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: 2018-04-03

Court File No.: Toronto CFO-13-10295 A1

Between:

CHILDREN'S AID SOCIETY OF TORONTO Applicant,

— AND —

C.G. Respondent

— AND —

A.G. Respondent

Before: Justice Alex Finlayson

Heard on: March 27, 2018

Reasons for Judgment released on: April 3, 2018

Counsel

Lily Ng — counsel for the applicant society

Jean Hyndman — counsel for the respondent, C.G.

Jeff Blayways — agent for the respondent, A.G.

Deborah Stewart — counsel for the Office of the Children's Lawyer, legal representative for the child, a.G.

Decision

ALEX FINLAYSON J.:

PART I: NATURE OF THIS MOTION

[1] The Applicant in this proceeding is the Children's Aid Society of Toronto (the "Society"). The Respondent, C.G. is the mother and the Respondent, A.G., is the father of the child, a.G., who is 7 years old.

[2] The child is in the temporary care and custody of her father. For over two years, a.G. has had alternating weekend access with her mother. The access has built up gradually since the start of this proceeding. The mother's access culminated in her having a.G. for considerable time, on a week on, week off basis, during the summer of 2017. The alternating weekend access then resumed in the fall when a.G. returned to school.

[3] However, all of a sudden, for reasons that are completely unexplained, beginning in early November and continuing for almost 5 months, the child has refused to see the mother. This development was not brought to the Court's attention until mid-January 2018.

[4] Then, the Society brought a motion "pursuant to s.51 and 58 of the Children and Family Services Act directing that access to the child, [a.G.], shall be at the discretion of the Society, with regard to the frequency, duration, location and level of supervision, taking into consideration the child's views and wishes". The Society's position that there is both a risk of physical harm and emotional harm if the Court "forces" the child to go to access.

[5] Although the Society's request was framed as an order that the mother would be able to have access in the Society's discretion, it was not strenuously disputed during the motion that the effect of the order sought would be to suspend the mother's access.

[6] The father and the Office of the Children's Lawyer (the "OCL") support the Society's motion.

[7] The mother resists the motion.

[8] The mother launched a cross-motion to strike portions of the Society's affidavit materials and for an order for disclosure from the Society and from the father. The mother invites me to find that the father is engaging in "alienation", or at least some form of influence on the child. The basis of the motion to strike is that one of the Society's affidavits contains hearsay from the father, which contradicts the alienation/influence argument.

[9] The mother's position on the main motion is that I should dismiss it, but her counsel orally asked that I attach a counselling term to the temporary Order.

[10] The mother was the only parent who tendered some evidence of a plan for counselling to remedy the child's apparent strained relationship with her. This plan had been proposed prior to the motion. The mother's proposals were rejected.

[11] Although it was not in evidence, counsel for the OCL orally told me that she had proposed three different counsellors which the mother rejected. There were problems with the OCL's pre-motion proposals, which I address in these reasons.

[12] For the reasons that follow, the Society's motion is dismissed.

[13] I agree with the mother that the Court should attach a counselling condition to the access order. Counselling needs to start right away. However, the evidentiary record for me to make an order for counselling is partially deficient, and I wish to grant the Society time to get instructions respecting a funding issue relating to counselling that arose during the motion.

[14] I am therefore directing the parties to re-attend to make further submissions on this limited issue. At the end of the hearing on March 27, 2017, I set a next date of April 19, 2018 in this matter. The further submissions will proceed on that date. Also, most of the mother's disclosure cross-motion was not argued. If the mother wishes, she may argue for whatever she says remains outstanding on April 19, 2018.

PART II: HISTORY OF THE LITIGATION

[15] The Society launched this Application in 2013 and apprehended the child when she was then not yet 3 years old. According to the Society's Application, the reasons for the apprehension were that the child was having aggressive outbursts and the mother was unable to manage those outbursts or to meet the child's needs.

[16] I will set out the portions of the prior proceedings, which are relevant to this motion:

(a) On May 1, 2013, on a without prejudice basis, Justice Cohen placed a.G. in the temporary care and custody of the Society and ordered access to the child at the discretion of the Society;

(b) On December 2, 2013, Cohen J. made a consent order appointing Dr. Oren Amitay to conduct an assessment pursuant to section 54 of the Act. Cohen J. also directed the Society to consider the mother's proposed caregivers as potential supervisors of her access;

(c) Dr. Amitay's Parenting Capacity Report was completed in the first part of 2014. It is dated May 10, 2014;

(d) In December 2014, the Society held a family group conference for this family;

(e) On January 6, 2015, Cohen J. made an order placing the child in the temporary care and custody of the father, and she ordered access in accordance with a Memorandum that had been prepared following the family group conference. The endorsement states that access is to be reviewed in 6 weeks with a view to "altering/expanding" access. That access was on Wednesdays from 4:30 pm to 6:30 pm and Saturdays from 11:00 am to 1:00 pm, supervised by various named individuals. The Memorandum contains a number of other ancillary terms relating to access exchanges, make up access and the exchange of information and documentation;

(f) On April 8, 2015, Cohen J. ordered that the mother may have access in her home, supervised by a specified individual, or another person if approved by the Society. The mother was ordered to refrain from commenting about the litigation and possible outcomes in the presence of the child;

(g) Cohen J.'s endorsement of June 29, 2015 indicates that, according to the Society, the child's placement with the father was going well, the mother's access with the child was going well, by this point, the worker had no current concerns, the protection concerns had "quelled", and the Society was contemplating a "57.1" order;

(h) Things had improved to the point that on August 20, 2015, on consent, Cohen J. made an order for four unsupervised weekend visits between the mother and the child. Two of those weekends were from Friday to Monday and two were from Friday to Sunday. The endorsement also notes that the Society had amended its pleading to seek an order pursuant to section 57.1 of the Act; and

(i) On October 1, 2015, Cohen J. ordered that the mother would have access two weekends out of every three;

(j) After October 1, 2015, there were 4 adjournments for various reasons;

(k) In the midst of the various adjournments, on May 12, 2016, the Court appointed the Children's Lawyer. In response to a statement from me during the motion that it appeared there were no problems with access between October 2015 and November 2017, I was also told that in fact, there had been a problem with the mother's access and Society brought a motion. However, the motion was not argued;

(l) Whatever those concerns may have been, by April 3, 2017 there were "no concerns" once again respecting the mother's access, according to Cohen J.'s endorsement. The father was also apparently content with the status quo. The OCL told the Court that the status quo is "consistent", that the child wants to "live with parents" and that she "wants more weekend time with dad";

(m) On June 29, 2017, the mother's access expanded once again. Justice Jones made a consent Order that the child would reside with her parents on a week on, week off basis during the summer, with the schedule ordered on October 1, 2015 resuming when the child returns to school in September.

[17] I became the case management judge after this point. On September 8, 2017, this matter was scheduled for a Settlement Conference before me. Although they were in Court for a Settlement Conference that day, the parties told the Court that they intended to attend mediation with mediator, Seema Jain. However they would not be able to attend with Ms. Jain for several weeks. Given the wait list for mediation, the Court did not simply grant an adjournment that day. Rather, the Court commenced a conference with the parties. The issues at this point were minor and the case was capable of a resolution.

[18] The matter did not settle on September 8, 2017, so I adjourned the matter to October 20, 2017 to continue the Conference. October 20, 2017 was a date before the planned mediation. Pending the return, I requested that the parents circulate proposed terms respecting certain outstanding issues for further discussion. I asked the OCL to assist in the drafting, and the OCL agreed to do this.

[19] On October 20, 2017, neither the parties nor the OCL attended with the draft language. The parties once again said they planned on attending mediation.

[20] However, the Society did say that it was no longer content to adjourn the issue of whether the child was in need of protection and it requested a date for a summary judgment motion in the event the case did not settle at mediation. I scheduled a summary judgment motion for December 14, 2017 and made a scheduling order respecting the exchange of materials.

[21] The summary judgment motion was not argued. On November 8, 2017, the Society submitted a Form 14B Motion, along with a Statement of Agreed Facts, asking the Court to make the statutory findings pursuant to section 47 of the Act and a protection finding pursuant to section 37(2)(l) of the Act. The basis for the finding was a.G.'s behaviour at the time of the apprehension and the mother's "acknowledged limited capacity to manage that behaviour", in addition to the mother's consent.

[22] I made the findings on November 14, 2017.

[23] In the 14B Motion, the Society asked me to vacate the December 14, 2017 summary motion date and to adjourn the matter to January 23, 2018 for a Trial Management Conference. The 14B Motion stated that the parties were then "holding two dates for mediation", one in December 2017, and the second on January 17, 2018. The parties wanted the next event to be a Trial Management Conference if the case did not settle at mediation. On November 14, 2017, I granted the adjournment and booked a Trial Management Conference for January 23, 2018.

[24] On November 10, 2017, two days after the Society filed the 14B Motion, but four days before I ruled on it, the father telephoned the Society to advise that the child did not want to go to access. This was the first contact with the Society about this issue. I note that by the time that this matter eventually came before me on March 27, 2018, voluminous materials consisting of six different affidavits had been filed. The fact that there was a problem respecting the mother's access to the child was not brought to the Court's attention at any point between the November 8, 2017 14B Motion and mid-January 2018. None of the parties sought an early return date of this matter after problems developed in early November.

[25] On January 11, 2018, the Society filed its motion to vary the mother's access, initially returnable January 23, 2018. It was when the Society's motion was brought to my attention on Friday, January 19, 2018 at 1:13 pm, two days before the return date in this matter, that I learned of the problems. At that time, the Society also filed another 14B Motion, now marked "urgent", requesting an adjournment of this matter to a date in March. In the 14B, the Society explained that it had filed a motion and that the child "unilaterally" refused to attend access in November 2017 (and has continued to refuse to attend access since that time). The Court also learned that mediator decided not to act in this matter after completing her intake process. Finally, the mother's counsel had been called to trial in another Court, and could not attend Court on January 23, 2018. The latter was the basis of the adjournment request.

[26] I did not rule on the 14B Motion.

[27] On January 23, 2018, counsel for the Society and for the OCL attended Court. The parties did not attend, and mother's counsel was in another court. Only after the matter was spoken to did I adjourn the matter. I set two further dates. I scheduled the Society's motion for March 12, 2018, and I made a scheduling order. I booked a second date of March 27, 2018 for the next step. I noted in the endorsement that a Settlement Conference might be beneficial after the motion, since the mediation did not happen, but I indicated that I would determine the next step after hearing argument of the Society's motion.

[28] The motion did not proceed on March 12, 2018. On March 7, 2018, the Society filed a reply affidavit sworn March 6, 2018 that went beyond the scope of proper reply. The mother was concerned that the affidavit contained information, known to the Society, the father and the OCL previously, possibly as early as a date in February, but that the mother learned of it only when she received the affidavit, just a few days before the motion.

[29] Also, on March 12, 2018, the mother 'walked in' a cross-motion to strike paragraphs of the Society's affidavit, and she asked for additional disclosure from the Society and the father that she said was necessary to argue the motion. According to the mother, some of the requests for disclosure had been made weeks earlier. The Society and the father complained that the short notice of this cross-motion was unfair to them.

[30] Despite the short notice of the mother's cross-motion, I made a disclosure order respecting the documents that the mother said she truly needed to prepare for argument to permit the motion to proceed on the return date, and I granted a short adjournment to permit the mother to reply to the Society's affidavit of March 6, 2018, to file any additional information that arose out of the disclosure and to permit the parties time for further preparation.

[31] The motion was argued on March 27, 2018 over several hours.

PART III: LAW AND ANALYSIS

A. Evidentiary Issues

(1) What Is the Evidence Before the Court?

[33] Amanda-Lee Parker has been the family service worker for this family since April 2013. At paragraph 6 of her affidavit sworn January 8, 2018, Ms. Parker said that she had prepared affidavits of September 13, 2013, November 29, 2013, July 10, 2014, August 1, 2014, November 5, 2014, February 12, 2016 and May 9, 2016, all of which she "repeat[s] and rel[ies] on".

[34] The Society did not ask the Court to read these documents in its Confirmation Form, nor did the Society's Notice of Motion list these affidavits as being filed in support of this current motion. At the outset of argument, I told the Society that if it wished to rely on these affidavits, it should point the Court to any relevant portions of them. The Society told the Court that reference had been made to the prior affidavits in Ms. Parker's recent affidavit only in case the Court had questions about the history of this matter. In argument, out of the historical materials, the Society only made reference to Dr. Amitay's Parenting Capacity Assessment and to portions of one of the 2016 affidavits. I have considered those portions of the evidence.

(2) The Mother's Motion to Strike

[35] The second evidentiary issue is that the mother moved to strike paragraphs 21, 23, 25-30, and 46-52 of Ms. Parker's January 8, 2018 affidavit. The mother's Notice of Motion also asked to strike various paragraphs of Ms. Parker's March 6, 2018 affidavit, but given the adjournment that I granted on March 12, 2018, the mother was able to reply to that affidavit. So she focused her submissions respecting striking only on portions of the January 8, 2018 affidavit.

[36] The complained of paragraphs in the affidavit sworn January 8, 2018 begin with Ms. Parker's reference to a telephone call from the father on November 10, 2017 to report that the child did not want to go for access. The various complained of paragraphs that follow consist of more reports from the father that the child does not want to attend visits, and statements of the father telling the Society that he was trying to encourage the child to attend. One of the paragraphs refers to an attempt by the OCL to organize a visit between the mother and the child at the Yorkdale Shopping Mall during the Christmas holiday, provided that the father also attended. This visit did not materialize.

[37] In the midst of these paragraphs, there is a statement of counsel for the OCL made on November 21, 2017. On that date, in the midst of the father reporting the child did not want to go for visits, the OCL told the Society that the child did want to have visits, but on alternating weekends, as opposed to two weekends out of three, and that she wanted to change the location pick-ups and drop-offs. At least on November 21, 2017, according to the OCL, the child was not saying no access. This contradicts the submission that the child's wishes have been "consistent".

[38] The mother complained about these paragraphs because she said they consist of hearsay, which is not "necessary and reliable". As set out above, the mother invites the Court to find that the father has encouraged the child not to go for visits. The evidence the mother wished to have stricken contradicts that argument. Mother's counsel argued that father ought to have filed an affidavit of his own to this effect if he wanted that conflicting evidence before the Court.

[39] After hearing argument, I orally dismissed the motion to strike. I did so for several reasons.

[40] First, hearsay is admissible on a motion of this nature. Rule 14(19) of the Family Law Rules, O. Reg. 114/99 as amended permits hearsay if the deponent identifies the source of the hearsay and states that she believes the information to be true. Ms. Parker's affidavit complies with the technical requirements of this rule.

[41] That said, the Court can strike or disregard hearsay if it is of such little value or too prejudicial. However, regarding the argument that the father ought to have filed an affidavit of his own, I observe that this was the Society's motion; not the father's motion. The father did not even necessarily have to file any evidence at all if he didn't want to. He could have chosen to argue the motion on the basis of the other evidence filed by the Society and the mother.

[42] I also note that mother's counsel conceded that the father did file a short affidavit and addressed the coaching allegation to an extent, so there is direct evidence from him.

[43] Regardless, necessity and reliability is not the test for admission of hearsay evidence at this stage of the case. I appreciate that a more stringent test for the admission of hearsay evidence may apply on certain types of motions, for example if this were a summary judgment motion. But this is in part because of the wording of the applicable rule.

[44] For example, rule 16 itself calls for a higher degree of scrutiny. While hearsay is admissible on a summary judgment motion, rule 16(5) provides that the Court may draw an adverse inference against the person filing the hearsay. Some cases have interpreted Rule 16 to require that the evidence filed be 'trial worthy'. (See Halton Children's Aid Society v. L.S., 2015 ONCJ 317, in which Justice Victoria Starr sets out guidelines about what must be included in an affidavit in order for hearsay to be admitted). This extra scrutiny makes good sense given the potential final outcome of a summary judgment, if granted.

[45] This motion however is a temporary motion pursuant to sections 51 and 58 of the Child and Family Services Act to vary an access order pending trial. The test for the admissibility of evidence is different and this is expressed directly in the statute and the governing portions of Rule 14.

[46] The temporary Order of Cohen J. dated January 6, 2015 placing the child with the father was made pursuant to section 51(2)(c) of the Act. Pursuant to section 51(5) of the Act, the Court made also an access order in favour of the mother at that time. Cohen J. later varied that Order pursuant to section 51(6) on October 1, 2015. It is this access Order that the Society now seeks to vary. The power to vary it is contained in section 51(6) of the Act.

[47] Even though I made a finding that the child is in need of protection on November 14, 2017, a final disposition order has not yet been made. Various provisions of section 51 of the Act still apply as this case remains in the adjournment period. See Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784, at ¶ 19 and 30.

[48] Therefore, as section 51(7) states, the Court may admit and act on evidence that the court considers credible and trustworthy in the circumstances when making a decision under section 51.

[49] To support her argument that the evidence should be struck, the mother relied on Children's Aid Society of Toronto v. A.M. and S.T.. In this case, Justice Heather Katarynych reviewed various pieces of evidence that the Society had filed in support of a temporary care and custody motion. She specifically did so through the lens of whether it was credible and trustworthy. While she held that several pieces of the evidence weren't credible and trustworthy for various reasons, she very clearly applied the credible and trustworthy test.

[50] A.M. stands more for the proposition that a further review of the evidence may be warranted as the case unfolds. What may be considered at to be credible and trustworthy evidence at the beginning of a case may change as child protection investigations reveal more information. However, this case does not alter the underlying statutory test for the evidence's admission just because the case is further along in the process.

[51] Significantly, nowhere in this decision does Katarynych J. state that hearsay is prohibited under section 51, nor that hearsay evidence is not "credible and trustworthy" solely by virtue of it being hearsay. In fact, at ¶ 65 of the decision, Katarynych J. refers to the fact that hearsay is admissible, provided that rule 14(19) respecting its admission is followed.

[52] Even if hearsay were problematic in and of itself on this motion, I also note that not all of the complained of paragraphs are hearsay. For example, several paragraphs may have been tendered for the proof of their contents, but some paragraphs equally provide the Court with the context of what prompted the Society's recent investigation and motion. And other paragraphs, even if they are hearsay, may be admissible as exceptions to hearsay. For example, several of the paragraphs speak to the child's state of mind.

[53] Lastly, I note that the mother replied to the January 8, 2018 affidavit, including to some of the complained of paragraphs.

[54] In dismissing the motion to strike, I invited the mother to make submissions about the weight to be attached to the complained of paragraphs.

[55] I am admitting the statements of the father's willingness to encourage access, the OCL's statement to the Society that demonstrates that the child's wishes have not been consistent throughout the time frame, and the evidence adduced to establish that the child has been resisting access since November.

[56] I find that the references to the father's alleged interference in the mother's immigration file and the other evidence that the mother tendered to be insufficient to find that the father is influencing the child to not visit with her mother at this stage. Even if I had struck the paragraphs such that there was no substantive response to the mother's allegations in this respect, I cannot conclude right now, based on the record before me, that the child's apparent refusal to attend access visits is due to the father's conduct.

[57] The mother is free to take this position at trial if she wishes and she may cross-examine the father on this point.

[58] For now, the evidence adduced is sufficiently credible and trustworthy. It is also relevant to explaining the reasons the Society commenced an investigation, to the substantive issues raised on the motion, and to the remedy that the Court is being asked to impose.

[59] Given the father's stated support of the relationship, the Court expects the father will actively take further steps to facilitate access, and to facilitate the counselling that the Court is ordering.

B. The Applicable Test Respecting the Society's Motion to Vary Access

[60] Sections 51(6) and 58 of the Act provide the statutory authority for the Court to vary the interim access Order of October 1, 2015. As set out in section 58, such a decision must be made in the child's best interests. However, there is a threshold question that must be addressed first.

[61] The Society relies on the decision of Justice Stanley Sherr in Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784, in which Sherr J. distinguished between the test to vary a temporary placement, as different from the test to vary temporary access. In both tests, Sherr J. called for a contextual and flexible approach, both as to the quantitative amount of change that is required before a Court will vary a temporary order, and as to the factors that should then be considered when crafting a new order.

[62] As R.M. provides, the Act's purposes include recognizing that parents often need help in caring for their children, the help provided should give support to the autonomy and integrity of the family unit, and the Court should follow the least restrictive or disruptive court of action that is available and appropriate.

[63] As Sherr J. said, at the outset of a case, a family may be in crisis. Many cases require restrictive access terms to ensure that the child is protected.

[64] This is precisely what was ordered initially in this case.

[65] However as Sherr J. also said, in child protection cases, the parents, the Society and the Court will then work to ensure that the parents address the concerns and reunify the family.

[66] This is also what happened in this case.

[67] At paragraph ¶ 77 of R.M., Sherr J. writes, "[i]t is imperative in this process that the initial access order not stay frozen until trial, unless it would be unsafe for the child to change it." At ¶ 78, he discusses the difficult predicament that is created from the Court's perspective if access does not expand pending trial. He writes that the Court should be receptive to motions to change access, with the goal to gradually increase the access. Because the Act is remedial, the evidence required does not need to rise to the level of compelling evidence, nor to the standard of a material change in a domestic case, for the Court to intervene.

[68] The threshold test on an access variation motion is therefore whether there has been a "sufficient change". The moving party, in this case the Society, bears the onus of proving a sufficient change. What will constitute a sufficient change depends on the magnitude of the access variation sought. As a matter of common sense, as set out at paragraph ¶ 81 of R.M., major changes will require a very material change in circumstances. Minor proposed access variations may require more modest evidence of changed circumstances.

[69] If the Court finds that there has been a sufficient change in circumstances, that does not end the analysis. The Court must then conduct a contextual analysis to decide if it is in a child's best interests to change the access order. If so, the question becomes what terms and conditions are appropriate?

[70] As part of this second branch of the test, the Court must have the purposes in section 1 of the Act in the forefront. It should also consider a number of other contextual factors, which are listed in ¶ 83 of R.M.

[71] I am following and applying the approach that Sherr J. set out. In particular, after determining that there has been a sufficient change in circumstances, which I do find and which I address below, I am following paragraph 83 of R.M.

[72] Quoting verbatim from ¶83 of R.M., the factors that I am considering are:

1. The nature and extent of the variation sought and the proportionality of the requested change to the change in circumstances since the making of the last court order. In particular, the court should examine the extent to which the passage of time has yielded a fuller picture to the court about the child, the parent or any family and community member involved with the family.

2. The degree to which the change in circumstances reduces or increases the risk of harm to the child.

3. The extent to which the proposed change meets the objectives set out in section 1 of the Act and the expanded objectives set out in section 1 of the CYFSA.

4. The best interest factors set out in subsection 37 (3) of the Act and the expanded best interest factors set out in subsection 74 (3) of the CYFSA.

5. The importance of:

a. Ensuring that access not remain static unless the safety of the child requires this;

b. Gradually and safely increasing access between a child and the parents; and

c. Providing the court with some basis to assess the parent's long-term parenting potential.

6. The stage of the proceeding. Is a trial that will determine the issue imminent? If so, it might be in the best interests of the child to have the trial judge determine the issue.

C. Application of these Principles to the Evidence Before the Court

(1) There Has Been a Sufficient Change In Circumstances Since the October 1, 2015 Order

[73] I find that the Society has met its onus and it has established that there has been a sufficient change in circumstances since the October 1, 2015 Order. The child's resistance to seeing her mother and the fact that the visits have not occurred for several months is a sufficient change in circumstances.

[74] More particularly, the evidence before me is the following. Ms. Parker's affidavit sworn January 8, 2018 states:

(a) While the child is doing well in her father's care, on November 10, 2017, the father reported for the first time that the child did not want to attend a visit at her mother's home. The father put a.G. on the phone and she made this statement too;

(b) The child again repeated her refusal to attend a visit on November 16, 2017. On November 17, 2017, the father further reported that the child became "hysterical" as a result of the prospect of access;

(c) The affidavit details a number of efforts that the father says he made to convince the child to attend visits;

(d) Meanwhile, on November 21, 2017, the OCL reported to the Society that the child wanted alternate weekends with her mother (instead of every three weekends) and a change to the location of access exchanges. At least as of November 21, 2017, in the midst of the child reporting to some that she did not want to go, the child was not telling her lawyer that she would not attend;

(e) Despite her willingness to go on November 21, 2017, as the visits continued to not happen, the child's refusal to go seems to have strengthened. Next, on November 24, 2017, the child apparently refused to attend an access exchange at the Go Station;

(f) The father reported that the child refused to go for another visit on December 1, 2017, and that she insisted that he pick her up at school that day so that the mother wouldn't;

(g) The father then reported that he arranged a phone call with the child and the mother in December. The phone call happened, but according to the father, the child was "a bit upset" afterwards;

(h) The OCL attempted to arrange a visit at Yorkdale Mall over the Christmas holiday. However the mother would not attend because she is not comfortable being in the presence of the father so the visit did not happen;

(i) The father reported that the child "freaked out" on December 22, 2017 at the prospect of access; and

(j) By January 2, 2018, the OCL reported that the child's position was now, "she is not willing to attend access with [the mother] and does not want her calling her at home any longer". Simultaneously there was a note that the child wrote saying "I want to live with daddy and call mommy sometimes".

[75] Based on the record, the January 2, 2018 position is not reasonable.

[76] Several paragraphs of Ms. Parker's "reply" affidavit were not proper "reply"; rather this was an updating affidavit. As set out above, I have considered it. It provides:

(a) On February 18, 2018, the father provided a letter that apparently the OCL had told the child she should author. The note states: "Because she always yells at me and swears and hits me I don't have any friends there just one." The note also has a sad face emoticon drawn in the middle of this message;

(b) Several paragraphs of Ms. Parker's affidavit then purport to be evidence of the circumstances surrounding the creation of this note. She deposes that the child was not counselled with respect to this note and that the note was independently created;

(c) Now, when asked by Ms. Parker, the child said the mother yells at her and says mean things, like "daddy was mean". She claimed the mother had thrown a cell phone and that her mother had hurt her two times in the past. One such example of the mother having hurt her is the child said that the mother had thrown her on the bed. This incident concerning the bed was dealt with back in 2016. As set out at the outset of these reasons, during the motion, the Society pointed me to a 2016 affidavit respecting this allegation. This allegation was raised in materials to support an access motion back in 2016. Again, that motion was not argued. I also note that the 2016 access motion did not ask to suspend or reduce access, but rather the Society sought to change the location of access exchanges. Incidentally the mother has also denied this allegation and provided her own context;

(d) When asked on a scale of 1 to 10 how much the child wanted to see her mother, the child then said she wanted to see her mother 4 out of 10;

(e) The child said the rules to see her mother must be:

1. Access could only be at a restaurant because there "mommy wouldn't yell or swear or hit";

2. She did not want to visit her mother at the Society office or at another office;

3. She wanted to wait 6 months before seeing her mother again;

4. She wanted her father at the restaurant too and nobody else;

5. She was unable to describe or explain why the father had to be present; and

6. She did not want her mother to ask her anything about why she hasn't been visiting or any questions related to the visits.

(2) It is Not in A.G.'s Interests to Vary the Access Order As Sought by the Society

[77] Although I have found that there is a sufficient change in circumstances since the October 1, 2015 Order, I do not find it to be in the child's best interests to vary the October 1, 2015 access Order such that access will be in the Society's discretion. While the Society relies on Catholic Children's Aid Society of Toronto v. R.M. for its statement of the applicable test, I note that the flexible approach discussed in R.M. was in the context of a request by a parent to return children to his care, or alternatively to expand his access. While the framework in R.M. can apply to a motion to restrict or reduce access, the clear discussion in R.M. about flexibility is with a view to assisting the parents strive for family reunification. A drastic reduction of access does not advance this goal, it is a step backwards.

[78] Where the request is to reduce access or to impose more restrictions, the Court's focus must necessarily be on risk. Obviously, if the changed circumstances increase the risk of harm to A.G., then the Court should intervene.

[79] But the record does not support such an order in this case.

[80] Quoting verbatim from ¶ 31 of Ms. Parker's affidavit of January 8, 2018, Ms. Parker said, "I am unable to ascertain the reason for [a.G.'s] adamant refusal to attend access since November 10, 2017." Ms. Parker goes on to detail her conversations with the child. The child has said things like, "I just want to stay with daddy". She also said that she misses her cat (who lives with the mother). She said that she doesn't have a lot of friends at the mother's home. She said that her father is "more fun" and "nice". Then at ¶ 55 of her affidavit sworn January 8, 2018, Ms. Parker says, "At this time, I have no further insight as to the reason/underlying cause for [a.G.'s] refusal to attend access."

[81] The child's position is not consistent with the evidence before the Court about the visits. Not only was the general evidence almost universally that things have gone well between 2015 and 2017, the Court had specific evidence from the mother as to the visits themselves. The mother deposed that a.G. has her own room and a cat at her home. The mother pointed out that the Society had observed a.G. to be happy at visits in the past. The mother testified that the child does have friends in her neighborhood. Also, she takes a.G. for [certain language] classes on Saturday mornings, to ensure a connection with part of the child's language and culture. They then engage in fun activities together on Saturday afternoons. They attend a church together. a.G. has friends there. The mother deposed that she took the child on a trip to Montreal in the summer and that they attended a church camp together near Niagara Falls.

[82] Despite this evidence and an inability to explain what is going on, the Society's position is that the child is at risk. Quoting from ¶ 41 and 42 of Ms. Parker's affidavit sworn January 8, 2018, the stated risk is:

The Society is concerned about forcing [a.G.] to attend access, given her adamant position at this time. If a.G. is forced to attend access against her will, this could give rise to emotional and/or physical harm. With respect to a risk of physical harm, a.G. has a history of challenging behaviours that the mother has been unable to handle. There is a concern that if forced to attend access, a.G. could run away (or attempt to run away) from access, placing herself at physical risk.

However, perhaps the greater risk to a.G. if forced to attend access would be the emotional harm this may cause if the source of her refusal is not more carefully explored with her and access is not reintroduced in a way in which she is comfortable. Ideally, a.G. would feel comfortable with resuming access that could be facilitated in a way that would address her worries and concerns.

[83] Paragraphs 43 and 44 of the affidavit, which follow, contain both opinion and argument. These paragraphs talk about a.G.'s attachment issues, the importance of trust between a.G. and the father, how forcing access with the mother could disrupt that, the Society's concern that the child is having anxiety surrounding access, and a suggestion that forcing access is somehow leading, or may somehow lead the child to make negative associations between school and access.

[84] Much of Ms. Parker's evidence was speculation, despite her admission that she was "unable to ascertain the reason" and that she had "no further insight" into this matter.

[85] Ms. Parker offered more theories, despite evidence from the child to the contrary. For example, in October 2017, the child had a toileting accident while at a movie night with the mother. There is a dispute in the evidence about what the mother said to the child after the incident. Despite that, and although a.G. was asked and denied that the toileting incident had anything to do with her current refusal to visit her mother, Ms. Parker said, "[i]t may be" that a.G.'s position "could be related to the incident of October 26, 2017" given the history of this case.

[86] In her affidavit of March 6, 2018, Ms. Parker quotes selectively from Dr. Amitay's Parenting Capacity Assessment, which I note is 4 years old. Without referring to the previous paragraph of the report that talks about the importance of family counselling, Ms. Parker quoted Dr. Amitay saying that as a.G. gets older, she "needs to be given the opportunity to express any sense of hurt, fear, anger, abandonment, betrayal, resentment or other negative sentiments she may harbour toward her mother (and possibly her father) in a productive manner". Ms. Parker then opined that perhaps a.G.'s current position may be an expression of "hurt, fear, anger, or other negative sentiments".

[87] It was not just the Society who speculated. The OCL also opined as to why the child was taking the position that she does not want to see her mother. The OCL suggested during argument that the child had spent more time with the mother during the summer. Perhaps her current refusal to attend access now is related to that.

[88] Despite the evidence referred to above about toileting, the OCL opined that perhaps the child is embarrassed about the incident at the movie night, but doesn't want to say.

[89] The OCL then submitted that the child must be safe during access. The OCL did not elaborate or articulate how the child would not be safe if access continued.

[90] The father did not opine. He candidly admitted that he did not know what was happening. He agreed that the Court should order counselling. He did not however file any evidence as to the efforts he took to set that up or facilitate that between November 10, 2017 and now.

[91] As set out above, mother's theory is that the father is influencing the child.

[92] I cannot make any of these findings based on the record before me.

[93] This level of speculation I heard at this motion, particularly from the Society and the OCL, is inappropriate. I find this particularly to be the case given the positions also taken respecting both the need for professional intervention to get to the bottom of the problem, coupled with the Society's partial refusal to fund that professional intervention.

[94] While there was a problem with the mother-child relationship when the child was apprehended in 2013, as Sherr J. said in R.M., "the passage of time has yielded a fuller picture to the Court". The parties and the Society worked towards developing a normalized relationship between the mother and daughter over the past several years. Yet despite that and despite the evidence of the development of a positive relationship between 2015 and 2017, there was a strong tendency for the parties to make guesses and assumptions that something untoward must have happened at access.

[95] For example, again, the evidence that I received, only in reply, and only after the OCL suggested that the child write a note, and only after the child was interviewed again after writing the note, is that the child said the mother had hurt her. The example given was very clearly historical. The child herself said that she was 6 when this happened.

[96] The Society's, the OCL's and the father's arguments ignored the good reasons to support and continue the access. Several well-known, common sense family law principles are engaged here.

[97] The maximum contact principle applies in child welfare cases. At ¶ 19 of Children's Aid Society of Algoma v. S.P., 2011 ONCJ 93, a case in which the Society was unable to articulate an evidence based reason for its policy that a parent should have minimal weekly access, Kukurin J. said the following:

This is where some common sense is needed. There is a principle that has statutory endorsement from subsection 16(10) of the federal Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, as amended, that is the principle of maximizing the time the child spends with each parent following parental separation and divorce. This "maximum contact" principle is not restricted to cases of divorce between legally married parents. It applies equally, and has been judicially endorsed at the appellate level in Ontario, in cases under the Ontario Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended. I see no reason to exclude the application of this principle in child protection cases where a child is separated from a parent, not necessarily because of a parental break-up, but because of the intervention of the state in the form of a children's aid society that apprehends the child. From the child's point of view, the impact of being separated from his or her parent is very personal. The child does not appreciate the reasons, sometimes even the necessity, that underlie the separation through which he or she is going. What the child knows is that he or she was in contact with his or her primary caregiver 24/7 in an environment that was familiar to the child and, all of a sudden, that world changed almost completely.

[98] Talking about the impact on a child of an apprehension, Kukurin J. said at ¶ 21:

Whenever a child is apprehended, he or she is removed from a family. "Family" means much more than biological parent. It encompasses all of the relationships that the child has as a result of being a member of his or her family. It includes the child's physical home, as well as all other environments with which the child has acquired familiarity and comfort. It also includes practices, routines, pastimes and activities that make up what the child does at his or her developmental stage of life. All these things are taken away from the child to a greater or lesser degree where apprehension by a society takes place. In a word, the life of the child is disrupted.

[99] And at ¶ 26, the Court said:

Access is the primary mechanism that attempts to minimize the disruption for a child who has been apprehended and not returned to its normal caregiver. This means restoring contact by the child with persons and things that were significant, meaningful and beneficial for the child.

[100] To grant the order sought by the Society would be to ignore this principle on the facts of this case.

[101] The Society (nor any other party nor the OCL) provided neither case law, nor any evidence, including expert evidence, to support the argument that the child will suffer emotional harm if the child is forced to attend access. While I do not intend to state that expert evidence is required to prove emotional harm or a risk of emotional harm in every case, in this case, I am not prepared to speculate. I also note that neither the Society, the father nor the OCL were prepared to make submissions about exactly what kind of therapeutic or mental health intervention should be imposed, and on what terms.

[102] I am mindful that section 37(3)(9.) of the Act requires me to consider the child's views and wishes, if they can be reasonably ascertained.

[103] While I have declined to find that the father has influenced the child for the purposes of this motion, I note the following:

(a) The evidence that I had of the child's wishes came either through the father, the Society worker or from the OCL. Contrary to what I have been told, the child's stated wishes have not been consistent. Again, in late November, she told her lawyer she would see the mother, just on a different schedule and with different exchanged. The note that the child later wrote, offered to me in reply, is not helpful. Moreover, the child is not saying that she will not see her mother at all. She has apparently expressed a willingness to see the mother in the presence of the father;

(b) Many of the child's statements do not make any sense. For example, there is no rational basis for waiting for 6 months. This statement makes no sense from a 7 year old; and

(c) Neither the parents, nor Ms. Parker, nor any of the lawyers are able to explain the child's position with any degree of confidence at this stage.

[104] In Darby v. Darby, although a domestic case, Seppi J. ordered access for a 10 year old boy over his objections. She did so in a case where there had been estrangement between the boy and his father, and the boy perceived that his father had been abusive. Seppi J. even noted that "clearly there had been some incidents" but ordered access nonetheless. Seppi J. phased in the access (the father was not then having the amount of access that the mother is having in this case).

[105] At ¶ 31 and 32 of Darby, she wrote:

It is in C.J.'s best interest to have access with his father. As he becomes accustomed to his father's presence it is in his best interests to have that access increased and unsupervised over time on a gradual basis. On the evidence I am persuaded the respondent loves his children and will endeavour to focus on their best interests when they are with him. He does have problems understanding the connection between his own actions and feelings and the effect that these have on his children. His children have been estranged from him for several years and he has been misguided about how to communicate with them. This is evidenced by some of the later emails which he sent to Shanice in which he inappropriately complained about the litigation process and insulted counsel from the OCL.

The respondent will need to focus on C.J.'s feelings and acknowledge the pain the separation and marital conflicts have caused his children. It will be his task to rebuild C.J.'s and Shanice's trust if he is ever to achieve a normal father/child relationship with them. To succeed, the respondent as the adult in the relationship must put the children's needs ahead of his own. In C.J.'s best interest the opportunity for the respondent to rebuild the trust and foster a bonded father and son relationship must be allowed in the circumstances of this case.

[106] I note that Seppi J. gave a direction that the child was to be told that the Court had made the decision respecting access. I agree with that approach.

[107] I also note that this current case concerns a 7 year old.

[108] a.G. is not deciding the issue of access in this case. I decline to attach weight to the child's stated wishes given her age and for the reasons that I have expressed above. This is not a case of a mature child whose wishes are clearly articulated and understandable.

[109] The purposes of the Act militate in favour of preserving the mother's access in this case. I find that it is in the child's best interests that the access order continues. It is important that the child have a positive relationship with both of her parents. The mother loves the child. The evidence is that the visits have gone well, until they suddenly stopped in November for reasons that no one can explain. The mother exposes the child to an important part of her culture and heritage. That should continue. These are just some of the reasons to preserve the access.

(3) Immediate Counselling Is Required in this Case

[110] In light of the Society's acknowledgement (and the other party's and the OCL's acknowledgement too) that the child's refusal to go for visits must be explored, the Court is very concerned about the lack of steps that have been taken in the past 5 months to obtain professional assistance.

[111] First, this case ought not have been adjourned in the manner that it was. When the issue of access did not resolve in short order after the problems developed, the matter ought to have been immediately brought to my attention.

[112] Second, I find that insufficient efforts were made to arrange for counselling.

[113] The only party who put evidence before me about her efforts to arrange counselling was the mother, but that evidence is partially deficient. In her affidavit sworn February 15, 2018, the mother proposes that her psychotherapist from a cultural social services agency that she is accessing is also available to provide counselling for her and the child. The mother provided some limited information about the counsellor's qualifications. However, her evidence does not provide the Court with any details about cost of (if any), or wait lists for counselling at this agency.

[114] The mother has also accessed some drop-in counselling at Yorktown Child and Family Services. There is a brief letter from Yorktown, but further details are required. Orally, the mother told me that she had completed two drop-in sessions and that the next step would be for her to attend with a.G., followed by regular sessions. There is no evidence that this is the process, nor about what services would be provided thereafter, nor about what the wait list would be.

[115] There is no evidence from the parties as to their position respecting the mother's counselling proposals, nor how they responded when those proposals were initially floated. Despite that, I was told orally that the mother's proposals had been rejected. I heard this was perhaps due to a lack of information about qualifications, because the mother did not provide a curriculum vitae for her proposed counsellors, but I have no evidence that the objecting parties made inquiries of their own about qualifications, which they ought to have (if they didn't).

[116] I also heard perhaps the reason for the objection was that the mother's current counsellor has provided counselling for the mother and should not therefore see the child for some apparent conflict of interest reason. But the mother responded that there are other counsellors available at this particular agency if this is truly an objection.

[117] I then heard that the objection was actually based on geography. The OCL argued that the child lives with the father in Peel and the organizations proposed by the mother are in Toronto. Yet no inquiries seem to have been made (or at least there is no evidence to this effect) as to the available times for counselling in Toronto, and I received no evidence about exactly how the distance would impact the child's school or other aspects of her life.

[118] It may be that the child will miss some school for some counselling. The health of the mother-child relationship needs to be made a priority.

[119] In response to a comment from the bench about the lack of evidence of efforts to arrange counselling, (and although there is evidence to this effect in the record), I was orally told that the OCL had actually proposed three different counsellors that the mother rejected. However, I was not given their names, nor their qualifications. I note that one of the OCL's arguments against the mother's counsellors was a lack of information about qualifications.

[120] I then discovered that payment for counselling is an issue. Through my inquiries (also not in the materials) I learned that the Society is apparently prepared to pay for counselling, but only 1/3 of it. An argument in favour of the Society paying for 1/3 only is not supported by evidence. I was told that the Society's willingness to pay for 1/3 arose out of the OCL's proposal. Apparently the OCL had proposed that the cost of counselling be shared equally between the father, the mother and the Society.

[121] There was some criticism of the mother for having rejected this solution. I do not know when exactly this proposal was made. Regardless, and again, although there was also no evidence about this before me, I was told orally that the mother, an immigrant whose first language is not English, has very limited resources.

[122] Indeed, the mother told me that she is in receipt of Ontario Works. Apparently she recently started teaching music and her income will be modest (perhaps no more than $12,000 per year). The income she earns will likely result in a claw back of her Ontario Works income. I wonder how exactly she will fund private counselling on these very limited resources.

[123] I asked the Society if it would reconsider its position respecting paying for only 1/3 of counselling. The Society needed to get instructions about whether it would pay for the full cost of counselling. That said, the Society did concede that counselling is necessary for productive ongoing access.

[124] Given the failure to take the necessary steps to establish counselling or to seek the Court's assistance in advance, the Society's motion is not the least restrictive or disruptive course of action that is appropriate in this case.

[125] The parties need to file evidence to address the counselling issue.

PART IV: ORDERS

[126] I make the following orders:

(a) The Society's motion to vary the mother's access is dismissed;

(b) The father is ordered to take the child to school on days where the child is scheduled to be in the mother's care. The mother shall continue to pick up the child at school;

(c) The mother may choose to bring a support person with her if she wishes to assist her with the access exchanges;

(d) The parties shall file additional evidence and be prepared to make submissions concerning the following questions:

(i) His or her proposed counsellor or counsellors;

(ii) Any previous efforts made to set up counselling;

(iii) Qualifications;

(iv) Any wait lists and costs associated with the counselling;

(v) If there is a wait list, then the parties should propose alternate counselling with shorter or no wait lists so the Court has options;

(vi) Any parameters of counselling respecting the process. Submissions about this should be made with reference to the advice of the proposed counsellor, that the parties should try to obtain;

(vii) What documents or information, if any, should be supplied to the counsellor to be engaged with this family;

(viii) If the Society wishes to get advice from either Dr. Amitay or Dr. Fitzgerald concerning the type of counselling and process to be followed, then it may do so;

(ix) The Society should be prepared to advise the Court its position concerning funding, and be prepared to argue the issue. The Court directs the parties to Children's Aid Society of the Niagara Region v. S.(L.), 2009 CarswellOnt 38;

(x) To deal with any payment issues that may arise if there will be a cost for counselling, the Court requires evidence of the parents' financial resources;

(xi) If the OCL wants to propose a different counsellor(s), then it must file similar details;

(e) The terms of this order concerning access shall be communicated to a.G. as being the Court's judgment concerning access in the child's best interests. The father shall take steps to ensure a.G. is prepared for the access in a positive manner;

(f) Neither party shall discuss any court matters with a.G.;

(g) Neither party shall at any time disparage the other parent, nor allow others to do so in the presence of a.G.; and

(h) The mother shall refrain from questioning the child about her refusal to visit over the past several months, subject to receiving direction from the counsellor to be engaged. Ideally, these discussions will occur in counselling.

[127] The mother did not argue her disclosure motion. If she wishes to pursue any of the remaining disclosure requests in her Request for Information, then she may do so on the return date.

[128] This matter shall return before me on April 19, 2018 at 10:00 am. The parties shall be prepared to make the aforementioned submissions on that date. No further adjournments of this motion will be granted.

Released: April 3, 2018

Signed: Justice Alex Finlayson