WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87(8) Prohibition re 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.

87(9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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.

ONTARIO COURT OF JUSTICE

Date: July 19, 2019

Court File No.: CFO-16-14711 A1

BETWEEN:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

Applicant

— AND —

T.T.L.

Respondent

— AND —

S.S.

Respondent

Before: Justice Alex Finlayson

Heard on: December 7, 10, 11, 13 and 14, 2018, March 14 and 15, 2019, and April 8, 2019

Reasons for Judgment released on: July 19, 2019

Counsel:

• Chris Andrikakis — counsel for the applicant society
• Evan Chang — counsel for the respondent, T.T.L.
• Colin Tobias — counsel for the respondent, S.S.
• Sarah Clarke — counsel for the Office of the Children's Lawyer, legal representative for the child, C.S.

ALEX FINLAYSON J.:

PART I: NATURE OF THIS TRIAL

[1] The Applicant in this proceeding is the Catholic Children's Aid Society of Toronto (the "Society").

[2] The Respondent mother, T.T.L., has three children, J.L., R.L. and C.S.

[3] The Respondent, S.S., is the father of only C.S.

[4] C.S. is 8 years old. She is not First Nations, Inuk or Métis.

[5] With the exception of a brief period during this trial, C.S. had been in her mother's care prior to, and throughout this proceeding.

[6] The principal issue before the Court is whether the father should have some form of access to C.S., pursuant to sections 74(3) and 104 of the Child, Youth and Family Services Act, 2017 S.O. 2017, c. 14, Sch. 1 (the "CYFSA"). J.L. and R.L. are not subject to this proceeding.

[7] On May 7 and 8, 2018, I heard the Society's summary judgment motion respecting the issues in this case. At the summary judgment motion, the Society sought a finding that C.S. is in need of protection, a supervision order with C.S. remaining in her mother's care on certain terms and conditions, and an order that there not be any access between the father and C.S.

[8] On June 13, 2018, I released my Judgment on that motion. With the consent the Society and the mother, and not opposed by either the Children's Lawyer or the father, I made the statutory findings pursuant to section 90(2) of the CYFSA, I found C.S. in need of protection pursuant to sections 74(2)(b)(i) and 74(2)(n), and I granted the 6 month supervision order that the Society was seeking. I did not grant the Society's motion that there be no access between the father and C.S. Instead, I directed this trial to proceed before me. I also made findings of fact in accordance with Rule 16(9) of the Family Law Rules that apply at this trial. (See Catholic Children's Aid Society of Toronto v. T.T.L., 2018 ONCJ 403).

[9] As set out in ¶ 225(f) of that Judgement, the issues for this trial are:

(a) to determine whether access between C.S. and her father is in C.S.' best interests;

(b) to determine under what circumstances the mother left Quebec following the Order of Justice Christiane Alary of the Quebec Superior Court dated June 7, 2016, which granted the father supervised access, subject to a review;

(c) to determine what access schedule and what terms should be ordered if this Court determines that access is in C.S.' best interests;

(d) to determine what the impact would be on the mother's ability to parent C.S. if access is ordered;

(e) to determine what conditions of access or services, if any, can be put into place to address any concerns about mother's mental health;

(f) to determine what insight, if any, the father has gained into his conduct towards the mother; and

(g) to determine what conditions or services, if any, including counselling should be required as either a pre-condition to access, or to support the father's access to the child.

[10] The Society's position was not entirely consistent throughout the trial. In its opening trial statement, the Society took the position that there should be no access between the father and the child "at all". Later on in the opening, counsel used the term "at this point" when talking about the no access order it sought. Meanwhile, the Society also said it was open to the idea that circumstances might change in the future.

[11] The Children's Lawyer took the position that there should be no access between the father and the child "at this time".

[12] By the end of the trial, each conceded to some degree that the Court should order terms and conditions as part of a no access order, as there is a now a Status Review proceeding of the supervision order ongoing, and in it, the issue of a pathway to move forward will have to be addressed. Yet neither advanced much of a concrete plan. Other than some suggestions about compelling the removal of what has been put up online by the parents, their suggestions about next steps were fairly general in nature. In reply submissions, the Society changed its position arguing that terms and conditions would not be productive but that the Court could make "suggestions" about what it would like to see happen.

[13] The mother's position was, and remains that there should never be any access between the father and C.S., although her counsel conceded that a no access order would be reviewable in the Status Review. Counsel argued against the Court imposing any terms and conditions as part of an access order. By the end of the trial, counsel conceded that the Court should make an order restricting both parties' internet and social media behaviour, although to different degrees.

[14] The father's initial position, going into the trial, was that the Court should make an access order. By the end of the trial, counsel for the father conceded that an order for access, even for supervised access, would not work, right now. However, counsel also submitted that the Court should make an order for supervised access, which would commence upon the father (and the other parties) completing certain steps.

[15] In the alternative, counsel for the father argued that the Court should just order the terms and conditions that might allow access to succeed in the future, to be further considered in the Status Review. The father did not offer anything more specific about what services should be provided to him or anyone else.

[16] For the reasons that follow, the Court does not find access between C.S. and her father to be in C.S.' best interests at this time. The Court does find it in C.S. best interests to order terms and conditions of the no access order though.

[17] To address the issues, I begin with a review of the prior legal proceedings. I will explain the history giving rise to C.S.' current circumstances before the Court.

PART II: PRIOR LEGAL PROCEEDINGS

[18] Prior to the commencement of this litigation, both parents lived in the Montreal area. The mother lived there until the fall of 2016. The father still lives there today.

[19] For several years, both parents had been involved in family law proceedings before the Quebec Superior Court. They even had a custody and access trial there in 2016, resulting in an Order that the father would have supervised access to C.S. The Quebec Superior Court's Order also provided for a review of that supervised access in short order.

[20] The Quebec Superior Court proceedings are still pending, but the supervised access and the review have not happened. That is because in the fall of 2016 the mother came to Toronto. And soon thereafter, these child protection proceedings began.

[21] Although the father does not now have access to C.S., it was clear that he did have a relationship with her at some point in the past, even before the custody and access trial.

[22] When C.S. was much younger, the father first had supervised access to her, then his access expanded to unsupervised access, and he even had some overnights with C.S. This expansion of access was achieved, at least in part, by the parties' agreement, as opposed to it having been compelled by Court Order.

[23] While the father had been having access with C.S. during those early years, that stopped in the fall of 2014. On September 14, 2014, the father was arrested. The father was charged with several sexual and other offences against the mother. The acts giving rise to the sexual offences, as well as an assault causing bodily harm charge were alleged to have occurred several years earlier, between 2007 and 2011. There was also a charge that the father had uttered a threat against the mother. That was said to have occurred in 2014.

[24] The father then spent several months in pre-trial custody, from October 2014 until June 22, 2015.

[25] On June 22, 2015, the father pleaded guilty to the following offences:

(a) that between January 1, 2007 and December 31, 2011, he procured or attempt to procure the mother to become a prostitute;

(b) that between January 1, 2007 and December 31, 2011, he sexually assaulted the mother;

(c) that between January 1, 2007 and December 31, 2011, he committed an assault on the mother causing bodily harm;

(d) that between January 1, 2007 and December 31, 2011, he recruited, transported, transferred, received, held, concealed or harboured and exercised control, direction or influence of the movement of the mother for the purpose of exploiting or facilitating her exploitation; and

(e) that on September 14, 2014, he uttered a threat towards the mother to cause bodily harm or death.

[26] Following the guilty plea, the father spent a further 8 months in prison. He was released from prison in February 2016, but was subject to a 3 year probation order. That ended only recently, in February 2019.

[27] During the father's incarceration and continuing after his release, the Quebec Superior Court proceedings heated up again, culminating in the 2016 trial. At the trial, the mother resisted the father having access to C.S., relying in part on the father's criminal convictions. Despite the convictions, on June 7, 2016, the Honourable Justice Christiane Alary made the order that the father have supervised access to C.S. at an access center, subject to a review in 6 months.

[28] In particular, she ordered, inter alia:

(a) that the mother would continue to have custody of C.S.;

(b) the father would have supervised access at an access center, once every two weeks, for a maximum of two hours each visit, until July 31, 2016;

(c) thereafter, his access would increase to weekly supervised access for a maximum of three hours; and

(d) the father could apply to review the supervised access order after 6 months.

[29] The father did not have access again with C.S. even after this Order. Instead, in October 2016, in the face of the Quebec Superior Court's Order, the mother came to Toronto with R.L. and C.S.

[30] On November 15, 2016, the Society launched a protection application respecting both R.L. and C.S. In its protection application, the Society sought an order that C.S. be placed with her mother for 6 months, subject to the Society's supervision. The Society also sought an order that the father have no access to C.S., unless he first met with Society workers to assess C.S.' safety and well-being.

[31] What precipitated the Society's involvement was an incident between the mother and R.L. that occurred at the St. Joseph's Health Center a few days earlier. At the first appearance of the protection application on November 15, 2016, Justice Brian Scully granted that relief on a temporary without prejudice basis. Scully J. also appointed the Office of the Children's Lawyer.

[32] On May 15, 2017, Justice Marion Cohen directed the Society to file the Judgment of the Quebec Court and other relevant material regarding the Quebec proceeding that may pertain to this proceeding. Cohen J.'s Order was not fully complied with, in that the Court was shown only certain, more recent Quebec Superior Court Orders, and a limited number of other court documents.

[33] Although the case initially concerned both R.L. and C.S., on July 10, 2017, Cohen J. split this proceeding into two separate proceedings. The case concerning R.L. has since resolved.

[34] Meanwhile, the Quebec proceedings continued. The father did take some further steps in the Quebec proceedings in 2017, although the thrust of the litigation has shifted to Ontario.

[35] Specifically, the father launched a motion returnable May 30, 2017 in the Quebec Superior Court. Alary J. rendered an "Interim Judgment" and a "Safeguard Order", valid only until July 11, 2017. The Order had a number of components.

[36] Pursuant to the May 30, 2017 Order, the mother was required to hand over her passports and C.S.' passport to the father's lawyer, in trust. The Court prohibited the mother from leaving Ontario with C.S., except for her return to Quebec, pending a judgment on the "present motion being rendered". The mother was required to provide the father or his lawyer with certain information about C.S. The Court directed the mother to provide the father with Skype access in the presence of the Society, and supervised access in Montreal. Pending the child's return to Montreal, the Quebec Superior Court also ordered supervised access in Toronto, to the extent that it may be organized by the Society. And finally, the Court directed that the Order be served upon the maternal grandmother and the Society, prior to the return date.

[37] The Society did not facilitate supervised access after the date of that Order. Nor did any Skype access occur. And the child remained in Ontario.

[38] By the fall of 2017, following Cohen J.'s retirement, I became the judge assigned to case manage this matter. Almost immediately thereafter, the Society asked the Court for leave to proceed by way of summary judgment.

[39] On September 21, 2017, at an attendance before me, at which the father was not present, I was told that there was another appearance in the Quebec Superior Court the following day. At the mother's request, I endorsed that Scully J.'s November 15, 2016 order concerning access remained in force, and at the Society's request, I ordered that it be enforced by the police, on a without prejudice basis.

[40] I was later supplied with an "Undertaking", signed by the parties in the Quebec Superior Court on September 22, 2017. Pursuant to that undertaking, the mother promised to provide the Society with a letter dated September 22, 2017, signed at the Laval Superior Court, and the Interim Judgment of Alary J. dated May 30, 2017. The father promised not to post any and all information related to the present Court case, nor any information identifying C.S., the mother or her family on the internet. The father also promised not to take and post pictures from the Skype calls (which were supposed to happen) on the internet. The father's promise not to post information related to the case on the internet has been broken.

[41] The next court date, December 18, 2017, was supposed to proceed as a settlement conference. But on that date, the Society informed the Court that it wished to bring the summary judgment motion. After that, the remaining court attendances before me were directed at scheduling issues, as well as ensuring the father would have representation in this case.

[42] The father was in attendance on December 18, 2017. I encouraged the father to retain counsel and I set a further date of January 25, 2018 to give him an opportunity to do so. I also directed the parties to come prepared to discuss scheduling on the return date. Similar to what Cohen J. had endorsed before me, I specified that the Court would require "as part of the Summary Judgment motion materials a complete procedural history of the Quebec proceedings and copies of all Orders made by the Quebec Court". This aspect of my endorsement was not complied with.

[43] On January 25, 2018, the father advised the Court that he was in the process of applying for legal aid, but the process had been taking longer than he expected because he lived in Quebec and due to a more complicated procedure to obtain legal aid in Ontario as a result. I granted the father a further adjournment to permit him to retain counsel, over the objection of the Society and the mother. I also requested that the Quebec Superior Court not proceed with whatever was supposed to be happening before it on February 2, 2018, to permit this matter to be heard.

[44] By February 12, 2018, the father retained Ontario counsel. I was told that the Quebec matter had been adjourned to May 1, 2018. I set the Society's summary judgment motion for May 7, 2018 and I made a scheduling Order for the exchange of materials.

[45] The Society's summary judgment motion was dated March 22, 2018. In it, the Society formally changed its position from that taken in the protection application, saying that the father should have not have any access to C.S. The terms and conditions of the supervision order sought by the Society were minimal. They merely required that the mother meet with the Society, that she keep the Society apprised of her address and not leave Toronto without the Society's permission, and that she sign consents for the release of information.

[46] The summary judgment motion was heard over two days on May 7 and 8, 2018. All parties agreed that I would hear the summary judgment motion, even though I had taken over case management from Cohen J., given the limited events that had transpired in front of me. Above, I explained the Orders that I did and did not grant following the summary judgment motion. Although the initial terms and conditions of the supervision order granted by this Court on June 13, 2018 were minimal, as I will later explain, there are now additional terms and conditions in place as a result of an incident that transpired during this trial.

[47] During the summary judgment motion, I heard a number of arguments about what the impact of Alary J.'s June 7, 2016 Judgment should be in this case. For the reasons set out at ¶100-112 of the June 13, 2018 Judgment, I held that Alary J.'s findings of fact in the June 7, 2016 Judgment are entitled to great weight. I will have more to say about the effect of Alary J.'s Judgment later in this Judgment, as in the result of this child protection proceeding, the Court is ordering a different outcome from what Alary J. ordered.

[48] The father's access was the only contested issue before the Court at the time of the summary judgment motion. In the Judgment of June 13, 2018, I mapped out, very clearly, for the parties and counsel, what the issues for this trial would be and what the evidentiary deficiencies then were. That roadmap is, in part, repeated earlier in this Judgment. Despite this very detailed roadmap, the parties did not adduce sufficient evidence at this trial. During this trial, some of the parties sought to blame others for this.

[49] This trial began on December 7, 2018. By that time, the 6 month supervision order was about to expire. The Society issued a Status Review application and made it returnable before me at the outset of the trial. The Status Review was then adjourned, on consent, while this trial proceeded, although mid-trial, it came back before me for reasons that I will explain.

[50] The evidence before the Quebec Superior Court, this Court at the summary judgment motion and again before this Court at this trial, was, and is, that the mother is very fearful of the father. The mother argued that even the prospect of the father having access to C.S. will result in the deterioration of her mental health and her ability to parent. During this trial, the mother testified that she intended to kill herself if the Court made an access order. She was given multiple opportunities to explain whether she truly meant what she had said, or whether her statement was just an emotional one. In response to follow up questions, she insisted she was serious and made very specific statements about how she planned to proceed. The child was in her care at the time.

[51] During the testimony that followed, the mother's psychotherapist, Dr. Lionel Martinez, was made aware of the mother's recent statements about suicide to the Court. Dr. Martinez expressed significant concerns about this, even suggesting, in response to a question from the Society, that it might be appropriate that the mother be sent to the hospital on a Form.

[52] The Court found this evidence to be alarming. At the end of the third day of the trial, the Court ordered that C.S. be placed in the temporary care of the Society on a without prejudice basis. The Court also directed that a temporary care and custody hearing would proceed on the next day of trial, which happened to be less than 48 hours later.

[53] That did not happen. Instead, counsel for the Society, launched a motion for a mistrial, alleging reasonable apprehension of bias. Although the Society was the moving party, it was supported by the Children's Lawyer and the mother. The Children's Lawyer took an active role in the mistrial motion.

[54] For oral reasons delivered on December 13, 2018, the Court dismissed the mistrial motion. The mistrial motion resulted in the delay of the temporary care and custody motion by another day. Ultimately the trial did not finish in the allotted time.

[55] On December 14, 2018, the Court heard the temporary care and custody motion. The Court heard additional viva voce evidence and received additional documentary medical evidence. The thrust of the evidence was that the mother was not, in fact, going to harm herself and therefore the child was not at risk. Rather the mother had experienced an "emotional outburst". Her psychotherapist, an emergency doctor at St. Joseph's Hospital, and the Society, were each satisfied that the mother was, in fact, stable.

[56] On December 14, 2018, the Court returned the child to the mother's temporary care and custody on the following terms, by varying the conditions of the June 13, 2018 supervision order on an interim basis, in the Status Review (which had been brought forward). The new terms and conditions are as follows:

(a) The Court continued the terms and conditions specified in the June 13, 2018 supervision order. In addition:

(b) The Court ordered the mother to meet with her doctor and psychotherapist, Dr. Lionel Martinez, at least two times per week subject to Dr. Martinez' discretion to either increase or decrease the frequency of the sessions;

(c) The Court ordered the mother to sign consents for the release of information to the Society to release information to Dr. Martinez and any other treating health care professionals and for those persons to release information to the Society;

(d) The Court directed the Society to make further referrals to programs or service providers for the mother of a mental health nature or respecting parenting, and specified that any mental health referrals shall be made in consultation with Dr. Martinez;

(e) The Court ordered the Society to increase its home visits with the mother to every two weeks at a minimum, and to have telephone calls with the mother in addition. The Court also directed that the Society was to increase the frequency of in person or telephone contact with the mother in its discretion;

(f) The Court ordered the Society to remain in regular contact with Dr. Martinez; and

(g) The Court ordered that if the Society learned of anything of a concerning nature it was to return the matter to Court immediately.

[57] The trial was then adjourned to March 14 and 15, 2019.

[58] The Court eventually heard closing submissions on April 8, 2019 and the trial finished on that date.

[59] Before the Court heard the closing submissions, on the morning of April 8, 2019, the father moved to adduce additional evidence about some recent internet activity of the mother. The Court granted the father's request to adduce this additional evidence, for reasons that I will explain later on in this Judgment.

[60] After hearing closing argument, the Court reserved its Judgment.

[61] Meanwhile, the Status Review is still pending. The next date in the Status Review is now set for September 16, 2019, pending the release of this decision.

[62] I turn to the applicable legal principles that govern the Court's decision.

PART III: APPLICABLE LEGAL PRINCIPLES

A. The Court's Treatment of the Orders of the Quebec Superior Court and Alary J.'s Findings of Fact

[63] At ¶100-113 of the June 13, 2018 Judgment, I addressed the effect of the June 7, 2016 Quebec Superior Court Order on this proceeding. I will summarize that again here.

[64] This Court found that Alary J.'s findings of fact in her June 7, 2016 Judgment are entitled to great weight. I do not intend to repeat all of those findings of fact here as they are set out in the Court's lengthy Judgment of June 13, 2018. I will, however, summarize the most pivotal findings.

[65] First, Alary J. summarized the prior proceedings in Quebec and made findings of fact about the parents' relationship history.

[66] Regarding the father's past criminal behaviour, Alary J. noted that the father disputed that he committed the various offences. Alary J. nevertheless considered and weighed S.S.' criminal convictions as part of her analysis. She considered and rejected the mother's claim that the father had uttered threats against the child, finding that the mother feared the father and distrusted his ability to parent, but that he had not threatened the child.

[67] The father had argued that the mother lacked the parenting skills to raise children, that she continued to work as an escort and that she occasionally left the child unsupervised. He further argued she was irresponsible, dangerous and negligent.

[68] The Quebec Superior Court rejected these arguments. The Court found the father not to be credible respecting his complaints about the mother. Alary J. found that the father "seems to lie with no hesitation, at least when it comes to gaining access to his child". But Alary J. also found the mother not to be credible in certain respects too.

[69] Alary J. considered the father's lack of respect towards the mother and the fact he had not seen the child since September of 2014, following the criminal charges.

[70] Yet despite her findings, including adverse credibility findings against the father, Alary J. nevertheless found that the father seemed sincere respecting his stated affection for the child and his desire to be involved with her.

[71] In the result, while being mindful of the nature of the offences for which the father was convicted, Alary J. still made a supervised access order, subject to a review after a short period of 6 months. In so doing, she concluded that the father "certainly has work to do to regain some degree of stability and demonstrate that he has created a healthy environment for the child" but she said that there was no reason to "totally suspend" his access. She found that C.S. had the right to see her father and to develop a relationship with him.

[72] In the June 13, 2018 Judgment, this Court found, as fact, that there was an ongoing family law proceeding in Quebec, that the Quebec Court had made the June 7, 2016 and the May 30, 2017 Orders, and that a trial in this proceeding was not required to find any facts that had been found by the Quebec Superior Court in its June 7, 2016 Judgment. This Court found that Alary J.'s findings of fact were entitled to great weight in this proceeding.

[73] This Court rejected the mother's argument that this child protection proceeding stayed the Quebec Superior Court proceedings. But this Court also found that the June 7, 2016 Judgment, which provided for supervised access and a review, did not create cause of action estoppel, as the Society's claims in this proceeding are brought pursuant to specific child welfare legislation which is materially different from the custody and access claims that were before the Quebec Superior Court.

[74] This Court found that there was further evidence before this Court, which was not before the Quebec Superior Court, when it decided the issues before it in June of 2016. This Court accepted that the Society (and the other parties) were entitled to argue that different circumstances exist now from those that existed when the Quebec Superior Court made its decision. And this Court left it to this trial to decide whether those circumstances, coupled with the evidence to be heard at this trial, warranted a different result from that ordered by the Quebec Superior Court.

[75] To be clear, in this decision, I am considering the evidence before this Court as a whole. This includes the findings of fact and the Orders made by the Quebec Superior Court. But this Court must apply the applicable best interests' factors in section 74(3) of the CYFSA to all the evidence before this Court. My application of those factors to the evidence leads me to a different conclusion than the conclusion reached by the Quebec Superior Court on June 7, 2016.

B. Applicable Statutory Framework Respecting the Access Claim

[76] Section 1(1) of the CYFSA provides that the paramount purpose of the Act is to promote the best interests, protection and well-being of children. The Court is also guided by the other purposes of the legislation set out in section 1(2) in this case.

[77] The access claim before the Court is governed by section 104 of the CYFSA. Section 104 reads:

Access order

104 (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.

[78] Access is of course to be decided in C.S.' best interests. That determination is guided by section 74(3) of the CYFSA in light of the evidence.

[79] As part of the analysis pursuant to section 74(3) of the CYFSA, there are two mandatory criteria that the Court must consider. Only one of those criteria applies in this case as C.S. is not First Nations, Inuk or Métis. And then there are a number of other factors to consider in section 74(3), if they are relevant.

[80] In this Judgment I will refer to and apply the mandatory factors in section 74(3) as well as the others that the Court finds relevant, in light of the evidence.

C. Case Law Concerning the Termination of Access versus Supervised Access

[81] V.S.J. v. L.J.G., is a decision that considered the outright termination access as opposed to supervised access, but under the Divorce Act rather than under child welfare legislation. Nevertheless, the Court's analysis in that decision is helpful here.

[82] In V.S.J. v. L.J.G., Justice Jennifer Blishen embarked upon a comprehensive review of the case law respecting these issues. Generally, it will be in a child's best interests to have access with the non-custodial parent, provided that access can be safe and healthy. A child's access to his or her non-custodial parent should only be forfeited in the "most extreme and unusual circumstances". The termination of access is a "remedy of last resort". See V.S.J. v. L.J.G. ¶128.

[83] At ¶ 135, Blishen J. listed the factors most commonly considered by Courts when deciding whether access should be terminated. Those factors are:

(a) the long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and/or fear;

(b) a history of violence, unpredictable, uncontrollable behaviour, alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety;

(c) extreme parental alienation;

(d) ongoing severe denigration of the other parent;

(e) the lack of a relationship or attachment between the noncustodial parent and child;

(f) neglect or abuse to a child on the access visits; and

(g) older children's wishes and preferences to terminate access.

[84] The cases that have addressed these issues generally did not have only one of the above factors present in the facts. See V.S.J. v. L.J.G at ¶136. Rather, a number of the factors listed above are usually present, and the evidence as a whole must be carefully considered and weighed.

[85] The above-mentioned factors are also relevant to considering whether there should be supervised access as opposed to the outright termination of access. An order for supervised access might work to protect the child, to direct the parent to engage in programming, to create a bridge between there being no relationship and a normal relationship, and/or to avoid or reduce the parental conflict and thus the impact on children. See V.S.J. v. L.J.G at ¶137. As such, supervision should be considered as an alternative to termination.

[86] Even though supervised access is seldom viewed as an indefinite order or a long term solution, it may be that longer term supervision is the right option. It was Blishen J.'s view, at ¶ 140 of V.S.J. v. L.J.G., that supervised access, irrespective of the length of the order, should always be considered as an alternative to a complete termination of the parent-child relationship. At ¶ 143, she wrote that "[s]uch an extreme measure warrants the most serious consideration".

[87] The Society relies on the Court of Appeal's decision in C.S. v. M.S., 2010 ONCA 196, [2010] O.J. No. 1064 (C.A.), in support of its position that there should be an order for no. C.S. v. M.S. was also decided under the Divorce Act as opposed to under the CYFSA. But like V.S.J. v. L.J.G., the principles in C.S. v. M.S. still have application here.

[88] In C.S. v. M.S., the Court of Appeal upheld the decision of the trial judge that there should be no access between the youngest of the parties' four children and her father and her older three siblings. The trial judge terminated access to protect the relationship between the mother and the youngest child.

[89] C.S. v. M.S. was a case about parental alienation. The older three children in that case had no relationship with their mother. Although the mother-daughter relationship was still intact by the time of the trial, there was a serious concern that the father would irreparably damage that relationship were there to be contact with him, or the siblings, who were involved in the offending conduct.

[90] While the Court of Appeal's decision in C.S. v. M.S. is short, when read in tandem with the trial decision, it is evident that the trial judge terminated access after an 18 day trial. I do not intend to repeat most of the facts of C.S. v. M.S. here, but the trial decision includes references to very troubling behaviour by the father and the siblings, and the fact that various other efforts at repairing the fractured relationships had failed.

[91] In this case, the factors listed in (a), (b), (d) and (e) above, taken from V.S.J. v. L.J.G., are engaged. The Court agrees with, and will follow Blishen J.'s approach, to the difficult questions before the Court. However, certain modifications are required to Blishen J.'s analysis, to take into account the fact that this is a child protection proceeding, governed by particular provisions of the CYFSA, and not a private custody and access dispute.

D. Access Should Generally Be Attempted on a 'Trial Basis' Prior to Trial in Most Cases

[92] Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784, is a decision of Justice Stanley Sherr that concerned, among other things, access at the temporary stage of a child protection case. Much of the focus of the decision is what the tests to change a child's temporary placement and temporary access should be pending trial. That said, many of the principles that Sherr J. articulated in that case are applicable here.

[93] At ¶ 73 of the decision, Sherr J. said, while the best interests of the child is an important consideration, it is not the sole consideration in child protection cases. Some of the other purposes of the CYFSA, including recognizing parents need help caring for their children, that the help provided should give support to the autonomy and integrity of the family unit, and that the least restrictive or disruptive course of action is appropriate.

[94] At ¶ 74 and 76 of the decision, Sherr J. wrote that at the outset of a child protection case, restrictive access terms may be appropriate. But it is also imperative that an initial access order not stay frozen until trial unless it would be unsafe to change it. "Families sometimes fail in the reunification process because no steps were taken to change the original access order".

[95] And at ¶ 79, Sherr J. held:

In a constructive child protection case, access is constantly being re-evaluated. Where it can be safely done, access should be gradually increased. This not only improves the parent/child bond, but gives the courts some basis to assess whether the parent is capable of parenting the child on a full-time basis. In child protection cases, full family reunification is often achieved one hour at a time.

[96] It is not disputed that the Society did not facilitate access in this case for various reasons, either prior to the summary judgment motion, or in between the summary judgment motion and the trial.

E. The Duties of a Children's Aid Society

[97] The Society has a duty to act fairly, reasonably and must exercise good faith with respect to the rights of all persons concerned and the child. See Children's Aid Society of Hamilton v. O (E.), 2009 CarswellOnt 8125 (S.C.J. Fam. Ct.) ¶ 163, 189-205.

[98] Pursuant to section 35 of the CYFSA, children's aid societies are tasked with a number of functions, including the investigation of allegations that children may be in need of protection, and the protection of children. Part of their mandate is to provide guidance, counselling and other services to families for protecting children or to prevent circumstances requiring the protection of children. And children's aid societies are required to adequately supervise, when required to do so.

[99] As stated by Sherr J. in Catholic Children's Aid Society of Toronto v. K.R., 2018 ONCJ 288 ¶ 4-7, in accordance with section 1(2) of the CYFSA, the Society has a duty to consider and provide services, including early intervention services and community support services. The services are to build on the family's strengths. And the Society is also to provide clear expectations to the family to assist them to address the issues before the Court.

[100] However, the Society's obligation to provide services has to be looked at in context. For example, a Society should not have to force services upon a family where they are not welcome or not likely to be successful. And regarding the question of access, while it is to be promoted at the interim stage of a case, this is not an absolute principle. Again, it must be done in a safe manner.

[101] Ten years ago, in Children's Aid Society of Hamilton v. O (E.), Gordon J. said this, "[t]he Court does not rubber stamp decisions made by managers and supervisors at the Society". See ¶ 198, 203 and 204. The Society is supposed to re-assess its position as a case unfolds as new evidence comes to light. Even when new evidence comes to light during a trial, it is still not too late to change a position (see for example, the unreported decision of Justice Pawagi in Catholic Children's Aid Society of Toronto v. A.T., B.W. and T.M., released March 7, 2019 at ¶ 201-209).

F. The Role of the Children's Lawyer

[102] At ¶ 20-33 of Jewish Family and Child Services of Greater Toronto v. J.K., 2014 ONCJ 792, C. Jones J. summarized the applicable legal principles concerning the role of the Children's Lawyer in child protection cases.

[103] Fundamentally, the role of the Children's Lawyer is to protect the child's interests. That includes a consideration of the child's views and wishes. Where a child is unable to communicate views and wishes, the position to be formulated by the Children's Lawyer will be based on other factors.

[104] At ¶ 28, C. Jones J. wrote:

The role of the child's legal representative may properly include taking a position on behalf of the child, leading evidence, cross-examining witnesses and making submissions to the court on the factual and legal issues before the court. If the child's wishes can be ascertained, child's counsel will also be tasked with the responsibility of ensuring that the child's views are placed before the court through admissible evidence.

[105] In this case, the child is not unable to communicate views and wishes, for example, because she is too young to do so, or because of a disability. Rather, C.S.' inability to communicate views and wishes about access to S.S. stems from the fact that she does not know him. That said, there is other evidence of views and wishes, which the Children's Lawyer put before the Court.

[106] In addition, the Children's Lawyer took a position based on C.S.'s best interests in this case. The Court has considered that position as part of its analysis. Later in this Judgment, I will have more to say about the evidence that was adduced, and not adduced, by the Children's Lawyer on behalf of the child.

G. The Intersection of the Court's Ruling at this Stage and the Pending Status Review

[107] The Court is mindful of the fact that it is not an available remedial option, at this stage of the case, for this Court to order no access, forever. The Status Review proceeding has commenced as the 6 month supervision order that I made on June 13, 2018 expired prior to the conclusion of this access trial.

[108] As a result of section 113(2) of the CYFSA, the Society was required to apply for a review of the child's status prior to the expiry of the supervision order. Once the Court makes an access Order (whether for access, no access or terms and conditions) in this proceeding, then that Order will form part of the Status Review also. It may be varied or terminated in the Status Review according to section 114(a). Section 114(a) reads:

Court may vary, etc.

114 Where an application for review of a child's status is made under section 113, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 101(1), including a term or condition or a provision for access that is part of the order;

[109] In the Status Review, the Court will be called upon to determine whether C.S. is still in need of protection and whether, as a consequence, she requires a court order for her protection. If so, the Court must determine which of the available range of orders will be in C.S. best interests. See Children's Aid Society of Oxford County v. C. (W.T.), 2013 ONCA 491 ¶ 27-38.

[110] The result may be that there should be a different Order for access or for terms and conditions than that which I am ordering now. See section 104(1) of the CYFSA; see also Children's Aid Society of Algoma v. B. (A.), 2012 ONCJ 351 ¶29-44.

PART IV: ANALYSIS RESPECTING C.S.' BEST INTERESTS

[111] With this background and legal framework in mind, I turn to the applicable best interests factors in section 74(3) of the CYFSA. I will apply those factors to the evidence before the Court.

[112] I begin with section 74(3)(a), which is the mandatory criteria that must be considered in this case. Regarding the other factors in s. 74(3), I do not necessarily consider them in the same order as they are listed in the statute, but I will consider and apply each factor that I consider to be relevant. I will explain why the Court has reached the conclusions it is coming to.

A. C.S.' Views and Wishes

[113] Section 74(3)(a) of the CYFSA requires the Court to consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

[114] According to the statutory best interests test under predecessor section 37(3) of the Child and Family Services Act, the child's "views and wishes, if they can be reasonably ascertained" were one of 13 circumstances that the Court was directed to consider, if relevant.

[115] By contrast, the child's "views and wishes" are now front and center in the statutory best interests test in section 74(3) of the CYFSA and they must be considered "unless they cannot be ascertained". Moreover, the first sentence in the preamble to the new Act acknowledges that children "are individuals with rights to be respected and voices to be heard".

[116] However, the right to respect and to be heard is not tantamount to the right to decide. And despite their additional importance within the new statutory scheme, the child's views and wishes are to be "given due weight in accordance with the child's age and maturity".

[117] For the reasons set out in ¶ 145-157 of the June 13, 2018 Judgment, this Court was unable, at the summary judgment motion, to place much weight on the child's views and wishes. Specifically, the Court found that the evidence as to the child's wishes was not consistent. The Court was also concerned that some of the child's statements made prior to the motion might have been influenced as a result of her experiencing the mother's fear and consequent behaviour. Finally, the Court noted the young age of the child in assigning little weight to the wishes at the time.

[118] The clinical evidence tendered by the Children's Lawyer at this trial came in the form of affidavits of clinical investigator, Ms. Sonal Gandhi. None of the parties sought to cross-examine Ms. Gandhi on her affidavits. As such, her affidavits were entered into evidence on consent, and she did not testify.

[119] Other than some additional contact with C.S. after the Court ordered C.S. to come into care on a temporary without prejudice basis during the trial, Ms. Gandhi met with C.S. three times prior to the commencement of the trial, and a further two times during the hiatus in the trial between December 2018 and March 2019.

[120] Ms. Gandhi observed C.S. to be "shy" and "polite". Otherwise, the overall tenor of her evidence was that C.S. does not know who her biological father is, whereas C.S. was able to identify other members of her family during the clinical interviews.

[121] The Court agrees that C.S. does not know S.S. It is in that context that C.S. has not expressed a view or a wish to have contact with him.

[122] That fact is not determinative of the issues before the Court. That said, I place weight on it, as it is the reality right now for this family. But on the other hand, the Court does not intend to ignore the myriad of reasons why C.S. does not know her father.

[123] The child does not know her father for four reasons. The father himself bears much of the responsibility for this.

[124] First, the child's relationship with her father was interrupted during the father's incarceration between 2014 and 2016. As I will later explain, he takes no responsibility for his actions and continues to blame the mother for his incarceration. Nevertheless, after his incarceration, the Quebec Superior Court ordered access.

[125] Second, the father's subsequent behaviour, which I will come to, has adversely impacted his ability to re-establish a meaningful relationship with C.S. The father has very little insight into his conduct and how counter-productive it has been to his ultimate goal of re-establishing his relationship with this child.

[126] But third, and without minimizing the very troubling behaviour in which the father has engaged, the mother also bears a considerable amount of responsibility for the prolonged disruption to the father-daughter relationship. The Court finds that the mother came to Ontario in October 2016 to avoid the implementation of the Quebec Superior Court's Order of June 7, 2016, rendered after the father's release from prison.

[127] The mother, too, lacks insight into her role in creating the current environment in that C.S. does not know her father. I will address this here.

[128] In the Judgment of June 13, 2018 at ¶ 198-201, I summarized the evidence that was before the Court for the summary judgment motion on this point. I repeat again what I then said about it.

[129] The mother claimed that following the June 7, 2016 Judgment, she telephoned the supervised access center named in the Judgment, twice, to arrange an intake. She said that after the initial contact, she did not get a call back from the access center until the last week of October 2016, at which point she "had already made plans and was packed to go to Toronto to start a new life".

[130] Meanwhile, she said that she had not received any contact from the father to her lawyer concerning the visits so she had just "assumed" that the father had disappeared and was not interested in visiting C.S. She also said she believed she could move with C.S. as the Judgment did not prohibit it.

[131] The father said that following the release of Alary J.'s June 7, 2016 Judgment, he telephoned the named supervised access center in the Judgment four times over the summer of 2016, plus he sent two emails. He also said he contacted an alternate access center in an attempt to expedite the commencement of the supervised visits. He was able to tour the alternate access center, which he said had availability to begin supervised visits in August, 2016. But he said that the mother refused to permit visits to occur at the alternate location. The father's evidence was that the mother was in fact aware of his efforts but refused his alternate plan that entailed a shorter wait list.

[132] The father said that he later received a telephone call from the named access center on October 21, 2016, but at this point the mother "refused all appointments for [him] to see C.S." So the father then returned the matter to Court in Quebec, and the affidavit he filed for the summary judgment motion details the various efforts he has made to participate in proceedings in both Quebec and in Toronto after that.

[133] Some of the parents' evidence about this topic at the summary judgment motion rested on hearsay from various persons from the different access centers. One of the issues for this trial that I directed was that there should be cross-examination on their conflicting accounts.

[134] At this trial, neither party called any direct evidence from either access centers to rectify the hearsay problem. Each continued to rely on hearsay to a certain degree. But the Court also heard their direct evidence on this topic.

[135] The mother told the Court that she moved to Toronto because she wanted a fresh start. She said the father was stalking her and that it would be more difficult for him to do this if she was in Toronto. She explained that she chose to move to Toronto because the language spoken here is English, and C.S. speaks English. She also said she has a friend who lives in Toronto named "K", whom she knew from her high school days. They now live in the same condominium building.

[136] The mother explained, again, that after the June 7, 2016 Judgment, she telephoned the access center named in Judgment, but she told a staff person (she did not say who) that she would not bring C.S. in for access until she was first given an opportunity to tour the facility with C.S. She said that she told the unnamed staff person that C.S. had anxiety. She said she then waited for a call back, which did not come in a timely manner. She felt it would have been irresponsible for her to just drop off C.S. without first doing the tour with her.

[137] The mother testified that the next discussion she had with an access center staff person was in late October, as set out above. But she testified that at that point, the unnamed staff person told her that having a tour was not an option.

[138] The mother attempted to explain why that was. She said that her boyfriend at the time worked during the week. Since he was the one who would be transporting her and C.S. for the tour, that tour would therefore have to occur on a weekend. According to the mother, the unnamed access center staff person would not accommodate a Saturday tour, since the access center was busy accommodating actual access visits on Saturdays. And Sundays would not work for a tour either, since the mother had plans to visit with her own mother on that day each week.

[139] Based on this evidence, the Court finds that it is more likely than not that the access center was prepared to offer a tour. That said, the Court does not accept the mother's logistic objections as a good reason for her not to have gone. The Court finds that the mother was refusing to go.

[140] In any event, whether or not a tour was offered is beside the point. By the time the mother said received this late October call back from the access center staff person, she told that person she was moving to Toronto the following week. In fact, she testified that she had already made the decision to move to Toronto weeks earlier, in September. The mother admitted to refusing to allow visits to start in October when the second call came in.

[141] The father's challenge to the evidence about contact with the access center came mostly through his counsel's cross-examination of the mother. Counsel for the father suggested to the mother that she breached the Quebec Superior Court's Order. In response to this line of questioning, the mother said "I have a right to protect my daughter".

[142] When asked whether she thought that the Order gave her a right to refuse to comply, she said, "I don't see a clause that don't allow me to".

[143] The mother took no steps to follow up with the access center between the first and second calls made months apart. When asked about her lack of follow up, she said, "Yeah, because I didn't want him to see her".

[144] The mother said she felt it was the responsibility of the access center to call her, and that she did not feel that she had to be the one making arrangements. Further on this topic about why she did not follow up, she said:

(a) "because I didn't want to, so I didn't";

(b) "I didn't want to talk to them";

(c) "I didn't want to call them"; and

(d) "I've called them enough times".

[145] Having now heard the testimony at this trial, I substantially accept the father's version of events on this point. I find that the father was trying to get access going and the mother was resisting it.

[146] I also accept the father's evidence that he proposed an alternate access center and the mother rebuffed him. At the trial, the mother denied having ever heard about the other access center that the father proposed. In light of her other admissions, I do not find her to be credible respecting this denial.

[147] While the mother may have had other reasons to move to Toronto, I find that the predominant reason was because she felt that C.S. was at risk if there would be access. And she very clearly told the Court that she did not want the father to see C.S.

[148] Fourth, the Court also finds that the Society bears some of the responsibility for the extent of the interrupted relationship too. As I will explain in more detail later, the Society has not taken adequate steps to address the issue of the father's and C.S.'s interrupted relationship, and whether or how a reintegration process might occur. But to a degree, this too must be looked at in the context of the father's behaviour.

[149] In this Judgment, the Court has no intention of assigning degrees of blame amongst the three parties responsible for the disruption to the father-daughter relationship. They have each contributed in different ways. The Court agrees with the submissions of the Children's Lawyer that irrespective of the reason for the disruption, the lack of a relationship between the father and daughter is now a fact that must be weighed by the Court in crafting a remedy.

[150] What that weight should be was not adequately addressed by counsel. Given that the Quebec Superior Court ordered access after the father's incarceration, this Court is now faced with the situation that the mother has effectively violated a Court Order. On the one hand, this Court should be loathe to approve of conduct of this nature. However, since then, the father has engaged in very problematic behaviour such that it is not as simple as reinstating access that should have, but never occurred.

B. The Impact of the Parents' Behaviour and the Mother's Mental Health on C.S.' Relationships

[151] The Society's, the mother's and the Children's Lawyer's positions rest heavily on what they say will be the severe impact on the mother's ability to parent C.S. should this Court order access. The Court considers the following best interests factors from section 74(3) of the CYFSA to be relevant to the analysis of this argument:

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

(1) The Father's Behaviour

[152] Much of the evidence that I heard at this trial focused on the father's behaviour, including his internet and social media conduct.

[153] At ¶ 177-184 and 206 of the June 13, 2018 Judgment, I made findings of fact about certain internet postings that had been found online. I found that the father was the author of the postings. I also found that the father had been denying responsibility for his past behaviour leading to the criminal convictions.

[154] At ¶ 205 and 209 of the June 13, 2018 Judgment, I found that the father lacked insight, including into how his own ongoing behaviour has contributed to the disruption to the father-daughter relationship. I warned the father to get certain information off the internet. The evidence at this trial revealed that he did not heed the Court's warning.

[155] At ¶ 210-211 of the June 13, 2018 Judgment, I indicated that nevertheless, there was some evidence of insight in that the father was willing to work with the Society and I found that there was evidence of continued sincerity as to his desire to have a relationship with C.S.

[156] While the record at the trial continues to support a continued sincerity on the part of the father to have a relationship with C.S. and his stated willingness to work with the Society, one of the issues for this trial was to consider what insight the father has gained into his conduct generally.

[157] Based on what I heard at this trial, the Court finds that the father has very little insight into how his behaviour impacts the mother. The father has exhibited a shocking lack of understanding as to the negative impact of his behaviour on the child, and on his ultimate goal of re-establishing a relationship with his daughter. In saying this, I will summarize the evidence concerning the father's behaviour in 5 different areas.

I - The Father's Criminal Convictions

[158] The father was convicted of a number of offences against the mother in 2015 as he pleaded guilty. That means the father chose to forgo a trial. The record before the criminal court in Quebec reveals that the father's guilty plea was informed and voluntary. The charges for which the father was convicted are serious and violent offences. They are indicative of a person who had exerted a level of control over the mother.

[159] The father has been adamant in the past, and he still is to this day, that he is innocent of the various charges, notwithstanding his guilty plea. The father blames the mother for the charges. He has accused the mother of using the criminal justice system to interfere in his relationship with C.S. He has accused the mother of using the police in Quebec as a weapon against him. And as I will later explain, he has taken to posting various statements about this on the internet. One of the several reasons for his internet posting is to "clear his name". He has done so without regard for any of the consequences that might be visited on C.S. were she to see what he has written.

[160] The father believes that by posting various comments online, he has protected himself from the mother's further, false allegations. He thinks that by posting online, he has kept himself from being jailed again. He believes he would have been arrested again were it not for the internet.

[161] As he did when he was before the Quebec Superior Court during the custody and access trial, and again when he was before this Court in 2016 at the summary judgment motion, the father once again denied his guilt during this trial.

[162] Despite his counsel's submission that he was not actually challenging the findings of guilt in this proceeding, the father's testimony during the trial suggested otherwise. The father testified that his guilty pleas were for convenience only. He testified that he pleaded guilty in 2015 so that he could get out of prison sooner. Even though he called no corroborating evidence to support the following statement, he claimed that had he not entered into the guilty plea, he would have had to wait for a further three years for his criminal trial, during which time he would have remained in custody and not seen C.S. The father also said he was threatened into pleading guilty, even though he was represented by criminal counsel at the guilty plea, and a plea inquiry was done. And the father also claimed he will be challenging the guilty pleas in some future proceeding, once he raises enough funds to do so.

[163] At the time of the summary judgment motion, this Court was aware of the criminal convictions because they are particularized in Alary J.'s June 7, 2016 Judgment. But Alary J.'s Judgment only lists the convictions without getting into the underlying factual bases of the pleas.

[164] As the father's past and ongoing treatment of the mother are some of the central issues in this case, in the Judgment of June 13, 2018, I was of the view that it was important for the Court to understand exactly what the father pleaded guilty to having done, beyond the mere wording of the charges. But prior to the summary judgment motion, no one had obtained a transcript of the criminal proceedings in the Quebec Court at that point so I ordered that either the Society, or one of the parents, were to obtain a transcript of the father's guilty plea for this trial.

[165] When this trial commenced 6 months later, this too had not been done. The trial began without the transcript, but the trial did not finish without it.

[166] Just prior to a hiatus in the trial between December 2018 and March 2019, I asked, again, about the status of the transcript. At the conclusion of the Court's exchange with counsel, I issued another direction that my earlier Order was to be complied with.

[167] Counsel for the mother eventually obtained the transcript on March 8, 2019 and it was filed with the Court on April 8, 2019. Simultaneously with obtaining it in March, the mother saw fit to post it on a website that she created about the father. I will have more to say about her behaviour in this, and in certain other respects, later in these reasons.

[168] The transcript from the criminal proceeding reveals the following facts read into the record at the time of the father's guilty plea. The parties met in 2006 or 2007, on the internet. They became a couple. Once in the relationship, the father had the mother work as a prostitute. He kept the proceeds from that, which the mother claimed amounted to $300,000. The mother said that the father was controlling and violent towards her. There were nude photographs of the mother found on the father's computer, along with an advertisement for prostitution. The father's phone number was associated with a prostitution website. Regarding the threatening charge, on September 14, 2014, the father had said to the mother, "I'm coming and I'm going to kill you".

[169] Except for the dollar value of the money he was said to have retained from having the mother work as a prostitute, the father accepted the facts as read into the record. In an attempt to provide the Court with a mitigating fact, the father's defence counsel said the case was "strange", because the mother had made prior complaints to the police about the father, but not ones similar to those that were the subject matter of the charges then before the Court. He also said that the mother had made a "porno" movie before.

[170] I have already addressed the effect of the guilty pleas in my Judgment of June 13, 2018, as did the Quebec Superior Court in the family law proceeding before it, frankly. This Court once again rejects any assertion, whether direct or indirect, on the part of the father, that he did not commit the crimes for which he pleaded guilty.

[171] The father has an incessant need to clear his name. He has been found guilty, and two civil Courts have now rejected his collateral attacks on the findings of guilt in subsequent proceedings.

[172] Unless he comes to terms with the fact that he has pleaded guilty to criminal offences, which means that he is guilty, and until he ceases his behaviour of publishing commentary on the internet about this, the father is jeopardizing any future prospect of re-establishing a relationship with C.S.

[173] While the Quebec Superior Court considered his guilty plea and still made an access Order, the Society is correct that the father has not accepted any responsibility for his actions. The father shows no remorse. He has escalated his behaviour. I am taking his subsequent behaviour into account as a factor that militates against ordering access.

II- The Father's In-Court Statements About the Mother

[174] At one point during the trial, the father claimed that he loved the mother as she is the mother of the child. However, his internet commentary and his in-court statements about her suggest otherwise.

[175] On the internet, the father has used derogatory language, calling the mother a "whore", a "bitch", and a "prostitute" among other things. Quite apart from that internet commentary, the father was not restrained in the court room either. He had a number of disparaging things to say about the mother during the trial itself.

[176] During his testimony, the father candidly admitted to having called the mother a prostitute in the past. In fact, he believes that she is working as a prostitute in Toronto. He also believes that the mother "stole" C.S. from him.

[177] In cross-examination, the father called the mother a "manipulator", a "compulsive liar", "bi-polar" and said she has "mental issues".

[178] These negative attitudes and comments about the mother, which the father was willing to vocalize directly to the Court, militate against an order for access.

III - The Father's Internet and Social Media Behaviour

[179] Some of the most egregious examples of the father's conduct were found online. The father candidly admitted that he has been actively using the internet to post his version of events. The father has continued to post about his version of the parties' history, along with pictures, and videos that he has made, even after having signed the undertaking on September 22, 2017 at the Quebec Superior Court appearance, and after being warned by the Society and by this Court to stop it.

[180] In addition to certain loose exhibits that were tendered at this trial, the Children's Lawyer tendered two briefs that contain copies of some of the father's internet activity. Among other things, there are numerous blog posts, Instagram posts and Twitter posts. There is a detailed index in one of the briefs that details the dates of his posts. The posts have continued to go up online since the summary judgment motion, right up until the commencement of this trial.

[181] During his testimony, the father admitted that he has 5 Instagram accounts, but I find this to be an understatement. He has at least one more, and perhaps others. Those which he acknowledged are named "S.C.S.", "Fighting_Hurting_Father", "SingleDadtreal", "SingleDadtreal -video – clips", and "C…Vision".

[182] In cross-examination by Ms. Clarke, the father acknowledged that he has another Instagram Account called "My Flower of Gold". And as I will explain, there was also a "GoFundMe Page" that either he, or someone else on his behalf, created ostensibly for the purpose of funding more litigation that he intends to embark upon.

[183] The father has a number of videos on YouTube. Counsel for the child played a number of videos for the Court, which the father acknowledged having made. Apparently there are even more videos online.

[184] The father still had a live, active internet presence, at least as of a date that was well into the trial. On March 15, 2019, during the father's cross-examination, counsel for the child, showed the Court various live websites. She did this by connecting a computer to a large monitor in the Court room and took the Court and the other trial participants to the various websites that were then live. The father acknowledged that the various websites that counsel went to, were his.

[185] In terms of the content of these various websites, posts and videos, at least in part, the father has gone onto the mother's own various websites and social media posts, taken images of what she had put there, and then re-posted them, but often with his own narrative superimposed over, or attached along with what she had initially posted.

[186] The father's own explanation as to his internet and social media behaviour shows his lack of insight. He explained to the Court that prior this his arrest, there were no posts. Then when he was incarcerated, he said he learned that the mother had been calling him a sex offender, online. He said not only did this place him in danger while in prison, but he was upset as the mother was trying to destroy his "family name".

[187] The father said he needs to clear his "family name" and his "reputation". He wants it to be known that C.S. was not a product of rape, as the mother had said. He said he was present when C.S. was born, and he even cut her umbilical cord. He told the Court that he wanted to be able to walk the streets with his "head up" and not be "ashamed". So he started posting.

[188] In this regard, the Court finds that father is concerned about himself with little regard for the impact on C.S. Not only has he has not taken responsibility for his past conduct and the offences for which he was convicted, he has turned to the internet for redemption. He thinks he has thousands of followers. His behaviour is not child focussed.

[189] The father knew, going into this trial, that his internet activity and his insight, or lack thereof, were central issues in the case. And to give the father a small amount of credit, he claimed that for a period of time, he actually started taking down the posts. There is some evidence that this happened. But then, he said, the mother started posting about him again, so he decided he would resume.

[190] Even though he tried to take some posts down for a period of time, the father testified that he was only able to get some of his posts off the internet. He was unable to have all of them taken down. He said that certain websites would not let him take down his prior posts. For example, he claimed that one website would not deal with him because the mother had called him a sex offender.

[191] There have been many, many posts. The Court will highlight some of them in these reasons.

[192] On August 1, 2018, the father posted a multi-page document called "My Story My Nightmare" on some sort of a "blog". This document tells the father's version of the history of the relationship and his arrest. He openly talks about the involvement of the Children's Aid Society of Toronto. On the front of this document is a big red stamp that reads "False Allegations". The story ends with "1487 days since I law saw or heard from my daughter and counting… !!!" It has the father's name and then the words "MOM LIED!" are also included. This post was put up almost two months after my June 13, 2018 Judgment. It is likely a breach of the non-publication provisions of the CYFSA.

[193] Attached to this story are various pictures of the mother and some hand written documents that he has labelled "Fake news" and "False allegations". There is also a link to a video called "Mom's Fake Rape Video Exposed", although because the document was printed, the Court is not able to ascertain the contents of the video.

[194] There are also pictures of the mother, in her apartment, included with this document. These are some of the examples of pictures that the father took from the mother's own posts and re-posted.

[195] Example number two is another story that the father has posted online. In this story, he talks about not having seen C.S. since she was young. He has posted a photograph of him holding her when she was younger. The document is entitled "Last time I saw my angel".

[196] On August 18, 2018, the father posted a picture of the child's back with some bruises. The father wrote "follow the truth" over top of the picture. He has included the child's name in his post. He wrote, "[C.'s] injuries I begged for Laval Police help!". At the bottom of the picture, he wrote the name of one of his websites, "SuperDadtreal.com." The express implication of this post is that the mother has abused the child. The post goes on to say that when the father tried to get help for C.S., the mother cried "rape" and ran away. The post ends with the father saying "Daddy will find you my love and those responsible have a heavy price to pay. I swear it on everything that I love". This post was put up two months after my June 13, 2018 Judgment.

[197] In another post, the father has put up a photograph of the child's face, with read hearts surrounding her image. Inside the hearts, he wrote the words "missing since September 22, 2014" and "plz help". This post went up on September 28, 2018, over three months after my June 13, 2018 Judgment.

[198] The father has gotten involved to some extent with a particular family in the United States. I was told that this family had a child who died in foster care and they too have turned to the internet. The father had this family post on his behalf on their website.

[199] I heard some evidence about the father's current girlfriend, N.A., and her involvement in both the conflict between the parties, and on the internet.

[200] N.A. did not testify at this trial, but both parties talked about her to a considerable extent. Additionally, the mother had attempted to introduce hearsay evidence from her at the time of the summary judgment motion, but I did not consider that.

[201] Apparently, N.A. uses multiple names. Throughout this trial, she was mostly referred to as N.A., but another of her names is N.W. And according to the father, N.A. has also used a pseudonym, M.P., although the mother claimed that M.P. is actually the father posing as a Greek woman online.

[202] At the time of the summary judgment motion, N.A. was ostensibly aligned with the mother. I was told that in the past, N.A. helped the mother make complaints to the police about the father. The mother claimed that N.A. was also willing to talk to her lawyer.

[203] But that is no longer the case. Now N.A. has apparently reconciled with the father. According to the father, N.A. has learned the error of her ways.

[204] At this trial, the mother referred to N.A. as the father's "current victim". The mother no longer now wants anything to do with N.A.

[205] The father says that N.A. is the owner of a "renowned" group for single mothers. She operates a website called "SuperMomTreal", (a play of words based on the fact she resides in Montreal). Following on this idea, the father created his own website for dads called "SingleDadTreal" (he also has "SuperDadTreal"). Based on what I was shown though, these are devoted to the father's own case.

[206] I heard about a "GoFundMe" page that had been created. According to the father, N.A. set this up unbeknownst to him. Apparently the purpose of the page was to raise money to fund future litigation that the father intends to launch. According to the father, N.A. set up this "GoFundMe" page using a fake name under the pseudonym M.P., a Greek woman. The father testified that when he discovered it, he told N.A. to take the website down as he was worried about being accused of fraud.

[207] Meanwhile, the mother testified that the father set this page up using the name M.P. And the mother said that she went to "GoFundMe" and had the page shut down, alleging fraud.

[208] Whoever set the page up does not matter. It is another example of matters relating to this case being posted online.

[209] The Court has also reviewed the videos tendered by the Children's Lawyer. The Court will summarize some the videos.

[210] The videos I was shown generally had three themes. Some are essentially slide shows of the child or of the child with the father sometimes with music playing in the background. The father was visibly teary eyed when at least one of these videos depicting C.S. was played in Court. Others, however, clearly contain an attack on the mother. And others have a theme that the father is coming to get the child, or to exact revenge on the mother. In some of the videos, the father accuses the mother of having kidnapped the child. Or he says that she is a prostitute. Certain videos have a very dark theme.

[211] For instance, in the father's video of August 22, 2018, words scroll up the screen saying "Mom's Fake Rape Video Exposed". There is then a slide show of various pictures of the mother and her home, as well as advertisements for an escort.

[212] There is another video of the father walking and talking. In it, he says that the mother is going to jail. He accuses her of having stolen C.S. and calls that pure evil. He also talks about the "false allegations" again him. Towards the end of this video, the words, your crying wolf days are over, are shown and there is an image of a wolf, wearing 'sheep's clothing', depicted.

[213] One of the father's videos includes a portion of the child protection application in this case. C.S. name and date of birth are visible on the document shown on the video. This is a clear example of the father having breached the non-publication provision of the CYFSA.

[214] In his video of August 26, 2018, the father films his briefcase/document bag. Words scroll across the screen to the effect that the bag is apparently 87 lbs. heavy. More words roll across the screen that the bag has seen the inside of family, criminal and "youth protection" courts in Quebec and Ontario. The video shows the inside of the bag, which includes numerous documents, as well as a picture of C.S. The photograph is an identification of C.S. and is therefore likely a breach of the non-publication provision of the CYFSA.

[215] In his video of November 14, 2018, there are a number of photographs of C.S., including a picture of the father holding C.S. Then at the end of the video, the following words come on the screen:

"Bring back my everything" and that C.S. has been missing since September 17, 2014.

[216] As I said, some of the videos may easily be interpreted as the father making plans to either come and get C.S. or to exact revenge on the mother. And those videos are particularly chilling. There is either hard rock or alternative music playing in some of them.

[217] For example, in his video of September 1, 2018, there are images of "Batman" talking to the "Riddler". A number of questions (presumably riddles) are shown on the screen. Then, the answer to the riddles is revealed. The answer is a map of the driving route to get from Montreal to Toronto. The father then shows the aforementioned picture of the bruises that I referred to above from another video. At the end of the video, the father has a cartoon image with the words "Dad is coming" written.

[218] The father's video of November 5, 2018 is entitled "can of worms". There is a story that scrolls across the screen. It talks about C.S. having been kidnapped. The words say that the mother is abusive and not a "real mother". The words go on to read, "There are two kinds of pain in this world. Pain that hurts and pain that alters". During this video, the father excerpted actor Liam's Neeson's voice from the movie "Taken". That is a movie about kidnapping. Liam Neeson's voice can be heard saying the words "I will find you". And at the end of this video, there is another image of the father's document bag. The video ends with words on the screen that read that it is time for the bag to travel again.

[219] In his video of November 28, 2018, pictures of C.S. flash on the screen. Then there are then images of a car driving from Montreal to Toronto.

[220] During the Children's Lawyer's questioning of the father about his internet activity, the father refused to acknowledge that his posts were either threatening to the mother, or that they would be upsetting to C.S., were C.S. to stumble upon these online. At one point when asked whether he agreed that if C.S. were to see the videos, she might find it scary, the father responded, "The truth hurts, Ms. Clarke".

[221] In re-examination, the father was asked to explain what might be viewed as a "dark" theme to his videos. He claimed that he used superhero images because he used to work as a comic book distributor. He said he finds Batman "inspirational". The Court rejects this explanation.

[222] Section 87(8) of the CYFSA provides that 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. Pursuant to section 142(3), it is an offence to contravene section 87(8). The offence is punishable on conviction by way of a fine of not more than $10,000 or by imprisonment for not more than three years, or both.

[223] Given the father's stated concern about being incarcerated again, one might have thought this provision would have been a deterrent to his postings. But it has not been.

[224] In Catholic Children's Aid Society of Toronto v. N.B., [2012] O.J. No. 3241 (C.J.), Justice Ellen Murray made an order directing the father in that case to remove posts that violated the predecessor non-publication provision of the Child and Family Services Act. Justice Murray made a temporary order suspending the father's access until that was done.

[225] I am not aware of any case in which a court has made a final no access order as a result of the violation of section 87(8) of the CYFSA or its predecessor. That said, the Court is of the view that the father's online conduct militates against ordering access.

[226] The fact that the father has breached this section of the CYFSA is only part of the issue. The reason for not ordering access in this case relates more to the harm that is being visited on the mother and the child as a result of the posts. That said, the Court intends to follow Murray J.'s approach and make various orders regulating both parties' online behaviour. In this section of the Judgment, I have referred only to the father's online conduct. I will deal with the mother's later.

IV - The Father's Recent Complaint to a Quebec Child Protection Agency

[227] During the hiatus in the trial between December 2018 and March 2019, the father launched a complaint to a child protection agency in Quebec about R.L. He claimed that he telephoned the Quebec child protection agency to find out if there had been an open file concerning C.S. But in the process, he decided to allege that R.L. was not safe in his grandmother's care. Apparently the complaint also concerned the mother.

[228] I was told that the Quebec child protection agency closed its file and did not verify the allegations.

[229] In cross-examination by the Society, the father admitted that he had not seen R.L. in many years and he had no recent knowledge upon which to have based a complaint. Yet, he admitted to having made the complaint.

[230] This is another example of harassing behaviour directed at the mother. This too militates against an order for access.

V - The Father's Threat to Keep Litigating

[231] The father intends to keep fighting the mother in Court. More than once during the trial, the father told the Court about various law suits he intends to launch in Quebec.

[232] Whether or not he will actually do this is not the point. It is telling that he so openly told the Court about his plans to continue to wage a fight with the mother, particularly if he does not get his way in this case.

[233] This militates against an order for access.

VI - The Father Has Not Paid Child Support

[234] The father has paid almost no child support to the mother.

[235] I heard examination and cross-examination about how much the father had paid prior to his incarceration, whether there had been a payment schedule created by the mother and whether the father complied with it or not. This evidence is dated and does not really matter much to what the Court must decide now.

[236] That said, the Court finds that the father has paid nothing for child support since his release from prison in early 2016. That is more than three years. This finding is based on the father's own admission to this effect.

[237] The father's failure to pay child support for the past three plus years is another example of his attitude towards the mother. It reflects negatively on his attitude about his role as a parent. The father did nothing to meaningfully acknowledge his moral and legal obligation to support C.S.

(2) The Mother's Mental Health

[238] It is not a stretch to conclude that behaviour of this kind would negatively impact the other parent and consequently the child. But in addition, the mother in this case suffers from various mental health diagnoses. The Court finds that the father's conduct has worsened the mother's mental health.

[239] The Court heard evidence about the mother's mental health from the mother, Ms. Wisnowska and the mother's treating psychotherapist, Dr. Martinez. The Court prefers the evidence of Dr. Martinez as to the mother's diagnosis and about the mother's functioning.

[240] The impact of the father's behaviour on the mother's condition militates against an order for access. However, having now heard the fairly concerning evidence about the mother's mental health and the evidence of the Society's inaction, it is the Court's view that the Society ought to have done more to address this.

I - The Lay Evidence Respecting the Mother's Mental Health

[241] The Court heard limited evidence about the mother's mental health at the summary judgment motion. There was no admissible medical evidence then put before the Court. Nevertheless, at ¶ 159-166 of the June 13, 2018 Judgment, the Court made findings regarding the mother's mental health, some of which I repeat here.

[242] The Court found that the mother's fears of the father were profound. That remained the case by the time of this trial. To the Society, the mother expressed her fear that the father was going to "exact revenge" on her.

[243] In early 2017, the mother also reported to the Society her belief that he would harm her and C.S., and perhaps he would even murder them. However, Alary J. dealt with similar evidence in the Quebec proceedings. She rejected the assertion that the father had ever threatened the child. As I have said, nothing in this trial has led me to conclude that the father has issued a threat to harm the child since the trial in Quebec.

[244] Nevertheless, prior to and at the time of the summary judgment motion, the mother's fear of the father was manifesting itself vis a vis C.S. in at least three ways.

[245] First, the mother did not allow C.S. to go outside for recess at school. Second, the mother had told C.S. that there is a stalker after her. And third, there was some evidence that the mother was co-sleeping with C.S., apparently to help the mother manage her own anxiety.

[246] The evidence I heard at the trial is that the mother's fear is still manifesting itself in various ways.

[247] For example, I heard evidence from the mother that she believes the father has been stalking her outside the child's school. The mother described that this happened twice. She said the first incident occurred in December of 2017 and the second occurred on December 3, 2018.

[248] Regarding the December 2017 incident, the mother testified that she saw a car near her condo (which is also near C.S.' school), with the "perpetrator" seated inside taking "videos and pictures". After seeing this, the mother first went into C.S' school to get her. When she came out, the father was still in the car. So the mother proceeded to chase after the car to photograph the license plate, with C.S. running alongside her.

[249] The mother explained that she and C.S. both ran down the middle of the street and the side walk. She said that when she did this, the father "sped off, made a u-turn, going west".

[250] The mother then ran into her condo with C.S. and called the police.

[251] On December 3, 2018, the mother said she was once again being stalked by the father. This time, she said she saw a car with a Quebec license plate parked near C.S. school. She said she walked up to the car and saw the father in it. According to the mother, there was also a lady wearing a hijab in the car.

[252] The mother said she then discretely took out her phone, and took a video of the license plate. She said that the father looked at her and stared while she did this. She also had C.S. run into the school yard during this encounter.

[253] After she filmed the license plate, the mother said she told the school secretary and the principal what had happened. Apparently, the secretary then went out to check on the car, but no one was in it. According to the mother, this incident occurred between 8:45 am and 9:30 or 9:40 am.

[254] Following this December 3, 2018 encounter, the mother said she telephoned 911. She said she later shared the video she took with the police, and with her counsel. The mother said that the police told her the car involved was a rental car. Although she reported this incident to the police, the mother testified that the father was not charged with breaching the probation order. She said that was because "they couldn't find the car, so they didn't have proof that it was him".

[255] In cross-examination, counsel for the father asked the mother why she had not produced this video. The mother's answer was that she did not film the father, just the license plate to show the police.

[256] Meanwhile, on December 3, 2018, the father swore his trial affidavit in Quebec. Nevertheless, the mother maintained that the father was present stalking her on that date in Toronto. It was suggested to the Court that the father must have come to Toronto either the night before or that morning to stalk her, and then he returned to Montreal later in the day to swear his affidavit.

[257] I do not accept that the father was stalking the mother and the child outside of the school on either day. I do not find it likely that had the father actually been in the car on either occasion that the mother would have just tried to film a license plate. This account makes no sense. Moreover, I find it inconceivable that the father traveled to Toronto on December 3, 2018 to stalk the mother, only to return to Quebec to sign his affidavit. That said, I am not prepared to find that the mother lied to the Court about these incidents. It may be that the mother's fear led her to believe it was the father. And quite apart from this, it is clear that the father's internet behaviour is intimidating and threatening.

[258] Other manifestations of the mother's fear are the restrictions she has placed on C.S.' ability to go out for recess at school. I did hear some evidence at this trial that those restrictions have been relaxed, that C.S. is now being allowed to go outside for recess and that the mother is now taking C.S. out in the community to activities whereas before she was not.

[259] But the evidence about recess was not consistent. I do not have a clear picture following this trial as to whether C.S. is routinely allowed to go out with the other children or whether this sometimes happens and sometimes it does not. In any event, even if C.S. is allowed to now go out, it remains to be seen as to whether this is a permanent change.

[260] The mother testified that she continues to co-sleep with C.S. But now, during the trial, she explained that she and C.S. are very attached to each other and that it is C.S., who refuses to sleep on her own. I do not know which of these (or some other) reason is true, but the mother and C.S. are still co-sleeping together.

[261] I was told on more than one occasion by counsel that the mother was afraid come to Court knowing that the father was going to be here. With this dynamic in mind, and with the consent of all counsel, the Court went to lengths to create a court room environment that was as comfortable as possible for all concerned, but also fair to the parties.

[262] With the consent of counsel, the Court arranged for the father to participate during the trial, mostly by observing the trial via video from the vulnerable witness room, except when he testified. Counsel also made arrangements for the parties to come and go from the court house so that they would not cross paths.

[263] During the trial, there were times when the mother did not attend Court at all by choice, but she had her counsel present. For the closing submissions, the mother was present and the father participated by telephone from Quebec.

[264] There was some limited evidence before the Court at the summary judgment motion about some of the steps the mother had taken to address her fears and her mental health. The Court finds that what the mother has done is insufficient. And it is the Court's view that the Society ought to have acted when confronted on what were warning signals earlier on in this case, in particular to provide more assistance to the mother.

[265] On January 18, 2017, Society worker Tania Marks recommended that the mother receive counselling. First, the mother indicated that she was open to it. On June 7 and August 8, 2017, the mother indicated again that she was willing to go to counselling. Around this time frame, she advised the Society that she had obtained a referral to a trauma specialist. But as I will explain, her stint working with the trauma specialist was short lived as the mother did not follow the recommendations of the trauma specialist.

[266] By September 18, 2017, the mother advised the Society that she was in fact attending therapy. But then, on October 30, 2017, the mother refused Ms. Wisnowska's suggestion of counselling, to help her prepare C.S. to start seeing her father. It was at that point that the mother told Ms. Wisnowska that she intended to present medical evidence about the impact of the father having access to C.S. on her.

[267] There was also more current evidence before the Court about recent mental health concerns on the part of the mother. In her trial affidavit sworn December 4, 2018, the mother explained that she had been seeing her psychotherapist, Dr. Martinez, on a weekly basis. She deposed that she had been having suicidal thoughts as a result of certain actions of the father, such as when he would post something on the internet, or send her a text message.

[268] The mother deposed that she had last had such thoughts fairly recently. According to her, those thoughts occurred after the father contacted her on one of her websites. She explained that the contact had triggered a panic attack, shortness of breath, heart palpitations, and nausea.

[269] The mother further said that she had additional such thoughts on November 19, 2018. She deposed that she felt suicidal when thinking about confronting the father at this trial. She said she experienced memory loss as result. And she said that she told this to Dr. Martinez, but that he coached her.

[270] At the trial, the mother explained how she experiences panic attacks. She testified that she will have difficulty breathing, her heart will beat "really fast" and she has "blackouts", but only for two seconds.

[271] The mother explained that she is able to manage these episodes by having therapy sessions with Dr. Martinez and by practicing breathing exercises. Meanwhile, the mother testified that Dr. Martinez had referred her to both a psychiatrist at CAMH and to a "trauma specialist", but the mother did not fully follow through respecting these referrals. The Society either was, or ought to have been aware of this.

[272] Regarding the psychiatrist, the mother explained that she attended at CAMH and talked to a female psychiatrist there (she could not remember the person's name), but then she declined services because she did not want to participate in a group therapy setting. That is what CAMH was offering. Dr. Martinez confirmed this evidence.

[273] Regarding trauma therapy, the mother also participated in twelve one-on-one sessions, every other week, lasting between 1 and 3 hours per session. But then individual sessions ended too, and for the mother to continue in trauma therapy, she would have been required to move to a group setting. She would not do so.

[274] The mother testified that each of Dr. Martinez, the psychiatrist she spoke to at CAMH, and the trauma specialist, advised her to take medication. Yet she said she refused the medication because she did not want to become dependant on it.

[275] In cross-examination by the Society, the mother talked again about the breathing techniques that Dr. Martinez has taught her. She said that she believes that her sessions with Dr. Martinez and with the trauma therapist have helped her.

[276] Finally, I was told that the mother is in receipt of ODSP, based on a diagnosis of post-traumatic stress disorder.

[277] Even though the Society was given of much of this evidence in advance of the trial, including the mother's evidence of suicidal ideation (albeit the Society was told about the thoughts of suicide in the days before the trial by way of the mother's trial affidavit), the Society did not take better steps to address the mother's mental health. I will explain later in this Judgment what level of involvement Ms. Wisnowska had been having with the mother and C.S. for quite some time.

II - Dr. Lionel Martinez' Evidence

[278] The mother's psychotherapist prepared a report and testified at this trial. Initially, there was a challenge by the father as to what the scope of Dr. Martinez' testimony would be. However, after conducting a voir dire on this issue, the objection was resolved mostly on consent.

[279] Dr. Martinez is a physician whose practice focuses almost exclusively on psychotherapy. He graduated from the University of Toronto medical school in 1996 and completed his residency in family medicine thereafter. Since 2000, he has practiced family medicine. He has also studied mindful based mediation.

[280] Dr. Martinez currently works out of two Toronto medical clinics. He has over 200 psychotherapy patients. He is competent to both diagnose and treat mental illness, including prescribing medication. He has been doing this for many years. He explained that the treatment of post-traumatic stress disorder, anxiety and depression are routine aspects of his practice.

[281] Dr. Martinez testified about the diagnostic process that he employs. First, Dr. Martinez takes a comprehensive patient history. He said he will form an initial diagnostic impression, although he will then remain open minded and reconsider it as he works with the patient. He will make a referral to a psychiatrist if necessary, if the diagnostic criteria are not clear to him.

[282] As part of his intake process, Dr. Martinez performs what he referred to as a "mini-mental examination". He routinely assesses for suicidality, homicidality, intellect, insight, judgment, memory and attention. Dr. Martinez keeps detailed, contemporaneous notes of his sessions and prepares regular progress reports. While he acknowledged that his work with the mother was based in part on her self-reports, he also made a number of observations of her over the course of his work with her.

[283] Dr. Martinez uses the DSM to diagnose, but only if necessary. He turns to the DSM if he is unsure as to a diagnosis. In the mother's case, he did not need to go to the DSM, because he explained that her symptoms were "so classic". In keeping with his diagnostic practices, Dr. Martinez formed an initial impression after first meeting the mother, and then he said that her symptoms were "so enduring and so strong" that his initial impression was confirmed, in his mind.

[284] After hearing a voir dire about Dr. Martinez, I permitted him to testify as a "participant expert".

[285] A "participant expert" is a witness with "special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation". He or she may give opinion evidence without complying with the expert's rule where the opinion is based on the, "witness' observation of or participation in the events at issue and the witness formed the opinion as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events." See Westerhof v. Gee Estate, 2015 ONCA 206 ¶ 60, 61.

[286] I indicated that Dr. Martinez would be able to testify about his work with the mother, his observations, his diagnosis of the mother and her prognosis. I indicated he would be allowed to comment on the impact of the mother's mental health on her ability to parent. I said that the Court would be cautious about the aspects of Dr. Martinez' report, and any of his viva voce evidence, in which he purported to recommend an outcome respecting custody or access or in which he purported to comment about the child's condition.

[287] Dr. Martinez' report of October 31, 2018 was filed with the Court.

[288] Dr. Martinez diagnosed the mother with Major Depressive Disorder, Generalized Anxiety Disorder and PTSD "as a result of her past experiences and ongoing experiences arising from her perpetrator's continuing actions". Dr. Martinez concluded that the mother's ability to parent and function normally from a mental health perspective would be "severely impacted negatively" should the mother or the child come into contact with the father.

[289] Dr. Martinez wrote that the mother's PTSD was manifesting itself by her having nightmares and flashbacks. He said the mother is hyper vigilant, even scared to leave her apartment.

[290] In his report, Dr. Martinez said that in the past, the mother was on the verge of suicidality, but he said she now realizes that she is the sole parental figure and so she is no longer suicidal.

[291] During his viva voce testimony, Dr. Martinez explained that the thought of access between the father and C.S. exacerbates the mother's depression and anxiety. He testified that her condition has improved, in that she is now taking the child out of the home each weekend. But he also said that her ability to function would severely regress if there were to be access.

[292] Dr. Martinez said that the father's internet activity sets the mother back. He explained that the mother needs to get to a point where she can completely disregard what is going on, on the internet. Until then, he said things will 'ebb and flow' and there will be regression.

[293] Dr. Martinez' treatment plan has involved efforts by him to stabilize the mother. He agreed that he made referrals to CAMH and for trauma therapy but that the mother did not want to participate in groups. He also confirmed that the mother will not take medication.

[294] Unaware that the mother had just testified in court that she would kill herself if access was ordered (which I address next), Dr. Martinez testified that the mother hadn't had suicidal thoughts for "a substantial period of time". Nevertheless, Dr. Martinez testified that it would be detrimental for the mother to stop therapy. He said that she needs to increase her comfort in giving C.S. more latitude to go out into the community.

[295] As part of his work with the mother, Dr. Martinez has also met with the child on 6 occasions. Each time the mother was present.

[296] At the trial, Dr. Martinez explained that he met with the mother and child to assess whether the mother-daughter relationship was appropriate. He observed the two to share a close relationship.

[297] However, Dr. Martinez went on to write in his report that contact between the father and the child will impact the child's psychological well-being. Dr. Martinez is against access, as it will impact the mother-daughter relationship. He explained that it would raise questions about the parents' relationship, the child's conception and all this would force the mother to be traumatized by telling events to C.S. And he said this would severely traumatize and stigmatize C.S.

[298] Some of what Dr. Martinez said about the child has elements of common sense. Obviously if there is to be access there will be questions about the parents' relationship that will have to be managed. However, the Court places no weight on his evidence respecting the child's well-being. He does not have the expertise, nor did he perform the type of assessment that would enable him to make such recommendations. See G.S.W. v. C.S., 2018 ONCJ 286 ¶ 144-153.

[299] If there is to be access though, Dr. Martinez recommended an increase in the mother's therapy sessions, an increase in Society social work involvement with the mother. Although he purported to comment about the child's well-being, he also separately suggested that there should be a referral to a child psychiatrist for C.S.

III - The Mother's Mid-Trial Suicidal Ideation

[300] At the end of the second day of trial (December 10, 2018), the mother's counsel asked the mother the following question, and elicited the following answer:

Q: Ms. L, if this Court orders supervised access for Mr. S, what will happen to you?

A: I'll kill myself. Because I feel like my life is gonna be over anyways. I tried so hard to protect my daughter, and I would feel like the Court has failed us at helping me protect her.

[301] After that, counsel asked no further questions of the mother, thereby concluding his examination in chief.

[302] The mother's cross-examination began, but did not finish on December 10, 2018. It resumed on December 11, 2018.

[303] The following exchange occurred between the mother and counsel for the Society on December 11, 2018:

Q: Okay. All right, thank you. Now, when Mr. Chang was asking you some questions in-chief, he asked you what would you do if this Court found that it would order access between — of whatever type — between C.S. and Mr. S. And I think your response was that you would kill yourself, if I remember correctly.

A: Yeah....

Q: Can I just ask you, did you mean that literally?

A: Yes, I've already prepared for it.

Q: When you say you "already prepared for it," what do you mean?

A: I've already prepared what to write in letters for my kids, my siblings, my mother. I already prepared how I'm gonna do it.

Q: Can I just ask you: How important is your daughter to you right now?

A: Very important; Dr. Martinez said if I am gone, then it would be easier for him to fight for my daughter. That is helpful in keeping me alive.

Q: Well, I was gonna ask you, don't you think it's in your daughter's best interests to have her mother, even if there is an access order?

A: I feel like — I'm gonna feel like there is nothing more I can do, so what's the point, he's already tormenting me. This — I feel like this is his way to keep — for him to kill me, is by me killing myself; everything he's doing right now.

Q: But, if I can ask you to look at it from the perspective of your daughter?

A: Yes.

Q: And I'm just gonna ask you again, looking at it from her perspective: do you think taking such a drastic step would be in her best interests?

A: No.

Q: So.....

A: I feel like I need to be selfish in that. Because I'm — I'm not living right now. Right now my life is a nightmare.

Q: So, I understand, but I just want to take you back a little bit to this, because this is important. And — if access was ordered, right — can you tell me what you think would be the best thing that you can do for your daughter? The best thing you could do for her?

A: If he gets access to her?

Q: Of any kind, whether it's face-to-face or whatever this judge, this Honourable Court decides to order — if that's the road we go down — what do you think is the best thing that you could do for your daughter?

A: There is nothing I could do, because that's the worst thing. There is nothing that would make it better.

Q: Would you be open to working with Society workers and other counsellors to make this go as smoothly as possible?

A: I've already tried working with them in the past, it never worked out.

[304] At the conclusion of the mother's evidence, the Court asked the following questions:

THE COURT: All right. Okay, so you said before — and I think I've got your words verbatim, that if access is ordered, you will kill yourself. You used the words "literally, I've already prepared what to write in letters to my kids, my siblings, and I've already prepared how I'm going to do it." So, I'd like you to tell me what it is that you say you've prepared.

THE WITNESS: I don't....

THE COURT: Well, I'm asking you to tell the Court that evidence.

THE WITNESS: I've already prepared what I would write in those letters.

THE COURT: Which is what?

THE WITNESS: I already know what I'm going to write in those letters, explaining — explaining why I can't live anymore. Because I feel like I'm not even living my life right now. So, what's the point explaining everything that happens to me and what he was doing to me and still doing.

And telling my kids how much I love them, my family, I love them and I know it's not their fault, it's his fault. And I know it's not my fault; after over a year of therapy I came to realize it's not my fault.

THE COURT: When you said you had planned how you're going to do it. So what have you — sorry, what do you mean by that?

THE WITNESS: Just, you know, how it's gonna end.

THE COURT: Have you talked to the Children's Aid Society about this before?

THE WITNESS: No, I kept it to myself.

THE COURT: Have they — okay. Has the Children's Aid Society given you referrals for any services?

THE WITNESS: Yes.

THE COURT: What?

THE WITNESS: I don't remember.

[305] Next, Dr. Martinez testified. The following exchange occurred between counsel for the Society and Dr. Martinez during the Society's cross-examination of Dr. Martinez:

Q: Okay. So, I am going to tell you that there was testimony earlier on, where Mother was asked what she would do if this Court saw fit to grant access to Father. And Mother's answer was that she would kill herself. And furthermore, she went on to say that she's already thought about what her letters would say; I suppose, suicide notes is what she was referring to. And she got very distraught on the stand, and that was her testimony.

Does that — first of all, let me ask you if that would surprise you, to learn that that's what she testified to?

A: That was initially how she came into the sessions.

Q: Okay.

A: And I worked very much with her to make her understand that that would be detrimental, because it would be, default, giving custody back to the perpetrator.

Q: Right.

A: So, I'm somewhat — a little bit surprised that she did still comment today about that.

Q: Okay, so you're somewhat surprised.

A: Yes.

Q: Concerned?

A: Concerned enough that it will be a point of discussion in the therapy sessions for a good long while.

[306] And later, counsel for the Society and Dr. Martinez had the following exchange:

Q: Okay. How concerned would you be — given you're her therapist for over a year, given what she has said in testimony here about killing herself — how concerned would you be that if an access order was granted, that she might actually carry that out? Given your experience with her over the past year-plus.

A: I am concerned.

Q: Okay.

A: I am disheartened, because I thought we had already crossed that bridge. And it represents a regression, it represents something which has blindsided me. I mean....

Q: I think it's fair, I think it's fair.

[307] The following exchange then occurred between counsel for the Children's Lawyer and Dr. Martinez:

Q: Just following up on my friend's last question: In your opinion, is it possible that this proceeding that we're engaged in over the last three days, is a trigger for that regression that you just mentioned?

A: It may well be, yes.

[308] In his cross-examination of Dr. Martinez, counsel for the father asked a series of questions directed at when C.S. should be told about her father. Dr. Martinez testified that would be a gradual process. In that line of questioning, the following exchange occurred between counsel and Dr. Martinez:

Q: So, is it gonna delay this process, now that you've found out Mother has threatened to kill herself if access is ordered?

A: Is it gonna delay it?

Q: Yes.

A: I do not believe it will delay it; I will have to seriously re-enter into a long discussion with Ms. L about that comment about suicidality.

Q: So, you thought that had been addressed. Is that fair to say? It seems like that's your evidence.

A: That's my evidence.

Q: And I'm guessing you probably spent a considerable amount of your time in dealing with that, because that was the initial issue that brought her to you. Is that fair to say?

A: Yes.

Q: Okay. So — you're starting over.

A: Yes.

Q: Okay.

A: There's regression.

[309] Concerned about the mother's condition and about the fact that the child is in mother's care, at the conclusion of Dr. Martinez' questioning by counsel, the Court asked a question of clarification of Dr. Martinez. The Court asked Dr. Martinez when he assesses for suicidality, what would cause him to send a patient to a hospital on a Form. Dr. Martinez' answer was essentially that he would consider whether there was an immanent risk.

[310] Following that question, the following exchange between counsel for the Society, Dr. Martinez and the Court occurred:

MR. ANDRIKAKIS: Well, arising from what His Honour was asking you about what information would have to be imparted to you to make you feel that you might have to fill out a Form 1, has anything you heard here today about what Ms. L. said in her previous testimony about possibly killing herself if there was an access order?

THE COURT: So let's be really clear about what the evidence was here today. The evidence was, and the answer was — the evidence that the Court heard earlier today was that, "If the Court orders access, I will kill myself. I've thought about it. I've thought how I would do it. I've thought about what I would say to my children and to family, and I've thought what would go in the letters." That's what — is that an accurate recap of the evidence?

MR. TOBIAS: She also said, "I mean this literally."

THE COURT: Correct. That's right.

THE WITNESS: That is very disconcerting, very alarming.

THE COURT: Are we — would you be in Form 1 territory?

THE WITNESS: We're broaching on that Form 1, yes.

[311] This last exchange occurred at 5:05 pm. The Court took a brief break during which time the Court asked Dr. Martinez to remain in the court room. He agreed.

[312] The Court resumed at 5:29 pm.

[313] I pause to note here that Dr. Martinez was scheduled to testify on December 10, 2018 but he was not reached. He had to be re-scheduled for December 11, 2018. Once again, he was not reached until late in the day.

[314] Mindful of the impact of these delays to the schedule of a busy professional witness, upon my return, I again asked Dr. Martinez if he would stay to meet with the mother. He agreed. After securing Dr. Martinez' agreement to stay and meet with the mother, I ordered that C.S. should come into care on a temporary without prejudice basis until the next Court date, at which point there would be a temporary care and custody hearing.

[315] Counsel for the Children's Lawyer told the Court that its order was "detrimental" to the child.

IV - The Motion for a Mistrial

[316] The temporary care and custody motion did not proceed as I directed. Instead, on December 13, 2018, counsel for the Society, the mother and the Children's Lawyer launched a motion for a mistrial. The Children's Lawyer told the Court that she had the support of her "supervisors and senior counsel" at the Office of the Children's Lawyer and that those persons agreed or approved this step in the litigation.

[317] Counsel for the father did not support the motion.

[318] For use at the mistrial motion, counsel for the child had quickly obtained only a portion of the transcript from December 11, 2018. Not only was it incomplete, but it contained an inaccurate copy of my ruling. A transcript of a ruling requires judicial review and approval prior to its release, which had not been obtained. The Court was not even aware that the transcript had been ordered until the morning of December 13, 2018. By that point, Ms. Clarke already had it in its incomplete form, copied multiple times and ready for distribution to the other counsel.

[319] The plan amongst three of the four counsel, had the mistrial been granted, was to go before another judge for the temporary care and custody hearing. Because I was the judge who had heard the evidence upon which the temporary without prejudice order had been made, the complete transcripts of the trial to date would have to be ordered and that would take time.

[320] As the full transcripts, including a complete and accurate copy of the Court's ruling, would take more time to properly obtain, I was told that the temporary care and custody hearing would be adjourned. And to avoid the child remaining in care any longer, counsel intended to ask the new judge to place the child in the mother's "extended care", in the absence of that judge having the benefit of the evidence that the Court had heard at the trial.

[321] In the result, I addressed the various arguments the Court heard on December 13, 2018, including the submissions from counsel for the child that a reasonable person might conclude, that the Court had pre-decided the issue of access in favour of the father, and then went on to pre-emptively order the child into care to protect her.

[322] I dismissed of the mistrial motion that day.

V - The Temporary Care and Custody Motion on December 14, 2018

[323] The temporary care and custody hearing proceeded next, on December 14, 2018, instead of December 13, 2018 as I had directed. All counsel agreed that the additional evidence received at the temporary care and custody hearing would also form part of the evidence at this trial.

[324] Ms. Wisnowska was recalled to testify at the temporary care and custody hearing. She said that since the without prejudice order made earlier that week, she had now spoken to both the mother and the child. She explained that it was the father's presence in the same Court House that triggered the mother's suicidal ideation.

[325] Even though the mother had talked about it in her trial affidavit of December 4, 2018, Ms. Wisnowska testified that she was unaware of the mother's suicidal ideation prior to hearing her express it during the trial. In closing argument, counsel for the Society submitted that Ms. Wisnowska had been "shocked" at the degree of the mother's statements. Nevertheless, three days later, Ms. Wisnowska said she had "no concerns" if the child returned to the mother, although she would like to now see the mother have more frequent therapy sessions.

[326] It was revealed during the temporary care and custody hearing that Ms. Wisnowska had only met with the mother once per month since the summary judgment motion. She had only spoken to Dr. Martinez twice between September 2017 and the time he testified at the trial. While Ms. Wisnowska had talked to a teacher of C.S.', she only had contact with that person twice, in total. And she only spoke to one of the mother's support persons, once. Now having heard the evidence, Ms. Wisnowska told the Court she would visit the mother more frequently. She wanted the mother to have increased communication with Dr. Martinez too, although she did not specify the frequency.

[327] The mother testified that after Court, she "blanked" out. She said that hearing the father's voice had "really triggered" her. She explained that she felt paralyzed, and that after Court, she had the biggest panic attack that she had ever had.

[328] The mother went on to elaborate about her previous panic attacks, saying that during past panic attacks, while in a caregiving role, she left C.S. to watch TV alone in the condominium, while she would go into her room. She would tell C.S. that she was not feeling well during those episodes.

[329] Again, Dr. Martinez had met with the mother after Court on December 11, 2018, at the Court's request. He advised her to go to the hospital, which she did. They then spoke again that evening on the telephone, and again the following day. Dr. Martinez was not recalled to testify at the temporary care and custody hearing, but his further evidence was filed by way of affidavit on consent. Dr. Martinez deposed that the mother was neither suicidal, nor a risk of harm to herself or to anyone else.

[330] The parties also admitted into evidence, on consent, a letter dated December 12, 2018 authored by Dr. John Kim. Dr. Kim is an emergency room physician at St. Joseph's Hospital. The letter states that the mother had an "emotional outburst" rather than "an actual intent of harm". Dr. Kim wrote that it was his "medical opinion that [Ms. L] is at no risk of harming herself, her children or others".

[331] Notwithstanding the Children's Lawyer's earlier submissions that the Court ordering C.S. into care was "detrimental", there was no evidence called at the temporary care and custody hearing that C.S. was even aware of what was going on. Following the Court's without prejudice Order of December 11, 2018, the Society made arrangements to assess the mother's friend, "K", as a place of safety. As earlier explained, "K" lives in the same building as the mother. The mother testified that C.S. was excited to see K. The mother also visited C.S. during her stay with K.

[332] Ms. Gandhi was not called to testify at the temporary care and custody hearing. But on consent, the Children's Lawyer tendered an unsworn email from Ms. Gandhi, detailing her meeting with C.S. after the temporary without prejudice Order. Despite the mother's evidence about C.S.' excitement in sleeping over at K's house, Ms. Gandhi said that C.S. looked "sad" when she met with her. But separately, C.S. had told Ms. Gandhi that she liked "K" and was "fine to stay with him". The balance of Ms. Gandhi's unsworn email purports to give opinion evidence about the harm that would be visited upon C.S. were she to remain in care.

[333] In the result, the child slept over at her mother's friend's house for two nights and had contact with the mother during that time.

[334] At the conclusion of the temporary care and custody hearing, the Court returned the child to the mother's care, but with additional terms and conditions. I have already set out the terms and conditions above. Those terms and conditions are still in place in the Status review. The trial then resumed in March 2019.

[335] When the trial resumed, the mother filed an updated report of Dr. Martinez dated March 8, 2019, on consent. None of the counsel asked that he re-attend to be further questioned on it. Among other statements, Dr. Martinez reported that he had increased sessions with the mother in accordance with my order during the hiatus in the trial and that the mother had been functioning quite well. He said that he had asked the mother about any further suicidal ideation at every subsequent therapy session, and that she denied having any.

[336] Dr. Martinez also reported that the mother had become much more adept at not focusing on what the father was saying on the internet, or to whom he was saying it. Yet on the very day that he authored this report, the mother posted the transcript of the father's guilty plea on the website that she had created in his name to ensure the correct version of events was made known to the public. I will come back to this evidence and how the Court is treating it.

VI - The Mother's Outburst During Closing Submissions

[337] On the last day of trial, the mother had another outburst in the court room.

[338] The mother was re-called to testify that day. I address why that was, later in these reasons, but I note here that she was composed throughout her testimony, as she was throughout most of the closing submissions.

[339] Then when counsel for the father was making his closing argument, the mother got up, left the Court room and began to scream and cry, loudly, in the hallway. The Court took a brief break to allow Ms. Wisnowska and Mr. Chang attend to her.

[340] A short while after the submissions resumed, the mother returned to the court room and quietly resumed listening to the arguments.

(3) Conclusions Respecting the Medical Evidence and the Impact on C.S.' Relationships

[341] The Court accepts Dr. Martinez' diagnoses of the mother. The Court finds that the mother suffers Major Depressive Disorder, Generalized Anxiety Disorder and PTSD. These mental health disorders impact her ability to parent.

[342] The Court accepts that the mother has panic attacks that impair her functioning. The Court also accepts that the mother is very fearful of the father. And there is no question that the mother will find it difficult if the Court orders access.

[343] In regard to sections 74(3)(v)-(viii), (x) and (xi) of the CYFSA, the Court agrees that it is important that the child's relationship with her mother be protected. The Court agrees that it should not make an access order if it will severely destabilize the continuity of care that C.S. has had.

[344] For these and the other reasons that I have earlier expressed, the Court finds that it would pose too great of a risk to make an order for access between C.S. and her father at this time.

[345] However, the Court must still weigh all of the evidence in light of the statutory factors, not just the evidence about the father's conduct.

[346] The Court is troubled that the mother's fear and her other symptoms have been manifesting themselves vis a vis the child. This has been occurring, quite apart from the question of whether there should be access or not.

[347] While on the one hand the Court heard evidence that the mother and child have a positive, healthy relationship, that evidence is not as straightforward as the Society, the mother and the Children's Lawyer maintain. Again, the mother has been co-sleeping with the child, she has either denied, or is still denying the child the ability to go out for recess, she has at times restricted outings in the community, and she has told the child that there is a stalker after her. Undoubtedly that is alarming to C.S. Plus, there is the mother's own evidence of panic attacks while in a caregiving role.

[348] Extreme positions, such as a mother saying she will kill herself should a certain outcome be ordered, put the Court in an obvious, impossible position. If this evidence was true (and the Court had no reason to disbelieve it upon hearing it), then Society, and the Court, had a duty to act to protect the child. But if these statements were exaggerated, or based on emotion, (the Court is finding the latter) then that is inappropriate, regardless of the underlying cause.

[349] The Court finds that the mother's statements that she would kill herself were an emotional outburst. The Court now has the benefit of hindsight and the additional medical evidence. The Court has the benefit of Dr. Martinez' subsequent report to the Court, on which the Court places weight, that the mother is no longer expressing suicidal ideation, and that she is not a risk of harm to herself or to the child.

[350] The Court finds that the Society, the mother and the Children's Lawyer overly focused on the father's conduct without regard some of the other issues in this case. In addition to dealing with the father's behaviour in this case, additional steps must be taken to address the mother's mental health. Irrespective of whether there will be access in the future or not, the Court cannot ignore that Dr. Martinez referred the mother to trauma therapy and psychiatric services at CAMH, and that he recommended that she take medication. The mother has refused to follow through with these. These are all red flags for this family.

[351] The Court accepts Dr. Martinez' evidence that the mother turning to the internet causes her to regress. While the father lacks insight into how his online behaviour contributes to this problem, this evidence also begs the question as to why the mother, herself, is engaging in certain internet activity, given its impact on her. It reflects a lack of insight on her part into her own mental health.

[352] One of the conditions that can be put in place to address concerns about the mother's mental health, and to minimize the risk of destabilization, is to order these parents to take down what they have posted and to stop posing.

[353] In summary, the Court agrees with the submissions of the Society, the mother and the Children's Lawyer that access would be destabilizing for the mother and her ability to parent. That is one of the principal reasons that the Court is not ordering access at this time.

C. The Child's Needs and Development

[354] Likewise, in regards to sections 74(3)(c)(i) and (ii), it is not just the father's negative behaviour, but also the mother's troubling behaviour and its impact on the child that is relevant to the child's needs and development. And neither the parties nor the Children's Lawyer adequately addressed what should be done about the fact that C.S. appears to be seeking out a father figure.

[355] Pursuant to sections 74(3)(c)(i) and (ii), the Court shall also consider, if relevant, the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, and the child's physical, mental and emotional level of development.

[356] The mother's evidence is that she has a close relationship with C.S. The Court accepts this evidence.

[357] The mother's evidence is also that C.S. is doing well. The mother testified that C.S. likes school and has friends there. The mother explained that the child participates in some extracurricular activities and other outings in the community.

[358] By the same token, the mother also testified about certain difficulties the child is experiencing at school. C.S. has been struggling, in particular with reading and writing. To address her educational difficulties, C.S. had been referred to a speech therapist and has an additional support person in the classroom to help her with her school work.

[359] In her trial affidavit sworn December 4, 2018, the mother told the Court some limited information about the child and then she stated, "I am very worried for my daughter's safety and her mental health if access is ordered. She is doing very well now with her life here in Toronto and does not need her situation disturbed in my respectful view".

[360] While the Court does find that mother-daughter relationship is close, the Court has a number of concerns about the mother's parenting of C.S.

[361] The mother has told the child that her father is a "bad man". Again, she has told the child that there is a stalker after her. As I have said, she involved C.S. in the incidents involving the two vehicles in December 2017 and December 2018. And again, there are the restrictions placed on C.S.' recess time and the co-sleeping behaviour.

[362] Moreover, the Court heard evidence at this trial that C.S. may be seeking out a father, yet she is confused about who that person is. Ms. Gandhi made very few comments about this, nor did she offer any clinical opinion about the fact that the mother has introduced this child to other partners and that C.S. has identified one of those new partners as her father. And now the mother's brief relationship with that person is over.

[363] C.S. has been introduced to the following persons.

[364] There was the mother's former partner from Montreal. The Court was made aware of this person because in cross-examination, the mother explained that she authorized him to put up a post online about the father on the internet. This person self-identified himself as "[C's]Dad". In it, he referred to the mother as his "wife" and talked about having parented "MY DAUGHTER" (written in capital letters) since C.S. was a few months old.

[365] The post reads as if this man had taken on a parental role for C.S. There is no discussion about this in Ms. Gandhi's affidavits.

[366] The mother also testified about a former boyfriend from Montreal, whom she referred to as a "cop". The Court does not know whether this is one and the same person as the author of the aforementioned internet post, or whether this former boyfriend is someone else. This man was the person whom the mother said would have had to drive her to the supervised access center for the tour.

[367] The mother testified that there was also a man named "A". She said they were in a relationship for about 4 years, and then it ended. It may be that "A" is one and the same person as either of the two others referred to above, but the Court does not know that either.

[368] During one of their interviews with C.S., Ms. Gandhi and Ms. Clarke asked C.S. whether C.S. had met the "bad man". C.S. identified the "bad man" as "A". C.S. also knew that her mother was scared of this person but she did not know why. She said that she gets scared when someone says the name "A".

[369] There was some attempt to suggest to the Court that the Respondent father and "A" are one and the same person. However, the mother testified that she was in a relationship with "A" and they separated after "A" cheated on her. She testified about "A" as a different person from the father. I cannot conclude that the "bad man" that C.S. knows as "A" is actually one and the same person as the father. This was not explored further by the Ms. Gandhi during the clinical interviews.

[370] There is also "M".

[371] In her trial affidavit of November 7, 2018, Ms. Wisnowska deposed that the mother had told her she was currently in a relationship with "M". The mother said to Ms. Wisnowska that relationship "was positive and supportive". The mother also reported that she had introduced C.S. to "M".

[372] In her trial affidavit of December 4, 2018, and during cross-examination by counsel for the child, the mother explained that "M" is a famous musician. She said he travels for work. But she also said that, when he was not on the road, he would see C.S. "virtually every day". And during his travels he would also "Facetime" with C.S. to keep in touch. To participate in these "Facetime" chats with "M", C.S. used her own iPad.

[373] The mother testified that on Father's Day in 2018, C.S. asked "M" to be her father. "M" agreed.

[374] The Court notes that it was on November 2, 2018 when Ms. Gandhi interviewed C.S. for the second time. On that date, C.S. told Ms. Gandhi that "M" is her father, but she could not remember the last time she saw him. That was 5 days before the mother told Ms. Wisnowska about the nature of her and C.S.' relationship "M" and "M's" purported frequent contact with C.S.

[375] Then, during her cross-examination by counsel for the child (just over one month later on December 11, 2018 but only 7 days after the mother swore her trial affidavit of December 4, 2018), the mother testified that she and "M" have now broken up. And she said that their relationship had only lasted for 6 months in the first place.

[376] When asked about C.S. referring to "M" as her father, the mother said that she told C.S. not to do this, but C.S. refused to listen. The mother testified that C.S. refused to accept that he is not her father. The mother also testified that she did not want C.S. to become dependant on "M" since they had only been together for that short period, but this had already happened. At no time did the mother ever tell "M" not to refer to himself as C.S.'s father to C.S.

[377] By February 26, 2019, C.S. was still talking about "M" although she had not seen him. On that date, she reported to Ms. Gandhi that she had no contact with "M" because he was in California. When asked if she had a father, she said she did not. But then on March 7, 2019, C.S. told Ms. Gandhi that her "father" is on tour.

[378] There is also "K". "K" is the person whom I referred to earlier in these reasons when addressing the mother's departure from Quebec. The Society designated "K's" condominium as a place of safety mid-trial as explained earlier too.

[379] To be clear, I did not hear evidence at this trial that "K" has either been involved in a romantic relationship with the mother, or that C.S. has identified "K" as a father figure. Yet "K" has, to some extent assisted the mother in parenting C.S. How C.S. identifies "K" was not really explored fully by either the Society or the Children's Lawyer.

[380] There is much about C.S. that has been put up online and that includes the true identity of her biological father. A major issue that the Society, the Children's Lawyer and the mother have raised in this case is that C.S. will suffer harm if she stumbles upon what has been put online.

[381] Yet none of the parties had a realistic plan to address neither what is online, nor more generally, how to introduce the concept of C.S.' biological father to her.

[382] When asked about her plans in this respect, the mother said that she has no reason to talk to C.S. about her real father "because there's nothing positive to say about him". She also said that C.S. would feel "disgusted" if she found out who her real father was. Rather, she said she would simply monitor C.S.' internet activity until she turned 16.

[383] There was insufficient evidence called at this trial about how to appropriately deal with the identity of C.S.' father, even though the Court raised this in the Judgment of June 13, 2018 as an issue. And this has been known to the Society to be a pressing issue for at least two years.

[384] For instance, as early 2017, there were red flags about C.S. wanting to know her father. On February 3, 2017, when asked, the child told Society worker Ms. Marks that she wanted to have visits with her father. The mother overheard that conversation and said that C.S. just "wants a dad, any dad" because she sees the other children at school with fathers.

[385] The Society did have some early conversations with the mother about getting a professional involved, but the mother refused. And then no steps were taken by the Society.

[386] During this trial, Ms. Wisnowska referred to this as probably an "oversight".

[387] Albeit in a different set of factual and legal circumstances, in F.I. v. S.P.P., 2011 ONCJ 584, [2011] O.J. No. 5277 (C.J.), Justice Zisman was confronted with a case in which an 11 year old child had been brought up being misled as to the identity of her biological father. The biological father launched a court case seeking access to the child. Zisman J. had the benefit of a custody and access assessment prepared by Dr. Raymond Morris. Dr. Morris recommended to the Court that the child be told sooner rather than later about her parentage with the assistance of a duly qualified third party who would be able to work on re-establishing the relationship.

[388] Dr. Morris gave that opinion out of a concern that the child might find out the truth and that would be devastating to her. Dr. Morris also based his opinion on his clinical experience and child developmental theory. He testified that it would be difficult and confusing for the child to find out the truth during adolescence. His opinion was also based on his experience that a child who finds out this information later in life might be angry at the deception. And his opinion was based on that particular child's ability to handle the information. See ¶ 108-109.

[389] In F.I. v. S.P.P, Zisman J. ordered a reintegration plan in part based on that expert opinion. See ¶ 143, 146-148, 160-168.

[390] I raised this very issue with the parties following the summary judgment motion. At ¶ 169-171, 175 and 204 of the June 13, 2018 Judgment, I held that the Court did not have expert evidence about how any reintroduction should be tried, if at all, on these facts, nor did the Court have expert evidence about the potential longer term impact on the child if an effort to reunite her with the father is not tried.

[391] Despite those comments, I was given no such evidence at this trial.

[392] Pursuant to section 74(3)(c)(v), the Court is required to consider the importance for the child's development of a positive relationship with a parent. The Court must not only consider the risk if access is ordered, but also the risk of keeping C.S. away from her father, pursuant to section 74(3)(c)(x).

[393] To be clear, my overall assessment of the evidence about the child not knowing her father, and of the parents' conduct, militates against an order for access at this time for the reasons I earlier expressed.

[394] Nevertheless, the evidence of the child's confusion about her parentage militates in favour of ordering terms and conditions, including requiring the Society to get the assistance of a professional to make recommendations about whether reintegration should be tried.

D. The Child's Heritage and Extended Family

[395] Sections 74(3)(c)(iii), (iv), and (vi) read:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall:

(c) consider any other circumstance of the case that the person considers relevant, including,

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

[396] The Court accepts that the mother, who has been C.S.' primary parent since her birth, exposes the child to her side of the family and to her heritage.

[397] However, C.S. has a mixed background. Her father is Greek. The father testified that he felt it was important that C.S. know his side of the family and that she be exposed to her Greek heritage.

[398] Although the Court heard some testimony about this from the father himself, the Court heard no submissions about the weight that should attach to the factors in sections 74(3)(c)(iii), (iv) and (vi) insofar as it concerns the father's side of the family and his heritage. If the Court were to order access, then the father would be able to expose C.S. to this.

[399] The ability to expose a child to part of her heritage is generally beneficial for a child. But to do so, the father and C.S. must enjoy a meaningful, healthy and safe relationship. The child's mixed heritage and the father's desire to expose the child to his heritage does not outweigh the other factors militating against access at this time.

E. The Mother's Conduct

[400] Although the father's conduct has been egregious, again, the Court should not ignore the evidence of the mother's conduct. It impacts the child's best interests and it is relevant to the issues in this trial.

[401] In addition to her threat to kill herself and some of her parenting of C.S., there are two other areas of the mother's conduct that came to light during the trial, which the Court finds inappropriate and problematic.

(1) The Mother's Own Internet Behaviour

[402] I being with the mother's own internet behaviour.

[403] The mother has posted images of herself, of C.S. and of her home online. And as I have said, the father has sometimes taken those images and re-posted them adding his own verbiage.

[404] The mother is a self-described "social media influencer". About two years ago, she created a website that she operates as a "self-help" website. She says she teaches others about anxiety, stress and the "things [she's] going through". The mother is also active on social media.

[405] The mother claims to have over 120,000 followers to whom she says she talks about positive body images, domestic violence, PTSD and anxiety. She says that young girls look up to her.

[406] The mother sees herself entirely as a victim of the father's online behaviour.

[407] The mother claims to know when the father is stalking her online. She testified about how internet savvy she is. She said she is able to see the IP addresses of those who come to her websites. She said she has been able to isolate an IP address to an area of Quebec in which the father lives, although not necessarily the father's specific home.

[408] Were this the extent of the mother's online activity, then I would mostly agree that it is the father's conduct only that is to be heavily discouraged. However, that is not all that has been going on, online and in the public domain.

[409] The mother has used the internet and at least one media organization to disparage the father.

[410] For example, the mother participated in a tabloid style newspaper interview for a Quebec newspaper. Her real name is not used in the article, but the article has a picture of the mother, taken from behind, presumably to conceal her identity. The by-line of the article, written in French, reads that the father "stole a decade of [her] life" but that he only served 15 months in jail. The by-line reads that "we should have taken away a decade of his life too".

[411] In response, the father has re-posted images from this newspaper article on his internet blogs, denying his guilt.

[412] Second, as explained earlier, the mother allowed her former boyfriend to put a post online about the father. In the post, he uses poor language to describe S.S. The post is both offensive and false. The author falsely claims to the true parent of C.S.

[413] The mother explained that the former boyfriend put this online because he had had "enough" of the father posting information about her all over the internet. Again though, the mother authorized him to do this. Thus, the mother essentially told the Court that she chose to respond in kind.

[414] Third, the mother testified that she created a YouTube video, using a "production company", to bring "awareness".

[415] Fourth, the mother created the website which I referred to earlier called SS.com. She readily admitted that she created this website. She said she did this to warn others about the father. She said her website also contains stories from other of his "victims" who have come forward.

[416] Fifth, April 8, 2019, was the last day of trial. I was supposed to hear closing submissions first thing that morning. But as I said earlier, before proceeding with the submissions, counsel for the father brought an oral motion to re-open the trial and to re-call the mother to testify. He did this because he said he just discovered that the mother had posted the transcript of the father's guilty plea online.

[417] For oral reasons delivered, I granted Mr. Tobias' motion.

[418] In the testimony that followed, the mother then candidly admitted that she immediately posted the transcript of the father's guilty plea that had just been obtained by her counsel onto this S.S. com website. She said that as a result of having done this, she was the victim of the father's retaliatory online behaviour. She complained that the father sent her vitriolic emails in response.

[419] Because the father was not present in Court that day (based on counsel's agreement about court room attendance), he did not have an opportunity to testify about whether he sent the emails or not. In closing argument, his counsel suggested that the emails were fabricated by the mother.

[420] Whether it was the father or the mother who authored the emails makes no difference to my analysis. What transpired with the transcript is illustrative of the online dynamic between the two parents.

(2) The Mother's Lack of Insight Into Her Mental Health

[421] A major part of the Society's, the mother's and the Children's Lawyer's case rests on the father's poor online treatment her. There is no question that there is ample evidence of that. But although the Society would have the Court largely ignore it, as I have said, the Court finds that the mother has turned to the internet as a weapon against the father too. What is most troubling about this is that the mother has continued to go online, despite the advice of Dr. Martinez.

[422] As I have said, this shows a lack of insight on her part into her own mental health.

[423] I further note that in her online presence, the mother has, in different forums, sought to discuss her history in a very public way. Yet as I said earlier, when it was suggested by various mental health professionals that she go to group therapy, she refused, saying she did not want to have group discussions about this very history.

(3) The Impact of the Mother's Own Internet Activity on C.S.

[424] Earlier, I addressed the impact of the father's internet activity on C.S. I will now address the impact of the mother's internet activity and her inability to protect C.S. from either parents'.

[425] Although I heard evidence that the mother is not now allowing C.S. to go online, C.S. is already online.

[426] The mother created a YouTube page for C.S. According to her, the purpose of the YouTube page was to post pictures or videos of C.S. opening presents and the like, to share with family. But according to the mother, the father then posted things on the YouTube page, and so the mother had to shut it down. C.S. was upset when the YouTube page was closed.

[427] As I said earlier, C.S. has an iPad that she was allowed to use for online discussions with "M". iPads can access the internet.

[428] During the closing submissions, the mother told the Court (from the body of the court) that C.S. has an Instagram account.

[429] I do not accept that the mother can monitor all of C.S.' internet activity, despite her claims. I return to the mother's evidence that she will simply insulate the child from the internet and monitor her online activity until she turns 16. That is not realistic. C.S. is already internet savvy.

[430] At the end of the case, primarily counsel for the Society argued that the Court should exercise caution in making orders prohibiting the mother's online activity. The Society submitted that the Court should be cautious in restricting the mother's freedom of expression and her "right" to have a "social media platform". It made no such submissions about the father, taking the position that the father's posts are worse than the mother's.

[431] The Court agrees that the father's posts are worse than the mother's. But that really misses the point of the issues before the Court.

[432] The Court was surprised to hear this argument from the Society. The Court expected that the Society would have been more focused on ensuring that all problematic content be removed from the internet to protect the child, regardless of its source, given the very serious concerns about the harm that would be visited on C.S. were she to discover it. Yet the Society, the parents and even the Children's Lawyer only offered suggestions about what should go into an Order respecting internet activity going forward upon receiving extensive questions from the Court on this point.

[433] There was some suggestion, during the trial, on which the Society's submissions seemed to rest, that the mother makes money from her online activities. Yet at the same time, she is in receipt of ODSP. The Court heard no specifics as to what exactly it is that she is doing online of a remunerative nature.

PART V: SUMMARY

A. Access Between C.S. and Her Father is Not in C.S.' Best Interests At this Time

[434] In conclusion and weighing the evidence as a whole, the Court finds that access between C.S. and her father is not in her best interests at this time.

[435] With reference to the factors articulated in V.S.J. v L.G.J., the Court finds the following:

(a) The father has engaged in a sustained pattern of harassing and harmful behaviours directed at the mother. This has contributed to the mother to experiencing stress, fear and anxiety;

(b) Alary J. found that the father had not threatened to harm the child. There was no new evidence at this trial that would lead the Court to conclude otherwise. Nevertheless, the father's behaviour directed at the mother is impacting the child, whether he appreciates this to be the case or not;

(c) The Court finds that some the father's internet behaviour, although not a specific threat of harm per se, has been directed at the child too. This includes his online commentary denigrating the mother as it is destabilizing to the mother-daughter relationship, and his commentary that C.S. was kidnapped. The father was unwilling to acknowledge the effect this would have on the child were she to be made aware of it or stumble upon it;

(d) The father has been convicted of controlling and violent crimes against the mother;

(e) The Court has no hesitation in finding that the parents are unable to have any contact with each other. This makes managing any access logistics very difficult; and

(f) There is no relationship between the child and the father.

[436] These findings militate against access, even supervised access or indirect contact like through cards and letters, something Ms. Wisnowska suggested might be an alternative, although how that would work was not explained. I have considered these alternatives to an outright termination but do not find them to be in C.S.' best interests.

[437] That said, I would temper those comments, but only somewhat, for the following reasons.

[438] The Court is not satisfied that the child is yet aware of what is online. This is a small, positive feature of this case. But there is a real risk that she will become aware of it if something is not immediately done to remove the content. Not only might the child herself discover it, but as counsel for the child submitted, her older brothers J.L. and R.L., might and they might share it with her.

[439] This is not a case of "extreme parental alienation". However, the fact that the father's disparaging comments about the mother have not been imparted to the child thereby creating the possibility of harm to the mother-daughter relationship may be more of a function of the fact that the father has not had contact with the child in several years.

[440] Although this is not an alienation case at this point, the Court does not trust the father to be restrained in his commentary to the child were he to have access. The father needs serious therapy before access can succeed.

[441] The lack of the relationship between the child and the father militates against access at this time. But as I have said, this must be looked at in context. The father is not entirely responsible for this.

[442] The Court is finding that the mother too has engaged in some harmful behaviour directed at the father, which impacts the child. What she has been doing online is counterproductive to her own good mental health.

[443] The mother has exercised poor judgment in refusing further mental health services, placing restrictions on C.S. at school, and by involving C.S. in photographing cars on two occasions. Most seriously, even though the Court has found that it was an emotional outburst, the mother showed little regard for the impact on C.S. when she made her statements about suicide. All this negatively impacts C.S.

[444] Equally concerning is the lack of a plan by the mother (and the Society) to help prepare the child to learn about her father, or at least to deal with protecting her from the online content.

[445] So access cannot happen right now. But it would be a disservice to this family for the Court to simply order no access and nothing more, leaving the current state of affairs to continue.

B. The Society Failed to Provide Adequate Services to this Family

[446] The Court is mindful that the Society's obligation to provide services and to facilitate access has to be looked at in context, with safety in mind. In this case, the Society was, justifiably, concerned about the father's conduct and that very much influenced their decision to do very little.

[447] Nonetheless, the Court finds that aspects of the Society's position and its litigation strategy to be problematic in this case.

[448] Early on in this case, the Society summarily ruled out the father as a candidate for access. Initially, the father was told that the Society would need an "assessment" of him, as well as an assessment to determine C.S.' readiness for access. The Society was also going to explore counselling for the father.

[449] The father said he was willing to participate. He said he was willing to come to Toronto for supervised visits, once C.S. was ready. He acknowledged that work would have to be done with C.S., before he could start having visits.

[450] The Society did not engage with the father any further after this.

[451] The Society provided only one 'expectation' to the father, namely that he cease posting on the internet. The Society then relied on his failure to do so as its justification for not acting. There is no evidence that the Society spoke to the mother about her internet behaviour at all.

[452] The Society put some evidence before the Court at the time of the summary judgment motion to explain why it took the position that there should be no access.

[453] In early December 2017, the Society consulted with a psychology professor and clinical psychologist at the University of Toronto. In addition it consulted with other in-house staff persons, including an in-house psychologist. Based on those consultations, plus Ms. Wisnowska's review of some articles about domestic violence, the Society made its decision that there should be no access.

[454] The Society's decision was also based on the mother's position. I note that before having made this decision, Ms. Wisnowska first suggested to the mother that she have C.S. attend the Etobicoke Children's Centre to obtain "services". The mother refused this suggestion.

[455] Again at ¶ 169-171, 175 and 204 of the June 13, 2018 Judgment, I dismissed the Society's request for an order that there be no access, I declined to place any weight on the indirect opinion of the various professionals that the Society said it consulted. What was in Ms. Wisnowska's affidavit at the time of the summary judgment motion, namely that the Society had undertaken some consultations, without more, had little evidentiary value.

[456] In the Judgment of June 13, 2018, the Court effectively warned the Society to get proper evidence about the long term impact on the child should the Court deny access. Neither the Society (nor any other party) did so.

[457] The Court finds that the Society offered insufficient services to the mother, and essentially no services to the child, after being made aware that mental health supports for both were necessary. I have already addressed this and need say nothing further about it. Following its decision not to support access, the Society then met with the mother very infrequently.

C. The Society and the Children's Lawyer Embarked on an Aggressive Litigation Strategy

[458] An aggressive litigation strategy is contrary to the Society's duties.

[459] Moving for a mistrial in light of the above was very aggressive. There was a real protection concern unfolding mid-trial. It shows a lack of judgment that the Society's response to the Court's temporary without prejudice order (and for that matter, the Children's Lawyer's too) was to attempt to derail the trial. That was not in the child's best interests.

[460] Further, rather than taking steps to deal with the parties' internet behaviour, the Society did not really take any steps to compel the parties to stop. Instead, it allowed the posts to continue to be put up by both, and then used the evidence of the father's posts to support its position at trial. While the Society waited to make its point to this Court, the child has remained exposed to a risk of harm.

[461] In closing arguments, in response to questions from the Court, the Society acknowledged that it ought to have addressed the internet behaviour much earlier.

D. The Society Failed to Reassess Its Position

[462] The Society persisted with its position as the case unfolded rather than reassessing its position, which it also ought to have done. The Society was primarily focused on the father's conduct and in overly focusing on that, it failed to address some of the child's needs. The Children's Lawyer was also very focused on the father's conduct.

[463] As I have said, the Society did not really reassess its strict no access position, for example, by coming to court with a plan for terms and conditions. And during the course of the closing submissions, the position changed as the Society wavered about what should be ordered.

E. Terms and Conditions

[464] At the end of the trial, in response to the Court's questions, the Children's Lawyer argued that the mother and the child should have mental health supports and 'wrap-around' services and that there should be an assessment and safety plan respecting the father. Yet the Children's Lawyer did not really have any specific proposals as to those services either. Arguably, the Society, as the moving party, should have out forward a plan. So could have the parents.

[465] But given that the Children's Lawyer decided to formulate a position based on C.S.' best interests, and particularly in light of the Court's very detailed roadmap and comments about the evidence in the June 13, 2018 Judgment, the Children's Lawyer ought to have called better evidence once it was aware of the missing pieces in the Society's case. Or at least it could have presented a detailed plan for the future (such as name of a professional to get involved, and his or her qualifications and consent to act). That would have put the Court in a position to make an Order respecting the child. Instead, the Children's Lawyer argued that there was insufficient evidence and blamed the Society.

[465] The father did not present a concrete plan. He did not even take steps to identify counselling for example, which is something that he could have done.

[467] The mother did not call the missing evidence, but this is more understandable given her position that there should be no access and no terms and conditions.

[468] In the end, while the Court is not ordering access at this time, in light of the above, and given that there is now a Status Review, the argument that there should be no access, without more, does not make good sense.

[469] As all parties and the Children's Lawyer agree that a no access order is reviewable in the Status Review, it does not make good sense to defer the issue of terms and conditions to the future and see how that plays out in the Status Review. There is an evidentiary record, albeit with certain gaps, before it now. There is sufficient evidence for the Court to set out a pathway to move forward. Because of the deficiencies in the evidence, details will have to be filled in, in the Status Review. Because the Court did not hear expert evidence at this trial, the further determination of C.S. needs relating to her possible wish for a father will also have to be dealt with in the Status Review.

[470] The Court is mindful that pursuant to section 74(3)(c)(ix) of CYFSA, the Court shall consider, if relevant, the effects on the child of delay in the disposition of the case. It is not in the child's best interests to delay the implementation of terms and conditions relating to this child any further and so the Court expects the parties and the Children's Lawyer to come prepared at the next event in the Status Review.

F. Restraining Order

[471] At the end of the trial, counsel for the mother asked the Court to order a restraining order.

[472] The question of whether there should be a restraining order was not one of the issues for this trial. Neither the mother, nor anyone else, had pleaded a request for a restraining order. The father did not have notice. It was raised orally in closing arguments.

[473] A claim for a restraining order must be made on notice by way of personal service. See section 137(2) of the CYFSA. As such, I decline to make this order, but I leave it to the parties to raise this issue in the Status Review if either of them sees fit.

PART VI: THE COURT'S RULING REGARDING THE ISSUES FOR TRIAL

[474] Therefore, the Court's answers to the issues for trial are the following:

(a) Is access between C.S. and her father is in C.S.' best interests?

Answer: Not at this time.

(b) Under what circumstances did the mother leave Quebec following the June 7, 2016 Order of the Quebec Superior Court?

Answer: The mother did so to avoid the implementation of the access order.

(c) What access schedule and what terms should be ordered if this Court determines that access is in C.S.' best interests?

Answer: The Court does not find an access schedule to be in C.S.' best interests at this time. The terms and conditions that the Court will order are set out below.

(d) What will the impact be on the mother's ability to parent C.S. will be if access is ordered?

Answer: Access will be destabilizing to the mother's ability to parent at this time.

(e) What conditions of access or services, if any, can be put into place to address any concerns about mother's mental health?

Answer: See below.

(f) What insight, if any, has the father has gained into his conduct towards the mother?

Answer: The father has gained very little insight.

(g) What conditions or services, if any, including counselling should be required as either a pre-condition to access, or to support the father's access to the child?

Answer: See below.

PART VII: ORDER

[475] Based on the foregoing, I make the following orders:

(a) There shall be no access between the father and C.S. at this time;

(b) Within 14 days of the release of this decision, both parents shall take down anything that either has put online, whether on a website, or some other social media platform, which shall include written text, photographs and videos, in which either of them directly or indirectly discusses or refers to the other, to the child, to any of the court cases in which either has been involved, or in which either of them have posted images of the other. They shall also take down all images and videos of the child from the internet or social media;

(c) To be clear, this shall include but shall not be limited to any discussion or information or transcript or image or video about their history, the other parent, the father's criminal charges and convictions, the Quebec proceedings, this proceeding, or the child;

(d) In the case of the father this shall include, but shall not be limited to, anything he has posted on Facebook, Instagram, Twitter, GoFundMe, or on any other similar website or social media platform. This shall include, but shall not be limited to, removing all posts and closing his Instagram accounts including "S.C.S.", "Fighting_Hurting_Father", "SingleDadtreal", "SingleDadtreal" -video–clips, "C…Vision", and "My Flower of Gold". Furthermore, any content on any website or social media platform associated with the name "SuperDadTreal" shall be removed and such websites or social media accounts shall be closed;

(e) The father shall also remove any and all videos that he has posted online, including but not limited to any videos on YouTube that touch upon the subject matter in paragraph (b) above. He shall close out his YouTube account(s);

(f) In the case of the mother, this shall include but shall not be limited to any Youtube videos that she has created that touch upon the subject matter in paragraph (b) above, including the video she created using a "production company", to bring "awareness". It shall also include but shall not be limited to removing any content on the website "SS.com". She shall close down that and any other website or social media account that touches upon the subject matter in paragraph (b);

(g) To be clear, in the mother's case, the Court finds that her "self-help" websites or social media accounts in which she discusses her anxiety, stress, domestic violence or PTSD touches upon the subject matter in paragraph (b). That is subject matter that is related to the issues in this trial. Those topics are inextricably linked with the issues in this case and she is ordered to stop discussing this online and to remove content already posted;

(h) The mother shall close out any of the child's social media or Youtube accounts if this has not already been done;

(i) The parents shall each provide a list of the websites and social media accounts that each has closed to each other through counsel, and to the Society and to the Children's Lawyer, on or before the 14th day after the release of this decision. If for some reason either is unable to close out an account or a website, he or she may each provide an explanation in writing as to why that is (to be exchanged between counsel), and the Society and the Children's Lawyer shall take all necessary steps to assist them to close out the remaining websites and accounts;

(j) After receipt of the lists, the Society and the Children's Lawyer shall undertake an internet search to ascertain what, if anything, is still online. If there is any non-compliance with these terms by either parent, then the Court expects the Society or the Children's Lawyer to bring it to the attention of the Court;

(k) To ensure compliance with this Order, if any content remains, the Society and the Children's Lawyer shall put any internet service providers, websites, website hosts, or social media companies on notice that the Court has ordered this material to be removed and they shall ask those organizations to remove the content and close the websites or accounts. If those organizations do not respond within 30 days, then the Society is to bring a motion before me, on notice to the organization, for an order to compel the appropriate organization to remove the content and close the website or account;

(l) The Society may wish to enforce the terms of this order against the parents by other means as well. It is the Court's expectation that the Society will take an active role in cleaning up the troubling information that has been put online by the parents;

(m) Neither parent shall directly or indirectly publish any further information online, whether on a website, social media platform or on YouTube, that is the subject of the content that is to be removed as ordered herein. This includes a prohibition against asking or allowing others to post on their behalf;

(n) Neither parent is to engage in any media interviews concerning each other, the father's criminal convictions, any of the court proceedings referenced above, or otherwise in any way that touches upon the subject matter of this case;

(o) The Court is unable to make a specific order for the involvement of any particular professional at this stage of the case, as the foundation for such an order was not fully laid at this trial. However, the Society, the Children's Lawyer and the parents are each directed to investigate an appropriate independent expert, such as a child psychologist or a psychiatrist, who may undertake an assessment of the child. The purpose of the assessment of the child is to determine how and when the child should be told about the identity of her father, if at all, and also to enable the Court to have better evidence as to the child's views and wishes. The expert should consider the benefits and the risks of either informing the child about her father, versus withholding his identity from her. Expert evidence is also needed about this child's capacity to process that information;

(p) The Court expects that each party and the Children's Lawyer shall make submissions at the next date in the Status Review about who should undertake this role. The Court directs each party and the Children's Lawyer to file with the Court for use on the next date in the Status Review an affidavit setting out the name of the expert proposed, his or her curriculum vitae, his or her consent to act, his or her estimates as to the time needed to undertake this mandate, and any proposed terms of the mandate, including proposed questions to be put to the expert. The Court will hear submissions about under which section of the CYFSA the expert should be appointed, or whether the person should be appointed as a court appointed expert under Rule 20.1 of the Family Law Rules, or otherwise. If there is a dispute about retainers or the payment of fees, then the parties and the Children's Lawyer must also be prepared to address this. Submissions must be accompanied by relevant statutory authorities and case law;

(q) Neither the Society, the parents nor the Children's Lawyer shall provide to his or her proposed expert any particular narrative of this case. The narrative that is to be provided to the proposed expert(s) is that contained in this Judgment. A copy of this Judgment shall be provided to the proposed expert. The affidavits to be filed, referred to in (p) above shall contain a statement explaining what information was supplied to the proposed expert(s) so the Court can be satisfied that this paragraph was complied with;

(r) The Court is not ordering the father to enrol in counselling or to undergo an assessment. The jurisdiction to order the father to go to counselling was not argued at this trial, although the Court does note that it had evidence of the father's consent to participate in counselling. Nevertheless, at this point the Court leaves it to the father to decide whether he will enter into counselling in good faith or not. The decision is entirely his. However, for the father to move forward, the Court will want to see that the online content has been removed, and that there has been a change in the father's attitude. The Court will want to see that he has gained an appreciation about the impact of his actions on the mother and the child. It is difficult to see how this can be achieved without the father seeking out professional assistance. Given his current lack of insight and the outcome of this trial, there is no point to requiring an assessment of the father at this time, at a minimum, until those steps are taken;

(s) In view of these comments, if the father wishes to voluntarily participate in counselling, then the Society shall make inquiries with a child protection agency in in the father's area in Quebec about what counselling services are available. The Society shall assist the father to secure appropriate counselling there. The father shall advise the Society of his intention respecting counselling, in writing through counsel, once he has had the opportunity to consider this Judgment and thereafter the Society shall take these steps immediately;

(t) Subject to further Order of this Court, neither parent shall discuss anything in the evidence in this case with C.S.;

(u) Ms. Wisnowska or any other appropriate person at the Society shall encourage the mother to avail herself of the mental health services (group therapy and medication) that have been recommended to her but which she has refused. If the mother refuses, then this will have to be addressed in the Status Review and the Society is directed to consider this; and

(v) A copy of this Judgment shall be provided to Dr. Martinez. Counsel for the Society shall explain to Dr. Martinez the non-publication provisions of the CYFSA.

Released: July 19, 2019

Signed: Justice Alex Finlayson