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: 2018-02-02
Court File No.: Toronto CFO-14-11357-01 A1
Between:
Catholic Children's Aid Society of Toronto Applicant,
— AND —
L.D. Respondent
— AND —
A.Z. Respondent
Before: Justice Alex Finlayson
Heard on: January 25, 2018
Reasons for Judgment released on: February 2, 2018
Counsel:
- Mei Chen — counsel for the Applicant Society
- Sarah Clarke and Claire Millgate — counsel for the Respondent mother, L.D.
- The Respondent father, A.Z. — on his own behalf
PART I: NATURE OF THIS MOTION
[1] The Applicant in this proceeding is the Catholic Children's Aid Society ("the Society"). The Respondent parents are L.D., the mother, and A.Z., the father. The parents never lived together. They have 5 year old twin girls, M.S. and Z.S.
[2] This is a high conflict case. The parties have been involved in custody, access and child support litigation before this Court since the fall of 2012. The litigation began when the girls were only 2 months old.
[3] The children have been in the primary care of their mother since their birth. The mother was the parent who had charge of the children immediately before the commencement of this proceeding.
[4] On September 28, 2017, the Society launched a protection application pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended ("the Act"). The custody and access litigation is now stayed as a result. The Society alleges that the girls are at risk of physical and emotional harm in the mother's care pursuant to sections 37(2)(b)(ii) and 37(2)(g) of the Act.
[5] On January 25, 2018, I heard a contested temporary care and custody motion. This is my ruling respecting that motion.
[6] The Society seeks a temporary order placing M.S. and Z.S. in the care and custody of their father, A.Z., subject to the Society's supervision on various terms and conditions. The Society also asks for an order for supervised access between the children and their mother. The father supports the Society's position; the mother does not.
PART II: BACKGROUND AND SUMMARY OF THE PARTIES' POSITIONS
[7] The mother is currently 40 years old. She lives with the children and her sister in a one-bedroom condo in downtown Toronto. The entire family sleeps in the only bedroom. The mother claims to have always had a good relationship with her sister, who she says helps her parent. That said, the evidence before me is that the mother's relationship with her sister has at times been conflictual to the point that it has escalated into violent physical confrontations in the presence of the children.
[8] The father came to Canada from Brazil with his parents in the late 1990's. Since coming to Canada, he obtained a biology degree from a Canadian university and for the past 6 years, he has been employed as a laboratory operations manager in Toronto. He lives in a studio apartment in midtown Toronto, but he has a plan respecting his residence and the children's schooling if the Court grants the Society's motion respecting the children's placement.
[9] Although the mother has claimed otherwise on a number of occasions to this Court, there is no evidence before me that the father suffers from any mental health issues. To the contrary, the evidence is that he is an active and healthy person.
[10] The Society submits that the children should be placed with their father and have supervised access to the mother for 7 reasons:
(a) It has verified that the mother uses inappropriate physical discipline on the children;
(b) It has an ongoing concern about the mother's use of physical discipline;
(c) It argues that the mother has been unable to take the children to school on time, and sometimes at all. The children's school attendance records reveal numerous lates and absences. In January 2017, after a teacher complained to the Society, the mother withdrew the children from school entirely;
(d) There is a high degree of conflict between the parents that the Society argues is impacting the children. The mother has an extremely negative view of the father, and this colors the children's relationship with their father;
(e) The mother has created an environment in which the children are being taught to feel unsafe with their father. The children's relationship with their father is being pathologized;
(f) The mother is frustrating the father's access. This includes cancelled visits, not bringing the children to visits on time, and most recently, the mother has made false allegations of sexual abuse by the father to the children; and
(g) Reasonable terms and conditions are insufficient to protect the children if they remain in the mother's care. The mother lacks insight, she minimizes or denies issues, and she refuses to work with the Society and other third parties to address the concerns.
[11] The father relies on the Society's arguments. He is concerned about the children's physical and emotional safety, should they remain in their mother's care. He wishes to maintain a strong relationship with the girls, which he argues is being compromised by the mother's conduct under the current parenting arrangement.
[12] Out of a concern that he will again be accused of sexual misconduct and perhaps criminally charged next time, since November 2017 the father decided to have supervised access only at the Society's offices. This too has been the subject of complaint by the mother.
[13] The mother argues the following:
(a) She asks the Court to consider the history of this matter when reviewing the evidence and digesting the parties' arguments. She says that it is important to put the evidence and arguments into a certain context. She asks the Court to be mindful that previously, this Court granted her an order for sole custody, ordered the father to enrol in a parenting program, suspended the father's access, ordered the father to have supervised access, ordered the father to remove a video concerning the children from the internet and cautioned the father about "over-holding" the children after access in August. So the Court should not find that the mother is engaging in behaviour that is harmful to the children; rather it should scrutinize that evidence through the lens of this history. Essentially the mother asks the Court to draw inferences against the father in light of the orders that have been made. The Court should view her actions as those of a concerned primary parent stuck in a difficult battle with the father, and not those of a parent who is trying to interfere in the other's relationship with the children;
(b) She asks that the Society's motion be dismissed. She argues that the Society has not discharged its onus. Specifically, she maintains that the Society has failed to point to any credible and trustworthy evidence that the mother is engaging in a campaign of alienation. While there is parental conflict, it does not rise to the level of removing the children from care;
(c) The order sought by the Society is not the least intrusive one that could be made. She further argues that the Society must provide services prior to removing the children from her care, and the Society has failed in its duty to do so. Therefore, she says that this Court cannot place the children with the father;
(d) She instructed her lawyer to argue that there ought to be no terms and conditions attached to an interim order;
(e) In the alternative, she argues for minimal conditions, and says that both parents should have to attend counselling. However, she did not have a proposal for counselling when the motion was heard and she had told the Society worker that she did not need it in the recent past, but she is now apparently looking into faith-based counselling; and
(f) The mother concedes that the children's school attendance has been problematic. She submitted bluntly that the children need to get to school on time. But again, her primary submission is that the order have no conditions. This would include no conditions about school attendance. Her alternative submission would include a term that she would take the children to school, but she offered little explanation as to the reason for the troubling attendance record, nor a plan to give the Court any confidence that she will be able to get the children to school on time going forward. She also told the Court that the father has taken the children late to school too.
[14] For the reasons that follow, I am granting the Society's motion. I find there is a real possibility, that it is more probable than not, that the children will suffer harm if they remain in their mother's care.
[15] I cannot give effect to the mother's arguments. The argument that the Society has failed to point to any credible and trustworthy evidence that the mother is engaging in a campaign of alienation is somewhat misguided. Even if there is no such evidence, the test that the Court must apply is not so narrowly construed to focus on the presence of, or absence of alienation only.
[16] I am not prepared to find that the Society has failed in its duty to provide services. I have considered lesser intrusive options than that sought by the Society, but find that the children cannot be adequately protected by terms and conditions of an interim supervision order. I find the mother's reluctance to propose any terms and conditions during the motion is telling. I do not have confidence, given her track record of obstructing the efforts of third parties to intervene, that she will abide by reasonable terms and conditions.
[17] In arriving at this decision, I reviewed the entire Continuing Record in the child protection proceeding. I also reviewed the Continuing Records filed in the prior domestic proceedings, as well as this Court's prior endorsements in both. I did so to fully consider the mother's context argument, which I am addressing in these reasons.
PART III: APPLICABLE LEGAL PRINCIPLES
A. The Statute
[18] The Society's request respecting the children's placement is governed by sections 1(1), 1(2), 51(2), 51(3), 51(3.2) and 51(7) of the Act. Those sections read:
Paramount purpose and other purposes
Paramount purpose
1(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.
Other purposes
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:
To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
To recognize that children's services should be provided in a manner that,
i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.
To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.
To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.
Custody during adjournment
51(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in,
(i) a place of secure custody as defined in Part IV (Youth Justice), or
(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.
51(3.2) A temporary order for care and custody of a child under clause (2)(b) or (c) may impose,
(a) reasonable terms and conditions relating to the child's care and supervision;
(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.
Evidence on adjournments
51(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.
[19] Sections 51(5) and 58(1) of the Act apply respecting access. Those sections read:
Access
51(5) An order made under clause (2)(c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.
Access order
58(1) The court may, in the child's best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
B. The Test on a Temporary Care and Custody Motion
[20] At ¶ 32-36 of Catholic Children's Aid Society of Toronto v. W.I. and D.T., 2014 ONCJ 402, Justice Sherr summarizes the legal principles that apply respecting the motion before the Court (see also Justice Tobin's decision in Windsor-Essex Children's Aid Society v. A.R.Y.K. and M.A. (aka M.C.), 2015 ONCJ 402 at ¶4-8). Quoting from Justice Sherr's decision, those principles are:
[32] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test (the two-part test) that the society has to meet.
[33] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act): See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
[34] Subsection 51(3.2) applies to an order being made in accordance with clause 51(2)(b) for a temporary supervision order. See: Catholic Children's Aid Society of Hamilton v. P. (C.R.), 2011 ONSC 2056.
[35] The onus of proof or criteria are the same when the society is requesting a non-removal order pursuant to clause 51(2)(b) of the Act or a removal order pursuant to clauses 51(2)(c) and (d) of the Act – the issue to be determined in making the non-removal order under clause 51(2)(b) is whether or not the society has reasonable grounds to believe that there is a probable risk that the child will suffer harm if reasonable terms and conditions of a supervision order are not imposed. See: Children's Aid Society of Halton Region v. Z. (T.A.), 2012 ONCJ 231, par. 20.
[36] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269.
PART IV: PRIOR PROCEEDINGS
[21] As set out above, the mother asks the Court to be mindful of the history of this case when considering the evidence and arguments concerning her conduct. Therefore, I have reviewed the steps taken in the prior domestic proceedings and in this child protection proceeding in considerable detail. I summarize what has transpired in four distinct phases.
A. The First Round of the Domestic Proceedings: 2012-2016
[22] The Continuing Record respecting the initial domestic proceeding is surprisingly thin. It consists of the Application, the Answer, the parties' respective Form 35.1 affidavits and the father's financial statement. The mother's Application was issued on October 3, 2012, when the children were just two months old. Relatively speaking, the level of conflict, at least insofar as it is reflected in the Court documents, was light.
[23] In her initial Application, the mother accuses the father of demanding that she have an abortion upon learning of her pregnancy, of being threatening, of having a volatile temper and of using "extremely abusive language". She also accuses the father of suffering from schizophrenia. While this is all contained in her pleading, she mentions none of it in her Form 35.1 or in any sworn document. In fact, other than the father's financial statement and the parties' brief Form 35.1's, there was no sworn evidence filed in the first round of the proceedings.
[24] In his Answer, the father denies these allegations and denies suffering from mental health troubles.
[25] The initial Application took four years to conclude.
[26] The Court made a number of orders within that Application between 2013 and 2016. These orders were made at various case conferences only. Many of the Orders would have been made on consent. There were no motions at all, apart from 14B Motions for adjournments.
[27] I summarize the Orders made between January 2013 and August 2016 in the following chart:
| Date | Judge | Terms of Order |
|---|---|---|
| 01/22/2013 | Cohen J. | • Final Custody to mother; • Temporary supervised access to father on Saturdays from 1:30 to 3:30 pm; • Access to information to father; • Mother may obtain passport and may travel on a temporary basis; and • Temporary child support of $738 per month based on father's income of $49,659. |
| 05/28/2013 | Cohen J. | • On consent, father's access is suspended on a temporary basis; and • Additional orders respecting travel and respecting disclosure are made. |
| 06/26/13 | Cohen J. | • Matter is adjourned on consent to September 18, 2013. |
| 09/18/2013 | Cohen J. | • Temporary without prejudice access to father for 1 hour per week at an access center; • The father is to enrol in a parenting course; and • Disclosure is ordered. |
| 2/24/2014 | Cohen J. | • Temporary without prejudice order that the father's sister in law is permitted to accompany him on access unless otherwise agreed. |
| 5/30/2014 | Cohen J. | • Matter adjourned for further period of supervised access. |
| 7/23/2014 | Cohen J. | • The father files a 14B to adjourn and a document signed by both parties stating that the parties "have chosen to conduct the access visits with their daughters ... on mutually agreeable terms", "outside the access center" and the "arrangement is working successfully for the children and they are bonding well with their father in a stress free manner." The matter is adjourned. |
| 11/7/14 | Cohen J. | • The parties file a similar document and seek a further adjournment. Matter adjourned. |
| 2/27/2015 | Cohen J. | • The matter is adjourned on consent. The endorsement states "everything is working well". Working on final settlement" |
| 05/14/2015 | — | • The parties file a similar document and seek a further adjournment. The matter is adjourned peremptory for both parties to attend. |
| 6/5/2015 | Jones J. | • The mother does not attend Court. The matter is adjourned. |
| 6/16/2015 | Cohen J. | • The parties file a similar document, but which also states that the mother offered to provide access "as practically possible"; • Final Order for reasonable access on reasonable notice to father; and • Disclosure is ordered. |
| 09/25/2015 | Cohen J. | • Matter is adjourned on consent. |
| 12/11/2015 | Cohen J. | • Neither party attends Court. The matter is adjourned. |
| 03/18/2016 | Cohen J. | • Final Order for child support of $743 based on income of $50,000; • Determination respecting s. 7 expenses is adjourned; and • Both parties are permitted to travel with the children out of the jurisdiction. |
| 08/26/2016 | Cohen J. | • The matter is adjourned due to insufficient court time. |
B. The Motion to Change from September 2016 to June 1, 2017, Including the Interim Access Motion Argued May 23, 2017
[28] On September 1, 2016, the father commenced a Motion to Change the Final Order of Justice Cohen dated June 6, 2016 respecting his access. Despite a lengthy period of apparent calm in the first round of proceedings, the father argued that the Order of June 16, 2015 for reasonable access on reasonable notice was not working, and he asked the Court to order specified access.
[29] In his Change Information Form filed in support of the Motion to Change, the father deposed that the mother had been "significantly helpful" in facilitating access, but then the parties had a disagreement in the summer of 2016. Following that disagreement, the father said the mother suspended access for a month in contravention of the governing Order, refused to allow it to resume and indicated that she wanted the Court to be involved in re-instating it.
[30] However, whether the mother had breached the June 16, 2015 Order was not argued. The mother did not attend the first appearance on the Motion to Change. Then at the first case conference on November 8, 2016, the parties were able to resolve the dispute. The parties entered into a temporary consent order providing that the father would have access from Fridays after school at 3:00 pm until Saturdays at 5:30 pm and on Tuesdays after school at 3:00 pm until Wednesday mornings. Their consent said that the father agreed to provide the children with "food and creams to meet their special diets and needs", it provided the father with a right of first refusal to care for the children and it restricted the parties' method of communicating with one another. The parties also agreed to adjust child support on a temporary basis. Justice Cohen then adjourned the matter for a Settlement Conference to proceed on March 7, 2017.
[31] During the adjournment period, the situation between the parties exploded. The mother launched a motion initially returnable on March 8, 2017. I reproduce her requests relating to the parenting issues, verbatim:
(a) Order for Access at the Access Centre. Applicant does not want any communication with Respondent/his family. It is in the best interests of the children;
(b) Order restricting CCAS or CAS from attending the children's school to visit with the children, without prior consent from the Applicant mother; and
(c) Order to penalise Respondent for numerous false complaints to date with CCAS and Police, as a deterrent to STOP repeated harassment.
[32] The father launched a cross-motion asking for an order compelling the mother to comply with the November 8, 2016 access order, appointing the Children's lawyer, directing the parties to attend mediation, and for a temporary non-removal order and restraining order.
[33] In support of her motion, the mother alleged that the father has been and is "verbally abusive" and "demeaning", he has "temper issues and is volatile", and she accused him of complaining to the Society. The mother renewed her complaint that the father has been diagnosed with schizophrenia, although this time, she referred to it as "mild schizophrenia" only.
[34] Meanwhile, the mother argued that she is providing good care to the children. She filed a letter from the children's pediatrician, Dr. Ho, dated March 6, 2017 that says the mother has been compliant with advice respecting the children's eczema. The letter says that she moisturizes them more often so that their need for steroid creams is very limited. It is noteworthy that the letter says nothing of the children's dietary issues. This is the same letter that she chose to file again in the current proceeding. In the record before me, there is a paucity of objective evidence from third party health care professionals concerning what is required for the treatment of their skin care, and concerning their dietary restrictions.
[35] In his affidavit of April 18, 2017, the father told the Court that the mother had cut off his contact to the children for 8 weeks and that she was using inappropriate physical discipline towards the children. He also said that she had de-enrolled the children from the school when a teacher complained about the mother to the Society.
[36] The mother's allegations then became more extreme and frankly outlandish in reply. She claimed that the father consumed "hard-core drugs like magic mushrooms known for its mind-altering and hallucinogenic effect, and in particular prolonged psychosis akin to paranoid schizophrenia" and she repeated that he had been prescribed medication for "schizophrenia". She went on to claim that the father hears voices, that he thinks he is being watched by UFOs and that he is a "continued defaulter and a landlord's nightmare". She called him a "narcissist", said that he "suffers from rejection issues", she called him a liar, and said that he refused to bring the children food and that he threatened to walk away from visits. Finally, the mother also accused the father, for the first time, of "caressing his private areas" in the presence of the children.
[37] Meanwhile, apparently the father had posted a video on Youtube that depicted the children crying and upset. The mother told the Court this in her materials.
[38] By the time this motion was heard, a child protection investigation had been launched, concluded and was about to start up again. The information put before the Court did not in a comprehensive fashion reflect the extent of what was happening from a child protection standpoint.
[39] Included in the motion materials was a letter from the Society dated March 9, 2017. It states that the Society "has completed the investigation that was initially received on December 22, 2016 regarding the children's exposure to parental conflict and a subsequent referral from the school on January 23, 2017 regarding concerns of inappropriate discipline by [the mother]". It states that the children have been "impacted and exposed to post separation conflict". It also states that the child protection worker had also spoken to the mother "about the children's disclosure of her using physical discipline". The letter concludes that the Society was closing its file.
[40] The letter notwithstanding, there had been prior Society involvement concerning this family, the investigations referred to in the March 9, 2017 letter were more involved than the letter portrayed, and less than two months after the motion was argued on May 23, 2017, the Society received another referral.
[41] The motions were adjourned a number of times to permit the parties to file their evidence. At a May 3, 2017 attendance at which the Court made a scheduling order relating to the conduct of the motion, Justice Cohen ordered the father to remove all material (audio or video) containing images of the children from social media.
[42] After the motion was ultimately argued on May 23, 2017, Justice Cohen reserved. Justice Cohen released a written decision on June 1, 2017. Justice Cohen referred to the evidence filed as "very concerning" and the allegations made by each parent as "disturbing". Justice Cohen found both parties to be partly responsible for the conflict. She found that the mother's concerns did not justify an order for supervision. She appointed the Children's Lawyer and she made the access order sought by the father. She also ordered the father to ensure that the children's skin care needs (eczema) are attended to and that their dietary restrictions are respected while in his care.
[43] The Children's Lawyer later accepted the referral and agreed to investigate and report pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended. The clinical investigator was assigned on August 28, 2012. She later filed a 2 page report dated December 19, 2017. According to the report, "soon after" the investigator had been assigned, the mother told the Children's Lawyer that its services were no longer required. The Children's Lawyer closed its file. The 2 page report has no other information.
C. The 'Overholding' Motion
[44] On August 3, 2017, the mother launched a further motion dated August 3, 2017, returnable on August 3, 2017, to suspend the father's access. She also asked to terminate the order permitting the father to travel with the children, and she sought a restraining order. She asked that the father be found in contempt and she once again asked for an order "penalizing him" for "continuing and repeated false complaints to CCAS and Police, so as to stop Respondent from disrupting and wreaking havoc in the lives of the children and Applicant and family."
[45] What precipitated this, according to the mother, was that the father sent the mother a text message advising that the CCAS was at his home investigating a bruise on one of their child's face. Police became involved. He said he was not returning the children.
[46] The mother went on to tell the Court that the father was a flight risk.
[47] The father did not have an opportunity to respond.
[48] The next endorsement in the file is that of Justice Murray on August 4, 2017. There was some dispute in the parties' positions as to whether the Society advised the father to overhold the children, but the Society clarified this in a letter. The letter says that it had advised the father to get legal advice about his options. In the August 4, 2017 Endorsement, Murray J. cautioned the father that if he overholds the children again, his access may be suspended. She also made an order that neither party shall remove the children from Canada without a court order and she adjourned the motion to August 11, 2017 permit the father to file a cross-motion.
[49] For reasons that are not clear in the material before me, the father did not file materials and so when the matter returned on August 11, 2017, only the mother's materials were filed in the record.
[50] On August 11, 2017, Justice Nevins wrote in a further endorsement the Court was "greatly concerned over the conduct of the father". Nevins J. granted a further adjournment to October 19, 2017 to allow the motions to be "perfected", and directed that the father was to comply with the access order, or his access would be suspended. He also made an order respecting disclosure, and permitted the mother to travel to Montreal for a four day period.
[51] The mother's August 3, 2017 motion never proceeded on its merits. By the end of September, the Society commenced a protection application. By this point, the Society had been investigating a number of issues concerning this family over a number of months.
D. The Protection Application
[52] As set out above, on September 28, 2017, the Society launched a protection application alleging that the children are at risk of physical and emotional harm in the mother's care pursuant to sections 37(2)(b)(ii) and 37(2)(g) of the Act. Initially, the Society sought an order placing the children with both parents on various terms and conditions. As I will explain below, by December 2017, the Society changed its position and instead asks that the children be placed in their father's temporary care and custody only, on various terms and conditions.
[53] At the initial return of this temporary care and custody motion on October 18, 2017, Justice Weagant made a temporary without prejudice order placing the children in the temporary care and custody of both parents and ordered the following conditions:
(a) The mother is not to use any physical discipline;
(b) The parents shall not expose the children to inappropriate adult conflict;
(c) The mother shall enrol the children in school and ensure that they attend regularly and on time;
(d) The mother shall sign consents to the release of information in relation to the children's school, daycare, family physician, and other collaterals as requested by the society;
(e) The parents shall allow the Society to have announced home visits and to meet privately with the children as and where requested;
(f) The parents shall work cooperatively with the Society workers and provide updated contact information at least 48 hours prior to any changes occurring; and
(g) The father's access was continued.
[54] The Society sought a number of conditions that the Court did not order at the first appearance in the child protection proceeding, specifically that the mother take a parenting course to learn about child development and positive discipline, that she attend counselling and that the parents participate in services to improve their communication. Weagant J. also declined to order unannounced visits during the short adjournment period that was to follow only.
[55] Again, when this motion was argued on its merits before me on January 25, 2018, the mother resisted any conditions at all, and only proposed minimal conditions (respecting counselling and school attendance) in the alternative. She had previously sought orders in the domestic proceeding to prohibit the Society from attending at the children's school without her prior consent.
[56] Thus, between October 18, 2017 and January 25, 2018, various services were not provided as a direct consequence of the mother's position in the litigation.
[57] On November 10, 2017, the mother filed a 14B seeking to adjourn the temporary care and custody motion. I did not grant the adjournment on the 14B motion. Rather, on November 16, 2017, I directed the parties to attend Court to speak to this matter. That attendance was on November 21, 2017. At that attendance, the mother filed a short affidavit that she required disclosure from the Society.
[58] On November 21, 2017, I set the January 25, 2018 date for this motion to be argued. I made a scheduling order respecting the materials to be filed, I made a disclosure order, and I also made a further order on a temporary without prejudice basis allowing the Society to have unannounced visits at the parents' homes as the short adjournment period that Justice Weagant had allowed had run its course.
[59] At the November 21, 2017 appearance, the father expressed concern that the mother may make further false allegations about him, and he told the Court that he had decided to only exercise supervised access. I endorsed that whether he wished to have supervised or unsupervised access was his choice. The father's decision to have supervised access only later led to a complaint by the mother through correspondence from her counsel.
[60] As set out above, it was on December 14, 2017 that the Society amended its motion and asked that the children be placed in the temporary care and custody of their father on various terms and conditions.
PART V: THE EVIDENCE IN THE CHILD PROTECTION CONTINUING RECORD
[61] The evidence in the Child Protection Continuing Record reveals additional information that was not readily or fully available in the domestic proceeding.
[62] The mother has a history of refusing to accept services and of making complaints against those who attempt to intervene.
[63] In 2013, when the girls were very young, the mother refused the assistance of a public health nurse, who made a referral to the Children's Aid Society of Toronto. Apparently, the mother had been struggling financially and the nurse was concerned that the children were not being properly fed. Following the referral, the mother complained to the public health nurse's supervisor. The Children's Aid Society of Toronto was unable to fully investigate due to the mother's refusal to cooperate and closed its file.
[64] In December 2013 and into early 2014, the father complained to the Society because the mother was denying him access. He had not seen the children for 8 months. He also reported that the mother had assaulted him in the past.
[65] The Society had to commence a Protection Application because the mother refused to work with them. It did this on February 4, 2014. Once they did, at that stage, the Society determined that the children were well cared for. However, the Society verified adult conflict due to custody and access concerns. Only after the Society secured the mother's cooperation by starting a proceeding, it sought a withdrawal on February 24, 2014. This is the first example of the Court's intervention being required to secure the mother's cooperation.
[66] The father's report that the he had not had access for 8 months is consistent with the information in the initial domestic application. The father's access had been suspended by order of May 28, 2013 and the Order for access at an access center was not made until September 18, 2013. It is well known that there is often a delay in getting supervised access at a center started once an order is made and I accept the evidence that the father did not in fact see the children for 8 months. There is no credible evidence in the record to support an argument that the father's access was suspended due to any behaviours on his part.
[67] The next referral came on December 15, 2016. It was made by the father. After briefly describing his difficulty with access he reported that he tried to pick up the children at school on his access day. The mother showed up unexpectedly after school to bring cookies to the children and this led to conflict between the parties. The children were upset and did not know which parent to leave with, and so the father left to de-escalate the situation. After this, the mother began sending messages and was threatening to stop access again.
[68] The Society reached out to the mother and they spoke on the telephone on January 12, 2017. The mother refused to meet with the worker and said she would only talk to the worker at the upcoming court date in the domestic proceeding on March 7, 2017. During the call, the mother blamed the cookie incident on the father and then told the Society that he lives far away and the girls were hungry. I note that the father was at the school to pick the girls up on a day that was supposed to be his parenting time.
[69] The mother went on to recount another occasion during which the father apparently fed the children at the Eaton Center, after which one of the girls had a stomach ache as a result. She added that the father has bipolar disorder and that he creates drama if he doesn't get his way (elsewhere she told the Court he has schizophrenia and mild schizophrenia).
[70] After this call, the mother sent the father a letter suspending his access until they attend Court. The father brought this to the attention of the Society. Apparently the mother also told him the children could not eat watermelon, even though according to the father, the children are not allergic to it. He told the Society that the mother cancels access, but then resumes it when the judge is present. Again, this pattern is corroborated by my review of all of the evidence filed.
[71] Next, on January 23, 2017, the father reported that the mother cancelled access because the children were "violently ill". Apparently the children were not taken to the doctor.
[72] On January 23, 2017, an anonymous caller from the children's school telephoned the Children's Aid Society of Toronto. One of the children reported that the mother had hit her on her head. The child said that this happens to her sister as well, plus she reported that the mother squeezed her ear because she was angry that the child had vomited. According to the child, the mother's sister tried to stop the mother. The caller also reported that the mother brings the children to school late, but the father does not.
[73] On January 24, 2017, the Society worker spoke to the principal and teacher at the school as a result of an incident that occurred following the prior day's anonymous referral. Apparently, the teacher had warned the mother that she was going to call the Society about the school attendance and lateness issue. Then, the day after the January 23, 2017 referral, the mother and her sister went to the school. The mother was "extremely upset" and accused the teacher of committing a "criminal offence". She justified the lates and absences saying the children have eczema, sore teeth and they do not sleep well. It was on this date that the school reported that the mother had been coming to the school and feeding the children, which was not supposed to be happening.
[74] The Society worker tried to interview the children at school on January 26, 2017, but the children were not there. The worker was eventually able to interview the children on February 1, 2017 at school. During the interview, one child reported that her mother hits her on the head with a ruler, that her mother is "always hitting" and that her parents fight. The other child stated that her mother will "whack her" when she is mad. She gets hit on her leg and arm by her mother's hand.
[75] On February 1, 2017, the worker spoke with the mother. The mother was unhappy that the worker met with the children without consent. That same day, the mother called the school principal to complain. Then her sister called the principal to advise that they would be filing a complaint with the Ontario College of Teachers. On February 2, 2017, the principal reported that the mother came to the school and yelled at her, slammed her hand on the counter and yelled "shame on you". She then went into the teacher's classroom and one of the children said "shame on you too". She then de-enrolled the children from school.
[76] On February 7, 2017, the mother told the Society worker, again, that she would only meet the worker at court on March 7, 2017. The worker's evidence is that the mother deflected attempts to discuss the physical discipline, minimizing the concern saying that she may give them a "slap on the bottom, hand or leg" but does not "batter" the children. When the worker said that the Society would proceed to court to seek a supervision order, the mother said "Go for it".
[77] On or around February 14, 2017, the Society received a letter from the mother dated February 8, 2017 denying that she has ever hit the children with an object and saying that there are some "questionable circumstances around" the teacher who had recently spoken to the Society. She claimed that the teacher and principal had acknowledged their "disturbing behaviour" and had apologized to the mother, calling her a "great mother". In the letter, the mother went on to complain about the teacher's treatment of her own children based on information she said the teacher had shared with her.
[78] On February 23, 2017, the principal called the Society to advise that she and other administrators got a "strange e-mail" from Court Watch with a lengthy article about teachers and administrators and how they deal with the Society.
[79] Despite her earlier refusal to meet, after sending the letter, the mother eventually agreed to meet with the worker and this happened on February 23, 2017. The mother's sister was present. The mother told the worker that the children were being homeschooled. At this meeting, the mother said that she used a ruler only to threaten the children but denied hitting them with it. The sister questioned the worker about the law, asked questions about permissible discipline and referred to section 43 of the Criminal Code. The sister asked if the Society was going to be investigating the teacher.
[80] The mother offered absolutely no explanation in her evidence as to her justification for removing the children from school. Nor did she provide any evidence about what she did to "homeschool" the children after withdrawing them from school.
[81] The Society worker spoke to the children's pediatrician on March 6, 2017. He said the children are healthy with the exception of eczema but the mother has controlled it well.
[82] On March 9, 2017, the Society sent the aforementioned letter advising of its intention to close the file. This was filed with the Court for the May 23, 2017 motion. As set out above, Justice Cohen ordered that the father's access be re-instated on June 1, 2017.
[83] On July 11, 2017, the father called the Society to report that M.D. had a bruise under her eye, that M.D. said the mother had caused this, that he has a video of this statement that he took on June 23, 2017, and that he took M.D. to the doctor. A doctor from a walk in clinic later confirmed for the Society that the bruise was present.
[84] On July 11, 2017, the father noticed M.D. had a scratch under her left eye.
[85] On August 1, 2017, the father noticed that Z.D. had a purple bruise by her left eye. The girls initially said it happened at camp, but then they eventually said that their mother had hit Z.D., but it was a mistake. Z.D. reported that her mother told her to say someone else caused the bruise.
[86] When questioned by the worker, Z.D. said the mother hit her with her elbow, but it was an accident. The Society worker observed the father's home to be clean with no protection or safety concerns noted otherwise.
[87] On August 2, 2017, the mother admitted to the Society that she had caused the bruise but said that it was an accident. She and her sister then accused the worker of "siding with" the father and the sister accused the father of "abusing the system" and of "not being a consistent parent".
[88] It was the father noticing this bruise that led to the father overholding the girls and the mother filing motion materials. The mother's affidavit sworn August 3, 2017 was misleading. It reads that the father "unlawfully detained & refused to return/release children, until 911 intervention by police. For almost 5 hours, Respondent kept the children captive & refused to open the door to police. Respondent was briefly arrested by the police and subsequently let go."
[89] She went on to claim that when the children came back they told their mother that the father said they "would go on a vacation with the Respondent forever" and that he is a flight risk, an allegation she had made previously.
[90] She went on to say that she has no doubt that the Respondent "will abduct children, conceal and take the children away from Applicant mother's custody". She also told the Court that since the June 1, 2017 access order, the father had light a burning flame under the children's bottom, exposed them to smoke, and refused to adhere to the children's dietary requirements for eczema.
[91] Meanwhile, what appears to have transpired on August 2, 2017 was that the father was seeking the assistance of the Society after he discovered a bruise on one of the child's face, which mother admitted to having caused. He did not behave appropriately in overholding the children. But I am also mindful that this was not the first mark or bruise discovered and given the history of admitted physical discipline, I do not fault the father for being concerned. Incidentally, the evidence now in the record is that the father was not arrested.
[92] On August 3, 2017, the Society met with the mother and her sister. The mother had to be re-directed to focus on the current protection concerns and the worker encouraged her to talk to the father about the cause of the mark. The mother repetitively asked what the girls had eaten. The mother and her sister behaved aggressively. The sister yelled at the worker from a close distance. The worker had to terminate the meeting. None of this was told to the Court in affidavit evidence in the domestic proceeding.
[93] On September 7, 2017, the father reported to the Society that the children said that the mother and her sister had an explosive fight, that involved pushing, hitting and biting. Apparently what triggered the fight was that the mother had started hitting M.D., and the sister attempted to intervene. On another occasion, M.D. heard the aunt tell the mother "I'm going to smash your head on the ground" and the children said they were looking for a new place to live because of the conflict between their mother and their aunt.
[94] On September 8, 2017, Z.D. told the worker that her mother and aunt hit and push each other and that her mom bit her aunt's lip. Z.D. and M.D. have tried to intervene to tell the mother and her sister to stop on these occasions, but they don't listen and continue fighting. Z.D. also told the worker that she gets "hit on the bum" and that she does not always feel safe at her mother's home. She confirmed that her father does not hit her.
[95] M.D. described that during the fight between the mother and aunt, one of them was pushed against a table, there was a slap and the mother bit the sister on the lip. M.D. also stated that she and Z.D. tell the adults to stop. M.D. disclosed that her mother hits her, pinches her ear and squeezes her hand when she is not "focusing".
[96] The mother's evidence is that she and her sister are never violent. They occasionally have disagreements but they are careful not to argue in front of the children. I do not accept this denial based on my review of the evidence in its totality. Nor am I prepared to find that the father coached the children to make this disclosure as the mother has asked me to do.
[97] On September 13, 2017, the father reported that the mother sent a text message suspending his access.
[98] On October 16, 2017, two days before October 18, 2017 initial return date of this motion before Weagant J., the allegations in this case once again morphed into allegations of sexual abuse. The mother telephoned the Society to report that the children disclosed they saw the father "caress his pee pee". The mother claimed that the children had first told her this in August 2017, but she did not know what to do with the information and this was the children's second disclosure.
[99] The mother was not truthful to the Society about this timing. I do not accept the mother's say-so that she did not know what to do with such information back in August. Firstly, she had made this statement previously to the Court in the domestic proceeding, in reply to the father's materials, leading up to the May 23, 2017 motion. Also, by the time August 2017 came, there had been multiple contacts with the Society and all kinds of allegations made. I find it impossible to believe that the mother would not have told this to the Society had statements of this nature actually been made in August. Based on the record before me, I find that the mother timed her call to the Society to coincide with a pivotal upcoming court date.
[100] During her October 16, 2017 report to the Society, she went on to describe that the children allegedly said his penis goes long and short. She said the father pulls down his underwear and sticks out his bottom at the children and that he walks around naked. She also alleged that the father sticks coins in his bottom, lets them drop and then picks them up. Finally, she said that on the evening of October 15, 2017, M.D. started to cry when using the washroom because her father had put "burning oil" on her bottom.
[101] Meanwhile, on October 16, 2017, the father called the Society to report yet another incident of physical discipline. On Friday, October 13, 2017, when the father picked up the children, M.D. had a small wound on her nose and redness under her eye. She said that her mother had slapped her on the face really hard because she told her mother that she wanted to wear a school before.
[102] As a result of both sets of allegations, there was a joint police and Society investigation on October 16, 2017 at the children's new school. M.D. said that her mother told the girls to tell "what papa did with his pee pee". She went on to say that she had seen her father scratch his pee pee. Z.D. said "Mamma said to tell bad things that papa likes to do" and then said he shows "his areas and shakes it".
[103] While the interview did not verify the allegations of sexual abuse, it did verify the mother's physical discipline on the children. Both children went on to describe the physical discipline in the mother's home. M.S. said that her mother hit her really hard and there was a hand mark on her face that was red, but the mark went away the next day. She said that she and her sister are hit "lots of times". One time, the mother put tape on Z.D.'s mouth because she was crying.
[104] When Z.D. was asked about the physical discipline, Z.D. said that her mother did not want her to talk about that; she was supposed to talk about "papa sticking his hand in his pants". Z.D. said she gets hit on the head and that the mother stops when Z.D. puts up her hands to block the mother.
[105] In her affidavit filed in this proceeding, the mother denied the hitting on the face, and putting tape over Z.D.'s mouth.
[106] Following the joint interview, the mother was cautioned by the police officer to find alternate ways of disciplining the children. The mother claimed she is no longer hitting the children but did acknowledge that one time she hit one of the children on the face.
[107] Regarding the sexual abuse allegation, the police officer told the mother that the children's descriptions did not suggest anything sexual in nature. The mother then questioned the validity of the conclusion at least twice in the conversation. She and her sister continued to do so in conversations with the worker at court on October 18, 2017. She then called the Society again on October 19, 2017 to say for a third time that the conclusion doesn't make sense, and also to complain that the father is not applying cream to the children's skin.
[108] Later in October and continuing in November, the mother complained, again, about the father not applying moisturizer, about the food the father feeds the children, and that the children came home in dirty clothes. The latter is a complaint that she had made to Justice Cohen at the May 23, 2017 motion and that Cohen J. dealt with in her June 1 reasons.
[109] The father noticed more injuries on the children in November. The mother denies causing those injuries in her motion materials.
[110] On November 7, 2017, the father's access night, the father tried to pick the children up from school. Z.D. started crying and would not go with the father. The mother's sister arrived and would not allow him to take the children. The principal had to intervene. To de-escalate the situation, he allowed the children to leave with their aunt.
[111] On November 8, 2017, the mother told the Society that she had notified the father she was suspending access and she blamed the father for having caused conflict at the school.
[112] The Society later learned from the school that mother had pre-planned to take the children on the father's parenting time without notice to the father. She called the principal on the morning of November 7, 2017 to advise that her sister would be picking the children up. During the incident, the principal confirmed that the father to try to de-escalate the situation and calm the children, whereas the aunt was agitated.
[113] On November 8, 2017, the mother took the children to school late. The school principal said that they have been late "pretty much every day when [the mother] drops them off".
[114] It was after the November 7, 2017 incident that the father decided to have supervised access. He told the Society he did not want to put the children through countless allegations.
[115] On November 17, 2017, the worker interviewed the children at the mother's home. During the visit, the children now said they get a "time out" when they get in trouble. M.D. tried to tell the worker that "other things" happen, but then when asked a follow up question, M.D. said she wanted to talk about something else. During this interview, mother said that the children cannot eat certain foods. She was not specific but claimed to have given the father a list of prohibited foods.
[116] The worker told the mother it would be helpful for her to attend a parenting program, but the mother said she no longer hits the children. That was in the past. She has repeated this statement in her affidavit sworn January 8, 2018, and she has both minimized the discipline that she used, and stated it was done in the past. In her affidavit sworn January 8, 2018, she states that she would "tap" the children on the "buttocks, thigh or hand" on an infrequent basis but she has not done this since early 2017.
[117] The father's first supervised access visit at the Society's office was on December 7, 2017. The mother engaged in conflict with the father in the presence of the children about the food that he brought. The visit began by the mother questioning the father about what food he had brought for the children. When the father said that he brought healthy snacks, the mother took one child by the hand as if she was leaving. She raised her voice and said that the father was not ready for his access and that his behaviour was "typical". This happened in the presence of the children.
[118] The mother continued to follow the father on his way to the access room and argued about food. The worker had to intervene but the mother refused to leave. The worker threatened to call security after telling the mother to leave three times. After this escalation, the mother eventually went to the lobby and made a call on her cell phone.
[119] The Society worker observed the father take out apples, bananas, juice boxes and a cookie. Z.D. then ran out to her mother in the lobby to tell the mother what food the father brought. M.D. told the worker that they are not allowed to have juice because it does not have an "O" on it for "organic". M.D. also pointed to her teeth and said that the mother does not allow juice. So the father then tried to take the children down to the food court. On the way, Z.D. said that McDonald's wasn't allowed. The children also told the father he should not be rude to their mother. They also asked the father why he did not wipe M.D., put cream on them and why he gave Z.D. peanut butter.
[120] Later during the visit, Z.D. said that she does not want the father to pick her up at school when the aunt is there. They also asked their father why they cannot travel but only he can travel. The children said that this is what he told the "lady". The worker says she does not understand this reference.
[121] The Court does understand it.
[122] This statement was made days after the father withheld his consent to travel in an email to mother's counsel. I draw an inference that the mother shared details of that dispute with the children.
[123] At the end of the visit, the children wanted to stay longer. The mother asked them what they ate and the children said they got food at a restaurant. The mother said "let's go see this restaurant you ate at".
[124] On December 13, 2017, the Society worker spoke to the school principal again. Apparently, the mother now had told the school principal that there is a possibility the father will be having supervised access for the children. So the principal asked for a court document but did not get one. Given the absence of a document to this effect, the principal allowed the father to go on a field trip. The mother then sent a lengthy email to the school expressing her displeasure about this. The principal otherwise reported that the children continue to attend school late on a regular basis.
[125] Finally, the father included in the Continuing Record a DVD containing an audio recording and some videos. I advised the parties that I had not reviewed it prior to hearing the motion. At the motion, I heard an objection respecting its admissibility. I address this below.
PART VI: CONTEXT
[126] I have difficulty with the submission that I should find the mother's conduct to be reasonable, or at least understandable in light of the prior proceedings.
[127] In her affidavit sworn January 8, 2018, the mother attempts to explain what was transpiring when the orders were made in the first round of the proceedings (between 2012 and 2016). She claims to have been awarded sole custody based on her "primary caregiver status and the level of conflict". She says that supervised access did not go well, and that she became aware in 2009 that the father was diagnosed with schizophrenia. According to her, she is currently unaware of how his condition is being managed and whether he is taking any prescribed medication.
[128] In his materials filed for the current motion, the father responded, set out various difficulties respecting his access and the mother's conduct, and he summarized his view of what was transpiring between the parties during the same time frame.
[129] The orders made in the first round of the proceedings were achieved in conferences. Among other things, the case conference system is designed to narrow issues in the litigation. Litigants are encouraged to compromise and settle issues. I am not prepared to draw any inferences from the orders made in the domestic proceedings during the first round of the proceedings, nor to interpret the evidence now through a certain lens based on prior orders made, to conclude that the father is the problem, as the mother has asked.
[130] More specifically, it is impossible to determine at this stage why the father was ordered to have supervised access in 2013, nor why his access was suspended, nor why he was ordered to attend a parenting course. It could be because this is what the parties agreed to, or there could be more to it. It could be because there was then a problem that then needed to be addressed. It could be that the child was young and the father was an inexperienced parent. It could be that the mother suspended his access and he acquiesced. It could even be that he chose to suspend his access for some conflict based reason, as he has done recently following the sexual abuse allegations.
[131] What is clear is that for a considerable period of time in the first round of proceedings, the parties represented to the Court that access worked well. Despite the mother's stated concerns about the father's mental health, the severity of which varies in the mother's various court documents she filed over time, she consented, without a court attendance, to the father having unsupervised access for a considerable period of time and she agreed to lengthy adjournments.
[132] In any event, the state of affairs between the parties during the first round of proceeding is dated information that does not materially assist to address the current concerns before the Court. The hindsight evidence from the parties filed now to explain the bases of the Orders is not particularly helpful.
[133] Regarding the Motion to Change, again with hindsight the mother says that she agreed to overnight access on November 8, 2016 but then the father's behaviour became erratic and his allegations have not been substantiated.
[134] Unlike the first round of proceedings, the parties did file some evidence in the Motion to Change. There was one hotly contested motion heard May 23, 2017 plus the August overholding motion.
[135] Regarding the May 23, 2017 motion, Justice Cohen made findings based on the record before her. I do appreciate that the Court made an adverse comment about the father's conduct in August of 2017 after he overheld the children. As I have said above, while the father may have felt he had reasons for this, he did not act appropriately. However, while prior compliance with Court orders is a factor to consider, it is not the only or even the predominant factor that I must consider now. While I in no way wish to sanction what the father did, the record before Murray J. and Nevins J. was not as complete as it is now, and the landscape of this case has changed. Moreover, I find it disingenuous for the mother to refer to this in a vacuum, when there is ample evidence that she did the same thing herself on a number of occasions.
[136] Because of the mother's context argument, I found it necessary to set out the prior proceedings and the evidence in considerable detail. However, my overall assessment of the evidence in its totality is that each party has acted and reacted to events as they unfolded. That said, there is a considerable amount of credible and trustworthy evidence that confirms the concerns raised by the father and the Society at this stage and I base my decision on that evidence.
PART VII: ANALYSIS AND ADDITIONAL FINDINGS
A. The DVD Submitted by the Father
[137] At the outset of submissions, I inquired whether there was an objection to the Court receiving the father's videos. The mother did object.
[138] Each of the father and the mother gave me his and her version as to what the DVD contains. The father explained that his DVD contains a video of the children's aunt "shoving" one of the girls into his arms and then attacking his mother who had been filming an access visit. He explained that another video on the DVD depicts the mother being "abusive" when feeding one of the children. A third video is of him questioning the children after he noticed a bruise for the third time on one child's face within a 6 week period. He told me he was becoming desperate seeing the bruises, and so he sat down with the children but first turned on the recording function on his cell phone. Finally, he said there is an audio recording on the DVD as well that relates to the sexual abuse allegations. He said the audio recording confirms the mother told the child to make up the allegation.
[139] Mother objected to my receipt of the DVD. She argued the recordings are not authenticated and the video is not credible and trustworthy. She further argued its prejudicial effect outweighs its probative value. Alternatively, if the Court decides to review the videos, then mother argues that the videos are evidence of coaching. Mother submitted that the father asks numerous questions of the children (47 questions in one video and 29 questions in another), his questions are of a leading nature, he threatens to take away the children's ice cream if they lie, and he can be seen whispering to the children, after which a child said that the mother hit her in the face.
[140] The Society did not make any submissions respecting the admissibility of the DVD. The Society does not rely on the DVD and argues that the Court can grant the orders sought based on the other evidence filed. It does however ask that I make an order prohibiting further taping.
[141] At ¶42-50 of Webster v. Suteu, 2015 ONCJ 538, Justice Zisman considered the admissibility of photographs and a video. She referred to Rodger v. Strop, 1992 CarswellOnt 386 (Gen. Div.), in which the Court held that for photographs to be admitted into evidence, they must accurately depict facts, there must be an absence of an intention to mislead and they have to be verified by the photographer. While Rodger v. Strop concerns photographs only, Zisman J. held that the same test applies respecting video recordings.
[142] I agree with the mother that the videos and the audio recording are not authenticated according to this test. The father filed insufficient evidence to explain how the recordings were made, to explain the context surrounding the recordings, or to persuade the Court as to their accuracy. I do not have evidence that the recordings depict the entire sequence of events, or by contrast to explain whether they are only a snippet of a larger conversation or occurrence, in which case, there would been to be some explanation as to why the father opted to include only a snippet.
[143] My decision to not admit the recordings at this stage notwithstanding, I wish to provide some guidance to the parties, and to provide a caution concerning the recordings. The caution is directed at the father in particular since he was the parent who made the recordings.
[144] This Court has commented on the propriety of recordings in family law cases on a number of occasions.
[145] For example, at ¶ 11 of Hameed v. Hameed, 2006 ONCJ 274, Justice Sherr said:
Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.
[146] Sherr J. went on to state at ¶ 13 that the Court, in deciding whether to admit such evidence, will need to weigh the policy considerations against its probative value. The party seeking its admission, in this case the father, will need to establish a compelling reason for doing so.
[147] Sherr J.'s comments related to a surreptitious recording of the other parent. Recordings of children may be subject to even higher scrutiny depending on context. Concerning the recording of children, Zisman J. dealt with that in Webster v. Suteu. At ¶ 50 of Webster v. Suteu, albeit in a slightly different factual context, Zisman J. said:
The photographing and videoing of children for court purposes is troublesome. What message does a child receive when after each visit with the other parent he is examined and photographed? What message does a child receive when instead of comforting him, his parent videos him crying or having a tantrum? The mother is this case was cautioned about taking photographs of the child by SCAN and continued to take such photographs on many occasions. I find that this evidence is not helpful for the purpose tendered by the mother but does reflect on the mother's inability to put the child's needs ahead of her own need to discredit the father.
[148] Despite these comments, there is not an absolute exclusionary rule when it comes to recordings; the Court retains discretion. In Sordi v. Sordi, 2011 ONCA 665, the Court of Appeal stated that a trial judge has broad discretion to decide whether to admit recordings into evidence. To do so, however, there must be a proper consideration of the "sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings" and an "assessment of the probative value of the tapes in relation to the issues" before the Court.
[149] In A.F. v. B.J.A., 2017 ONCJ 108, Justice Melanie Sager admitted recordings into evidence, at trial, for various reasons. Sager J. thoroughly canvassed the law in this area, and referred to two decisions in which recordings of a child were admitted, the child's best interests and the need to get to the truth being important considerations that drove the result.
[150] With the exception of Hameed, the cases that I have referred to in this decision were trial decisions (and an appeal of a trial decision). Even though the matter before me is an interim motion on affidavit evidence, the parties could have asked the Court to hear a full voir dire with viva voce evidence. I was not asked to proceed in this fashion and heard submissions only concerning admissibility based on the affidavit evidence before me.
[151] I decline to admit the videos at this stage. I strongly encourage the father to read the cases I have referred to, to proceed very cautiously and to reflect on the wisdom of recording the children. That said, this ruling is without prejudice to the trial judge to consider the admissibility on a proper evidentiary record with full argument about both the technical requirements for admissibility and full argument about prejudice versus probative value.
[152] In the meantime, given the strong policy discouraging taping, I agree with the Society that neither parent should be taping the children. I intend to make an order prohibiting further taping pending trial. If either party seeks to tender the recordings that already exist at trial, he or she is free to do so provided they follow the proper procedure. Either party is free to make whatever arguments he or she sees fit about what the Court should make of these recordings, if admitted.
B. The Mother's Argument that She is Not Engaging in a Campaign of Alienation
[153] The mother referred the Court to X. v. Y., 2016 ONSC 545. In this case, commencing at ¶ 103, Trimble J. refers to Parental Alienation as a "child's complete rejection of a parent and uncritical favouring of the other, without justification". The Court goes on to refer to 8 indicia of alienation and a number of "alienating behaviours common in alienation cases".
[154] The mother argues that the Society has failed to point to any credible and trustworthy evidence that she is engaging in a campaign of alienation and thus the Society's motion must fail. As I said above, the Court's focus is not restricted to whether or not there is parental alienation in this case. Rather, the two part test is whether the Society has established, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the children remain with the mother, it is more probable than not that they will suffer harm. Further, the Society must establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. The likely risk of harm analysis is undertaken with reference to all the grounds that are raised in the Society's Application.
[155] In high conflict cases, the "gold standard" approach is for the Court to intervene at the earliest opportunity before things get worse, and for a single judge to case manage the matter. See D.G. v. A.F., 2015 ONCA 290. This Court is not required to wait to intervene until there is evidence of the incidica alienation. The fact that the children are not alienated yet from their father is a good thing. The question for the Court is what level of intervention, if any, is required, based on the credible and trustworthy evidence before it now, and according the applicable legal test under the Act.
C. The Credible and Trustworthy Evidence of Likely Risk of Harm
[156] I find that the following amounts to credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the children remain with the mother, it is more probable than not that they will suffer physical and emotional harm:
(1) Risk of Physical Harm
(a) There is ample evidence that the mother has used inappropriate physical discipline on the children. This includes hitting, slapping, "whacking", squeezing, ear pulling, and the use of an object to hit Z.D. on the head. I do not accept that the father has coached the children to make these disclosures. I am not just relying on the father's say-so. The children's disclosures have been numerous and have been made to school staff, to the police and to the Society. I note that the mother has admitted to using physical discipline and I find she has downplayed it;
(b) I am not comforted by the mother's statement that she is no longer using physical discipline and that this will not happen in the future. She has refused the Society's suggestion that she attend a parenting course and she has given no evidence about what she had done to educate herself about appropriate discipline techniques. I note that even after she was cautioned by the police, she still did not take any steps;
(c) There are instances where the father has noticed bruising on the children. On one occasion, it was documented by a doctor at a walk-in clinic. On one occasion, the mother has admitted that she caused the bruise, but said it was an accident. While I am hesitant to make findings that the cause of the bruising was deliberate at this stage, the multiple instances of noticed bruising is concerning when considered in the context of the acknowledged physical discipline being used in the mother's home;
(d) I am concerned about one child's statement made during the joint police and CAS interview that the mother did not want her to talk about the physical discipline. This is evidence that the mother is telling the children to conceal what is happening in the home. This places the children at risk in that if the discipline continues, it may not be disclosed;
(2) Risk of Both Physical Harm and Emotional Harm
(a) I find the children's reports that their mother and aunt have had explosive fights in their presence to be concerning. The children have been exposed to this violence at a young age and have tried to intervene. I do not find the mother's denial that it happened to be credible;
(b) The sexual abuse allegations are very alarming. The evidence is clear that the children were coached by the mother to make these complaints about their father. She was not truthful to the Society about the timing of the purported children's statements. For the reasons I have explained above, I do not accept that the children made a report in August 2017 but that the mother did not know what to do. I find that the mother timed the complaint to occur two days before an important Court date in this proceeding in October 2017;
(c) Alternatively, even if the children made the statements and she believed the allegations to be true, I find that her refusal to accept the outcome of the investigation to be highly problematic. I accept the father's concern that he may be exposed to future complaints that could jeopardize his relationship with the children if they remain in the mother's care. The children should not be put through further investigations unnecessarily;
(3) Risk of Emotional Harm
(a) It is evident that the parents dislike each other. But the mother has been vitriolic towards the father in her Court documents. The children are well aware of the conflict between the parents and they have been exposed to it;
(b) The mother has made a number of complaints about the father's temper and mental health, with little to no evidence to support it. At times, the allegations became more extreme in her reply court documents. This was done in an attempt by the mother to have the Court restrict the father's parenting time;
(c) The mother has made complaints about the father at strategic times during the prior proceedings. While the father has made complaints too, I find that the father's complaints have been triggered by events happening on the ground, such as the his access getting cancelled or his observation of bruises and marks on the children;
(d) The mother has been retaliatory towards the father to the detriment of the children's relationship with the father. She has suspended the father's access multiple times in contravention of court orders following arguments or contacts with the Society;
(e) There is no question that the children are actively exposed to the parental conflict. While both parties have participated in it, I am troubled by the fact that the mother or her sister have attended at the children's school, at least twice to pick up the children on the father's access days, and this spiraled into conflict and upset the children. There is objective evidence that the mother's and her sister's behaviour was problematic on these instances, not the father's;
(f) There is a considerable amount of statements in the material before the Court about the children's health needs but much of it is vague and not corroborated. The mother's evidence is that the children were diagnosed with eczema from an early age, with Z.D.'s condition being more severe. The mother says she treats the children with daily moisturizing treatments and a restricted diet. She offered no objective evidence of the dietary restrictions nor did she even tell the Court specifically what they can and cannot eat. She filed a medical note that M.D. may have recently had an allergic reaction to Chinese food. As set out above, the Society worker experienced the same lack of specifics when talking to the mother;
(g) There is no objective evidence that the father has not, or cannot address the children's skin care and dietary needs. Yet the allegations that the father is unable or unwilling to respect the children's health needs have become the subject of a number of complaints. The children are aware of the purported issue and they have become involved in monitoring the father's parenting and what food he provides them;
(h) Even at a recent supervised access visit, the mother has not been able to control her reactions concerning this issue. At the December 7, 2017 supervised access visit, the Society had to get security involved over a food dispute. Even if the mother was legitimately of the view that the children could not eat an apple, bananas, a cookie and organic juice, that could have been managed in a much more functional and mature way, such as by way of a calm, adult conversation. Instead, the situation exploded and dysfunction ensued;
(i) The children are well aware of the mother's position about their dietary needs and her view that the father is incompetent, and they get involved in tattling on their father. After the December 7, 2017 visit, the mother even went so far as to announce she was taking the children to investigate which restaurant they ate at with him during their visit that just ended;
(j) Incidentally, I note that there is evidence that the father spoke to the children's doctor, Dr. Ho, directly about the children's health needs. He took the responsible step of trying to educate himself;
(4) Risk relating to Neglect
(a) The children's school records reveal that by December 13, 2017 this year, the children missed 21 days of school and were late 34 times. The lates are not trivial lates of a few minutes that happen infrequently; they are significant. The recorded reasons in the school record for the lates and absences are typically "illness", "doctor's appointments", "late no reason", "appointments", "slept in" (one time only), and "weather related problems". Of the documented reasons, illness is the most frequently stated reason. I counted 18 reported illnesses. I was not given medical evidence that confirmed the children were actually sick;
(b) Lates and absences were reported by the school in both the 2016-2017 and the 2017-2018 school years;
(c) The mother's explanation, relating to the current school year, is that there is no school transportation available and the children must commute on the TTC for 40-50 minutes. She admits to having some difficulty getting the children to school on time, and says that this is sometimes due to subway delays and poor weather. She cannot afford a car and blames this in part on the father's "basic" child support payments;
(d) I do not accept this explanation. This is another example of the mother minimizing a major issue. Significantly, the children's previous school was much closer to the mother's residence (approximately a 15 minute walk), and the same problem was present last year. The mother then withdrew the children from that school and put them in a school that she says is farther away and now refers to the distance as part of the problem;
(e) It is not contested that the mother withdrew the children from their prior school in early 2017 after school staff made a referral to the Society. I am concerned about this and this is evidence of her withdrawing the children from the ambit of outside monitoring when a problem is brought to light. While she said she homeschooled the children after that, there is no specific evidence regarding what home school work the children did under their mother's instruction. Even though the children are in kindergarten only, this pattern cannot continue. Withdrawing children from school is also harmful to the children's education and development; and
(f) I also accept the Society's evidence that the mother and her sister have behaved aggressively towards school staff. I have no confidence that she would not have another angry outburst or pull the children out of school again, in the future, if there is a problem that she perceives or if there are run-ins with the new school.
D. Whether the Children Can Be Adequately Protected by An Interim Supervision Order and the Duty to Provide Services
[157] At ¶41 of Catholic Children's Aid Society of Toronto v. L.D.E., 2012 ONCJ 530, Justice Jones emphasized the importance of a parent's ability to work honestly and cooperatively with the Society and other helping professionals. She held that there must be sufficient trust between the Society and the mother for a genuine therapeutic alliance to be formed or for there to be a successful outcome.
[158] In Catholic Children's Aid Society of Toronto v. T.M. and P.R., 2016 ONCJ, Curtis J. made similar comments at ¶115-117:
[115] One option is to place the child with the mother, subject to a supervision order. Any plan for the placement of the child with the mother would involve a supervision order, at least initially. The efficacy of a supervision order rests on the compliance of the person being supervised, and the ability of the supervising agency (and therefore, the court) to monitor compliance. Much of the information relied upon by the agency during a supervision order is self-reported. Trust between the agency and the person supervised (and therefore, the court) is an essential element of a supervision order.
[116] The court must then ask: has the mother taken the necessary steps to establish that her behaviour has sufficiently changed so that a supervision order could adequately protect the children from any risk of harm?
[117] In order for a supervision order to be a meaningful and effective instrument of risk management, the parent subject to the supervision order must meet a minimum threshold of co-operation, and reliability. The effectiveness of a supervision order is dependent on the supervised parent's compliance with the terms of the order, as well as on the supervising agency's ability to monitor that parent's compliance. If the parent fails to meet this minimum threshold of compliance, a supervision order cannot be an effective option to protect the child from possible harm.
[159] While these comments were made in the context of a supervision order under section 57(1) of the Act, their logic equally applies to interim supervision orders.
[160] The mother relies on section 15(3) of the Act and the decision of Justice Roselyn Zisman in Children's Aid Society for the Region of Halton v. R.R.N. and D.W.B., 2008 ONCJ 95, to argue that the Society did not meet its duty to provide services. Therefore, the mother says that the order sought to remove the children from their mother's care on a temporary basis is not the least disruptive and cannot be made.
[161] Pursuant to section 15(3) of the Act, the functions of a children's aid society include to "provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of services". However, Justice Zisman's decision in Children's Aid Society for the Region of Halton v. R.R.N. and D.W.B. was a trial decision. It is correct that Justice Zisman did consider whether the Society met its duties pursuant to section 15(3), but she did this as part of the Court's obligation to make such inquiries pursuant to section 57(2) of the Act prior to making a disposition order under section 57 or 57.1.
[162] This case is only at the temporary care and custody stage. There has been no finding that the children are in need of protection and the Court is not making a disposition order right now. Children's Aid Society for the Region of Halton v. R.R.N. and D.W.B. is not squarely on point.
[163] That said, I accept that similar principles can apply on an interim basis, but they apply differently. The level of services the Society did or did not provide, and the reasons for the provision of services or the failure to provide services, can be relevant considerations when assessing whether the risk test has been met under section 51(2). For example, if the risk of harm might be mitigated through counselling that has not been offered and tried such that the children can be adequately protected by terms of conditions of an interim supervision order, then an order under section 51(2)(b) will be appropriate over an order under section 51(2)(c).
[164] In this case however, I am neither prepared to find that the Society failed to discharge its duty under section 15(3) of the Act nor that an order under section 51(2)(a) or (b) is appropriate.
[165] There is a well-established pattern of the mother refusing to work with the Society, and this includes a refusal to accept services. The mother boldly argued that the Society did "nothing" to assist the family, in light of the following evidence, which I find the Society has established at this stage on this motion:
(a) The mother complained about the public health nurse when the public health nurse expressed concerns about her care of the twins when newborns;
(b) The mother refused to cooperate with a child protection investigation in 2013 and 2014, leading the Society to commence proceedings;
(c) The mother refused to meet with the Society worker in 2017 except at Court in March 2017;
(d) The mother asked the Court to ban the Society from meeting the children at their school without her advance consent in the motion heard on May 23, 2017 in the Motion to Change;
(e) The mother withdrew the children from their former school after school staff made a referral to the Society;
(f) The mother complained about the children's former teacher after the aforementioned referral was made;
(g) The mother and her sister have exploded at school staff and the Society worker;
(h) The mother told the OCL that its services were no longer needed after the Court appointed it in the Motion to Change;
(i) The mother opposed most of the interim conditions sought by the Society when this matter first came before Weagant J. on October 18, 2018. This included the requirement of counselling that could have been underway by now;
(j) There is no evidence that the mother took any steps to educate herself about appropriate discipline following the caution from the police after the joint police and Society investigation;
(k) The mother refused the Society worker's suggestion of counselling in November 2017, stating that physical discipline is no longer an issue; and
(l) The mother has continued to oppose any conditions when this matter came before me on January 25, 2018.
[166] There is ample evidence in the record for me to find at this stage of the case that the mother lacks insight into these issues. There is also ample evidence that the mother does not have a good working relationship of trust with the Society. In her affidavit she was critical of the manner in which the Society brought this motion, without acknowledging her significant role in the problems facing this family. Counselling and programming are clearly required in this case. I cannot conclude that the mother will engage in therapy with an open mind if the Court were to order that the status quo respecting the children's placement continue. The children are at risk if the status quo remains in place because she has not demonstrated a willingness to work with the Society or accept feedback in the past. Rather, when she has been challenged by the father, the Society or other third parties with concerns respecting her parenting, she has reacted very adversely.
[167] In order for a supervision order to work, in addition to trust, there has to be evidence of a healthy respect for Court orders, which is also lacking in this case. Consequently, I am unable to find that the children will be adequately protected in the mother's temporary care under the terms of an interim supervision order.
[168] In terms of the Society's obligation to provide services, the Society does not have an obligation to force services upon a family where they are not welcome or unlikely to be successful. See the decision of Justice Wildman in Children's Aid Society of the County of Simcoe v. M.S., [2006] O.J. No. 6322 at ¶ 364. Furthermore, the fact that the mother has denied or minimized problems is also a relevant factor in assessing the Society's efforts to provide services. For example, query the utility of counselling and programming until the mother is prepared to accept and implement feedback.
[169] I find that the Society has tried to assist the family before taking the step of changing its position and amending its motion, and that its efforts to date were reasonable on the facts of this case. Even if I had found that the Society did nothing as the mother argued, the facts of this case are such that the Court would still be required to intervene under section 51(2)(c) of the Act.
[170] It is my hope that the mother will take the Court's comments seriously, appreciate the gravity of the situation and that she will engage in the services that I am ordering.
E. Statement of the Parties' Plans and the Mother's Access
[171] In accordance with section 53(1) of the Act, I have considered the plans before the Court. For the reasons set out above, I am not prepared to place the children with their mother on a temporary basis.
[172] The father lives in a studio apartment that is 20 minutes from the children's school. He told the Court that if the children are placed with him on a temporary basis, he will find larger accommodations in a timely fashion and I accept that he will do so. In the meantime, the children can reside with him in his existing apartment. They have already had overnight access with him there.
[173] In 2016, the Court made a finding that his income is $50,000 and ordered child support based on that. I accept that he has the financial resources to secure larger premises. He has a flexible work schedule and is eligible for paid leave at 95% of his salary for many weeks, with his employment benefits continuing for himself and the children.
[174] I am satisfied by the evidence that he is able to parent the children and he will get them to school on time. There are no concerns about his ability to take the children to school. He has had overnights during the mid-week already and he has demonstrated this to the Court.
[175] Although the mother changed the children's schools last year, the father does not intend to change the children's school again. Rather, he will try to move his residence closer to their current school if possible. This is a responsible plan.
F. The Mother's Access
[176] I am making an order for supervised access pursuant to section 58 of the Act and I am ordering a number of conditions. The expectation is that the mother will comply with the conditions and cooperate with the Society. The mother will need to demonstrate some progress in programming to learn about the impact of the conflict on the children, to learn about the importance of their relationship with the father, to learn not only about the obvious physical impact of the discipline she has employed, but also the possible emotional harm, and to learn about non-physical discipline techniques.
[177] I am concerned that in the absence of supervision that the children will continue to be exposed to inappropriate comments by the mother, continued allegations, possible investigations and possibly ongoing physical discipline. I find that supervised access is in necessary and in the best interests of the children at this stage.
[178] That said, I am also mindful that this change will be disruptive to the children. The Society should take steps to set up appropriate access arrangements quickly. But I intend to monitor its progress and if there are any problems with access the matter should be brought to my attention promptly.
PART VIII: ORDER
[179] I make the following orders:
(a) Commencing immediately, the children, M.D. and Z.D. shall be placed in the temporary care and custody of their father, A.Z.;
(b) The mother shall not attend at the children's school or elsewhere where the children may be. This Order shall be provided to the children's school and the school is directed to only release the children to the father or to another person that he may designate;
(c) Any police force in Canada having jurisdiction in an area where it appears that the children may be is directed to locate, apprehend and deliver the children to the father. This is subject to further Court Order;
(d) Commencing February 9, 2018, access between the children and their mother shall be supervised at the Society's discretion. The Society should ensure that the mother sees the children regularly (at least weekly and possibly twice a week), but it has discretion as to the location and duration of the visits, and this shall also take into consideration the wishes of the children. If significant issues or incidents arise with respect to the access, then the matter should be brought to my attention promptly;
(e) This temporary order is subject to the following terms and conditions:
(f) The mother shall provide the father with the children's passports, birth certificates, health cards and other government issued ID;
(g) The father is permitted to travel with the children out of Ontario for holidays without the mother's consent. He shall not change the children's residence from the Greater Toronto Area. He shall keep the Society informed of the details of any trips he intends to take. The father should not plan trips with the children that interfere with any of the programming required by this Order without first discussing it with the Society and securing the Society's approval or a court order;
(h) The father shall arrange a meeting with the children's pediatrician and any other treating health care professionals as soon as he is able, to obtain direction regarding the management and treatment of the children's skin care and regarding any dietary restrictions they may have;
(i) The father shall ensure that the children are not exposed to any inappropriate adult conflict;
(j) The father shall ensure that the children attend counselling programs recommended by the Society to address the impact of being exposed to adult conflict;
(k) The father shall attend for reasonable services as recommended by the Society;
(l) The father shall sign consents to the release of information in relation to the children's school, day-care, family physician and other collaterals as requested by the Society;
(m) The father shall allow the Society workers to conduct both announced and unannounced home visits and shall allow the Society workers to meet private with the children as and where requested;
(n) The mother shall participate in counselling as recommended by the Society to improve her coping and communication strategies and shall follow through with any recommendations made by the counsellor;
(o) The counsellor shall be given a copy of these reasons and the counselling should focus on teaching the mother the importance of the children's relationship with the father and the impact of parent conflict on children;
(p) The counsellor shall be directed to provide updates to the Society, to the father and to the Court regarding the mother's progress in counselling;
(q) The mother shall take a parenting course recommended by the Society to learn about child development and positive parenting discipline and she shall follow through with any reasonable recommendations made by the program facilitator(s). The program facilitator is directed to report to the Society, to the father and to the Court about the mother's progress;
(r) Neither parent shall engage in arguments or disputes in the presence of the children;
(s) The parents shall refrain from speaking negatively about each other to the children or in the presence of the children;
(t) Neither parent shall take audio or video recordings or photographs of the children for the purposes of getting a disclosure from the children and neither parent shall record the other without the express consent of that parent;
(u) The issue of whether the parents shall attend counselling together shall be reviewed after feedback from the mother's counsellor is obtained;
(v) Both parents are ordered to work cooperatively with the Society worker(s) and provide updated contact information at least 48 hours prior to any changes occurring; and
(w) There shall be an order made in the domestic proceeding terminating all orders for child support and special or extraordinary expenses on a temporary basis. How the issue of child support from the mother to the father will be dealt with may be spoken to at the next appearance in the domestic proceeding.
[180] The Society asked for an order that the mother undergo an assessment. I am not ruling on that request. I require further submissions as to the type of the assessment and whether there should be a parenting capacity assessment in this case.
[181] The next Court date and the purpose of it shall be set by the Court at today's attendance.
Released: February 2, 2018
Signed: Justice Alex Finlayson