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

Ontario Court of Justice

Date: 2019-10-02

Court File No.: Toronto 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

Motion Heard on: October 1, 2019

Reasons for Judgment released on: October 2, 2019

Counsel

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

JUDGMENT

ALEX FINLAYSON J.:

A. Nature of this Ruling

[1] This is a Status Review proceeding. This case pertains to an 8 year old child, named C.S.

[2] The Court heard a trial in the initial protection application over 8 days in December 2018, March 2019 and April 2019. The Court released its Judgment on July 19, 2019.

[3] The principal issue at the trial was whether the father should have some form of access to the child, 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"). Each of the Society, the mother and the Children's Lawyer took the position that he should not, at least not at this time.

[4] The specific issue before the Court now, is to appoint an assessor to undertake the assessment of the child that the Court said, in its July 19, 2019 Judgment, it would be appointing in the Status Review.

[5] While I will address that in this Judgment, upon hearing submissions on October 1, 2019, the Court was made aware of certain troubling developments. The information conveyed to the Court calls into question the professional judgment of both the Family Services Worker involved in this case, and counsel for the Society.

[6] This Endorsement should be read in conjunction with the lengthy reasons that I released on July 19, 2019.

B. Prior Proceedings

[7] There is a lengthy history of prior proceedings in this case. I will provide a brief background of the prior proceedings. A more complete history is set out in my July 19, 2019 Judgment.

[8] In addition to this case, the parents had litigated custody and access against each other before the Quebec Superior Court over a number of years. There have also been criminal proceedings taken against the father in Quebec.

[9] I begin my recitation of the prior proceedings with the events in May 2018 before this Court.

[10] On May 7 and 8, 2018, I heard the Society's summary judgment motion in the protection application. 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.

[11] On June 13, 2018, I released my Judgment respecting 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.

[12] I did not grant the Society's motion that there be no access between the father and C.S. Instead, I directed that a trial would proceed before me. I also made findings of fact in accordance with Rule 16(9) of the Family Law Rules that would apply at the trial. (See Catholic Children's Aid Society of Toronto v. T.T.L., 2018 ONCJ 403).

[13] As set out in ¶ 225(f) of ruling on the summary judgment dated June 13, 2018, I directed what the issues for trial would be. Those issues not only centered around the father's access and what the impact of any such access would be, but also whether the Court should order terms and conditions.

[14] The access trial commenced on December 7, 2019. On or around that time, the 6-month period of the supervision order had run. The Society launched a Status Review application, which was then adjourned a number of times pending the outcome of the access trial.

[15] I rendered my Judgment on July 19, 2019. On September 30, 2019, the Society amended its Status Review application to include the no access order as part of the Status Review, among other changes.

[16] A significant issue during the trial upon which the request for no access had been based (although not the only issue), was that the father had been engaging in inappropriate internet behaviour. More particularly, the father had been posting troubling comments, photographs and videos about the mother and about the child in numerous different places online. Although much of the focus of the case had been on the father in this respect, the evidence at trial also revealed that the mother had been behaving inappropriately online as well.

[17] The last day of evidence at the trial was supposed to be March 15, 2019. Closing submissions were scheduled for April 8, 2019. However, on the morning of April 8, 2019, as a result of a mid-trial motion brought by the father, the Court re-opened the trial. The Court permitted the father to recall the mother regarding some recent concerning internet activity on her part. The Court then heard submissions that day and reserved.

[18] The timing of these events is significant. Although by April 8, 2019 the mother's case had already been closed, she was recalled to testify. She was questioned by all counsel, albeit about the internet activity. Had the other lawyers and the Court been made aware of what the Court was told on October 1, 2019, there would have likely been an additional area to explore with the mother.

[19] Following the trial, the mother changed counsel. Her current, Ms. Chamberlain, was not her counsel at the trial. Ms. Chamberlain played no role in the inappropriate sequence of events that was revealed on October 1, 2019.

[20] The trial Judgment of July 19, 2019 is lengthy. It is 89 pages long and includes some 475 paragraphs. It is detailed and includes many findings of fact.

[21] In the result, the Court did order that there would be no access. But the Court also felt that it was appropriate to order a number of terms and conditions. In part because there would be a Status Review and the Court's order would be reviewed, the Court saw fit to set out a detailed pathway for this Status Review to move forward productively.

[22] Among other things, the Court directed the parents to remove their internet postings. If the parents were unable to accomplish this (because the Court had heard evidence from the father that he had previously tried but certain websites would not remove his content), then the Society and the Children's Lawyer were to take additional steps to aid in that regard. Those steps include putting any relevant internet services providers, websites, website hosts or social media companies on notice of this Court's Order that the content is to be removed.

[23] Failing those entities' compliance with the intent of the Court's Order after notice is given, the Court directed the Society to bring a motion on notice to the entities, to compel the removal of the content. The Court also prohibited the parents from posting additional content going forward.

[24] The Court made a very specific order requiring an assessment of the child in the Status Review. The Court was then unable to actually name someone to undertake the assessment, however, because the evidentiary foundation for such an order had not been laid.

[25] As such, the Court directed the following at paragraph 475(o) and (p) of the July 19, 2019 Judgment, which I repeat verbatim here:

475(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;

475(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;

[26] I note that one of the purposes of the assessment was to get opinion evidence about how and when the child should be told about the identity of her father, if at all. That is because, as I will explain, the evidence at trial established that she did not know who her father was.

[27] To protect against any allegations that the anticipated assessment process would be tainted from the outset, at paragraph 475(q) of the Judgment, the Court prohibited either the Society, the parents or the Children's Lawyer from providing his or her proposed expert with any particular narrative of this case.

[28] The Court directed that the narrative to be provided to the assessor was that in the Judgment. The Judgment was to be provided to whomever was being sought out to undertake this role. The Court also directed that all parties were to file an affidavit explaining what information was supplied to any proposed expert(s) so that the Court could be confident that this particular provision had been complied with prior to appointing someone.

C. A Summary of the Court's Findings in the July 19, 2019 Judgment

[29] I do not intend to repeat all of the Court's extensive reasons for ordering no access in the July 19, 2019 Judgment. However, I will provide a brief overview of some of the salient findings.

[30] First, I found that the child did not in fact know her father. The reasons for that finding are fourfold. They are set out in the Judgment between paragraphs 113-150.

[31] Second, I found that the father had engaged in very troubling behaviour directed at the mother, and that he had little insight into the impact of his actions, including on his desire to have a relationship with the child. In reaching those conclusions, I relied on the father's past criminal convictions regarding offences he committed against the mother, his in court statements about the mother made during the trial, I relied heavily on the father's internet and social media behaviour, and I relied on his litigation behaviour, among other things.

[32] I also found that the mother, who had threatened to commit suicide during the trial if the Court were to order access, suffers from a number of mental health diagnoses. I found that the father's behaviour was aggravating the mother's mental health. But by the same token, I found that the mother lacked insight into her own mental health. I expressed concern about the mother's own internet activity and its impact on the child. And I found that the Society did not assist the mother sufficiently, nor did it provide adequate services to this family.

[33] I made a number of findings about the child. However, regarding her parentage, at paragraphs 354-394, I found that the child was exhibiting confusion about the identity of her father. The evidence revealed that she had been introduced to perhaps multiple men, and she identified one particular person as her father, even though he was no longer in the picture.

[34] The Court was disappointed about the calibre of evidence concerning the child that it received during the trial. In the summary judgment decision, the Court flagged this evidentiary deficiency as one of the reasons for a trial. In that Judgment, I suggested to the parties that expert evidence might be needed. Yet I received no such expert evidence at the trial. During her testimony at the trial, the Family Services Worker testified that this was probably an "oversight".

[35] At paragraph 394 of the trial Judgment, I indicated that the evidence of the child's confusion about her parentage militated in favour of ordering terms and conditions, including requiring the Society to get the assistance of a professional to make recommendations about whether reintegration with her father should be tried. I then made the order setting out the process to be followed for appointing an assessor in the Status Review.

[36] Throughout the trial, the overall tenor of the evidence was that the child did not know her father, and the mother did not want the child to know her father.

[37] I heard submissions that there would be devastating consequences visited upon the child, were she to go online and read what has been written about her, particularly since she did not know the true identity of her father. I made very specific orders regarding removing content from the internet as a result, among other orders.

[38] The Court was led to believe that the mother was withholding information from the child about the identity of her father deliberately, with a view to what she believed was in the child's best interests. As I said at paragraph 382 of the July 19, 2019 Judgment, the mother had told the Court that she had no reason to talk to C.S. about her real father.

[39] Based on the evidence adduced, the Court had no reason to think that the mother would have talked to the child about the father, never mind that she had done so before the close of the trial. In fact, although it was not a realistic or well thought out plan, the mother claimed that she would monitor the child's internet activity until she turned 16, to shield her from information about the true identity of her father.

[40] Those were the circumstances of the child's knowledge about her father about which the Court was told during the trial. Those circumstances informed the Court's decision to appoint the assessor.

D. The September 16, 2019 Attendance Before Me in the Status Review

[41] In the Judgment of July 19, 2019, I directed that I wanted to hear arguments about the terms of appointing the assessor at the next date in the Status Review. I also gave detailed directions about what was to be filed for that argument, including that there should be relevant statutory authorities and case law put before the Court.

[42] That date for that argument was set for September 16, 2019. Unfortunately, my Order was not followed in this, and other respects.

[43] Consequently, I released an Endorsement on September 16, 2019 to address that and adjourned the submissions to October 1, 2019. I will repeat aspects of my September 16, 2019 Endorsement again here.

[44] First, as I have just said, I did not hear the submissions on September 16, 2019. There was a 2-month delay between the release of my trial decision and the September 16, 2019 date set for argument about the assessor. It is unfortunate that the parties were not prepared to proceed for no good reason other than the terms of my July 19, 2019 Judgment were just not followed.

[45] While the Society did file an affidavit proposing either Dr. Rex Collins or Dr. Daniel Fitzgerald to undertake the assessment as required by my Judgment of July 19, 2019, it was not prepared to make submissions. The Society did not have any case law or any statutory authorities. Were there consensus about the basis to make the order, then perhaps this could have been excused. However, at the September 16, 2019 appearance, the Society told the Court that no order should be made at all. Rather it wanted to proceed by way of a referral letter. The Society also told the Court that it was not appropriate to appoint Drs. Collins or Fitzgerald under section 98 of the CYFSA.

[46] Neither of the parents, nor the Children's Lawyer filed materials for September 16, 2019 either. The parents disagreed about which psychologist the Court should appoint. Counsel for the child submitted that either Drs. Collins or Fitzgerald should be appointed pursuant to section 98 of the CYFSA.

[47] As there was no consensus, my Order had not been followed and the Society was raising an argument about the basis for the appointment, I adjourned the issue to October 1, 2019 at 2:00 pm to be argued properly as I previously directed. I gave further directions for argument. On October 1, 2019, all parties, including the Society, as I said in footnote 1, now agree that the Court should appoint Dr. Collins and that should be done pursuant to section 98 of the CYFSA.

[48] Second, there was non-compliance with the Court's July 19, 2019 ruling respecting the removal of the internet content.

[49] Since the release of the July 19, 2019 decision, each parent has filed Answers and Plans of Care in the Status Review. Both parents' Answers and Plans of Care set out their efforts to comply with the Court's Judgment respecting removal of internet content. The father's Answer and Plan of Care also includes a letter of apology written to the Court and a copy of an emailed apology that he sent to the mother. His material details that he has taken steps to source a psychiatrist to assist him.

[50] Unfortunately, the father has not been able to compel certain websites to remove content as he said had been the case when he testified about this at the trial. As such, the requirement in the July 19, 2019 Judgment that the Society and the Children's Lawyer take next steps was triggered.

[51] Regarding the mother and her internet content, as I have said, in the July 19, 2019 Judgment, I made findings about the father's internet behaviour, including that certain websites and social media accounts were linked to him. In her Answer and Plan of Care in the Status Review, the mother now admits that, prior to the conclusion of the trial, she purchased a certain website that had been previously linked to the father. This was not shared with the Court during the trial. It ought to have been.

[52] Apparently, according to mother's the Answer and Plan of Care, the particular website is not active, but the mother still owns the domain name. As I said in my Endorsement of September 16, 2019, such a website ought to have been closed. Instead, what happened is the other parent had purchased the domain name previously and has held on to it. On September 16, 2019, I indicated that the Court expected the account to be closed immediately.

[53] Because the father could not have all of his websites/posts taken down, by September 16, 2019, the next steps in the Judgment regarding the removal of the internet content ought to have been well underway.

[54] The Children's Lawyer appears to have taken the ruling very seriously and was in fact taking those next steps. On September 16, 2019, I was told that counsel for the child had been working hard to comply with the Order. In particular, she retained a law firm experienced with these issues to assist her in drafting a notice to the various websites. Ultimately she sent out the notice to the websites by the end of that week. She advised the Court that she retained the firm to assist her because she wanted the notice to be correctly prepared and to be the most effective as possible. She may also require additional assistance if it comes to it.

[55] I heard very little from the Society in terms of what it has done. Before concluding on this issue, I pause to note that in my Endorsement of September 16, 2019, I gave the Society an opportunity to set the record straight by way of an updating affidavit. The Society did not provide an explanation in an affidavit. I find that the Society had not taken the next steps required by the July 19, 2019 Judgment. It had not sent any notices. Since the attendance on September 16, 2019 and the Court's admonition in its Endorsement of that date, the Society has now sent its own notices to the websites however.

[56] Towards the end of my Endorsement of September 16, 2019, I said the following:

Going forward, it is the Court's expectation that its orders will be followed. If time lines cannot be followed, then this should be rectified by way of a 14B motion explaining the trouble and seeking an extension.

If anyone seeks costs or other remedies, including against the Society, arising out of any non-compliance with my Judgment, then I am prepared to hear submissions on the next occasion. If so, then there should be a full record on this issue put before the Court. Costs may also be sought in the future if such a pattern of behaviour continues.

[57] No one sought costs on October 1, 2019.

[58] Lastly, I had been told that the Society intended to amend its pleading in the Status Review. As such, in the September 16, 2019 Endorsement, I directed that should be done within 14 days.

[59] The Society has now amended its Status Review application. What it said in two paragraphs of the amended document led to the events of October 1, 2019.

E. The Society's Amended Status Review Application

[60] The Society had its Amended Status Review Application issued on September 30, 2019. That was the day before the return date of October 1, 2019 for submissions. Neither counsel for the parents nor counsel for the child were aware of the contents of two paragraphs of it in particular.

[61] At page 14, paragraphs (ee) and (ff) of the Amended Status Review Application read:

(ee) On March 28, 2019, [the mother] advised the Society worker that she told [the child] that [her] biological father kidnapped [the mother] and that he raped her (she explained that rape meant touching somebody's private parts). [The mother] also showed [the child] a photograph of [the father], but [the child] did not know him or said she had seen him.

(ff) [The mother] told [the child] this a couple of weeks prior. She had shown [the child] a photograph of [the father] couple (sic.) of months before. [The mother] felt this is her story and that she had a right to tell her story to her daughter.

F. Concerns Arising Out of this Disclosure

[62] According to the Society's own pleading, the Family Services Worker was made aware of this on March 28, 2019. This was 10 days prior to the completion of the trial. While this was after the last day of the evidence (but for the re-opening of the trial on April 8, 2019), the Family Services Worker did not disclose this information for the next 10 days and the Society was in the middle of a trial in this case. The Family Services Worker had sat through the trial, heard all of the evidence and ought to have known the mother's behaviour in this regard was very problematic but also relevant to the issues before the Court. The effect of her decision not to share what she had been told was that when the mother ended up being recalled to testify on April 8, 2019, none of the lawyers were yet of this information and so there was no questioning about it.

[63] Counsel for the Society also learned of this information prior to the close of the trial, but did not share it with anyone. On October 1, 2019, the Court asked counsel for the Society when he had been made aware of this information. He told the Court that the Family Services Worker told him in the middle of the submissions on April 8, 2019. While very late in the day, the parties were still in trial when Society counsel learned of this information.

[64] At no time during the closing submissions, upon learning of this, did counsel for the Society see fit to bring to share this information with any of the other lawyers or the Court. His stated reasons for this included that "emotions were running high" and counsel for the Society did not believe this was necessary information that would have warranted a re-opening of the trial. Now that this information has been brought to light, counsel for the Society acknowledges to the Court that, only in hindsight, this exhibited poor judgment on his part. He apologized to the Court.

[65] At no point after the trial but prior to the release of its decision, perhaps upon having the opportunity to reflect about the new information, did counsel for the Society move to bring this information to the Court's attention either. And at no point on September 16, 2019 now that the Judgment had been released did the Society bring this to the Court's attention. I note that on that date, the Amended Status Review Application had not been prepared, but the relevant information had nevertheless been imparted to counsel months earlier.

[66] After asking counsel for the Society for his explanation on October 1, 2019, the Court took a break to allow the other lawyers to consider their options. No counsel sought any remedies following this revelation. Even counsel for the father submitted that the outcome of the Judgment would not be different had the parties been made aware at the time.

[67] That misses the point. It is also not entirely accurate.

[68] The Court has a number of concerns about this conduct.

[69] First, on September 16, 2019 and then October 1, 2019, the Court was ready to set the terms of the assessment. The Court's Judgment of July 19, 2019 was to be the factual basis going into the assessment. For the submissions on October 1, 2019, the parties each filed material suggesting certain questions to be put to the proposed assessor. At least one of the Society's questions (question #2) is written as if the child had not been told about her father.

[70] A key finding made during the trial was that the child was unaware of the identity of her father. The Children's Lawyer approached this case and her interviews of the child differently than would have been the case had the child known about her father. The Court found that the evidence of the child's wishes had gaps in it. And since the trial, the Children's Lawyer has continued to undertake interviews with the child differently than it might otherwise have.

[71] Unbeknownst to the Court, by the end of the trial, the child had been told about her father by the mother along with a disturbing story from the mother's past. Had the assessor been given the version of events about the child's knowledge that is set out in the Judgment, he would have been given a document containing what is now known to be a factual inaccuracy.

[72] Second, as I have said, the mother saw fit to share an incredibly inappropriate story about her past with an 8 year-old. Her need to tell such a story to an 8 year-old speaks volumes to an extreme lack of judgment.

[73] Third, and perhaps even more concerning, the child has not been given any support, arranged via the Society, to assist the child with any feelings about what she has been told. Rather, what I was told on October 1, 2019 is that the mother took the child to see the mother's psychotherapist. During a voir dire at the trial (and again in my Judgment), the Court found that the psychotherapist is not the child's doctor and commented about the little weight that would be placed on his evidence concerning the child.

[74] Nevertheless, once it learned that the mother had taken the child to the psychotherapist with the child, the Society offered nothing further to support this child.

[75] Fourth, one of the benefits of appointing an assessor in the Status Review is that the Judgment was available, to provide the assessor. There are findings of fact in it, so that the parties would not be re-litigating facts unnecessarily before the assessor.

[76] But now, the evidence about what exactly was told to the child, and the child's reaction to it, relies on the mother, who has her own position and perspective in this case. It is not a position and perspective that the Court has necessarily adopted in full.

[77] The Court has no way of better knowing at this time what the mother actually said to the child and the extent of any damage done, in the absence of cross-examination. There could have been cross-examination on April 8, 2019 had either the Family Services Worker or counsel for the Society seen fit to share this information prior to the conclusion of the trial. That opportunity has now passed.

[78] So while I agree with Mr. Tobias that the outcome of the trial wouldn't have been different in most respects, this non-disclosure may have changed the way the assessment must be done. Had there been evidence and cross-examination about this evidence, there would have been an opportunity for the Court to make findings of fact about it.

[79] What the Court has is the Family Service Worker's version in the Amended Status Review hearing. On October 1, 2019, counsel for the mother offered to have her client prepare an affidavit. The Court is not prepared to rely on that as trustworthy for the purposes of going into an assessment and declined to order that.

[80] Instead, the Court directed the Society to produce its case note of the Family Service Worker's conversation with the mother on March 28, 2019 immediately. It was produced during the hearing to the Court and to all counsel.

[81] The assessor is cautioned that neither the Family Services Worker nor the mother have been cross-examined on this note. But it is at this time the best evidence that exists.

[82] The note reveals that the mother told the Family Services Worker the following:

(1) The mother told the child about "what happened to her" and who "he" is;

(2) The mother told the child that she had been kidnapped;

(3) The mother had shown the child a picture of the father about two months previously. She asked the child if she knew the person and the child said no;

(4) The mother told the child to go to the office at school to ask for help if this man ever showed up at her school;

(5) According to the mother, the child asked the mother if the person in the picture was the stalker and the bad man. The mother told the child that he was;

(6) The mother told the child that the father had posted bad comments on the internet and that he put her picture on the internet. The child was upset;

(7) The child apparently told the mother that this person is not her "dad" and that he is a "bad" person;

(8) The child apparently told the mother that she never wants to see the father;

(9) The mother told the child that the father raped the mother, by saying that the father touched her on her private parts;

(10) The mother told the Family Service Worker that this is her story and she has the right to tell the story to the child; and

(11) According to the mother, during a recent session with the mother's psychotherapist, the child said that she did not want to call the father her dad, she does not want him to be her dad, and that her dad is "M". ("M" is the person whom I indicated in the Judgment of July 19, 2019 the child was having confusion about. "M" is no longer in a relationship with the mother).

[83] Fifth, there are Charter obligations in child protection cases. Even that aside, the Society had a duty to disclose this information and it failed to do so. Counsel for the Society is also an officer of the Court.

[84] Timing is important. While the Society does not necessarily have a duty to disclose information immediately as it comes in, when it should be disclosed must be looked at contextually. The Family Services Worker was given relevant information during a trial as the conclusion of the trial approached. It does not matter whether the mother's case was closed or not. The other lawyers were deprived of an opportunity to consider their options at the time. The Family Services Worker should have brought the information to counsel's attention immediately and then counsel should have shared it with the others. Frankly the Society could have sought to call Reply evidence of the Family Services Worker on April 9, 2019, but it chose not to do so.

[85] It is not up to the Society counsel to determine what is or is not relevant information. But that is effectively what counsel did.

[86] Opposing counsel and counsel for the child only became aware of this disclosure on October 1, 2019 when the Court brought it to their attention. The Court only learned of this revelation on October 1, 2019 too. That is because the disclosure was just made in the very recent Status Review proceeding, issued on September 30, 2019. That is inappropriate.

[87] Although he submitted the trial Judgment would not have been different, the father's counsel is, understandably, concerned about the integrity of the assessment about to be undertaken. The child's statements, if true, conveyed by the mother to the Society, if accurate, raise other issues for the assessment now. The father's counsel argues that the work to be done in this case may have regressed.

[88] Fortunately, the Society had the good sense to eventually put this information into its Amended Status Review application. The Court is nevertheless concerned that had it not directed the Society to file its amended pleading within 14 days on September 16, 2019, the Court may not have been made aware of this information for October 1, 2019.

[89] In the result, the Court has no choice but to change the terms of the assessment somewhat in light of these new developments.

G. The Assessment

[90] All parties now agree that Dr. Rex Collins should be appointed as the assessor pursuant to section 98 of the CYFSA. Dr. Collins consents to act. His curriculum vitae is before the Court. The Court is satisfied that he is qualified to undertake this mandate.

[91] In a helpful factum filed by the Children's Lawyer, counsel sets out why section 98 should be the preferred vehicle for Dr. Collins' appointment. I adopt the reasoning set out at paragraphs 12-16, 18 and 19 of the Children's Lawyer's factum in making the orders below. However, in light of these new developments, the questions to be put to the assessor must be modified.

H. Other

[92] I have already found at paragraphs 458-463 of the July 19, 2019 Judgment that the Society lacked judgment in certain aspects of its conduct of this case thus far. What was revealed to the Court on October 1, 2019 is very poor judgment on the part of counsel for the Society and the Family Services Worker.

[93] The Court is considering making an order of costs against the Society. I will hear submissions on the next date in this matter, which is November 1, 2019. If none of the other parties seek costs, the Court still needs to hear from the Society. Counsel for the Society may wish to file material, including an affidavit, to address the matter of costs. The Court expects case law. Counsel for the Society should have another counsel available to argue the issue of costs as the source of information and belief as to conduct comes from counsel himself.

[94] The Court also strongly encourages the Society to consider replacing the Family Services Worker at this point. I asked counsel for the mother as to whether she has a particularly good working relationship with the current worker. Counsel indicated that the mother has not expressed a view one way or the other.

[95] One of the terms of the July 19, 2019 Judgment prohibits the parties from having discussions about the evidence with the child. The mother's discussion with the child dealt with in this Endorsement was prior to the release of the Judgment.

[96] Nevertheless, the mother's counsel should meet with the mother and go over the terms of the Judgment again.

[97] I do not intend to release another Endorsement to any of the parties warning them to comply with Court Orders. This is a complex case involving trauma and difficult mental health issues. It involves a vulnerable child. The Court heard numerous days of trial, considered the issues carefully and did its best to write a considered judgment. The result was a number of terms forming part of the Court Order. Any further non-compliance by anyone involved in this case will be sanctioned by the Court.

I. Order

[98] I make the following orders:

(1) Dr. Rex Collins is appointed pursuant to section 98 of the CYFSA to assess the child. In light of the above, the purpose of the assessment is modified from the purpose set out in the Judgment of July 19, 2019. The purpose of the assessment is now to determine what exactly the child understands about her father, what more, how and when the child should be told about the identity of her father, if at all, how that should be done in a healthy way given what has already been told to her, and what services the child requires to process the information she has been given;

(2) The Court also requires better evidence as to the child's views and wishes than that which was available at the trial, but those views and wishes must be put into context of what the child was told;

(3) The assessor may need to ascertain what exactly the child has been told;

(4) Depending on the state of the child's knowledge of her father in light of the ruling at the trial and these recent developments, the assessor should consider the benefits and the risks of either informing the child about her father, versus withholding his identity from her. Or if the child has an understanding as to who her father is, the Court requires recommendations as to what services should be put into place to address the information the child has been given;

(5) Recommendations and an opinion about this child's capacity to process all relevant information about her parentage are also required;

(6) Therefore, the questions for the assessor are:

(a) What is the child's current knowledge about her father?;

(b) If notwithstanding the above, the child still has little or no knowledge about her father, then in consideration of the benefits and risks to the child, should the child be informed about the identity of her father, or should his identity be withheld from her? The assessor should consider not only the immediate risks and benefits, but also those in the long term;

(c) If the child has an understanding about her father based on the above, then what more, how and when should the child should be told more about the identity of her father, if at all? If so, how should that be done in a healthy way given what has already been told to her?;

(d) If the child does not have an understanding about her father, then how and when should the child be told about the identity of her father, if at all. If so, how should that be done in a healthy way?;

(e) What are the child's wishes about having access to her father? The assessor is asked to put any such wishes into context in light of what she has been told;

(f) What form of access does the assessor recommend, if any?;

(g) If it is beneficial for the child to have access to her father, how should the child be prepared and supported in anticipation of the visits and during the visits?;

(h) How should the parents be supported during any such process?; and

(i) If it is not beneficial for the child to be introduced and have access to her father at the current time, have you formed an opinion as to whether it might be beneficial for her in the future? If so, when and how would it be best to introduce him to her?

(7) Only my Judgment of July 19, 2019 and this Endorsement shall be provided to Dr. Collins at this time. The Society shall forward both documents forthwith. If Dr. Collins requires additional information, then this should be set out in a letter from Dr. Collins to the Society and to the parties. The parties shall then seek an order from this Court regarding what additional information is to be provided to Dr. Collins. I shall be seized of that issue. The Court is specifically not leaving it to the parties to deal with this, without Court oversight;

(8) The mother shall ensure that the child is taken to all appointments with Dr. Collins. The Society shall be made aware of the dates and times of the appointments. The Society shall support the mother to ensure that the child attends appointments. If there is any issue with this, then I am to be told about it immediately;

(9) The Court leaves it to Dr. Collins to decide the extent of the parents' involvement in the assessment. The parents are to cooperate with Dr. Collins' process and participate fully in it as directed by him. If further orders are required, then I am to be contacted;

(10) The cost of the assessment shall be paid for by the Society;

(11) A copy of Dr. Collins' report shall be provided to the Society, the parents and counsel for the child. It shall also be filed with the Court;

(12) Once the report is complete, any notes and records in Dr. Collins' file shall be released to the parties and to counsel for the child. If there is any issue in relation to file disclosure, then I am to be contacted;

(13) Dr. Collins is not available to start the assessment until the middle or until the end of October, 2019. I did not hear submissions about the length of time that Dr. Collins requires. I shall give Dr. Collins' 60 days from the end of October to complete the report, which would fall on December 31, 2019. As this is in the middle of the holidays, I will extend the time further to January 10, 2020. If this time frame is problematic for some reason, then I ask that he write a letter to the parties and to the Court and I will deal with the time frames further upon hearing from the parties. Or alternatively, if any of the parties or the Children's Lawyer has a concern about these time frames, I may be spoken to;

(14) If any additional terms are required as the assessment gets underway, then an amendment of this Order should be sought on motion brought before me; and

(15) In light of the above, the Court is considering making an order of costs against the Society. The Society shall follow the directions set out in paragraph 93 above regarding the costs hearing. There shall be submissions about this on November 1, 2019.

Released: October 2, 2019

Signed: Justice Alex Finlayson

[1] On October 1, 2019, the Society now says that the appointment should be done pursuant to section 98. The Society wants to appoint Dr. Collins.