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.

Court Information

Date: September 5, 2019

Court File: 20108/16

Court: Ontario Court of Justice

Applicant: Children's Aid Society of Peel

Counsel: Ms. G. Williams

Respondent: P.D. (M)

Respondent: K.D. (F)

Counsel: Lorne Levine (counsel for Father); Mr. D. not present

Before: Justice A.W.J. Sullivan

Endorsement

[1] Motion for Appointment of Children's Lawyer

[1] This is a decision from a motion commenced by the respondent mother, Ms. P.D., requesting the appointment of The Office of the Children's Lawyer to represent the interest of her daughter, S.D.D., born […], 2011.

[2] S. remains in the care and custody of her mother under the supervision of the Children's Aid Society of Peel.

[3] This motion is located at tab 3 of volume 11 of the Continuing Record.

[4] By the sheer number of volumes of the Continuing Record, it is evident that this matter is a highly contentious matter. S. has been the subject of earlier domestic litigation and now the subject of this protection application which has been before the court since August 31, 2016.

[5] It should be noted that the CASP had filed an Amended Protection Application on February 21, 2019, seeking an order for a protection finding and leave to withdraw the Protection Application and terminating all temporary orders.

[6] Background and Allegations

[6] The protection application brought by the PCAS alleges that S. is at risk of emotional harm because of the high domestic conflict between Ms. D. and Mr. D. In particular, the ongoing domestic conflict is driven by Ms. D.'s long-standing and firm conviction that Mr. D. and his family have abused the child physically and sexually.

[7] This has led to serious disputes between the parties after a Consent Order was reached in their initial domestic litigation in 2013/14 within which Mr. D. has extensive access with his daughter.

[8] Over the course of this protection file, S. has been interviewed by CAS workers, police on at least two occasions and the SCAN team from the Hospital for Sick Children. All the professionals have concluded that there is no evidence of the suggested abuse and accusations by Ms. D. against Mr. D. or any members of his family.

[9] Court-Ordered Assessment

[9] After lengthy negotiations a motion was argued for an assessment under the CYFSA. This was ordered and the court appointed Dr. Wittenberg to conduct an assessment, pursuant to section 98 of the Child Youth and Family Services Act. His assessment was released on June 14, 2018.

[10] Within this assessment the doctor raises concerns about the emotional welfare of S. and provides an opinion of her care between the parents which continues to be the subject of this litigation.

[11] Summary Judgment Motion

[11] PCAS brought a summary judgment motion for the orders it sought in its Amended Protection Application. Specifically, statutory findings under 74(2)(h) of the CYFSA, that there is a risk of likely emotional harm to the child resulting from the actions, failure to act or pattern of neglect on the part of the child's parent. The society further requested no further orders effectively asking to withdraw and that the parents have the ability to use the assessment that was ordered in this matter within the context of their ongoing domestic litigation which has been put on hold with the filing of this initial protection application.

[12] Both parents opposed this summary judgment motion for different reasons. Ms. D. because she believes there are no issues regarding her parenting and how she has dealt with her allegations against Mr. D.

[13] Mr. D.'s position is that his daughter S. should be placed in his custody on a full-time basis to minimize the emotional harm to her given Ms. D.'s firm belief of abuse to her by him.

[14] Ms. D.'s position about the father's abuse has not abated during the course of this litigation.

[15] Justice L. Parent ruled on the summary judgment motion on May 30, 2019. Her Honour decided that there are triable issues in this matter and a trial is needed. Specifically, J. Parent states the following in paragraphs 113 and 114 of this decision:

113 - Given the parties' respective positions, I find that the interest of justice requires a trial on the issues of finding in need of protection and disposition given each party's position. It is only within this form, which entails cross-examination of all witnesses and the testing of all documentary and oral evidence, that a just and fair decision can be determined.

114 - I find the evidentiary record before me at this motion is insufficient to make a fair and just determination of the issues on the merits without the need of a trial.

[16] Legal Framework

[16] The issue before me today in this motion is how to best represent the interest of the child S. in this ongoing child protection application that will proceed to a trial given the above noted litigation background and the accusations and positions of the parties.

[17] The relevant law that governs the appointment of a child's representative in child welfare litigation is found in Section 78 of the CYFSA: Legal Representation.

[18] Section 78 of the CYFSA states:

Legal Representation

Legal representation of child

78(1) A child may have legal representation at any stage in a proceeding under this Part.

Court to consider issue

(2) Where a child does not have legal representation in a proceeding under this Part, the court,

(a) shall, as soon as practicable after the commencement of the proceeding; and

(b) may, at any later stage in the proceeding,

determine whether legal representation is desirable to protect the child's interests.

Direction for legal representation

(3) Where the court determines that legal representation is desirable to protect a child's interests, the court shall direct that legal representation be provided for the child.

Criteria

(4) Where,

(a) the court is of the opinion that there is a difference of views between the child and a parent or a society, and the society proposes that the child be removed from a person's care or be placed in interim or extended society care under paragraph 2 or 3 of subsection 101(1);

(b) the child is in the society's care and,

(i) no parent appears before the court, or

(ii) it is alleged that the child is in need of protection within the meaning of clause 74(2)(a), (c), (f), (g) or (j); or

(c) the child is not permitted to be present at the hearing,

Legal representation is deemed to be desirable to protect the child's interests, unless the court is satisfied, taking into account the child's views and wishes, given due weight in accordance with the child's age and maturity, that the child's interests are otherwise adequately protected.

[19] At this motion this section of the CYFSA was reviewed with the parties in order to focus their respective arguments on the relevant section and criteria that I have to consider.

[20] I find that the following is relevant from the above section. I can appoint legal representation any time in the proceeding and it is agreed by all today that the child is not permitted to be present at the hearing.

[21] The issue for me is whether legal representation is deemed to be desirable to protect the child's interests unless I am satisfied, after taking into account her views and wishes, given due weight in accordance with her age and maturity, that the child's interests are otherwise adequately protected by a party at trial.

[22] In other words, do I have enough evidence before me regarding the child's views and wishes and her level of maturity given her current age, which is about 8, and are there individuals currently before the court that can adequately protect and advance her interests within the upcoming trial, failing which legal representation for a child should be considered in CYFSA matters.

[23] Mother's Position

[23] Ms. D. in her argument for the appointment of a representative for her daughter presented an affidavit located at tab 4 of volume 11 of the Continuing Record. In her affidavit and in her arguments much of what she presented was not focused on the test at hand as outlined above and at times she wandered into irrelevant considerations.

[24] Ms. D., however, did note the following which I found helpful to focus on the test:

• Her daughter has made statements in the past and during this proceeding which has been ongoing for some three years.
• She believes the statements are being discounted by the CAS workers, police, medical professionals, and this court. She was not seen by Dr. Wittenberg during his assessment.
• Her daughter has in the past been willing to speak to the CAS workers and she, Ms. D., has not interfered with this, however, at the present time her daughter is not opening up and speaking to the CAS workers when they visit.
• Her daughter continues to be fearful of her father according to Ms. D.
• Her daughter continues to make statements and the previous statements made to in play therapy, to the police on at least two separate occasions, to CAS workers, and to the SCAN unit at the Hospital for Sick Children will be important for the court to consider at this trial. Many of the child's comments to the CAS are located in the case notes that will be the subject of this trial.

[25] CAS Position

[25] PCAS filed an affidavit in relation to this motion located at tab 5 of volume 11 of the Continuing Record.

[26] It outlines the individuals involved in this matter and the section of the legislation as noted above and suggests that the current facts do not fit the criteria set out in the legislation. PCAS, however, indicates in its affidavit that if the court believes that representation is necessary to ensure the child's best interest the society is not opposed to the appointment of counsel.

[27] In oral submissions CAS counsel indicated that in the long run this might be of benefit to assure the child has a healthy and balanced relationship with her parents as the Society's position is not to have this child removed from the family but to see what can be done to lessen the domestic litigation and mitigate the impact on this child of the dispute between the parents.

[28] I noted to the Society that this latter point is somewhat less relevant for my consideration in this motion. The Society in this upcoming trial with its current amended protection application will still be arguing for a finding that the child is in need of protection and most likely if it does not amend its amended application that there be no order regarding the disposition, effectively leaving the current domestic order in place.

[29] This trial, however, will by its nature have as a central focus statements/comments attributed to the child that will be attempted to be entered into evidence. Further, the issue of potential disposition, if the trial judge does not accept the Society's current position to withdraw, will need to decide what the best plan is for the child between the parents, as both are claiming the child should be in their custody.

[30] Father's Position

[30] Mr. D. filed an affidavit at tab 6 of volume 11 of the Continuing Record. He opposes this motion and submissions were made on his behalf. The highlight of his evidence is:

• He too agrees, but for different reasons, that PCAS has not dealt with this matter properly and in his daughter's best interest.
• He believes that Ms. D. is seeking an opinion by the appointment of the OCL that would be different from the assessment conducted by Dr. Wittenberg.
• He believes that she is simply unhappy with the earlier investigations and hopes to reopen these issues.
• He argues that Ms. D. manipulates his daughter and that his daughter is afraid to go contrary to Ms. D.'s directions to her such that if a legal representative is appointed it will be difficult if not impossible for this individual to obtain an objective take on his daughter's views and preferences and be in a position to participate meaningfully in this trial.
• He also suggests that this is a delay tactic.

Discussion and Decision

[31] One consideration I raised in this matter is the context in which a representative might be appointed for children is being requested that is this case is a high conflict case in which each parent suggests the other of manipulating their daughter. I did provide the parties with a decision in which the court was concerned about the issue of subjecting the children to further assessments and prodding within the context of finding that there was alienating behaviour of one parent. See CFS for York Region v. L.M., 2018 ONSC 6155.

[32] As I have been case managing this file, I did hear a motion on December 13, 2016 to reinstate the father's access as set out in the domestic order, in which I indicated that the evidence presented by Ms. D. was not substantiated on a temporary motion. I did not make final findings based on a thorough review of the evidence and cross-examination at trial.

[33] I have heard that by and large his overnight access has been progressing but Mr. D. accuses Ms. D. of manipulating his daughter.

[34] She does not want to attend access around holidays and times such as March break.

[35] The appointment of the OCL in this file and at this stage would probably also require a social worker to assist to prepare for trial.

[36] As such this would mean that the child would be introduced to these individuals. There is always a concern, as noted above, of further intervention with the child.

[37] The OCL is not an assessor nor would they be providing an opinion but rather representing the child's interest. Therefore, the concern about subjecting a child to further assessments is somewhat mitigated, although I heard evidence that she is not openly talking to the Society as she had in the past and might not be open to communicate with the OCL.

[38] I heard that otherwise she is doing well in school and in the community.

[39] Further, the evidence before me is that there has been no recent interviews of the child and the last ones are several years old.

[40] I have some reservations about how each parent might suggest to their daughter what to say/do when meeting with a legal representative if one were appointed.

[41] I am less concerned about the delay that might be caused by the appointment of the OCL. A trial in this matter can only be heard for practical reasons in the January/February 2020 trial sittings, which would give ample time for the OCL to do its work necessary to have a position and prepare for a trial.

[42] This matter has not been able to resolve itself and will proceed to trial. At this trial the child is not permitted to be present, given her age and stage of development. The legislation as noted above indicates that legal representation is deemed to be desirable, if I do not find there is a way to protect her interests otherwise. This means are the individual parties able to do so.

[43] PCAS rightfully pointed out that the overarching philosophy of the CYFSA states:

1. Paramount purpose (1) …Of this Act is to promote this best interest, protection and wellbeing of children.

The Preamble to the CYFSA that children are individuals with rights to be respected and their voices to be heard when making a "best interest" decision.

[44] Each of the parents questions the ability of the CASP to represent their child's interests. Each believes the CASP has misfocused in this matter.

[45] I have to consider the fact that at trial the CASP wishes to withdraw after a finding might be made on whether or not this child is in need of protection after which the parties would revert to their earlier domestic litigation.

[46] It is agreed between all that the child is no longer speaking with the workers from the CASP.

[47] It is agreed that the statements made to professionals, police, CAS workers, medical professionals will in all likelihood be a central focus at a trial.

[48] Which party and how these might be presented at trial will be important. Who is best to present to the court at a trial the stated views and preferences of the child when there is the serious competing positions of the parents in the context of an unresolved domestic dispute.

[49] The OCL could also present a fresh eyes on the evidence that is potentially going to be forwarded at trial in relation to child statements and assist the parties in marshalling this evidence for trial. The court needs the full record in order to make a proper decision in this matter.

[50] I am not inclined to appoint the OCL simply to assist a party to marshal evidence and how properly to do that at trial. My main concern in this regard is that an independent representative of the child will likely do so with less of an agenda other than what would assist in representing the child's best interests within the context of the evidence at trial considering the child's views and preferences and the goals of the legislation which is always to protect the child's best interest and well-being.

[51] I am also mindful that the OCL has limited resources and requesting that it appoint a lawyer and a social worker in this CAS file takes from other demands and such requests are to be reviewed and weighed and not lightly made.

[52] Considering the above, the legislation in relation to the evidence I heard I will appoint the Office of the Children's Lawyer to represent S.'s interests. This order will also emphasize the need for a lawyer to have a social worker assist for the reasons I have noted above.

September 3, 2019

Amended: September 5, 2019

Justice A.W.J. Sullivan