WARNING

The court directs that the following notice shall 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 48(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 File and Parties

Court File No.: Toronto C 92059/16

Date: 2017-07-13

Ontario Court of Justice

Between:

Jewish Family and Child Service of Greater Toronto Applicant

— And —

L.R. and T.D. Respondents

Before: Justice Curtis

Written Submission on two motions

Reasons for Judgment released on: 13 July 2017

Counsel:

• Sara Westreich for the applicant Jewish Family and Child Service of Greater Toronto
• Sarah Clarke for the respondent father L.R.
• Robyn Switzer for the respondent mother T.D.
• Seema Jain for the children

CURTIS, J.:

INDEX

1. Overview
2. Background
3. The Issue on these Motions
4. The Positions of the Parties on these Motions
5. The Legal Framework for these Issues
6. The Children Attending Court
   • a. The Children's Views and Preferences
   • b. Analysis re Emotional Harm
7. The Release of the Hurwitz Report to the Children
   • a. Analysis re Releasing the Hurwitz Report to the Children
8. Orders
9. Costs

1. Overview

This is the decision regarding two motions brought by the Jewish Family and Child Service of Greater Toronto ("J.F. & C.S.", or "the agency") in the protection application regarding H.P. (15 years old) and C.T. (12 years old). J.F. & C.S. brought motions for the following:

a) An order under s. 39(4) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended ("C.F.S.A.") that the children H.P. and C.T. not be permitted to attend court in this case; and,

b) An order that the children H.P. and C.T. shall not be provided with the report of Howard Hurwitz ("Mr. Hurwitz") dated 28 April 2017 ("the Hurwitz Report"), except as directed by Mr. Hurwitz.

2. Background

J.F. & C.S. started a protection application on 19 December 2016 regarding H.P. and C.T. due to concerns that the children were at risk of emotional harm as a result of: their exposure to the high level of conflict between their parents, following the death of their sibling J., the parent's separation and the ensuing acrimonious litigation. There were also concerns that the father was alienating H.P. from the mother and that, if given the opportunity, he would similarly alienate C.T.

The parents are T.B.D. (born […], 1966 (50 years old), "the mother") and L.I.R. (born […], 1966 (51 years old), "the father"). The mother is in an M.S.W. program through a School of Social Work of a University. The father is a law professor at a University in Halifax.

There are three children of the marriage:

• J., born […], 1999 (who died on […], 2013 of cancer, at age 13)
• H.P., born […], 2001 (15 years old), and,
• C.T., born […], 2005 (12 years old).

J.'s illness and death was, of course, a devastating event for the family. This is entirely predictable and understandable. The consequences of the family member's grief and reaction to losing a child have been dramatic, traumatic, long-lasting, and toxic. All family members have suffered from J.'s illness and death.

On […], 2013, only four months after J.'s death, the parents separated. The children were living with the mother. The father accepted a teaching job in Halifax. When the family was still together it was planned that they might all move to Halifax for this job.

The level of conflict between the parents is extraordinary. It has been described as such repeatedly by the various professionals (from various backgrounds) called upon to try to help this family.

There is a court order of Horkins, J. made in May 2014 and a separation agreement between the parents dated 30 November 2015, both of which provide for joint custody and equal time sharing. Neither document has been provided to the court in this case.

In May 2014, J.F. & C.S. began to work with the family due to concerns about the children's exposure to parental conflict. The police were involved in several confrontations between the parents, some in the presence of the children, and some of which resulted in the police contacting J.F. & C.S. out of concern for the children due to the parental conflict. At this time C.T. was being seen by a counsellor. Even at this stage (three years ago) J.F. & C.S. was recommending counselling for all family members, and particularly for the father and H.P.

In August 2015 there was an altercation at the J.F. & C.S. offices which involved each of the parents actually physically pulling C.T. (then 10 years old) away from the other parent. Security intervened, and the children were detained in J.F. & C.S. offices under an apprehension.

In the summer of 2015 C.T. was diagnosed with Generalized Anxiety Disorder, Social Anxiety Disorder (Social Phobia), Selective Mutism and was displaying features of depressed mood. She was then 10 years old.

In the summer/fall of 2016 the father proceeded with the unveiling ceremony for J., without involving or even notifying the mother or her family. The children were told not to tell the mother about this.

On 7 September 2016, H.P. reported to J.F. & C.S. an allegation of sexual assault by the mother. This was investigated by J.F. & C.S. and not verified.

On 20 September 2016 H.P. left the mother's home and moved in with the paternal grandparents.

In September 2016 the mother informed J.F. & C.S. of messages left by H.P. for her that were both suicidal and homicidal (threatening the mother). J.F. & C.S. was concerned about the risk of harm to H.P., and the risk of harm to the mother, and opened a child protection investigation into H.P.'s mental health and the need to get H.P. assessed. J.F. & C.S. verified that H.P. suffers from a mental, emotional or developmental condition which, if not remedied, could result in serious impairment.

After September 2016 the situation deteriorated, with H.P. refusing to see the mother.

There was ongoing litigation in the Superior Court of Justice regarding custody and access. On 8 November 2016 there was a court appearance with many present, including several professionals. Wilson, J. tried to get everyone to agree to go into counselling. On 10 November 2016 the parties agreed to counselling with Dr. Barbara Fidler. On 23 November 2016 the counselling process fell through.

On 2 December 2016 J.F. & C.S. urged the father to agree to counselling for all family members, failing which J.F. & C.S. would start a protection application. He did not agree to this.

J.F. & C.S. started a protection application on 19 December 2016. The protection application sought (among other things):

a) A protection finding under C.F.S.A. s. 37(2)(g) and (g.1) (risk of emotional harm by the actions of the parents and by the refusal to consent to treatment);

b) For H.P., a six months supervision order placing him with the paternal grandparents;

c) For C.T., a six months supervision order placing her with the mother; and,

d) All family members are to participate in individual and family counselling.

On 28 December 2016 the court (Curtis, J.) made a temporary consent order for (among other things):

a) A supervision order placing H.P. with the paternal grandparents;

b) A supervision order placing C.T. with the mother;

c) Detailed terms for each supervision order;

d) Detailed terms regarding the conduct of the father;

e) Access to both children at the discretion of J.F. & C.S.; and,

f) All decisions for both children re therapy, medical treatment, school, camp and travel must first be approved by J.F. & C.S.

In January 2017 Mr. Hurwitz was retained to conduct a family assessment, interviewing all family members, with a view to determining a treatment plan and other recommendations. Mr. Hurwitz is a social worker specializing in working with families experiencing separation, and provides a variety of services in his clinical practice. He has experience dealing with and working with high conflict families. On 28 April 2017 Mr. Hurwitz released the Hurwitz report, titled Clinical Intake Consultation Overview.

At an all-party disclosure meeting on 2 May 2017, with the children and the parents and Mr. Hurwitz, the father left the room suddenly, and in anger, and swearing. This incident and the behaviour of the father in front of the children was of sufficient concern to J.F. & C.S. that they opened a child protection investigation regarding it.

The Hurwitz Report recommended (among other things) family counselling for all family members, as well as individual counselling.

On 8 May 2017 J.F. & C.S. put their position in writing to the parents in a Contact Plan. These are their expectations from the parents:

a) Both children will receive individual counselling;

b) H.P.'s access to the mother shall continue at twice per week;

c) As long as H.P. was seeing the mother regularly, J.F. & C.S. would not need to consider a change in placement (i.e., H.P. coming into care);

d) The father's access to C.T. would remain supervised until he was engaged in a counselling program;

e) If the parents did not sign a written confirmation committing to these recommendations by 19 May 2017, J.F. & C.S. will bring motions:

• i. To bring H.P. into care; and,
• ii. To suspend the father's access to C.T.

The mother committed to J.F. & C.S.'s plan in its entirety. The father did not.

On 30 May 2017 Mr. Hurwitz said to J.F. & C.S. that H.P.'s access to the mother is a clinical issue that he should be working on with the family.

On 7 June 2017 J.F. & C.S. concluded their child protection investigation into the father's conduct during the disclosure meeting with Mr. Hurwitz, and verified that the father's conduct exposed the children to emotional harm during his outbursts and arguments with Mr. Hurwitz.

On 9 June 2017 and on other June dates Mr. Hurwitz expressed concern to J.F. & C.S. that H.P.'s access with the mother is worsening.

The father now makes, in his material on these motions (sworn on 7 July 2017), many statements about his positions and the family members. Almost all of these are new statements by the father, and are completely at odds with what he has said and done previously and recently in this case. These positions of the father are a significant change in the positions he has recently taken, according to the evidence of others (J.F. & C.S. and Mr. Hurwitz, in particular). His statements can be categorized under the following themes:

The existence of the parental conflict:

• There has been and continues to be significant conflict between himself and the mother;

The consequences of the parental conflict:

• his conflict with the mother has had a negative impact on the children;
• H.P. does sometime intervene when the mother and father have a conflict, which he acknowledges is not an ideal place for a child;

His behaviour:

• he has, at times, inappropriately spoken ill of the mother in front of the children, including during a session with Mr. Hurwitz;
• he takes full responsibility for this and is dedicated to fully ending this behaviour;
• he does not believe that he has alienated H.P. from his mother;
• he would not attempt to alienate C.T. from her mother if he had unsupervised access to her;
• at the disclosure meeting with Mr. Hurwitz on 28 April 2017 he acknowledges that he acted inappropriately, became very agitated and should have contained his anger and upset;
• he acknowledges that he raised his voice and was very angry with Mr. Hurwitz, but says that he did not swear in front of the children;
• he knows this negatively affected the children and he regrets this;

His Relationship with the mother and the children's relationship with the mother:

• he says he wants the children to have a healthy relationship with their mother, and he hopes to have a healthier relationship with the mother;

Counselling for the family:

• he is committed to continuing with the systemic family counselling;

Counselling for the father:

• he knows he could benefit from some professional help in managing how he reacts to these conflicts;
• he has contacted a therapist but has not been accepted to his caseload yet;

Counselling for H.P.:

• He is fully supportive of H.P. seeing an individual therapist;
• He has actively encouraged H.P. to see a therapist for a number of years.

If, indeed, these statements by the father, under oath, are an accurate reflection of where the father is now, it is a profound shift from his recent circumstances in this case.

3. The Issue on these Motions

These are the issues for determination on these motions:

a) Should the court make an order under s. 39(4) of the C.F.S.A. that the children H.P. and C.T. not be permitted to attend court in this case? and,

b) Should the court make an order that the children H.P. and C.T. shall not be provided with the Hurwitz Report dated 28 April 2017, except as directed by Mr. Hurwitz?

4. The Positions of the Parties on these Motions

J.F. & C.S. and the mother want the court to make both orders requested, that the children are not permitted to attend court, and that they are not to be provided with a copy of the Hurwitz Report.

The father opposes both motions, and wants the children to be permitted to attend court and to be provided with a copy of the Hurwitz Report.

The position of the children's lawyer was unclear, as no material was filed by the children's lawyer in response to the motions. However, the children's views and preferences were set out in detail in a statement filed, and were very clear. The children's view is to oppose both these motions: they want to be permitted to attend court, and they want to be provided with a copy of the Hurwitz Report.

5. The Legal Framework for these Issues

The United Nations Convention on the Rights of the Child, Treaty Series 1577 (1989), ("the U.N. Convention") provides an overview legal structure for the C.F.S.A. and all laws affecting children in contracting countries. Article 12 provides the following:

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The paramount purpose of the C.F.S.A. is set out in s. 1:

Paramount purpose

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

Case law has consistently and repeatedly identified that all interpretations of the C.F.S.A. should be made in the framework of this umbrella legal principal.

Sections 38 and s. 39 C.F.S.A. set out the legal framework for a child's participation in a protection case. Section 38 provides the criteria and process for the court appointing lawyers for children. The issue of notice to a child and a child's attendance at court is addressed in s. 39 C.F.S.A.:

Parties and Notice

Child twelve or older

(4) A child twelve years of age or more who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.

The provisions of ss. 1, 38 and 39 C.F.S.A. entrench the child's entitlements to participate in the legal case via legal representation, the child's entitlement to notice and to attendance (in accordance with a child's age and maturity). These provisions reflect Canada's and Ontario's commitment to the terms of the U.N. Convention, and are consistent with the terms of the U.N. Convention.

No one is disputing the children's entitlement to participate in this case and to be heard in this case.

6. The Children Attending Court

Section 39(4) creates a presumption that children 12 years old or over are entitled to be present at court and to receive notice of the proceedings. However, it creates a rebuttable presumption, in that the court has authority to refuse to permit a child over 12 years to attend court if "the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing". J.F. & C.S. acknowledged that, as the party seeking to rebut the presumption, they had the onus of proof.

The court's authority to exclude a child over 12 years from the courtroom in s. 39(4) involves a two-step test. The court must first be satisfied that being present at the hearing would cause the child emotional harm. If the court is so satisfied, then the court may order that the child not receive notice of the proceeding and not be permitted to be present at the hearing. The statute's conjunctive language appears to require that the presumptions regarding notice and attendance be considered jointly, and that the court is obliged to make both orders, if emotional harm is found.

While children in child protection cases are specifically entitled to certain procedural protections, they are not parties in a child protection case. The statute is very clear and specific about who are parties and who are not parties.

The C.F.S.A. contains special provisions for specified and even graduated participation of children in protection matters, depending on their age and capacity, which are statutorily permitted pursuant to s. 39 of the Act: Durham Children's Aid Society v. A.S., G.S., and K.H, 2011 ONSC 1001, para. 57.

The various entitlements of children in the C.F.S.A. in child protection cases are subject to the overriding obligation of the court to monitor each child's best interests throughout the process (emphasis added): Durham Children's Aid Society v. A.S., G.S., and K.H, supra, 2011 (Ont. Sup. Ct.), para. 58.

Inherent in ss. 38 and 39 of the C.F.S.A. is a vesting on the presiding judge of an obligation to monitor, during the child's exercise of their rights under the C.F.S.A., that their best interests as defined in the statute are being protected: Durham Children's Aid Society v. A.S., G.S., and K.H, supra, 2011 (Ont. Sup. Ct.), para. 65.

The court, whether these children are represented by counsel or not, is not only entitled but obligated to monitor and define the level of the children's participation, determining the rights and responsibilities of each such child to ensure that the paramount purposes of s. 1 of the Act are maintained: Durham Children's Aid Society v. A.S., G.S., and K.H, supra, 2011 (Ont. Sup. Ct.), para. 67.

While the C.F.S.A. confers participatory entitlements upon the child in a child protection case, those entitlements are not unconditional; those entitlements must accord with the paramount purpose of the Act, in s. 1(1), which is "to promote the best interests, protection and well-being of children".

a. The Children's Views and Preferences

These children are represented by a lawyer, assigned by the Office of the Children's Lawyer to act for them. This gives the children an opportunity to be heard in the courtroom.

The children are articulate and vocal. They have made their views and preferences known explicitly and in detail.

The children express their views and preferences in strong, forceful and firm language. The children need to be confident that the court has no doubt or confusion about what their views and preferences are with regards to these two motions. The court knows and understands what they say they want to happen, what they do not want to happen and what they are feeling.

It is important for the children to know that fair process, respect and being heard are significant values integral to any court case. Indeed they are cornerstones of the judicial system: Windsor-Essex Children's Aid Society v. L.H., para. 6; Jewish Family and Child Services of Greater Toronto v. S.K., 2013 ONCJ 681 (Ont. Ct.), para. 11.

The children appear to believe that the entitlement to be heard in the protection case and the entitlement to have their own lawyer somehow means that their views should be given a special or higher status than any other consideration. It appears that the children think that their views and preferences will determine the outcome of these motions. That is not so.

A child's views and preferences in a child protection case are not necessarily determinative. Judges in child protection matters still attach greater significance to the views and preferences of older children, but will not follow these choices where doing so would place the child at risk of harm: Nicholas Bala and Claire Houston, "Article 12 of the Convention on the Rights of the Child and Children's Participatory Rights in Canada", Family, Children and Youth Section, Department of Justice Canada (31 August 2015), pp. 35, 36.

These children are very much immersed in this litigation and in the conflict around their parent's separation and the custody and access dispute. Regrettably, they are far too immersed in the conflict, and in the litigation. The conflict and the current relationship between the parents is toxic. The children are being harmed by the conflict. It is surprising that parents like these parents, who are educated and intelligent, cannot see that their behaviour is so toxic that it is harming their children. It is four years since the death of their oldest child. But this family is still in serious crisis.

Either the parents cannot see how serious their behaviour is and how damaging it is to their children, or, they can see that, but are unwilling to change their behaviour and end the conflict. Neither analysis is a good one for these children. Both descriptions suggest that the parents are unable to put the children's needs ahead of their own.

Findings and Recommendations in the Hurwitz Report

These are some of the findings and recommendations made in the Hurwitz Report (dated 28 April 2017):

Findings

The mother

• The mother has sought therapy and counselling over the years from a variety of therapists relating to bereavement issues and high conflict;
• The mother has not talked negatively about the father and has been respectful of the children's relationship with him;
• The mother would benefit from developing alternate parenting strategies to avoid power struggle situations with H.P.;
• The mother needs ongoing support to improve her relationship with H.P.;

The father

• The father takes little or no responsibility for any of the identified concerns of J.F. & C.S.;
• The father presents and sees himself as a victim;
• The father lacks insight in understanding the impact of the conflict on the children;
• The father continues to experience unresolved grieving related to J.'s death and this manifests itself in his being angry and combative with most professionals who are attempting to help the family;
• The father openly denigrates the mother to the children, even in front of the assessor and other professionals;
• The father remains invested in the parental conflict on many levels;
• The father is a strong influence over H.P.;
• The father has demonstrated parental alienating behaviours contributing to alienation or unjustified resistance/rejection, with reasons disproportionate to the stated concerns and complaints;

H.P.

• H.P. is very bright and gifted intellectually;
• He has a close relationship with C.T., is very protective about her, and acts more like a parent than a sibling;
• He has a strong desire to please his father;
• He is very critical and intolerant of his mother;
• He is empowered by his father to be contrary to his mother;
• He has distorted information about the conflict;
• He has been severely negatively impacted by the alienating behaviours of his father;
• The level of severity of alienation in this family would be considered moderate;
• H.P. is the epicentre of many of the family changes and is caught in the crossfire of the parental conflict;

C.T.

• C.T. wants to have a good relationship with both parents, enjoys the time she spends with them, and relates well to both;
• She suffers from anxiety and sees a therapist since February 2014;
• She is impressionistic and could easily be influenced by negative comments from either parent of the other;

Recommendations

• The mother should continue with ongoing therapy;
• The father need individual treatment around dealing with unresolved grieving the loss of J. and the end of his marriage;
• The father needs treatment around managing his behaviour pertaining to not demonstrating high conflict behaviours;
• The father needs to develop greater insight into the impact of his behaviour, which is contributing significantly to driving the conflict;
• C.T. should continue to receive individual treatment at Hincks-Dellcrest;
• Part of the treatment plan is for H.P. to obtain his father's "permission" to have a healthy relationship with his mother;
• H.P. needs to develop strategies around extricating himself from the parental conflict and being able to withstand his father's pressure to be engaged in the conflict;
• Ongoing family counselling for all family members, plus individual supportive counselling for the children;
• Unsupervised access between H.P. and the mother should continue on a regular basis and be stepped-up to increase;
• There should be a plan to move toward unsupervised access for C.T. and the father, including expectations from J.F. & C.S. and commitments from the father;
• All services provided to this family should be co-ordinated by J.F. & C.S.; and,
• The continuing involvement of J.F. & C.S. is needed to monitor the parent's behaviour and the impact of the parental conflict and emotional harm on the children and their adjustment.

b. Analysis re Emotional Harm

There was recent evidence regarding emotional harm to the children from Mr. Hurwitz (the family therapist for the family since December 2016) and from Jody Sadinsky (the child protection manager for this family since June 2016).

This is some of the evidence about the emotional harm to the children if either or both attended court:

• The family history is that these children have been privy to their parent's adult conflict, and have heard negative comments from each parent about the other;
• The children, particularly H.P., have also formed preliminary views on which parent is problematic;
• To have them attend court would be to exacerbate the family history where the children get to observe the negative parent interaction, as well as witness for themselves how each parent interacts with the other parent;
• At court they would also be able to listen to some of the issues and concerns that each parent has about the other parent;
• This dynamic puts these children, who are vulnerable emotionally, in a position where they must listen to the negative comments, without a real understanding of the fuller context, into the middle of the parental conflict;
• Both children are often in the middle, physically and emotionally, of their parent's conflict;
• If there was a matter discussed in court that either parent had a negative reaction to, or impulsively reacted to the other parent, the children should not be privy to that incident;
• The level of trust between the parents is so fragile that the children should never be put in a position to observe their inability to be civil with one another; and,
• their attendance at court would be harmful to them emotionally.

This is some of the evidence about H.P. and the possible emotional harm to him if he attended court:

• H.P. has a history of unmanaged anger, as shown in his homicidal (against his mother) and suicidal ideation in September 2016, and his subsequent threat to stab his mother two weeks later, which took place in front of C.T.;
• When H.P. is triggered, he has little insight or self-awareness into the aberrant nature of his conduct, reflected in his minimization of his behaviours;
• Despite the serious nature of these incidents, H.P. has consistently refused to participate in individual counselling, including as recently as 23 June 2017 (removing himself from a wait list for individual therapy, with his father's support); and,
• The toxic animus between his parents has been a trigger for H.P.'s unpredictable bouts of uncontrolled and unmanaged anger, which have gone untreated.

This is some of the evidence about C.T. and the possible emotional harm to her if she attended court:

• C.T. is too emotionally and developmentally fragile to cope with the additional stress that further involvement would engender for her;
• She has previously expressed feeling stuck between her parents and worried about them arguing;
• The detailed Psychological Assessment of C.T. from Hincks-Dellcrest Centre dated 27 August 2015 specifically recommended minimizing her exposure to her parent's conflict, to their arguing and to the legal details of the custody case;
• The parents acknowledged the impact of their custody conflict on her well-being; and,
• Her exposure to the increased level of tension between her parents is inconsistent with the treatment recommendations made by Hincks-Dellcrest for her, which recommended a highly managed and consistent approach for her, to ensure that she is not exposed to unexpected anxiety-producing situations.

The father says that the children should be permitted to attend court and that they will not suffer any harm by doing so. It is noteworthy that his position is that there would be no harm, not that any potential harm might be balanced by the benefit to the children from attending. The father does not suggest that the court should weigh and balance those interests. Instead he denies any risk of emotional harm.

The father also says that the children are already suffering stress and anxiety by being excluded from the courtroom and by not hearing directly from the court.

These children will not gain anything from attending court (although that is not the test). Attending the court dates would only perpetuate the history of the children being caught in the crossfire of the parental conflict.

The situation for this family is not, in fact, improving. It is getting worse. The conflict between the parents is not abating. H.P. is still refusing treatment. While H.P. continues to refuse treatment (endorsed by his father), exposing him to a further high level of conflict such as the courtroom, and the unpredictable behaviours of his parents, is too high risk for him. H.P.'s access to his mother is worsening. The father has not committed to the May 2017 Contact Plan presented by the agency. The child protection litigation is heating up.

The legislature provided a rebuttable presumption in s. 39(4) C.F.S.A. for a reason, that is, to protect vulnerable children. The court is obligated to ensure that the very court case meant to protect the children from harm does not itself become a cause of harm to them. Allowing the children to attend court in this case would cause harm.

The evidence of emotional harm for these children if they attend court is overwhelming. There shall be an order that the children shall not be permitted to attend court (including that they shall not attend at the courthouse) and shall not receive notice of this case under s. 39(4) of the C.F.S.A.

7. The Release of the Hurwitz Report to the Children

In January 2017 Mr. Hurwitz was retained to do a family assessment and to make treatment and other recommendations and produced a 29 page report that provided an overview of the parental conflict, the nature of the parent/child relationships, the drivers of the parental conflict and recommendations to assist the parents, the court, J.F. & C.S. and the children. The report was dated 28 April 2017. This is the report that J.F. & C.S. is seeking to prevent being distributed to the children.

The report results were presented in two phases. First there was a meeting with Mr. Hurwitz, the parents, their lawyers, J.F. & C.S., and the children's lawyer. Later that same day there was a meeting with all the same parties, and the children. In the children's meeting Mr. Hurwitz presented an overview of the issues, concerns and recommendations that were contained in the report. The children's meeting included opportunities for the children and the parents to ask questions.

When the written report was circulated to the parties by e-mail, dated 28 April 2017 it was accompanied by an e-mail message from Mr. Hurwitz stating: "This report is confidential and should not be shared with persons not directly related to this matter, including the children". The parties have known since 28 April 2017 that it was not the intention of Mr. Hurwitz that the report would be distributed to the children.

Mr. Hurwitz and J.F. & C.S. strongly oppose the release of the report to the children. Mr. Hurwitz is concerned that it will be emotionally harmful to the children, and will make his work with the family much more difficult. These are some of the reasons Mr. Hurwitz is opposed to the release of the report to the children:

• The report contains explicit clinical information about the parents and some of the concerns that Mr. Hurwitz has with the behaviour of each parent;
• it would create further angst for both children since, instead of hearing one parent make critical comments of the other parent (which has been the history) they would and could interpret the report as being critical of both parents. This would serve once again to place the children in the middle of the parent's conflict;
• this would also jeopardize Mr. Hurwitz's clinical relationship with the children, as they would see him as being critical of their parent(s);
• reading the report may led the children to using the report to heighten their own criticisms of either or both parents;
• the children's propensity to take certain comments out of context could occur and would be damaging to their well-being;
• the children, particularly C.T., have demonstrated a history of anxiety. This report would increase their anxiety;
• the report was written for adults, not for children to read. Had Mr. Hurwitz known the report would be given to the children, he would have written it differently;
• the children do not need any other negative experiences that will denigrate either parent; and,
• reviewing this report will not be helpful to the children, it will heighten their anxiety and will threaten the clinical work that Mr. Hurwitz has been asked by the parents, the court, and J.F. & C.S. to complete for the family.

a. Analysis re Releasing the Hurwitz Report to the Children

The distribution of this report is an aspect of disclosure in this case, that is, the release and distribution of it is part of the disclosure.

There appears to be little or no case law to assist with this issue. And the statute is silent on this issue. There is no absolute entitlement to disclosure, even for parties. There is no articulated test to determine whether this report should be released to the children. But the court should consider both the best interests umbrella in s. 1 of the C.F.S.A. and the question of risk of emotional harm to the children.

The referral to Mr. Hurwitz for assessment and recommendations, and the Hurwitz Report were obtained on consent of the parties, and without court order. The Hurwitz Report is not an assessment under s. 54 C.F.S.A. and the provisions of this section regarding its distribution do not apply.

While the Hurwitz Report is not an assessment under s. 54 C.F.S.A., that section and s. 116(6) C.F.S.A. contemplate restricting a child's access to similar reports (i.e., assessment reports) in similar circumstances. Sections 116(6) and 54(5) allow a court in a secure treatment case or a child protection case to restrict a child's access to an assessment report if its release would cause emotional harm. The legislature and the legislation clearly and specifically contemplate that these types of reports are prepared in these cases, that a child may be seeking access to the report, and clearly contemplate the possibility both that the release to the child of such a report might cause emotional harm to a child, and that the release might be prohibited by the court. An assessment that parties agree to should not be accorded a lower level of protection than a court ordered assessment; that might result in discouraging parties from agreeing to such assessments.

While parties are entitled to disclosure from the agency in C.F.S.A. cases, and parents particularly are entitled to wide-reaching disclosure from the agency, children are not parties in C.F.S.A. cases and have no entitlement to disclosure, statutory or otherwise.

A lawyer's ability to provide her client with copies of any material she receives is not an absolute entitlement. Both the professional regulator and the courts have dealt with the limits of the lawyer-client relationship.

The Rules of Professional Conduct of the Law Society of Upper Canada ("the L.S.U.C.") govern the professional conduct of all lawyers in Ontario. These rules contemplate a circumstance where a lawyer might choose to withhold releasing a medical-legal report prepared by a physician or health professional to her own client, where the lawyer was concerned about the possible negative impact such a report would have on her client. While the Hurwitz Report does not qualify as a medical-legal report, the principles regarding these reports in these rules in the Rules of Professional Conduct governing lawyers are instructive (Rules 3.2-9). Even the governing body for lawyers contemplates a circumstance where a lawyer would not share information with her own client. And the L.S.U.C. does not see this behaviour as a breach of the solicitor-client relationship:

Medical-Legal Reports

3.2-9.1 A lawyer who receives a medical-legal report from a physician or health professional that is accompanied by a proviso that it not be shown to the client shall return the report immediately to the physician or health professional unless the lawyer has received specific instructions to accept the report on this basis.

Commentary

[1] The lawyer can avoid some of the problems anticipated by the rule by having a full and frank discussion with the physician or health professional, preferably in advance of the preparation of a medical-legal report, which discussion will serve to inform the physician or health professional of the lawyer's obligation respecting disclosure of medical-legal reports to the client.

3.2-9.2 A lawyer who receives a medical-legal report from a physician or health professional containing opinions or findings that if disclosed might cause harm or injury to the client shall attempt to dissuade the client from seeing the report, but if the client insists, the lawyer shall produce the report.

3.2-9.3 Where a client insists on seeing a medical-legal report about which the lawyer has reservations for the reasons noted in rule 3.2-9.2, the lawyer shall suggest that the client attend at the office of the physician or health professional to see the report in order that the client will have the benefit of the expertise of the physician or health professional in understanding the significance of the conclusion contained in the medical-legal report.

Placing limitations on the lawyer-client relationship is both permitted and, in these particular circumstances, is justified.

Rule 3.2-9.1 specifically contemplates the current situation regarding the Hurwitz Report, that is, the clinician specifically imposes conditions on the distribution of the report. This rule carries the implicit understanding that the professional who wrote the report retains ownership rights in the contents and, as in the case of the Hurwitz Report, may impose conditions on its release.

A further aspect of the release would be the impact on the therapeutic process with Mr. Hurwitz of the incursion into the privacy rights of those family members who may not wish to have these intimate details of their lives shared with the children. The parents had the right to expect that the disclosures made to Mr. Hurwitz were made in confidence, not to be disclosed to the children (certainly not without each parent's explicit consent). The privacy interests of the parents would be undermined by the disclosure of the report. The parents had the right to expect that Mr. Hurwitz would be the one to decide what information could be released to the children, in the exercise of his clinical judgment. The distribution of the Hurwitz Report to the children would interfere with the clinical discretion of Mr. Hurwitz. It may also have a chilling effect on the therapeutic process, as family members would no longer believe their disclosures to Mr. Hurwitz would be afforded a suitable level of protection.

It is in the interests of this family and these children to protect the clinical relationship that has been created with Mr. Hurwitz. He has spent many months now assessing the family, interviewing them, and developing a therapeutic plan for the systemic family counselling he has recommended.

There is sufficient evidence of risk of emotional harm for these children if they are given a copy of the Hurwitz Report for the court to prohibit its distribution to them on that basis. But if that is not the test for this issue, the best interests of these children require that they not receive and read this report. The paramount (emphasis added) purpose of the C.F.S.A. is to promote the best interests, protection and well-being of children (s. 1(1) C.F.S.A.).

If the children read this report, it will not make their circumstances or this case any easier for them. If the children receive and read this report it will likely make repairing the great rifts in this family harder, not easier. The release of this report to the children is not appropriate, in all of the complicated and quite concerning circumstances of this case. The children are already far too involved in the parental conflict and the litigation. There shall be an order that the children shall not be provided with the Hurwitz Report, except as directed by Mr. Hurwitz.

It is also possible that the previous order under s. 39(4) C.F.S.A. that the children are not to receive notice of this case may cover this question of the release of the Hurwitz Report, in that distribution to them of such a report may be considered to be an aspect of notice.

8. Orders

There shall be these orders on these motions:

a) An order under s. 39(4) of the C.F.S.A. that the children shall not be permitted to attend court in this case (including that they shall not attend at the courthouse) and shall not receive notice of this case, under s. 39(4) of the C.F.S.A.;

b) An order that the children shall not be provided with the Hurwitz Report, except as directed by Mr. Hurwitz; and,

c) These Reasons for Decision are not to be distributed to the children.

9. Costs

These motions were necessary as the father said that he intended to bring the children to court and to release the Hurwitz Report to them. The children's lawyer supported the father in these positions. There may be claims for costs of these motions by the J.F. & C.S. and the mother. Costs may be claimed, in written submissions to be served and filed (with a Form 14B) as follows:

a) By the costs claimant(s), by Friday 28 July 2017; and,

b) By the costs respondent(s), by Friday 11 August 2017.

Released: 13 July 2017

Justice Carole Curtis

Footnotes

[1] The motions were heard on the basis of written submissions only, including facta, on the suggestion of, at the request of, and on the consent of the parties.

[2] There were many significant and stressful events for the family in addition to and during J.'s illness and death, including his treatment in Toronto, the family shuttling between their home in Windsor and seeking treatment for him in various hospitals and treatment facilities in Toronto, Michigan and Windsor, multiple times over multiple years, the uncertainty of the cancer diagnosis (at times being told there was progress, then realizing there were setbacks), and eventually his death.

[3] The instances of conflict set out below are only a small part of the evidence of high conflict between these parents. These instances are not a catalogue of the conflict events, but rather are representative.

[4] At the court's request, the parties agreed to a written schedule for the serving and filing of motion materials, including facta. All the other parties (J.F. & C.S., the mother, and the father) served and filed their materials in accordance with the deadlines. The children's lawyer did not. This was disappointing, particularly from an institutional litigant.

[5] The parties consented to a detailed written summary of the children's views and preferences being admitted as evidence on these motions.

[6] The rule refers to "client" which, of course, includes adult clients.

[7] Not under Rules of Civil Procedure Rule 53.03, or the Family Law Rules, Rule 20.1.

[8] It would not make sense to prevent the children from receiving and reading the Hurwitz Report, but to permit them to read these Reasons for Decision, in which much of the content of the Hurwitz Report is included.