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:

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: August 30, 2019

Court File No.: Halton 556/14

BETWEEN:

Children's Aid Society, Region of Halton

Applicant

— AND —

LSA – Mother MIA – Father

Respondents

Before: Justice Susan Sullivan

Heard on: October 15, 16, 17, 18, 19, 22, 29, 31, 2018; January 21, 2019; February 4, 11, 12, and 13, 2019; March 1, 2019

Reasons for Judgment released: August 30, 2019

Counsel:

Diane Skrow – Counsel for the Applicant Society
Nilofar Sharif – Counsel for the Respondent Mother
MIA – On his own behalf
Rasim Misheal – Counsel for the Office of the Children's Lawyer, legal representative for the children

S. SULLIVAN J.: Part 1 – Introduction

[1] This is the court's ruling following a trial held in this matter on October 15, 16, 17, 18, 19, 22, 29, 31, 2018; January 21, 2019; February 4, 11, 12, and 13, 2019. Closing arguments were provided orally, with additional final submissions made in writing. Submissions concluded on March 1, 2019.

[2] The subject children are TMA (born XXX, 2003) ("TMA") and LCA (born XXX, 2005) ("LCA") (collectively "the children"). They are fifteen (15) and thirteen (13) years old.

[3] The applicant is the Children's Aid Society, Region of Halton ("the Society").

[4] The respondent mother is LSA ("Mrs. A" / "the mother").

[5] The respondent father is MIA ("Mr. A" / "the father").

[6] This proceeding was commenced when the Child and Family Services Act, R.S.O. 1990, c. C-11 ("CFSA") was in effect. On April 30, 2018 the CFSA was replaced with the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 ("CYFSA"/"the Act"). Pursuant to s. 11 of O. Reg. 147/18, the trial in this proceeding was heard under the new Act, specifically Part V, which deals with child protection proceedings.

Part 2 – Positions of the parties

[7] The Society seeks a finding that the children are in need of protection pursuant to subsections 74(2)(b)(i)(ii), and (f) of the CYFSA.

[8] Further, the Society seeks a final order that:

(a) the mother shall be granted custody of the children pursuant to section 102 of the Act;

(b) there shall be no access between the father and the children pursuant to section 104 of the legislation; and

(c) there shall be a restraining order such that there be no contact between the father and the mother, and/or the children pursuant to subsection 102(3) of the CYFSA.

[9] The mother's position and that of the Office of the Children's Lawyer mirror the Society's request.

[10] In addition, the mother seeks an order that:

(a) she be permitted to obtain and renew passports for the children without the father's signature and consent; and

(b) she be permitted to travel with the children for vacation purposes without the father's written consent.

[11] The Society and the Office of the Children's Lawyer support the mother's further requests.

[12] The father is opposed to the mother being able to apply for the children's passports and to their ability to travel; he wants "authorization or consent rights".

[13] The father is also opposed to the restraining order being made.

[14] The father requests an order that:

(a) he and the mother shall have joint custody of the children;

(b) he shall have access with the children following completion of his proposed reunification plan;

(d) at least five (5) "nice photos" of the children shall be released to him on a monthly basis;

(e) he shall be provided electronic or hard copies of the children's projects; and

(f) he shall be permitted to renovate the family home so it can be sold.

[15] The Society takes no position regarding the father being provided with report cards. The mother and the Office of the Children's Lawyer oppose this request.

[16] The provision of pictures and the children's projects are a form of access, and the parties' positions regarding access apply to these requests.

Part 3 – Evidence

[17] This trial was conducted as a blended proceeding. I did not consider evidence that went solely to the issue of disposition in determining if the children were in need of protection.

[18] The Society called three (3) Society workers as witnesses; Jennifer Christian ("Ms. Christian"); Catherine Wells ("Ms. Wells") and Inderjit Grewal ("Ms. Grewal"). They provided their evidence in chief by way of affidavit and were subject to cross-examination.

[19] Mrs. A testified on her own behalf.

[20] Mr. A also testified. Psychiatrist Dr. Stephen Webb ("Dr. Webb") gave evidence on behalf of the father.

[21] Roy Reid ("Mr. Reid"), a clinical investigator with the Office of the Children's Lawyer, also gave evidence. His evidence in chief was by way of affidavit and he was subject to cross-examination.

[22] The court's witness was Dr. Daniel Ashbourne ("Dr. Ashbourne") of the London Family Court Clinic ("LFCC"); he completed a parenting capacity assessment dated July 29, 2016 and provided an addendum dated November 7, 2016.

[23] Forty-eight (48) exhibits were filed.

[24] The parties agreed that the children's statements would be admitted as the state of mind hearsay exception.

[25] I have reviewed and considered all of the evidence presented and the submissions made.

Part 4 – Background facts

[26] This part contains facts that were not disputed, unless otherwise indicated.

[27] Mr. A was fifty-three (53) years old when he testified.

[28] Mrs. A was fifty-two (52) years old when she testified.

[29] Mr. and Mrs. A married August 4, 1995.

[30] Prior to marriage, they lived together for approximately four (4) to five (5) years, at the maternal grandparents' home.

[31] The parents separated October 10, 2013.

[32] Mr. A has not had access to the children since the date of separation.

[33] Prior to the birth of the children, Mrs. A worked full-time as a high school teacher with the Toronto District School Board.

[34] Following the birth of TMA, she worked part-time. Since LCA's birth, she has been a stay-at-home mother, except for in 2013 when she worked briefly for the Town of Oakville for a few months.

[35] Mrs. A's evidence is that she and Mr. A mutually agreed that she would work part-time after TMA's birth. Further, she testified that after LCA's birth, they agreed that she would be a stay-at-home parent, instead of paying the costs related to them both being employed (i.e. the cost of daycare, car insurance, gas, etc.).

[36] Mr. A's evidence is that he did not find out she was working part-time until they were driving to work together one day. He further testified that Mrs. A refused to return to work after LCA's birth.

[37] Mr. A is a mechanical engineer. During the parents' relationship, he worked at Indal Technologies in Mississauga. This business later became Curtis Wright. When the company was restructured, Mr. A's position became redundant. He became unemployed in April, 2012.

[38] The family had two (2) openings with the Society prior to the current involvement (which commenced in October, 2013).

[39] In January, 2004 the Society received a referral from a Public Health Nurse. The Society did not conduct an investigation.

[40] In June, 2012 the Society received a referral from the Halton Regional Police Service ("HRPS") regarding concerns of physical abuse of the mother by the father; the maternal grandmother had contacted HRPS and stated concerns. During its investigation, the Society received a subsequent referral from HRPS in the form of an occurrence report dated June 29, 2012. During the investigation, the mother did not make any disclosures regarding physical abuse, but did disclose feeling pressured by the father to get a job. She also reported that the father had been recording some of her telephone conversations. The father denied the physical abuse and shared his belief that the mother should get a job. The Society verified the protection concerns that the children were emotionally affected by domestic violence in the home.

[41] The Society's current involvement with the family began on October 1, 2013 when it received a referral from TMA's teacher at XXX Public School.

[42] On October 8, 2013 the Society received an occurrence report from HRPS regarding its attendance at the family home on September 30, 2013. No charges were laid immediately following this home visit.

[43] On October 10, 2013 the mother and the children were interviewed by the police and Ms. Christian. Subsequent to these interviews, the father was charged with four (4) counts of assault.

[44] The father's bail conditions included terms that he not attend the family home and have no contact with the mother and the children.

[45] The father's criminal trial began in December, 2014. It ended while the mother was testifying. The criminal charges were withdrawn.

Part 5 – Brief overview of court proceeding

[46] The Society's protection application, dated November 26, 2014, had a first return date of December 4, 2014. Therein, it requested:

(a) a protection finding pursuant to subsections 37(2)(b) and 37(2)(f) of the CFSA; the children shall be placed in the care of their mother, subject to a seven month supervision order;

(b) the children shall have no access with their father, until a comprehensive Child Maltreatment Assessment is completed by the Child Advocacy & Assessment Program at McMaster Children's Hospital;

(c) the father shall not attend the family home located at XXX, Burlington; XXX Public School; or any other place known for the mother and the children to be and this shall be enforced by the Halton Regional Police Service or any other police service where the parties and/or the children may be at any given time;

(d) the father shall not attend at or harass by way of phone calls to any agency or community resource who is working with the children, including but not limited to Radius Child and Family Services and Access Counselling;

(e) the Society shall provide the father updated information on an ongoing basis, as required; and

(f) costs.

[47] On December 4, 2014 the Honourable Justice Victoria Starr made a temporary without prejudice order that the father shall not attend the family home, the children's school, or any other place known for the mother and the children to be and that this order shall be enforced by the police. Justice Starr also ordered that, on a without prejudice basis, there shall be no access between the children and the father, pending adjournment of the matter.

[48] The mother, in her Answer and Plan of Care dated January 27, 2015 sought an order for costs. While not expressly stated in Part 5 of her Answer, it appears that she agreed with the Society's request, save that she requested that visits by the Society worker be announced.

[49] The father, in his Answer and Plan of Care dated February 23, 2015, under Part 5, requested the following final order:

(a) access;

(b) return the children to his care;

(d) costs.

[50] In his Answer, when prompted to give details of the order that he wanted the court to make, he included the following requests:

(a) the mother pay his costs and the Society costs; immediate nightly, as a minimum, phone calls with the children "to insure their safety, allow me to be part of their lives again and to start to reverse LSA's negative and untrue statements about me which has damage my once excellent relationship with them";

(b) immediate supervised access with the children, at a minimum of two nights per week and every other weekend. He noted that he preferred unsupervised access because, "supervision is not actually necessary". On the days of his access, he would be living at the home at XXX, Burlington ON without Mrs. A being present at the home;

(d) release of the children's medical records from Dr. Ramsaywak;

(e) disclosure of the Society's file by March 30, 2015, with no redactions, including no vetting of records to remove solicitor/client privileged information and identifying information of non-professionals;

(f) monthly updates from the clinics providing services to TMA and LCA, which shall include, at a minimum, the specific information he outlined in his Answer;

(g) responses to his stated questions regarding "CAAP study";

(h) responses to his stated questions for the Society;

(i) a "detailed plan & case schedule" for the resolution of this case "from present to finish";

(j) weekly (more as required), "status update appointment phone calls" between him and the Society, which shall be scheduled for one hour, minimum. Also, the Society shall provide status updates by fax to compliment the phone calls. He noted that the phone calls are required "to help this case stay on schedule, once CAS releases the Case Plan and Schedule";

(k) release of all "CAS & Court proceedings audio and/or transcript", if he requests it; and

(l) "Equal funding Legal Compensation packages for the Applicant (CAS) & Respondent (Mr. A) so that both parties have fair legal representation". This included a request to "create a court order or equivalent to mandate CAS current government (taxpayers) funded budget be evenly shared between the applicants and respondents", and to "...create a court order mandating that CAS shall use only the services of duty counsel to represent CAS on a shoe string budget as outline by legal aid, instead of their team's highly specialized lawyers".

[51] On April 9, 2015 a temporary care and custody motion was heard by Justice Starr and she ordered, in part:

(a) the children shall be placed in the care of the mother, subject to the supervision of the Society;

(b) the father shall not to attend the family home, the children's school, or any other place known for the mother and the children to be. This is enforceable by Halton Regional Police Service, and any other police service where the parties and/or the children may be at any given time;

(c) the children shall not have access with their father until such time as a comprehensive Child Maltreatment Assessment has been completed by the Child Advocacy and Assessment Program at McMaster Children's Hospital; and

(d) the Society shall give the father file disclosure every thirty (30) days starting from the date of the next batch about to be disclosed (expected to be April 17, 2015).

[52] On August 20, 2015 Justice Starr made an order, on consent, that a parenting capacity assessment be completed by Dr. Ashbourne of the LFCC.

[53] On October 8, 2015 Justice Starr ordered that the father shall pay to the mother, within sixty (60) days, $3000.00 in costs arising from the temporary care and custody hearing.

[54] On February 23, 2016 Justice Starr dealt with both the oral and written motions brought by the father, amongst other things. In part, she ordered:

(a) all requests for third party disclosure are dismissed without prejudice to the father's right to renew his requests for said relief, on notice to the Society, the mother, and to the third parties from whom he seeks disclosure;

(b) any items of disclosure or relief requested by the father in any notices of motion which predate this date and which have not been dealt with today or previously, are dismissed on the basis that the father has declared that there are no other disclosure requests set out in those notices of motion that remain outstanding; and

(c) the following requests for relief from the father (some set out in his notice of motion, some not) are dismissed: (a) request for permission to discuss the children and their attendance at school with school professionals; (b) request to have the parties' son stop taking Prozac; (c) request for information with respect to the steps taken by the mother and the Society to ensure that the children are safe from harm from their family dog, a Rottweiler; (d) request for compliance by the Society and the mother without further order of this court in the event that Dr. Ashbourne provides a written recommendation that the father have immediate access to the children; (e) request that the Society pay for the services of a lawyer to represent him in these proceedings; (f) request that the mother provide him with photographs (current) of the children (without prejudice to the father's right to renew his request at a later date to be set by the court, in the event that the mother refuses to provide same); and (g) request to vary the April 9, 2015 order which prohibits him from attending at the family home.

[55] On February 23, 2016 Justice Starr also varied the April 9, 2015 order to state, "On a temporary basis, the children shall not have access with the father until such time as the comprehensive parenting capacity assessment currently underway with the London Family Court Clinic has been completed, the report made available to the court and the parties, and this court orders otherwise."

[56] On May 24, 2017 the Society amended its protection application. Therein, it requests the following final order:

(a) a protection finding pursuant to subsections 37(2)(b)and 37(2)(f) of the CFSA;

(b) the children shall be placed in the custody of the mother;

(d) a restraining order.

Part 6 – Credibility and Reliability

[57] The Society workers submitted their evidence in a fair, clear and straightforward manner. Their evidence was substantially consistent with the evidence of the other witnesses and often corroborated by independent documentation. They kept contemporaneous notes of events, which enhanced the reliability of their evidence. Their testimony was not undermined in cross-examination.

[58] Ms. Christian readily acknowledged that she erroneously referred the father to Caring Dads program. Her willingness to easily make this admission contributed to her believability.

[59] Ms. Wells presented as a very empathetic social worker. I was particularly impressed when she spoke of how she really wanted to succeed in helping the father develop insight into his behaviours and the impact of his conduct and thought processes on the children. She sincerely acknowledged his heartache; his love for his children; and apologized to Mr. A when her testimony seemed to upset him. Her genuineness permitted me to readily accept what she had to say.

[60] Ms. Grewal was the worker for a relatively short period of time. She presented her evidence in a matter of fact way and I had no concerns regarding the veracity of the little information she shared.

[61] Mr. Reid tendered his evidence in an informed, consistent, and complete manner. His testimony was not disturbed in cross-examination.

[62] Dr. Webb readily identified that he is an advocate for the father. His role and goals were evident; until he was cautioned not to do so, he actively attempted to provide his views on case management decisions and assessments that have occurred in this matter. During cross-examination, he presented as somewhat cautious and guarded with his answers; it was clear that he was trying not to stray from his advocacy role. Notwithstanding this, he did answer questions regarding his observations of and interactions with Mr. A with detail, even when the information he provided was not overly helpful to the father. In the end, his professional integrity was not compromised by the advocacy role he has chosen to assume.

[63] Dr. Ashbourne was qualified, on consent, as an expert in parenting capacity assessments; custody and access assessments; child development; and parental alienation. His evidence was also given in a straightforward manner. His assessment was exceptionally detailed and balanced. He readily acknowledged the limitations of his assessment.

[64] Mrs. A's evidence was very credible and reliable. Her testimony was presented in a free-flowing manner. It included a great amount of detail regarding important events, and these specifics remained consistent both at various points during her examination in chief and when she was cross-examined.

[65] Mrs. A's fear of Mr. A was palpable. She tried hard to contain her emotion when recounting events of the marriage.

[66] I was impressed by the fact that the mother readily acknowledged facts that were not in her interest. For example, she accepted partial responsibility for the traumatization the children experienced when they lived together as a family.

[67] It was very clear that Mr. A loves his children very much and that he desperately wants to have access with them and otherwise participate in their lives. That said, his evidence was not credible or reliable.

[68] Mr. A often gave his evidence in a rambling and disjointed manner. At times, he would rapidly change topics. I considered that he is a self-represented litigant and his self-described difficulties with expressing himself. I also noted that Mr. A is an educated man who allowed himself five (5) years to prepare for this trial, and other steps in this case; he has not sought employment for this time period so that, as he explained, he could be a full-time lawyer. As well, with the consent of all parties, Mr. A was permitted to have some self-made notes with him while testifying, to be of assistance. Also, with Mr. A's approval and that of the other parties, I provided him with some assistance at various times as to how to present his case. These efforts did not change the manner in which he testified.

[69] While giving evidence, Mr. A was routinely emotional, often appearing as he was crying. He quickly recovered and moved on with his evidence.

[70] When challenged about his evidence, Mr. A often became evasive, argumentative, and was quick to blame others. He tried to control the cross-examination by giving tangential answers that did not directly answer the questions put to him, but rather attempted to further his own agenda.

[71] It is unlikely that Mr. A's behaviour was as close to perfection as he states, and so misinterpreted by others as he claims. His lack of ability and/or willingness to concede many points that were so clearly established by the compelling evidence of others impacts his credibility and reliability.

[72] Also, Mr. A's credibility and reliability was compromised by the inconsistencies in what he said under oath and what documentary evidence establishes. For example:

(a) When being cross-examined by mother's counsel, Mr. A was asked about paying recent propane bills, Mr. A said he paid the bills upon receipt. When he was provided with documentary evidence to the contrary, he explained that he received the notice of non-payment while the trial was ongoing, when he was getting little sleep;

(b) Mr. A was steadfast in his evidence that he does not bruise easily. When shown a pre-anaesthetic questionnaire he completed February 12, 2013 wherein he noted that he does bruise easily, his response was that he was speechless and did not know why he wrote that in the medical form; and

(c) Mr. A denied controlling how much electricity the family used. When shown a copy of the Burlington Hydro bill dated July 19, 2013 on which Mr. A had calculated the usage of hydro during peak hours for the fridge, the air conditioner, and the shower, Mr. A replied that he made these calculations because he 'loves doing numbers' and that he 'likes calculating everything'.

[73] For the above-noted reasons, where there are discrepancies in the evidence between the father and the other witnesses, I have preferred the evidence of others over that of the father.

Part 7 – Statutory findings

7.1 Legal considerations

[74] Pursuant to s. 90(2) of the CYFSA, as soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine:

(a) the child's name and age;

(b) whether the child is a First Nations, Inuk or Métis child and, if so, the child's bands and First Nations, Inuit or Métis communities; and

(c) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

7.2 Analysis

[75] No party has disputed the statutory findings as requested by the Society.

[76] A finding pursuant to subsection 90(2)(c) of the Act does not apply, as the children were not brought to a place of safety.

[77] Therefore, I find that the subject children are:

(a) TMA (born XXX, 2003). He is 15 years old;

(b) LCA (born XXX, 2005). She is 13 years old;

Part 8 – Protection findings

8.1 Legal considerations

8.1.1 General

[78] The threshold issue in child protection proceedings is whether the subject child is in need of protection. Without such a finding, the court does not have the jurisdiction to make any final orders, except for an order dismissing the application. This includes that a section 102 custody order cannot be made if there is not a finding that the child is in need of protection. See: Children's Aid Society of Toronto v. E.B., 2018 ONCJ 333 (Ont. C.J.).

[79] The onus of proof to determine a finding in need of protection is on the Society on a balance of probabilities. See: Children's Aid Society of the Niagara Region v. P.L.R., 2005 CarswellOnt 1406 (Ont. S.C.J.).

[80] The definition of a child in need of protection does not require that all persons having charge of the child be shown to have created the risk of harm contemplated. It is sufficient that one of them satisfies the circumstances for the court to make a finding. See: Children's Aid Society of Algoma v. A.B., 2018 ONCJ 831 (Ont. C.J.).

[81] Despite anything in the Evidence Act, in any proceeding under Part V of the CYFSA, the court may consider the past conduct of a person toward any child if that person may care for or have access to a child who is the subject of the proceeding. Consideration of such evidence may occur at the protection finding stage. See: subsection 93(1)(a) of the CYFSA; Children's Aid Society of Toronto v. S. (B.), 2013 ONCJ 492 (Ont. C.J.).

[82] A child protection proceeding is unlike ordinary civil litigation and the court can choose a flexible approach in determining the relevant time period for facts capable of consideration with respect to a finding of protection. See: CAS of Hamilton-Wentworth v. K.R. and C.W., 2001 CarswellOnt 5006 (Ont. S.C.J.).

8.1.2 Risk of physical harm

[83] Subsection 74(2)(b) of the CYFSA states:

Child in need of protection

(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[84] The Society must prove that the risk of physical harm is real and likely, not speculative. See: Children's Aid Society of Rainy River (District) v. B. (C.), 2006 ONCJ 458 (Ont. C.J.); Children's Aid Society of Ottawa-Carleton v. T., 2000 CarswellOnt 2156 (Ont. S.C.J.).

[85] It is not necessary for the Society to prove intention to cause the children harm before finding that a child is in need of protection. See: Jewish Family & Child Service v. K. (R.), 2008 ONCJ 774 (Ont. C.J.), affirmed at Jewish Family & Child Service v. K. (R.), 2009 ONCA 903 (Ont. C.A.). However, it must be more than trifling physical harm. See: Children's Aid Society of Rainy River (District) v. B. (C.), supra.

[86] A child may be at risk even if the conduct is not directed specifically towards that child. See: Catholic Children's Aid Society of Metropolitan Toronto v. O. (L.M.), 1995 CarswellOnt 4393 (Ont. Prov. Div.).

[87] Verbal abuse, aggression, and inappropriate situations that children are exposed to can constitute risk of physical harm: Catholic Children's Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850, 2011 CarswellOnt 11097 (Ont. S.C.J.) at para. 380.

8.1.3 Emotional harm

[88] Subsection 74(2)(f) of the Act states:

Child in need of protection

(2) A child is in need of protection where,

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child.

[89] With respect to determining whether emotional harm has occurred, the court does not require expert evidence. See: Simcoe Muskoka Child, Youth and Family Services v. L.V., 2016 CarswellOnt 18773 (Ont. S.C.J.).

[90] However, in meeting its burden of proof under these sections of the Act, it is not sufficient for the Society to simply establish that the child is merely sad or is experiencing some minor emotional unhappiness. The evidence must disclose on a balance of probabilities that the harm to the child is "serious". See: Jewish Family and Child Services from Greater Toronto v. Ki. Sl., 2017 ONCJ 447 (Ont. C.J.).

8.2 Facts

[91] The court has been provided with an overwhelming evidentiary basis upon which to find that TMA and LCA are children in need of protection.

8.2.1 House rules

[92] When the family lived together, Mr. A was fixated on minimizing the household expenses, primarily by limiting the family's use of water and hydro. This obsession resulted in him exerting an overwhelming amount of control over the actions of Mrs. A and the children.

[93] The following are examples of the rigid rules he imposed:

(a) Mrs. A and the children were not allowed to use hot water in the home after 7:00 a.m. because this is when the hydro rates increased. To make sure that they had hot water in the home after 7:00 a.m., Mrs. A was expected to boil two (2) kettles of water, pour the boiled water into five (5) thermoses, put them in a cooler bin, with the lids sealed, in the dining room;

(b) Mrs. A could not use the coffee machine and kettle after 7:00 a.m.;

(d) Mrs. A was not permitted to use air conditioning in the home. Mr. A set up a fan in the basement to blow cold air through the house. He also placed large sheets of foil over the windows to curb the heat that came into the home from the sun; Mrs. A had to hand-wash the dishes, in accordance with Mr. A's specific directions, despite them having a dishwasher in the home for thirteen (13) years, which was not installed until 2013;

(e) Mrs. A had to hand-wash the laundry and hang it outside and around the house, such as in doorways, the sunroom, and on the fence. Their washing machine was broken for four and a half (4.5) years prior to separation and had not been fixed or replaced. The dryer was broken for three and a half (3.5) years prior to separation;

(f) Mr. A would take Costco sized cranberry juice bottles to his mother's farm to fill up with water for use in the family home; and

(g) The water resulting from showers (taken before 7:00 a.m.) had to be saved and bailed into several pails. Once the water was cooled to room temperature, the pails were stationed near the home's toilets and this water was to be used when the toilets were flushed. Mr. A "tripped" the toilets so they could not flush, thus making sure that the use of recycled water was the way the toilet bowls emptied.

[94] Mr. A closely and consistently monitored the family's compliance with his requirements. For example, if he saw that a faucet lever indicated its last usage was to provide hot water, he required explanations as to why this was the case.

[95] Mr. A's oversight intensified after he was laid off from his job in April, 2012.

[96] An event that has been referred to as the 'hairdryer incident' at trial illustrates the impact of non-compliance with these rules on Mrs. A and the children.

[97] In May, 2012, around 8:30 p.m., both children had completed their showers. While in the kitchen, their mother asked them if they wanted to use the hairdryer, to which they replied that they did. Mr. A was in the living room. Mrs. A turned up the volume of the radio in the kitchen, and she and the children went to the ensuite master bathroom to use the hairdryer, as this was the farthest place in the home from where Mr. A was last seen.

[98] While the children were drying their hair, Mr. A appeared in the bathroom doorway. He was angry. He told them to turn off the "god damn hairdryer" before he broke it. As Mr. A went to unplug the hairdryer, Mrs. A put her hand over the electrical outlet. He proceeded to peel her hand back "like it was silly putty". While he made a fist with one hand, he used the other to yank the plug from the wall.

[99] TMA stood in front of his mother to protect her. As a result, he was the one who received Mr. A's punch. TMA was hit in the head. As Mrs. A and LCA cried, and TMA screamed in pain, Mr. A walked away, without an apology or showing remorse.

8.2.2 Mrs. A's employment

[100] Mr. A's obsessive interest in the family's finances was also highlighted by his intense desire and involvement in Mrs. A becoming employed.

[101] He incessantly required that she customize her resume and apply for 'real jobs' and not '50 cent jobs'. When she digressed from his plans for her in this regard, he called her derogatory names and followed her around the house, attempting to redirect her to this task (and others he thought she should be doing) by clapping his hands loudly near her face.

[102] Mr. A acknowledged that it was his expectation that his ex-wife work full-time outside of the home and until she was, she work full-time at trying to obtain said employment. He advised that he tried to get her to use the washing machine at night, as she had problems staying focused during the days on finding employment. He also told Dr. Webb on October 26, 2016 that after he was laid off, he became 'increasingly adamant' that Mrs. A return to work.

[103] Mr. A's expectations included that Mrs. A pursue employment as a French teacher, even though she was not qualified to teach this subject. He noted that she was able to manipulate people in the past, as she got a job right out of teacher's college when others were unemployed, so she could do this again.

[104] Mr. A's view is Mrs. A's unemployment was the sole cause of their marital difficulties.

[105] In early July, 2013 Mrs. A overheard Mr. A tell TMA that it was his job to ensure that his mother became employed. Mrs. A went into the family room, where TMA and his father were having this conversation. She found them facing each other, in close range. Mrs. A got in between them and extended her right arm to protect TMA. She told Mr. A that TMA did not need to hear this. Mr. A became angry, told Mrs. A to get out his way and while doing so, grabbed her upper arms and shoved her. She lost her footing and landed partially on the floor and partially on the couch. LCA was also present and both children witnessed this. LCA said, 'you said you were going to call', referring to the police. Mr. A went on a tirade, shouting statements such as, 'there she goes'; 'wanting to break up the family'; 'stupid bitch'; 'only thing you are good at'. TMA pleaded with his mother that she not call the police. Both children were upset, shaking, and crying. Mr. A then proceeded to blame their mother for upsetting the children and said to her, in front of the children, that he wanted her to be charged with child abuse.

8.2.3 Other forms of emotional abuse

[106] Mr. A's controlling and abusive tendencies extended beyond those related to financial issues. For example:

(a) he limited the amount of garbage Mrs. A. could throw out to no more than ¾ of a garbage bag every two (2) weeks and he would check the garbage to determine the appropriateness of what she threw out;

(b) he required that she carry out her chores in the manner as directed by him and when she did not comply with his requirements, he would follow her around the home, clapping loudly very close to her face, while directing her actions;

(d) for many years, he called her derogatory names, in front of the children, such as "pathetic piece of shit", "loser" "failure" "fuck up" "fucking lousy excuse of a mother";

(e) he demanded to know where she went when she left the house;

(f) he taped many of her telephone calls without her knowledge (she discovered the downloaded phone calls on the family computer); and

(g) he required that she show receipts for all purchases she made.

[107] The children were often present and witnessed their father's unacceptable treatment of their mother.

8.2.4 Physical abuse

[108] Mr. A was also regularly physically abusive towards Mrs. A.

[109] Sometimes, the children witnessed his treatment of her. On these occasions, they were tremendously upset by it.

[110] Other times, the children were fortunate to be absent when the mistreatment occurred. However, there were times that upon their return to the home, their father ensured they were made aware of the particulars, from his perspective, of what transpired.

[111] In June, 2012, Mrs. A had put the permitted ¾ of a garbage bag to the curb. After doing so, she found Mr. A in the garage, opening the garbage bag, yelling and swearing about what she had thrown out. He then proceed to yell at her for what she had disposed of. She was so anxious about his behavior that she called her mother. When Mrs. A got off the phone, Mr. A grabbed her left arm, twisted it, and dragged her from the foyer to the living room. When there, he sat her in a blue Lazy Boy chair, holding her in his lap by wrapping his arms around her waist. He proceeded to tell her she was crazy, and not making any sense. Around 2:00 p.m., the police showed up; the maternal grandmother had called them. When TMA and LCA returned home from school, Mr. A told them that their maternal grandmother had called the police for no reason. He further said that the maternal grandparents were dead; they were home wreckers; they were scum. He told the children (and Mrs. A) that they were not to have anything to do with them.

[112] In July, 2013 Mrs. A wanted to get rid of an old couch. Mr. A did not want her to throw it out. She moved it to the curb. He moved it back into the home. When she attempted to move it back out again, and they were both holding the couch attempting to direct it in their desired directions, without warning, he forcefully slapped her in the right cheek. Shocked, she dropped the couch and started to run. He called her names, such as 'stupid dumb bitch' as he ran after her. She eventually returned home, and when she did, LCA's bedroom window was open. Mr. A told LCA that her mother is threatening to break up the family again and whatever she says is all lies. LCA noted to her mother the red mark on her face.

[113] On September 30, 2013 the children missed their school bus, so their mother drove them to school. While there, she spoke with the physical education teacher, Ms. K, about what was going on in the home. As a result, she returned home later than expected. Mr. A was irate by her delayed return. He wanted her to be looking for a job. He complained and called her 'brainless' and 'brain dead'. He was worked up because three (3) job postings had to be replied to by 4:00 p.m.; she returned at around 11:00 a.m. She was overwhelmed by his continuous berating and negativity, and called the police. When the children came home later in the day, Mr. A asked LCA if she knew what 'stunt' her mother pulled this day. He asked LCA if she knew what her mother did to the family. He told both children to go to school the next day and tell their friends that their mother is scum for calling the police on the family for no reason. Mr. A continued to escalate and demanded that Mrs. A tell the children why she called the police on the family. He followed her around while doing so, and the children got in between them. Mr. A called TMA a stupid boy, told him to move, and then he shoved him. Mrs. A called the police again, and Mr. A said, 'there she goes again'; 'calling the police'; breaking up the family.'

8.2.5 Mrs. A's treatment of Mr. A

[114] At times, Mrs. A responded emotionally and physically to Mr. A's domestic violence and controlling behavior.

8.2.6 Mr. A's treatment of the children

[115] In addition to the impact of the above on the children, Mr. A was also controlling and harmful to the children in other ways. For example:

(a) he was very insistent on reprogramming TMA's bowel habits so that he would have a bowel movement in the mornings before he went to school. TMA was required to eat bran buds for breakfast, which he did not like. It often took him a while to eat the buds, and at these times, his father would become upset with him. TMA was not able to modify this behavior and his father's insistence caused him anxiety;

(b) on more than one occasion, Mr. A dragged TMA to the car to go skiing when he did not want to. Mr. A insisted on getting maximum usage from the ski passes he bought;

(c) on more than one occasion, if the children were not listening to their father, or doing what he wanted them to do, he would follow them around and clap his hands near their face, as he did with their mother. He also tapped them on the head when angry at them. This was mostly done to TMA and was done in a confrontational way, while saying things like, 'earth to TMA' and 'is anyone in there'; and

(d) the children were also spanked by Mr. A and red marks were left on their buttocks.

[116] There was an occasion when Mr. A told the children that they would end up living in a cardboard box on the side of the road in the "Jane and Finch area" if the police and/or the Society were called and they spoke to them. The children did not know where this was. Mr. A explained it was where people who do drugs and prostitutes live. The children did not know what a prostitute was, so he explained this too. This scared the children greatly.

[117] Mr. A was often very demanding of the children regarding their learning. To ensure their continued focus on the educational task at hand, on occasion Mr. A would hold the children in a lock down position in the family's blue Lazy Boy chair, often covering their mouths so they could not scream for help.

[118] For example, there was an occasion when Mr. A held TMA in a lock down to ensure that he continued to work on his French longer than he wanted to. TMA was eventually able to get away from his father and he went to his room and shut his door. Mr. A was angry and started to yell for TMA to come back downstairs. When he did not do so, Mr. A charged up the stairs and attempted to push open his bedroom door. He was not able to open the door, because TMA was standing behind the door to stop it from opening. Mr. A told TMA to open the door or he would take it off its hinges. Mr. A shoved the door open and dragged TMA down the stairs by one arm. As TMA tried to escape his father's hold, he grabbed on to the railing and lost his balance. He fell forward, hit his head on the wall, and fell down the stairs. He ended up lying on the floor at the bottom of the staircase, crying and screaming. Mr. A's only reaction was to say that it would not have happened if he came when called. Mr. A did not console him, comfort him, or apologize to TMA; he just walked away. LCA was also present when this all occurred.

8.2.7 Impact upon the children

[119] On October 10, 2013 Ms. Christian observed, while interviewing the children about the 'house rules', they presented with "high anxiety". She also recounted that TMA specifically expressed an extreme fear of his father and indicated that he felt his father was going to come to the home and harm them.

[120] Mrs. A described the children as having become fearful, anxious, and hyper vigilant as a result of their experiences while they lived as a family unit. The children wanted to protect her, to be her bodyguard.

[121] Mrs. A also noted that LCA was relieved following her father's absence from the home, but she was also worried about the ramifications of him being taken away by the police, what he might do next.

[122] Mrs. A testified that TMA was also relieved following Mr. A's departure from the home, but he too was very anxious about what could be the repercussions of them revealing the lives they lived for so long. TMA became suspicious of people. He was uncooperative and unwilling to speak much of his experiences. He did not trust people.

[123] On January 22, 2014 LCA expressed to Ms. Christian worry about her mother. TMA expressed strong hateful feelings towards his father.

[124] TMA had anxiety attacks, nightmares, sleep disturbances and flashbacks.

[125] There was a time that Mrs. A and LCA were trying to wake him up for school. When he woke up, he immediately bolted out of the room. They found him under the kitchen table, in a fetal position, shaking, crying, and repeatedly saying, "Please don't hurt me MIA."

[126] In or about February, 2014 TMA was referred by his family doctor to child psychiatrist, Dr. Brajovic, at the Joseph Brant Hospital Child and Adolescent Unit.

[127] Dr. Brajovic diagnosed TMA with Post-Traumatic Stress Disorder and Separation Anxiety. He was prescribed medication. The side effects he experienced were drowsiness, constipation and dry mouth.

[128] TMA missed school from February, 2014 to May, 2014 given his significant separation anxiety. He returned to school in June, 2014 when he was doing better emotionally.

[129] In 2016, TMA again did not attend school for a significant period of time; from after March Break, 2016 to the end of the school year. He was not permitted to remain in school given his regular vomiting. Medical testing concluded that his vomiting was not due to any physical issues; they were attributed to an emotional condition. He returned to school in September, 2016.

[130] TMA's regression in 2016 is noted to have coincided with Dr. Ashbourne's parenting capacity assessment, in which he was expected to participate.

[131] On September 26, 2016 Ms. Wells asked LCA whether she thought that in the future she might want to see her father. With respect to her response, Ms. Wells notes, "LCA's demeanour changed radically. She started to cry, and she stated that she did not want to see her father. LCA stated that she feels safer with no communication with her father."

[132] LCA's reaction to seeing her father on September 18, 2018 by chance on her way to meet with Mr. Reid, is indicative of the impact on her of her experiences with her. Mr. Reid testified, (while acknowledging that it was the first time they met) that her face was flushed, her speech was rapid, and she was not calm. She appeared almost on edge. She quickly commented that she was afraid after just seeing her father. Mr. Reid had to take steps to calm her fears. TMA was also anxious following this event.

8.3 Analysis

[133] While the parents and the children lived together, there was ongoing domestic violence (verbal, physical, emotional, psychological) that included controlling behaviour by the father towards the mother. Sometimes, the mother responded to this emotionally and physically towards the father. The children were exposed to this abusive behaviour. There was also ongoing adult tension/adult conflict around the children. As well, the children were directly subjected to the father's abusive and controlling tendencies. The children were emotionally harmed by these experiences, and were placed at risk of physical harm. Therefore, I find that the subject children are in need of protection pursuant to subsections 74(2)(b) and (f) of the CYFSA.

Part 9 – Is intervention through a protection order required to protect the children in the future?

9.1 Legal Considerations

[134] Subsection 101(1) of the Act provides that where a court finds that a child is in need of protection, it must first satisfy itself that intervention through a court order is necessary to protect the child in the future.

[135] The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See: Children's Aid Society of Toronto v. S.A.P. et al., 2019 ONSC 3482, 2019 CarswellOnt 9259 (Ont. S.C.J.)

9.2 Analysis

[136] Based on the facts noted above that resulted in the protection finding, and those noted below regarding disposition, I find that intervention through a protection order is required to protect both children in the future.

Part 10 – Efforts to assist

10.1 Legal Considerations

[137] Subsection 101(2) of the Act requires the court, prior to making a dispositional order under subsections 101(2) or 102, to inquire as to what efforts the Society or another person or entity has made to assist before intervention.

[138] Also, as will be discussed later, the court must consider the services provided that relate to reunification / access prior to making a determination as to the appropriate access order to make.

10.2 Facts

10.2.1 Mother and children

[139] In the Fall of 2013, Ms. Christian encouraged the mother and the children to connect with "Access Counselling in & Family Services" as it was the quickest place for them to attend counselling services, which they did.

[140] In the Fall of 2013, Mrs. A also connected with staff at "Halton Women's Place" and received support.

[141] The mother also received services from "Nina's Place" and "SAVIS" (Sexual Assault and Violence Intervention Services).

[142] In the Fall of 2013, at the Society's recommendation, the mother also made a referral for the children to attend at "Radius Child and Youth Services" ("Radius") for assessment and treatment. She followed up with these services for the children.

[143] When Radius advised that the children were not in a position to receive intensive treatment until their feelings of personal safety were addressed, a referral was made to Reach Out Centre for Kids ("ROCK"), and the mother followed through with services from ROCK, for both herself and the children.

[144] In February, 2016 LCA began spending time with a Society 'big sister' volunteer on a regular basis.

10.2.2 Father

[145] Mr. A was encouraged by Society workers to speak to his family doctor or a counsellor about his emotions. He denied the need for support. As well, Mr. A was encouraged to attend counselling to obtain insight into TMA's and LCA's needs and experiences.

[146] When the father learned that Ms. Christian was subpoenaed to testify at his criminal trial, he refused to communicate with her any further. In order for the Society to be able to continue to provide services to him, the Society assigned Ms. Wells to work with the father, while Ms. Christian continued to work with the mother and the children, given their already established relationship.

[147] Ms. Christian recommended to the father that he participate in the Caring Dad's program. It was an error for her to do so as it was a prerequisite to participation that the parent have access with their child. Notwithstanding this, Mr. A advised that he should be teaching this course.

[148] Ms. Wells recommended the father to the DBT program at St. Joseph's Hospital. Dr. Webb determined that he did not qualify for this service. In October, 2016 Ms. Wells wanted to speak to Dr. Webb privately regarding this, to see if there were other programs that could be helpful for the father, but Mr. A would not allow her to do so. It was not until November, 2017 that she had the opportunity to meet with Dr. Webb. Dr. Webb and Ms. Wells met on two (2) occasions.

[149] Mr. A received support from Dr. Webb.

[150] The father did a fourteen (14) week DBT program at Thrive Counselling. Mr. A did not call a witness to provide evidence about this. Mr. A disparaged the program in conversation with Ms. Wells and denigrated the other group participants as lesser people, indicating that they were not individuals of his calibre.

[151] The father attended counselling with Mihaela Armat ("Ms. Armat"). Mr. A did not call her to testify. Dr. Webb's understanding is that Ms. Armat worked with Mr. A on DBT strategies.

10.2.3 Child Maltreatment Assessment through the Child Advocacy and Assessment Program (CAAP) at McMaster Children's Hospital

[152] The Society recommended that the family participate in a comprehensive Child Maltreatment Assessment through the Child Advocacy and Assessment Program (CAAP) at McMaster Children's Hospital.

[153] Mr. A refused to sign the consent to permit the worker to make the referral to CAAP until he was assured the mother had signed it.

[154] On January 19, 2015 Ms. Christian sent the consent to the father, together with a letter advising that the mother had signed the consent, and providing him with some information regarding CAAP.

[155] Ms. Christian did not receive the signed consent, but the father did communicate his willingness that she contact CAAP about their availability to conduct the assessment, on a non-identifying basis.

[156] Ms. Christian was informed that the assessment could start in May, 2015; it would take nine (9) to ten (10) weeks to complete, and a report would be available by August or September, 2015. These timelines were available only if the family committed to the assessment without delay.

[157] In early February, 2015 Ms. Christian advised Mr. A of the information she received from CAAP regarding when it could commence the assessment and the amount of time it would take. On February 18, 2015, she received a fax from the father marked 'confidential and without prejudice.' The attached consent form for the CAAP assessment was significantly altered by the father. The father was advised that the Society would not accept the consent due to the amendments he had made.

[158] On April 9, 2015 Justice Starr ordered the CAAP assessment.

[159] On June 8, 2015 CAAP declined to conduct an assessment of this family.

10.2.4 Psychological assessment of the father

[160] On April 9, 2015 Justice Starr ordered, in part:

(a) the father shall attend at and participate in a psychological assessment by a practitioner approved and paid for by the Society; and

(b) the father may, at his own expense, arrange to have a psychological assessment done of him by a psychologist of his own choosing instead of one chosen and paid for by the Society, provided that he provides the name and contact information for the psychologist to the Society in advance and signs such consent as is necessary for them to speak to the psychologist in advance of the assessment and provide court documents to him or her.

[161] Ms. Christian made contact with numerous psychologists to determine whether they were available to do this assessment in a timely matter. Dr. Oren Amitay ("Dr. Amitay") indicated that he could commence the assessment immediately.

[162] On April 28, 2015 Ms. Christian sent a fax to the father regarding the proposed assessor, Dr. Amitay, together with a copy of Dr. Amitay's resume and a consent. She requested that the father sign the consent in order for the assessment to begin as soon as possible.

[163] On May 7, 2015 Mr. A advised that he was not in agreement with Dr. Amitay doing the assessment, as his office is downtown Toronto and this is too far for him to travel. He requested that the Society provide him with other proposed assessors.

[164] On May 11, 2015 the Society received a fax from Mr. A in which he requested that the Society confirm that his psychological assessment would be 'without prejudice'. Also, he advised the Society that he had found a psychologist, Dr. Ilacqua, whom he would like to conduct his psychological assessment. The father included, within his fax, his own consent form created from the Society's consent form. He added to the top of the consent, 'without prejudice court ordered psychological assessment' and then signed the consent for the Society to speak to Dr. Ilacqua. The bottom of the consent also stated "confidential and without prejudice".

[165] On other occasions, Mr. A advised the Society that he wanted the assessment of him to be 'without prejudice' (in faxes dated May 19, 2015; May 21, 2015; May 25, 2015; and June 2, 2015).

[166] The Society advised Mr. A that his psychological assessment would not be on a 'without prejudice' basis.

[167] Subsequent to CAAP's refusal to complete an assessment, the Society moved towards seeking a parenting capacity assessment. Its three (3) proposed assessors indicated that it may not be necessary for the father to undergo a separate psychological assessment, as this is completed as part of the parenting capacity assessment.

10.2.5 Parenting capacity assessment

[168] On July 7, 2015 the father was provided with a letter from Ms. Christian regarding the proposed individuals who were available to conduct a parenting capacity assessment. She also provided the curriculum vitae of each assessor, and invited the father to advise the Society of his choice prior to the July 27, 2015 court date.

[169] The Society recommended three assessors to complete a parenting capacity assessment:

(a) Dr. Oren Amitay;

(b) Dr. Milton Blake; and

[170] On July 21, 2015 the Society received a forty-seven (47) page fax from the father. He requested that the Society book a psychological assessment with Dr. Ilacqua. He also included several curriculum vitae of individuals working with the LFCC. He requested that Dr. Ashbourne of the LFCC perform the parenting capacity assessment.

[171] On August 20, 2015 the parties consented to and the court ordered that the parenting capacity assessment be completed by Dr. Ashbourne of the LFCC.

[172] Dr. Ashbourne's assessment is dated July 29, 2016.

[173] With respect to Mr. A's relationship with the children, Dr. Ashbourne wrote in his assessment:

Should the decision be made to arrange for the father to see either one or both children, careful monitoring is going to be needed to evaluate the access and the impact of any form of access on the children and family members. LCA is currently the most resilient child and most likely better able to manage contact, but one would worry about her getting caught in the middle once again between her parents. Initially having the mentor / big sister present to support LCA might be considered. The assessor is unsure, however, how Mr. A would contain himself and not move to try to learn more about the family, try to influence the household, or stop himself from making LCA his eyes, ears, and mouth piece in the home. Similarly, Ms. A would need to not place LCA in the middle by asking her questions about her time with the other parent. The bottom line is that the children's voices should prevail and they get to determine whether they see their father or not.

[174] On October 25, 2016 Ms. Wells wrote Dr. Ashbourne for details as to how reunification may be carried out.

[175] On November 7, 2016 Dr. Ashbourne provided an addendum to his assessment. Therein, he noted:

(a) access is not the first step in order to support the children emotionally;

(b) consideration of some form of contact is recommended;

(d) success on early baby steps will allow for some relaxation and reduced anxiousness, such that they may then be more receptive to other forms of contact including access to extended family and perhaps later, their father;

(e) initially, some brief (supported, facilitated, monitored) time between the children's cousin M and LCA (and TMA if he wanted to attend) could be arranged and facilitated by either Ginny (from ROCK), Ms. Wells, or someone similar that knows the children well. This time should first be brief, in a public / neutral space and involve perhaps a half an hour of time together. This time could be expanded over a few contacts to eventually be a couple of hours in length once a week so as to allow for an activity such as bowling or a movie. The older female cousins may be able to join in time and also attend. After successes with these initial contacts, the next step/stage could be going to the cousin's home for a visit/ meal (without the father present). Success with contacts with cousins/extended family could later (such as next summer) move to include some time together at the family cottage and include overnights. Moving through the various stages/ steps may take months or longer depending on the children experiencing it positive.

[176] Dr. Ashbourne also made recommendations regarding how to encourage the children to have access with their father. This included the father initially providing the children with a few pictures / cards or a brief message in letter or card form for the children to look at with a supportive person such as Ginny from ROCK. The next step could entail very short phone contact with a support person present to oversee the call on speaker phone. Next, a brief video message could be provided from the father to the children that they could look at in a supported / graduated manner. Only then and if ready could the children be encouraged to move to some limited, supported, facilitated and monitored time with their father. Should this all go well, then the next step would be to combine the access to father and the time with extended family together for the children (in a supported, facilitated, monitored) manner. Once any contact is happening with the children by the father, he can be re-referred to the Caring Dad's Program to complete this service.

[177] Dr. Ashbourne also provided information regarding various programs that work to build better communications and healthier relationships.

[178] In sum, Dr. Ashbourne noted that:

small steps related to the children and their cousins / extended family, before big changes are considered such as contact with father. Then intensive interventions to shift things towards encouraging contact with dad and improving / healing family relationships between the children and their parent(s) will be needed and this will likely require extensive time to complete.

10.2.6 Reunification services

[179] Efforts were made to try some 'baby steps' towards reunification/access.

(i) Involvement of MA

[180] One involved arranging a fifteen (15) minute access visit between LCA and her cousin MA ("M"). The following transpired:

(a) on November 22, 2016 Ms. Wells made two phone calls to M's father, CA. She did not receive a call back, so she wrote him a letter on the same date, suggesting that M and LCA meet on December 19, 2016;

(b) CA advised that M was not available on December 19th or over the Christmas holidays;

(c) on January 3, 2017 Ms. Wells left CA a message suggesting a meeting between the cousins on January 3, 2017. She called him again on January 4, 2017 suggesting that the children meet at his home and she would come to supervise;

(d) on January 4, 2017 CA stated that he will not allow his son to participate because he will not allow him to meet at such an institution as the Society;

(e) on January 5, 2017 Ms. Wells called the Milton Library to investigate whether the library had the capacity for the children to meet;

(f) on January 5, 2017 Ms. Wells called CA and suggested that they meet at the library; and

(g) on January 5, 2017 CA called Ms. Wells and said that his family will not participate in having the children meet at all. He was rude and abrupt with Ms. Wells and said that the Society and the mother were the root of all the problems his brother is experiencing.

[181] The father could not understand why a Society worker had to be involved in the contact between M and LCA. He equated the cousins' meeting to when LCA went to camp and met people there for the first time, and the initial time she met her 'big sister'. His position was she did not know people at camp or the big sister either at first, but the Society did not insist on being present for their initial meetings.

(ii) Christmas gifts

[182] Another 'baby step' involved the mother providing the father with a list of Christmas gifts that the children wanted and that the father would buy the gifts for the children.

[183] On December 19, 2016 the father complained bitterly about having to call several Shopper's Drug Mart stores to locate the stuffed penguin that LCA asked for.

[184] Mr. A had issues with the suggested gift list. He followed some recommendations, but disregarded others. He said that he wanted to buy TMA and LCA unique gifts. He said he spent a lot of time coming up with something different and he thought his gift choices demonstrated great creativity on his part.

[185] In permanent marker, he wrote on the headband that was part of the stuffed penguin. He also wrote on an electronic gift he had purchased for TMA, including on the adaptor; the message on this latter component was, "Merry Christmas Love Dad!" He resealed the gift in its original packaging.

[186] The father pointed out that his written messages were not evil or foul. He explained that he wrote on the gifts because he wanted the children to know that he loved them.

[187] The gifts were not well received by the children. TMA ripped open the penguin to check if the father had placed a recording device within it. There was no device. LCA flung the pencils and waxed crayons across the floor and said she was not going to use them.

(iii) Professional supports to assist with reunification/access

[188] On January 30, 2017 Ms. Wells called parenting coordinator Lourdes Geraldo to determine whether she could assist with the reunification process. She did not return Ms. Wells' call.

[189] On January 30, 2017 Ms. Wells called parenting coordinator Gary Direnfeld to determine whether he could assist with the reunification process. He said that he would not get involved if the family was involved with court.

[190] On April 12, 2017 the father asked Ms. Wells to call Debbie Silwinski at Brayden Therapeutic Services ("Brayden"). On April 20, 2017 Ms. Wells called Brayden and they thought they could be of assistance.

[191] The father delayed in agreeing to pay for professional services to assist with reunification. He finally agreed to pay Brayden's initial retainer of $2,500.00 in or about March/April 2018.

[192] If Brayden was used, the mother, the father, and the children would all be working individually with their own therapists. As noted in Brayden's February 23, 2018 letter, its staff would not offer an opinion on whether it is safe for him to meet with his children or if visits should continue.

[193] On April 18, 2018 Ms. Wells liaised with Mary-Jo Franchi-Rotchecker ("Ms. Franchi-Rotchecker") and Gregory Koval ("Mr. Koval") of Accendus Group ("Accendus") to receive information regarding its services. Ms. Wells was advised that it was best practice for them to work with all members of the family, rather than each family member having their own therapists. They explained that, in order for them to have the children gain their trust, they would need to know both of the children's parents too. This made sense to the Society and the Society accepted this approach as being better for the family.

[194] On April 26, 2018 Ms. Wells sent a letter to Accendus asking for a proposal regarding services they could offer this family.

[195] On June 1, 2018 the Society received a written proposal from Accendus, which in turn was sent to the parents.

[196] The Society was prepared to pay Accendus $5,250.00 plus HST for the family to spend fifteen (15) hours with Ms. Franchi-Rothecker and Mr. Koval to work towards the reunification of father with the children. The Society was also prepared to pay Dr. Ashbourne to meet with the children if needed, as part of the reunification / access process.

[197] The mother agreed to the Society's proposal to work with Accendus.

[198] The father did not.

[199] He insisted that Dr. Fiddler's "Family Moving Forward" be used.

[200] Mr. A explained he disagreed with Accendus's approach to reunification, as it involved "studying" the situation. He rationalized that if the Society was accepting of reunification in 2016 when the children were in poorer shape, and now they are doing better, they should just start with the contact; there was no need to study the situation further.

[201] The June 1, 2018 proposal from Accendus reflected the graduated, facilitated and monitored process that Dr. Ashbourne outlined as appropriate and necessary in his November 7, 2016 addendum report.

[202] Interestingly, on March 9, 2017 the father insisted that Accendus was the organization he wanted to perform the duties of reunification/access. He had stated that Accendus was a much better choice of organization than those that Dr. Ashbourne suggested in his report, which included Dr. Fiddler's program.

10.3 Analysis

[203] Based on the foregoing, I am satisfied that the Society has made great efforts, both prior to the commencement of the court application and thereafter, to assist both parents and the children in this matter.

Part 11 – Custody

11.1 Legal Considerations

11.1.1 General

[204] Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make an order pursuant to subsections 101(1) or 102 of the Act. The order to be made is that which is in the child's best interests.

[205] Given the parties' positions (i.e. all parties request a custody order, the difference being that the Society, Office of the Children's Lawyer and mother seek a sole custody order and the father wants joint custody) and the court's view that a custody order is the least intrusive order it could make, I will only review section 102 of the CYFSA.

[206] Subsections 102(1) and (2) of the Act state:

Custody order

102(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

Deemed to be order under s. 28 Children's Law Reform Act

(2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be made under section 28 of the Children's Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

[207] The Ontario Court of Appeal in Kaplanis v. Kaplanis, sets out the following principles in determining whether a joint custody order is appropriate:

(a) There must be evidence of historical communication between the parents and appropriate communication between them;

(b) It can't be ordered in the hope that it will improve their communication;

(d) The fact that one parent professes an inability to communicate does not preclude an order for joint custody;

(e) No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis; and

(f) The younger the child, the more important is communication between the parents.

[208] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Bruto, 2008 ONCA 260, 2008 CarswellOnt 1906 (Ont. C.A.), Roy v. Roy, 2006 CarswellOnt 2898 (Ont. C.A.).

[209] Courts do not expect communication between separated parties to be perfect. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CarswellOnt 782 (Ont. S.C.J.).

[210] In the case of S. (S.) v. K. (S.), 2013 ONCJ 432, 2013 CarswellOnt 10801(Ont. C.J.), Justice Sherr states that courts should also assess the dynamics of a family when determining if a joint custody order is appropriate. Particularly, the court should examine if the granting of such an order is:

(a) more or less likely to de-escalate or inflame the parents' conflict;

(b) more or less likely to expose the child to parental conflict; and,

(c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[211] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (Ont. S.C.J.), the court writes:

[504] In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children — particularly children already exposed to the upset of family break-down — look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

11.1.2 Best Interests

[212] Subsection 74(3) of the Act sets out those factors a court shall consider in determining a child's best interests. Subsection 74(3) reads as follows:

Best interests of child

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,

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

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

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(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) child's cultural and linguistic heritage,

(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,

(ix) effects on the child of delay in the disposition of the case,

(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.

11.2 Facts

[213] The evidence presented allows me to easily conclude that it is in TMA's and LCA's best interests that their mother be granted sole custody of them.

11.2.1 Mr. A's view of Mrs. A

[214] Mr. A denies that he was abusive towards Mrs. A. He says she was the one who was abusive and controlling, and she isolated him from his family and friends.

[215] Mr. A readily and repeatedly attributes blame for their marital difficulties to the fact that Mrs. A did not obtain full-time employment.

[216] Mr. A routinely referred to Mrs. A as 'evil' in his conversations with Ms. Wells.

[217] Mr. A believes that as a 'veteran school teacher' Mrs. A knew the workings of the child welfare system, and as such, she made false statements to workers about him being abusive. Her purpose for doing so, according to Mr. A, was to garner the assistance of the Society as she executed her plan to leave him.

[218] Mr. A also believes that Mrs. A inaccurately recounted to the professionals involved what happened during their marriage, as it was her goal to interfere in his relationship with the children.

[219] Mr. A also thinks that as part of her mission to destroy his relationship with the children, Mrs. A brainwashed TMA and LCA to think and say negative things about him. He characterizes her behaviour as parental alienation. Mr. A concludes that, as a result of her actions, the children have false memories of their time together.

[220] Dr. Ashbourne does not see this is as a case of parental alienation. In his opinion, this is a case of justified estrangement.

[221] Dr. Ashbourne also does not believe that the children have false memories. While explaining, he noted TMA's reluctance to talk and share information about his past experiences; he wasn't trying to paint a negative picture. He also relied on his observations that the children's emotions were tied to what they were talking about in a manner that fits with what one would expect.

[222] Mr. Reid testified, with certainty, that the children's stated views and preferences were independent.

11.2.2 Mr. A's view of the children

[223] Mr. A denies that he harmed the children in any way.

[224] He portrays the children's lives pre-separation as rather idyllic; he said that their home environment was ordinary and stress-free; that they were joyful kids, living a great life. They had no psychological issues. They had no fear and no anxiety. They were doing well in school. They had a well-balanced life, full of fun activities that he arranged and participated in with them.

[225] Mr. A provided videos and pictures that showed the children being happy and enjoying their time with him. He said that these images denote the way it always was for them. His view is that pictures and videos don't lie; children with false memories do.

[226] He has repeatedly stated that once the children see him, all will be okay; they will remember the good times they had together and their false memories will be erased.

[227] Mr. A's stance is that it was after separation that things went 'crazy' and that is when the children were harmed and their mental health issues started.

[228] Mr. A opposes TMA being on medication. He believes that TMA's regular throwing up in 2016 was a side effect of the medication he was prescribed.

[229] Mr. A believes that TMA's anxiety was provoked by being forced to attend trauma counselling; by living in a shelter for victims of domestic violence for a period of time; and by the sudden stoppage of his involvement in extra-curricular activities once he (Mr. A) left the home (as he claims, the mother does not engage him in such endeavours).

[230] Mr. A does not accept that TMA stayed home from school due to mental health issues. He says that TMA's 'strongest motivation' for staying home from school was so he could play video games.

11.2.3 Mr. A's financial support of the children

(i) Orthodontic payments

[231] An orthodontist recommended that TMA have braces, as they may assist him with his headaches and jaw pain. Mr. A refused to pay for or contribute to the cost. He said that the mother has an inheritance and she can use those funds to pay for the braces, and that if she was working, she would have health benefits that would cover some, if not all of this expense.

(ii) Child support payments

[232] Mr. A does not pay child support on a regular basis, as court ordered. A statement from the Family Responsibility Office notes that as at January 1, 2019 Mr. A owed $7,075.89 in child support and he had not paid child support at all from July, 2018. He said he did not have the money to do so.

(iii) Propane payments

[233] On May 23, 2018 an order was made, on consent, by Justice Gibson that stated, in part, that Mr. A is responsible for the payment of propane services to the home in which the children reside.

[234] On October 23, 2018 Mrs. A received a phone call from Sparlings Propane (Parkland Fuel Corp) that there has been an outstanding balance on the home's account for more than one hundred and twenty (120) days. She was advised that further propane would not be delivered until the bill was paid. She was further told that Mr. A was sent a letter about this from the company, via registered mail.

[235] On October 24, 2018 Ms. Sharif sent a letter to Mr. A, via fax, in which she advised him of the circumstances and requested that he pay the bill this day, so the children can have a warm home.

[236] On the evening of November 22, 2018 the house heating system stopped functioning and the two propane tanks were empty. When Mrs. A called the company, she learned that the account had been closed, no propane deliveries could be made, and there was an order to remove the two tanks from the house to ensure that no other company could deliver propane to the house.

[237] Mr. A had made a payment on November 23, 2018 but given the account was in collections and the removal order made, that account could not be reopened. Mrs. A opened a new account with Sparlings, as living in a cold house in the winter, was not conducive to the children's best interests.

[238] Mr. A explained his non-payment and non-compliance with Justice Gibson's order, he advised that (i) it is not fair that he has to pay everything and Mrs. A does not have to pay for anything; (ii) he did not agree with Justice Gibson's order; and (iii) he did not have the money to make the payment.

(iv) Father's financial circumstances

[239] Mr. A spoke, at various points in his testimony, as to the amount of money in his RRSP. The numbers he provided ranged from $300,000.00 to $500,000.00. On January 21, 2019 he advised that he was not sure what the balance is in this fund now; he explained that he does not care about the stock market and all he does is focus on reuniting with his children.

[240] Also, Mr. A has not been gainfully employed since April, 2012. He has dedicated the last five and a half (5.5) years to working full-time on this case. He says he had to do so, to have the best chance at being successful in his bid to be reunified with his children.

11.2.4 Mr. A's interactions with third parties

(i) The Society

[241] Part 10 herein outlines many of the difficulties Mr. A has had in being cooperative with the Society.

[242] Mr. A dictates to Society workers how they should do her job, who they should talk to, and when they should talk to them.

[243] During telephone calls with Ms. Wells, he cried, shouted, argued, ranted, and berated everyone involved with his case; he also uses foul language.

[244] Mr. A altered consents he has been asked to sign, thereby slowing down the process to be of assistance to him.

[245] He delayed returning consents which also impaired the ability for this matter to proceed in a timely fashion. For example, he was given a consent in July, 2016 to permit communication between Dr. Webb and Ms. Wells; he did not return it until November, 2017.

[246] He refused to provide information that he deemed not to be relevant. For example, he did not tell Ms. Wells how many times he saw Dr. Webb. His explanation was that he did not see the relevance of her knowing this; he would give her the information that he thought she needed.

[247] As Ms. Wells put it, "The father argues about and against absolutely every point and everything, rendering most contact with the father completely unproductive".

[248] The father has called the Society many times a day. When he did not reach the person he was seeking, he made random calls to other Society employees, including Directors, other staff, and receptionists. He is determined to tell his story to whomever will listen.

[249] On April 9, 2015 Justice Starr ordered, amongst other things,

Ms. Wells or another Society worker shall call the father once every two weeks on Fridays between 9:00 a.m. and 12:00 p.m., starting April 24, 2015. If a call needs to be rescheduled, it shall be re-scheduled to the following Friday, same time frame and thereafter occur every second week. If the father needs to reschedule a call he shall leave one message for Ms. Wells to this effect. The father is to stop calling the Society at other times. He may fax information to them however.

[250] From April 29, 2015 to June 12, 2015 the Society received eleven (11) faxes from the father. All but one (1) of the faxes were more than one (1) page in length, the longest being thirteen (13) pages. These included:

(a) May 7, 2015 fax which indicated that the call scheduled for the next day should be at least one hour long and Society counsel should be present for it;

(b) May 19, 2015 11 paged, single spaced fax that listed fifty-two (52) topics of discussion points that needed to be addressed;

(c) May 21, 2015 fax that was a repeat of the same fifty-two (52) topics of discussion he previously said needed to be addressed, and that the supervisor, and legal counsel participate in the upcoming phone call he would be having with Ms. Wells;

(d) May 22, 2015 fax in which he again directed the supervisor and Ms. Skrow to participate in an upcoming telephone call. He further directed the Society to ensure that the call was going to be one (1) hour; and

(e) June 12, 2015 fax that included a letter on the Society's letterhead to Dr. Ilacqua, noted to be "without prejudice", signed by the father (despite the Society advising him that the assessment by Dr. Ilacqua would not be 'without prejudice'). This fax also included recommendations for how to work with the Society's new computer system, CPIN. He also requested the notes of the mother's personal therapy sessions.

[251] The bi-weekly phone calls were used by the father to berate the Society and to direct the Society to meet his demands.

[252] On June 25, 2015 Justice Starr ordered, for oral reasons given, in part, the following:

Society is relieved of its obligations as set out in the April 9, 2015 order requiring it to communicate with the father every two weeks by telephone. The order is varied such that the father and the Society shall not, except with the express consent of the Society given in writing to the father, communicate verbally. Further the father may only fax the society once every two weeks. The Society will respond in writing to those portions of the father's requests that it is able to respond to in a meaningful way.

[253] On at least two occasions (July, 2017 and April, 2018) the father's calls had become so frequent and disruptive to Society staff that he was sent letters reminding him of the court order prohibiting his communication with the Society, and advising him to stop calling or police would be contacted.

(ii) Others

[254] The father's conduct with the mother's lawyer also had to be regulated via a court order. On June 25, 2015 Justice Starr also ordered, for oral reasons given, in part:

(a) The father shall not deliver documents to the office of counsel for the mother except by dropping those documents off in person. No faxes. At such times, he shall not speak with any person at counsel's office save and except to greet them and drop the material off; and

(b) The father may only serve materials upon the society and counsel for the mother by mail, dropping those materials off either in person or via courier at their offices. The options of courier and mail service are both open to the father, however, he must comply with the Family Law Rules with respect to this method of services.

[255] On June 22, 2018 Mr. A called the Society's volunteer, who was interacting with LCA as a 'big sister', at her place of employment. He got her phone number from reviewing disclosure provided by the Society, specifically the attendance profile from Kilbride School dated March 1, 2018. Mr. A thanked her for working with LCA and invited her out to lunch to show his appreciation for her doing so. He testified that he did not think this was inappropriate to do.

[256] During the assessment with Dr. Ashbourne, Mr. A altered documents and told the assessor that his changes represented a better way to do the assessment. He also offered to provide Dr. Ashbourne with more tips in this regard, if he wanted them.

[257] Mr. A also refused to provide information to Dr. Ashbourne that he determined to be irrelevant.

[258] He became upset when Dr. Ashbourne told him their meeting times had concluded.

[259] There was staff at the LFCC that would not answer the phone when they knew it was Mr. A calling; they would put him directly through to Dr. Ashbourne.

[260] Dr. Ashbourne spoke of the exhaustion and the difficulty in moving a conversation along with Mr. A. He said, "The emotional roller coaster ride that gets shared on those calls are challenging."

[261] Dr. Ashbourne had the following to say about his July 16, 2016 conversation with the father, "His challenging style of engaging in person or on the phone was evident once again...The father could be loud, emotional, frustrated, and quickly accusatory of all parties, while often talked over the assessor." He went on to note:

The assessor once again had to end the call abruptly as no amount of time appeared sufficient to Mr. A and yet he was informed that over 7 hours have been spent on the phone with him. He suggested three times that was needed to get his points addressed, although the assessor noted it was all the same repetitive details that arose in all previous calls – mother is to blame for brainwashing the children, he needed custody of the children to get them back on track, everyone was out to get him, others were lying and no one seemed to get what he was trying to raise as important, etc.

[262] In cross-examination, Dr. Ashbourne told Mr. A, "You throw off people who want to be involved with you and the children."

[263] Throughout this trial, the father struggled with following directions as to how to conduct himself. He was often late, despite being reminded of the start times of court. He was given permission to take to the stand with him an outline of his evidence, yet he chose to add more detail than what was agreed to. When written submissions on particular points of law were required, limitations on the length of the submissions were clearly ordered and explained. Mr. A acknowledged that he understood the order made, yet he later concluded that he was entitled to provide lengthier submissions, given that the other three (3) parties shared the same position.

(iii) Blaming others

[264] Mr. A is quick to assign blame to others. For example:

(a) he claims the police abducted his children in 2013;

(b) he blames the Society for not putting their heart into making reunification work;

(c) on May 24, 2016 he told Dr. Ashbourne that he was of the opinion that the Society has influenced the various professionals that have been involved and no one will do anything;

(d) During many telephone calls with Ms. Wells, he criticized Dr. Ashbourne for making up statements about what the father had actually said during the parenting capacity assessment. He reported to Ms. Wells that Dr. Ashbourne does not want to publish the truth. According to the father, Dr. Ashbourne himself is 'not worth fifty cents'.

(e) He testified that the parenting capacity assessment should have only taken a few days and it took a few months; and

(f) Mr. A has made disparaging remarks about Justice Starr to Ms. Wells, namely that she is 'irrational', and all she does is 'rubber stamp what the CAS tells her to do.'

(iv) Dr. Webb

[265] Mr. A had the benefit of support services from Dr. Webb, a psychiatrist with thirty-one (31) years' experience.

[266] On October 21, 2016 Dr. Webb completed a comprehensive psychiatric assessment of Mr. A and concluded that there was no evidence to find that he has a psychiatric disorder.

[267] Notwithstanding this conclusion, and there being no specific treatment plan in place, Dr. Webb agreed to continue to be available for Mr. A, to support him with his emotional distress and to be an advocate for him.

[268] Between October, 2016 and October, 2018 they met nine (9) times (this included the initial meeting at which time Dr. Webb completed a psychiatric assessment of Mr. A and the session at which he met his brother). They also spoke on the phone ten (10) to fifteen (15) times during the same time period.

[269] Dr. Webb engaged in two (2) meetings with Ms. Wells. He attended court on one (1) occasion to participate in a settlement conference.

[270] Dr. Webb noted that Mr. A has some obsessive / compulsive traits. He queries whether he may have some autism traits as well. Dr. Webb described Mr. A as one who:

(a) suffers from some degree of perfectionism;

(b) has an unusual personality style;

(d) is single minded in his focus and persistent;

(e) is intense;

(f) is adamant;

(g) is perseverative (repeats things over and over again);

(h) struggles to pick up on social cues;

(i) has poor insight (difficulty recognizing how his behavioural repertoire impacts adversely on some relationships, such as with the Society and with him);

(j) is over-inclusive (adds extraneous detail);

(k) is digressive (goes into long-winded descriptions of things, resulting in it hard to know what the point is he is trying to make. Also, it is hard to pre-empt him to get to the point).

[271] Dr. Webb pointed out that he had not assumed a therapeutic role with Mr. A; that he saw him infrequently; and that they were not doing psychotherapy.

[272] Dr. Webb explained that what he was 'coaching' Mr. A regarding his 'interpersonal style'.

[273] Dr. Webb provided Mr. A strategies as to how he may have more effective interactions with the Society.

[274] Specifically, Dr. Webb noted that he encouraged him to:

(a) empathize more with the Society's perspective, their approach, their concerns, their role, and to move away from seeing them as all bad;

(b) adopt a nuanced view;

(d) realize that trying to be right instead of effective was not helping him;

(e) not continuously call the Society and leave lengthy messages;

(f) be less aggressive, dogmatic, persistent, in people's faces and to avoid blaming strategies as they are not helpful.

[275] Dr. Webb was asked whether Mr. A was able to follow through with the suggested strategies. His response was, "He has made some, incremental perhaps changes, but not dramatically more able to recognize and/or change the ways he interacts that are ineffective."

11.2.5 Mrs. A

[276] At the time his assessment was completed in July, 2016 Dr. Ashbourne noted:

(a) Mrs. A does recognize the emotional impact on the children of her own actions and those of Mr. A. She has shown a willingness to engage in services to address her own parenting challenges and the ongoing difficulties presented by the children. She remains strongly focused on protecting the children from their father and appears to work hard to let all working with her, the children and/or the family, know of the background on the family from her own lens;

(b) she has pursued treatment of herself and the children;

(c) she has tried consistently to get TMA back into school and to services that might address his health and mental health needs; and

(d) she is reportedly improving in her efforts to regain parental authority (and Dr. Ashbourne noted that it is not unusual for the dis-empowered parent to have their parenting skills negatively impacted by the actions of the other controlling parent, and to be seen as less skilled as a parent).

[277] Since the assessment, Mrs. A has:

(a) demonstrated an ability to put the needs of the children before her own;

(b) consistently cooperative and willing to work with the Society;

(d) gained strength personally and emotionally since 2016;

(e) become a more grounded individual; and

(f) gained courage and confidence both personally and in her parenting of the children.

[278] Mrs. A says that 'without question' she is not in the same frame of mind as she was in 2013. She acknowledges that she has benefitted from counselling. She states that she has become strong. She now believes, "We are not failures. It was not our fault. We did not deserve what happened. We were not to blame for what we experienced."

11.2.6 TMA and LCA

[279] There has been significant progress regarding the children's overall functioning and mental health.

[280] TMA is not taking medication.

[281] Both children are attending school.

[282] TMA is at the top of his class academically; he is extremely devoted to doing well. LCA is more interested in language and arts.

[283] LCA is active and enjoys playing sports. She has friends at school.

[284] The children are thriving in their mother's care.

[285] TMA and LCA have expressed consistently and clearly their desire to not have a relationship of any kind with their father.

11.3 Analysis

[286] TMA and LCA are of an age and maturity where their views and wishes should be given significant weight. They currently do not have a relationship with their father; they are not emotionally tied to him. They do not want their father involved in their lives. Their positions are reasonable, given their experiences.

[287] The facts that justified the protection findings are significant and clearly depict that TMA's and LCA's lives, when living with their father, was filled with stress, fear, uncertainty, and mistreatment.

[288] The impact of the trauma experienced by the children is evident; they have significant mental and emotional needs.

[289] In order to ensure that these needs continue to be met, and that the progress they have made is maintained, TMA and LCA require a decision maker who accepts and understands their experiences; who acknowledges that they require professional assistance; and who is able to cooperatively interact with and positively respond to their service providers.

[290] More generally, TMA and LCA deserve for their reality to be that they can look to their caregiver for love, guidance, stability, protection and consistency. They need to have confidence that adult decisions will be made quickly, properly, and uneventfully.

[291] Mrs. A has been able to identify the need to improve and change herself and her circumstances, and to accept services to assist with this. As a result, she has become a healthier and better person, and consequently a better parent. She has been able to meet her children's physical, mental and emotional needs on a consistent basis, and to provide them with a stable home environment. TMA and LCA have a positive relationship with their mother. The three of them form a secure family unit.

[292] Mr. A is unwilling and/or unable to acknowledge the harm that he inflicted upon Mrs. A and the children, and the impact of his behaviours on them. He is not prepared to accept help from professionals to gain insight into this, despite encouragement from the Society and Dr. Ashbourne that he do so. Without this self-awareness, and professional assistance to facilitate and maintain changes in his thought process and behaviour, Mr. A would participate in joint decision making with Mrs. A with the same misguided mindset that he has maintained since (at least) 2013.

[293] As a result, joint custody would be a recipe for disaster. It would provide Mr. A with a mechanism to re-commence his abusive treatment of Mrs. A. Both she and the children would be negatively impacted by their re-exposure to such unhealthy interactions. It would also allow Mr. A the opportunity to re-assert himself into the children's lives in a controlling, harmful and unproductive manner. A joint custody arrangement would serve to derail all the positive progress that the mother and the children have made with respect to their well-being; regression is most definitely not in the children's best interests.

[294] There are other factors I have considered in determining the appropriate custody order in this case.

[295] One, Mr. A has an extremely poor track record of engagement with professionals; this would limit the willingness of some to engage with the children, and with those that would assist, there would be unnecessary delays and withholding of relevant information by Mr. A (unless he found it necessary to provide it).

[296] Two, Mr. A has had the opportunity, subsequent to separation, to demonstrate some indicia of responsible parenting by satisfying his financial obligations to the children. He did not do so.

[297] Last, I have also taken into account that there is no evidence of historical, appropriate communication between the parents.

[298] Based on the foregoing, I find that it is in the subject children's best interests that the mother be granted sole custody.

Part 12 – Passports and Travel

12.1 Legal considerations

[299] Pursuant to subsection 102(2)(a) of the CYFSA, this court has the authority to make an order under subsection 102(1) that it could under section 28 of the Children's Law Reform Act.

[300] Pursuant to section 28 of the Children's Law Reform Act, the court can make an order regarding passports and travel. These issues are incidents of custody.

[301] The legal test to be applied to a request regarding passports and travel is a 'best interests' analysis.

12.2 Facts

[302] Mrs. A seeks the ability to apply for and renew passports for the children and to be able to travel with them, for vacation purposes, without Mr. A's permission and written consent.

[303] Mr. A is of the view that Mrs. A's request should be denied for the following reasons:

(a) Mrs. A does not like to travel as she gets homesick. He noted that she does not even travel to the maternal grandmother's cottage which is two and a half (2.5) hours away. He also pointed out that prior to meeting him, the only place she had visited was Saskatchewan, which she did when she was a child. He took her to the United States and Europe but she showed little interest in this travel, so they stopped vacationing;

(b) he and the mother are unemployed. She cannot afford to vacation. Funds are required to support the reunification of the father with the children; and

[304] Mr. A also expressed concern that if Mrs. A has the ability to leave the country with the children, she may move away with them. He had no foundation for such worry, other than to point out that you hear in the news about such a thing happening.

12.3 Analysis

[305] Should the children be fortunate enough to have the opportunity to travel outside of Canada for vacation purposes, it is most definitely in their best interests that they be given the opportunity to do so.

[306] They will need passports to embark on such journeys.

[307] Given Mr. A's struggles with determining what courses of action are in the children's best interests; his difficulties with signing routine consents, as presented, in a timely manner (if at all); and his inability to interact appropriately with Mrs. A, it is appropriate and necessary to grant Mrs. A's request.

[308] To allow Mr. A any involvement in the passport and travel process, provides him with a means to exert control over the actions of Mrs. A and the children. He is not entitled to wield such power over them. It is not in the children's best interests that they be exposed to such behaviour by him.

[309] Last, pursuant to the order made herein, Mrs. A will have sole custody of the children. I have given her this responsibility as I am confident she can make decisions in a child-focussed manner without the assistance of Mr. A. There is no reason why this responsibility should not include an ability to make decisions regarding passports and travel.

[310] Based on the foregoing, I find it is in the subject children's best interests that Mrs. A be permitted to obtain and renew passports for them without Mr. A's written permission and consent, and that she be permitted to travel with the children for vacation purposes without the father's written consent.

Part 13 – Access

13.1 Legal Considerations

13.1.1 General

[311] Section 104 of the Act sets out the court's powers in relation to access. It reads as follows:

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.

[312] Subsection 105(2) of the CYFSA provides that if a custody order is made under section 102 removing a child from a person who had charge of the child immediately before the intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact with the person would not be in the child's best interests.

[313] 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: Jennings v. Garrett, 2004 CarswellOnt 2159 (Ont. S.C.J.).

[314] If access to a parent is harmful to a child, access can be restricted, but that only in extreme circumstances should access be terminated. In most cases, before access is terminated, supervised access should be attempted. See: Jennings v. Garrett, supra.

[315] It is appropriate, given this is a child protection proceeding, governed by the CYFSA, to consider, in addition to the best interests factors, the purpose of the Act, including (i) recognizing that parents often need help in caring for their children; (ii) the help provided should give support to the autonomy and integrity of the family unit; and (iii) the least restrictive or disruptive course of action that is available and is appropriate in a particular case to help a child or a family should be followed. See: Children's Aid Society of Toronto v. T.T.L. and S.S., 2019 ONCJ 530 (Ont. C.J.).

13.1.2 Reunification

[316] There is significant controversy at this time in Ontario as to whether courts have jurisdiction to make therapeutic orders compelling parents and children to participate in counselling or therapy, including reunification therapy ("therapeutic orders").

[317] If I were to find that the court does have jurisdiction to make a therapeutic order, it would then be necessary to determine whether the therapeutic order sought falls within the definition of "treatment" and whether the person administering it is a "health practitioner" as defined in the Health Care Consent Act, 1996, S.O. 1996 ("HCCA"). These findings are necessary because s. 10 of the HCCA states that there shall be no treatment unless the health practitioner is of the opinion that the person receiving the service is capable with respect to the treatment, and the person has given consent. This issue needs to be determined on a case-by-case basis. See: Leelarantna v. Leelarantna, 2018 ONSC 5983, 2018 CarswellOnt 16633 (Ont. S.C.J.).

[318] Even if the court has jurisdiction to make a therapeutic order, and even if the HCCA does not apply such that the parties' and older children's consent may be dispensed with, it remains within the discretion of the judge to determine whether to make that order or not. As stated by the court in Testani v. Haughton, 2016 CarswellOnt 14573 (Ont. S.C.J.) and Barrett v. Huver, 2018 CarswellOnt 8757 (Ont. S.C.J.) such orders should be made sparingly.

13.2 Facts

[319] When the Society commenced its work with the A family in late 2013 / early 2014 its plan was clear. The children were to engage in counselling to address the trauma they experienced when they lived with both parents. The father was to engage in counselling to support him in the healing of his relationship with the children. If and when the children were ready to move forward with a plan for access, the Society would engage in discussions with the counsellors and the family members to devise an appropriate plan. Mr. A was advised of the need for counselling by way of letter from Ms. Christian dated January 14, 2014 and when he met with Ms. Christian.

[320] The events that unfolded subsequent to this plan are outlined in Part 10.2 herein.

[321] In submissions, Mr. A outlined the reunification plan he would like the court to order. It includes:

Step 1: The children prepare for reunification by seeing January Wilson ("Ms. Wilson") of J.W. Counselling Services; TMA and Laure immediately start calling their father; weekly visits to start when the children want to see him; LCA and TMA to start visiting with CA's family and Mr. A's friends with their children without supervision, including the Society.

Step 2: To be implemented if Step 1 fails. This plan continues to use Ms. Wilson for the preparation of the children, and also the services of Brayden prior to access with the family.

Step 3: This involves the services of Dr. Fiddler and/or Accendus.

[322] Mr. A provided no evidence about the services he proposes would be provided by Ms. Wilson or Dr. Fiddler.

[323] I made Mr. A very aware, at various times in the trial, that if he wanted me to consider information when determining what order to make, he had to present it in a proper manner. For example, he was given direction as to how to call witnesses.

[324] The children have been clear, consistent, and adamant that they do not want a relationship with Mr. A. They have also stated they are not interested in working on repairing their relationship with their father.

[325] Dr. Ashbourne testified that the children's voices should prevail and that they get to determine whether they see their father or not.

[326] Dr. Ashbourne also testified to the need to pay attention to the potential risks that are associated with forcing adolescents to do something that they are not ready and willing to be a part of. He elaborated that the mental health of some adolescents who feel caught in these situations can be negatively impacted and the results could include poor school performance and attempted suicide. He also noted that further potential consequences of forced participation could include young people running away, and them becoming very angry at the primary parent to the point that they may lose that relationship.

13.3 Analysis

[327] It is incumbent upon the person requesting the therapeutic order to provide the court with the evidence that is necessary for this issue to be determined. Mr. A did not do so. Therefore, I do not have the evidence required to consider his proposal.

[328] Even if did have evidence regarding Mr. A's reunification plan, and determined that the court has jurisdiction to make a therapeutic order, and found that HCCA did not apply such that the consent of the mother and the children may be dispensed with, I would still not make the order.

[329] I appreciate that there must be an order for access, unless continued contact would not be in the children's best interests. This court does not make 'no access' orders lightly. However, this is one of those extreme and unusual circumstances where no form of contact between the children and their father, and no further efforts at reunification, is the child-focussed decision to make.

[330] As noted above, TMA and LCA are of an age and maturity where their views and wishes should be given significant weight. They currently do not have a relationship with their father; they are not emotionally tied to him. They do not want their father involved in their lives. Their positions are reasonable, given their experiences.

[331] As a result of the trauma they have endured, TMA and LCA have significant mental and emotional needs. Given this, any efforts to reunify them with their father has to be done in a careful, supportive, child-focussed manner.

[332] Mr. A has not demonstrated any comprehension whatsoever as to what is involved in the reunification process. He does not appreciate that in such an endeavour, it is not possible to plan ahead and concretely say what access will happen and when, or even if contact will actually occur. He does not see that it is a process that is driven by the children's needs, and in order to know what those needs are, close monitoring is required.

[333] Efforts have been made, over an extended period of time, to assist Mr. A in understanding the reunification process. Despite these attempts, he still believes that once the children see him, all will be good. They will remember the good times they had together and the false memories that have been implanted in their minds by their mother will be erased.

[334] I was particularly struck by Mr. A's reaction to Dr. Ashbourne's explanation (while being cross-examined by him) of Accendus' proposal (Mr. A was displeased with it because it involved more 'studying' of the situation). After Dr. Ashbourne clearly and simply explained that an evaluative component is necessary to see if reunification is feasible and if so, how it should unfold, Mr. A next asked, 'If this fails, could we try other ways of reuniting, such as going paint balling?' This captured the many other comments he has made on this topic. He sees reuniting as a 'thing' (i.e. access) and not a 'process'. This mindset will impede any prospects of reunification success.

[335] I have also considered that Mr. A is unwilling and/or unable to acknowledge the harm that he inflicted upon the children and the mother, and the impact of his behaviours on them. Without this insight, any reunification process would most definitely be compromised.

[336] As well, I have noted that Mr. A has an extremely poor track record of engagement with professionals; this does not bode well for the success of any therapeutic regime that would be put in place.

[337] I have also reflected on the fact that the children are living in a stable home environment and are thriving; they are not negatively impacted by the absence of their father from lives.

[338] It is only fair to TMA and LCA that the issue of access be finally disposed of now. Mr. A has had more than sufficient time and support to gain insight and to modify his thought process and behaviour such that reunification/access could be a possibility, yet he has been unwilling and/or unable to do so. It is in the children's best interests that they be given closure.

[339] Based on the foregoing, I find that it is in the subject children's best interests that there be no access and that Mr. A's request for the implementation of a reunification plan be dismissed.

Part 14 – Release of report cards

14.1 Legal Considerations

[340] Pursuant to subsection 102(2)(a) of the CYFSA, this court has the authority to make an order under subsection 102(1) that it could under section 28 of the Children's Law Reform Act.

[341] Subsection 28(1)(b) of the Children's Law Reform Act states that by order, the court may determine any aspect of the incidents of custody or access.

[342] Subsection 20(5) of the Children's Law Reform Act states,

Access

20(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

14.2 Analysis

[343] As this order will state that Mr. A shall have no access to his children, there is no right for him to obtain information about them. See: McIntosh v. McIntosh, 2006 ONCJ 344 (Ont. C.J.). As well, from a child focussed and best interest of the child perspective, there is no purpose to be served and no benefit to the children by providing Mr. A with this information. To make such an order would only advance his interests, not those of the children.

[344] It is appropriate to consider the children's views on this issue as well. I reiterate, they have consistently and adamantly said that they do not want their father involved in their live. His absence brings them a sense of peace and stability.

[345] If Mr. A has access to information about them, the real risk is that their sense of security will be disrupted. This is not what is best for them.

[346] Based on the foregoing reasons, Mr. A's request that the school board shall be permitted to release the children's report cards to him directly is dismissed.

Part 15 – Production of photographs and the children's projects

[347] For the reasons noted above regarding the release of the children's report cards, Mr. A's request for at least five (5) "nice photos" of the children on a monthly basis, and his request that he shall be provided electronic or hard copies of the children's projects shall be dismissed.

Part 16 – Right to renovate the matrimonial home

[348] Mr. A requests the opportunity to renovate the matrimonial home so that it can be sold.

[349] He states that Mrs. A can live in her mother's home which is empty as she is living in a retirement home.

[350] Mr. A notes that he lives with his mother, so Mrs. A can do the same.

[351] He goes on to explain that Mrs. A likes her mother's home a lot more than the matrimonial home.

[352] This court does not have the jurisdiction to deal with property issues. As a result, Mr. A's claim is dismissed.

Part 17 – Restraining order

17.1 Legal considerations

[353] Subsections 102(3) and (4) of the CYFSA state:

Restraining order

102(3) When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with section 35 of the Children's Law Reform Act.

Deemed to be final order under s. 35 Children's Law Reform Act

(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Children's Law Reform Act, and shall be treated for all purposes as if it had been made under that section.

[354] In Catholic Children's Aid Society of Toronto v. I. A., 2019 ONCJ 49, Justice Spence notes that the general principles which a court will consider and apply when determining whether to grant a restraining order are neatly summarized in the case of C. (D.) v. C. (M.T.), 2015 ONCJ 242 (Ont. C.J.), a decision of Justice Victoria Starr, where she states at paragraph 64:

[64] Based on my review of the case law, the general principles to be considered and applied when determining whether there are reasonable grounds for the person seeking the order to fear for her own safety or for the safety of his or her child or children, include the following:

(a) The onus is on the person asking for the restraining order on a balance of probabilities to convince the court that an order is required;

(b) As a general rule the court must approach the issue of whether to impose a restraining order with caution. The nature of an order is to restrict the freedom of movement and communication of a party. The sanctions for breaching such an order include possible imprisonment. Although the burden of proof is the civil test, the effect is quasi criminal in nature;

(c) A restraining order is not restricted to situations where the fear relates to physical safety. It can also include ongoing fear for one's psychological safety;

(d) It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed;

(e) An applicant does not have to have an overwhelming fear that could be understood by almost everyone; on the other hand, the applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant;

(f) There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words and a Court must be able to connect or associate a respondent's actions or words with an applicant's fears.

[355] In cases involving the passage of a significant period of time during which there have been no or no recent incidents of aggression or inappropriate behaviour, in C. (D.) v. C. (M.T.), supra, at paragraph 69, Justice Starr suggests that the Court should be guided by the following additional principles when deciding to grant a restraining order:

(a) The court must have regard for the passage of time. Events that once triggered a temporary restraining order may not now be so compelling on the issue of a permanent order;

(b) When examining the link between some past act of aggression and some possible future aggression the court should look closely at the intervening period between the respondent's past harassment and what the applicant perceives to be his or her present concern;

(c) If a respondent has committed past acts or words of harassment they must have some current relationship with the applicant's present fears. There must be some link between the past aggression and possible future aggression;

(d) Some element of persistence in pursuing a course of intrusive, troubling and meddlesome behaviour over a period of time is required;

(e) It is not sufficient to argue that there would be no harm in granting the order;

(f) In borderline cases the Court must consider whether a restraining order would be a resource to the applicant to protect her from the respondent;

(g) In borderline cases, the Court must consider what other protections may be available, if a restraining order is not granted; and

(h) It is appropriate where the evidence led by the applicant is not fully compelling to consider the balancing prejudice to the respondent should the order be granted.

17.2 Facts

[356] Based on her experiences with Mr. A, Mrs. A fears for her own safety and that of the children. She believes that Mr. A has kept away from her and the children, because of the temporary order that is in place.

[357] The children demonstrated fear of Mr. A the last time they saw him, which was a month before this trial started, and as previously outlined.

[358] Mr. A has complied with all orders to date regarding contact with the mother and the children, and with regard to his attendance at the matrimonial home.

17.3 Analysis

[359] I have adopted and applied the guiding principles outlined in the jurisprudence discussed above. Consequently, I have considered the totality of the evidence presented in this case, and closely examined the events and actions which have occurred during the intervening period, with a view of determining whether there is a link between the father's past behaviours and the mother's present concerns and fears.

[360] During the intervening period in this case:

(a) Mr. A has accepted no responsibility for the long standing and significant abuse he perpetrated upon the mother and the children;

(b) Mr. A has steadfastly maintained that he has done nothing wrong to either the mother or the children;

(d) The children's reaction to seeing their father on September 18, 2018 is indicative of their recent fear of him;

(e) Mr. A has demonstrated a general disregard for court orders, save and except those that permit the involvement of the police if not complied with;

(f) Mr. A has demonstrated a mindset that he knows better than anyone else how events should unfold and what is best for his children;

(g) Mr. A has displayed an obsessive-like approach to the issue of reunification. He forewent employment for five and a half (5.5) years so that he could focus on nothing but this court matter;

(h) Mr. A has routinely said that the children are his life and he has emphatically said in his evidence that he will be part of the children's lives again;

(i) Mr. A has, over an extended period of time and to a variety of people, demonstrated intense emotional reactions, particularly when he is told things about his children he does not want to hear;

(j) I know Mr. A will be upset and angered by this decision and the findings of fact that I have made. I am concerned as to how he will react.

[361] The temporary order that prohibits Mr. A's contact with the mother and the children and his attendance at the family home is not technically a restraining order, however, it does call for police involvement if be breaches this term. Mr. A views it as a restraining order. I am confident it is this belief that has prevented Mr. A from attempting to contact the mother and the children and to attending at the home. I am strongly of the view that it is extremely likely that if a restraining order is not made, Mr. A will make seek out the children and the mother.

[362] Based on the totality of the foregoing, I find that there is a link between Mr. A's past behaviours and Mrs. A's present concerns and fears for herself and the children. As such, I find that there are reasonable grounds for Mrs. A to fear for her own safety and for the safety of the children. Therefore, I order that there shall be a restraining order made in the form prescribed by the rules of the court.

Part 18 – Final order

[363] The subject children are found to be:

(a) TMA (born XXX, 2003). He is 15 years old.

(b) LCA (born XXX, 2005). She is 13 years old.

[364] TMA and LCA are found to not be First Nations, Inuk or Metis children.

[365] The children TMA and LCA are found to be in need of protection pursuant to subsections 74(2)(b) and (f) of the CYFSA.

[366] The mother, LSA shall have sole custody of the children TMA and LCA.

[367] The mother, LSA shall be permitted to apply for and renew Canadian passports for the children TMA and LCA. Any consent of the father, MIA that may be required as part of the passport application is hereby dispensed with.

[368] The mother, LSA shall be permitted to travel with the children TMA and LCA outside of Canada, for vacation purposes, without the written permission or consent of the father, MIA.

[369] There shall be no access to the children TMA and LCA by the father, MIA.

[370] A separate restraining order shall issue to read as follows:

MIA shall be restrained from directly or indirectly contacting or communicating with LSA, TMA, and LCA;

MIA shall be restrained from coming within 500 metres of (i) the home of Mrs. A, TMA and LCA located at XXX, Burlington ON; (ii) the schools of TMA and LCA located at XXX Secondary School, XXX, Burlington, ON, XXX; and (iii) any other place that Mr. A knows or ought to reasonably know Mrs. A, TMA and/or LCA may be.

[371] All other claims made in this proceeding shall be dismissed.

[372] If the Society; the mother, LSA; or the Office of the Children's Lawyer seeks costs against the father, MIA, the requesting parties shall make submissions on this issue, in writing, in accordance with the following schedule:

(a) the requesting party shall serve and file their written costs submissions (maximum ten (10) pages, 1.5 spaced, 12 pt. font), bill of costs, and any legal authorities (maximum five (5) in total and not per point raised), by no later than September 30, 2019;

(b) Mr. A shall serve and file his written costs submissions (maximum ten (10) pages, 1.5 spaced, 12 pt. font), bill of costs, and any legal authorities (maximum five (5) in total and not per point raised), by no later than October 30, 2019; and

Any submission the requesting party wishes to rely upon in reply (maximum five (5) pages, 1.5 spaced, 12 pt. font) shall be served and filed no later than November 13, 2019.

Released: August 30, 2019

Signed: "Justice Susan Sullivan"