintenance of the child's relationship with the mother. It would not be in the child's best interests at this time to suffer a major rupture in his relationship with his mother.

[199] By process of elimination, the only way that seems presently available to ensure that the mother and child maintain a regular and emotionally safe access arrangement is to grant a supervision order. That order would require the Society to continue its involvement with this family. As part of that involvement, the Society would supervise the access and assist in making supervised access arrangements that it approves. That could involve supplementary visits supervised by persons whom the Society approves or an access centre.

[200] A continued supervision order will also, if necessary, assist the child in adjusting to the new and likely modified access arrangements.

[201] Finally a supervision order would offer the mother (and by extension, the child) a further and potentially last chance for her to work on the issues that require resolution. She has not been able to accept the findings of O'Connell J. in either the custody trial or apprehension motion. She has effectively rejected the advice of the Society and the findings of the experts who have reported to the court. If this decision does not clarify for her the issues that require her make a change, it is unlikely that anything will.

[202] The mother has joked that she requires therapy to show her why she needs therapy. This decision clearly states to her that that approach is no longer acceptable. If there is no progress following the term of this order, it may be appropriate to make the s. 57.1 order requested by the Society and father.

[203] I make a one year supervision order placing L. in the care and custody of the father. The mother's access will be:

(1) supervised by the Society or a person approved by the Society.

(2) at least weekly;

(3) not overnight.

[204] With regard to details and additional terms of the access (i.e. duration, frequency and location) and the exact terms of supervision, none of the parties have made submissions. In addition to access terms, I am presently considering supervision terms that require :

(a) the mother shall continue to undergo counselling by Dr. Szkiba-Day or another counsellor approved by the Society. However I do not have the jurisdiction to order the Society to pay for that counselling;

(b) the counsellor receive a copy of this decision as well as, if not already received, the CAAP and Dr. Walton-Allen reports;

(c) neither parent speak negatively of the other in the presence of the child;

(d) neither parent shall speak to the child regarding the issue of whether he has been abused, other than to hear the child's comments and report them to the Society.

[205] That being said I am open to the input of any of the parties as to these and any other appropriate terms of supervised access and supervision.

[206] Pursuant to s. 1(7.1)(m), I order that each party serve on the other parties and file within 14 days of date of release of this decision, a draft order that deals only with the terms of supervision and supervised access they request in light of these reasons.

[207] In addition, each party may file, along with their draft order, a submission of up to five pages, double spaced, 12 point font, normal margins, setting out why they wish me to incorporate the terms of their draft order.

[208] If any party wishes, they may also arrange for brief oral submissions, of up to 15 minutes in regard to the terms of supervision and supervised access, upon canvassing dates and making the arrangements with my judicial secretary. If an appointment is not made within 21 days of the release of these reasons, I will base my decision on terms of access and supervision in the written submissions.

[209] The temporary terms of supervision and access will remain in effect until I rule on the matters set out above.

Released: April 27, 2017

Signed: Justice Marvin Kurz