WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION

The court may make an order (c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) PROHIBITION: IDENTIFYING CHILD

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) IDEM: ORDER RE ADULT

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) IDEM

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

Date: January 7, 2019

Court File No.: Toronto C.40255/18

BETWEEN:

Catholic Children's Aid Society of Toronto

Applicant,

— AND —

N.N. (mother)

D.G. (father)

Respondents

Before: Justice Roselyn Zisman

Heard on: November 19 to 23 and 26 to 30, 2018 and December 14, 2018

Reasons for Judgment released on: January 7, 2019

Counsel:

• Fatima Husein — counsel for the applicant society
• Solmaz Separy — counsel for the respondent N.N.
• D.G. — on his own behalf
• Loralee Messenger — counsel for the Office of the Children's Lawyer, legal representative for the children

Zisman, J.:

1. Introduction

[1] The Catholic Children's Aid Society of Toronto ("CCAS" or "the society") has brought an Amended Protection Application seeking a finding that the children, namely E.G. a male who is 10 years old, ("E."), C.G. a female who is 8 years old ("C.") and twins S.G. a female ("S.") and A.G. a male ("A".) who are 7 years old, are in need of protection pursuant to sections 74 (2) (b), and (h) of the Child, Youth and Family Services Act ("CYFSA") namely, that the children are at risk of physical harm and are at risk of emotional harm.

[2] The society seeks an order that the children be placed in the custody of the Respondent N.N. ("mother") pursuant to section 102 of the CYFSA with incidental orders with respect to travel and obtaining documents and that the society be notified of any motion to change the parenting arrangements. The society also seeks an order for supervised access to the Respondent D.G. ("father") at a professional supervised access centre.

[3] Counsel for the mother consents to the finding that the children are in need of protection and with the disposition sought by the society and seeks a further order that neither parent be permitted to bring a motion to change with respect to the parenting arrangements without leave of the court.

[4] Counsel for the children supports the position of the society.

[5] The father opposes the finding that the children are in need of protection and seeks an order dismissing the Protection Application to permit the domestic litigation to continue. In the alternative, the father seeks an order placing the children in his sole custody or in the further alternative, that the children be placed in his care pursuant to a 3 month supervision order.

[6] As of the date of the trial, all of the children have been residing in the care of the mother since January 30, 2018. As of May 31, 2018 the paternal grandmother has had no contact with the children and as of October 2, 2018 the father has had supervised access to the children twice weekly.

2. Theory of the Case

[7] It is the theory of the society, supported by the mother and counsel for the children, that the parents have been involved in extensive domestic litigation and have a history of involvement with child welfare authorities prior to the commencement of this Protection Application. The concerns relate to physical abuse, domestic violence and the emotional impact of not only the violence in the relationship but of the high level of conflict between the parents perpetuated almost exclusively by the father who has placed the children in the middle of conflict that he denies. This includes the father taking the children to various medical professionals, the father providing inaccurate or incomplete information to those medical professionals, the father and paternal grandmother coaching the children to make disparaging comments about the mother and coaching them to make allegations of physical abuse by the mother against them.

[8] It is the theory of the society that the father has created chaos in the lives of the mother and the children by enrolling the children in two separate schools, refusing to accept outcomes of various investigations, insisting that the children suffer from various medical issues and insisting that the children are doing well in their French school programs despite the opinions of various professionals to the contrary.

[9] The society submits that it has been able to work with the mother who has acknowledged and taken responsibility for her mistakes in the past and the negative impact on the children while the father has not. The mother has taken positive steps to change her life for the benefit of herself and the children and has worked co-operatively with the society.

[10] However, it is the theory of the society that the father has denied all of the concerns, repeatedly changed his explanations for events, failed to acknowledge or accept any advice or evidence shown to him including from professionals outside of the society. The father has refused to cooperate with the society to address the identified issues and blamed everything on the mother and the society. It is therefore the position of the society that little progress has been made despite years of ongoing involvement of the society and other supportive services and that the risk to the children in the father's care has increased over time.

[11] It is the theory of the father that there has never been any physical harm against the children perpetuated by himself or the paternal grandmother and that the mother has never been a victim of domestic violence. It is his theory that although the mother admitted to physically disciplining the children, the society has never taken appropriate measures to protect the children from harm in their mother's care and his concerns about the mother's care of the children have never been seriously considered. It is also his theory that although the mother's partner admitted to inappropriate tickling the children that the society did not properly investigate this concern. The father denies that there is any conflict between himself and the mother.

[12] It is the theory of the father that he is an advocate for the children and he is attempting to ensure that their medical and educational needs are met and that despite working cooperatively with the society that he has not received any support from them. The father further submits that it is possible that the children will suffer emotional harm if the children remain in the sole custody of the mother and if the present family service worker continues to be involved.

[13] It is the father's theory that the children's statements that the society wishes to rely upon were either made as a result of the mother coaching the children, the society workers' inexperience in interviewing the children or as a result of the society workers lying about those statements.

3. Background

[14] The mother is 38 years old. In addition to the children before the court the mother has two other children with her current partner S.L., a daughter who is 2 years old and a baby boy that was just born. The society is not involved with these children. The mother and her partner do not currently live together but are engaged and plan to be married. The mother is currently not working and is caring for the children on a full-time basis. Her source of income is social assistance and the child tax benefit.

[15] The father is 38 years old and resides with his mother C.H. ("paternal grandmother") in her home and currently does not have a partner. The father is currently not working or attending school and he is in receipt of social assistance.

[16] According to the mother the parties cohabited together from 2002 and separated on February 27, 2014. According to the father the parties had an off and on uncommitted relationship and never resided together.

[17] The children have always resided in the primary care of the mother. The father agreed that he had minimal involvement with the children until 2011 when the twins were born.

[18] The father did not tell his mother that he was the father of the four children until he was arrested for assaulting the mother on February 27, 2014. According to the mother, while they resided together the father would keep the children inside the apartment while she went to work as he feared his mother would find out about the children since she lived close by.

[19] The father denied that he kept the children inside to avoid the paternal grandmother discovering that he was the father of these children. He testified that he did not tell the paternal grandmother about the children as he was uncertain if he was the biological father. But he never raised this issue prior to the separation and could not explain why he was involved in the children's lives if he had doubts about his paternity or why he never requested paternity testing earlier.

[20] With respect to the background of the relationship, I found the father's evidence not to be credible as his explanations had no sense of reality.

4. Litigation History

4.1 Involvement with Children's Aid Society of Toronto

[21] The Children's Aid Society of Toronto ("CAST") had 4 previous openings with the parties.

[22] The first opening was from November 29, 2012 to January 25, 2013 with respect to concerns received from E.'s school that the father was under the influence of marihuana and concerns about the way the father behaved at the school. The parents were residing together, the mother denied the father's use of any substances, the mother felt the school overreacted and the parents planned to change schools. The file was closed at intake as the children appeared to be safe in their parents' care.

[23] The second opening was from February 27, 2014 to July 24, 2015. The CAST received a report from Emergency Medical Services that the mother advised she had been choked by the father, the father had hit the children and he hit the 5 year old with a belt. The child has some dried blood on his nose and said his sister hit him and then said it was his father. There was therefore some confusion about what had happened. The father was subsequently arrested. The allegations were investigated and the file transferred to ongoing services. The file was treated as high risk until it was closed. At closing the children were in daycare or school, the parties had separated and access to the father was going well.

[24] The third opening was from March 3 to April 27, 2016. The CAST received a report from C.'s school that she needed eye glasses and this had been discussed with both parents. C. was then taken to the eye doctor and prescribed eye glasses but then stopped wearing them. C. reported consistently that her father had taken her glasses away and said they were ugly. The CAST investigated and the father reported that he had never seen the glasses and they were never sent home. The teacher clarified that she was now holding C.'s glasses in the classroom. As the issue had been rectified, the file was closed as there were no other concerns about the care of the children by either parent.

[25] The fourth opening was from July 24, 2016 to May 18, 2017. On July 24, 2016 the CAST received a referral from the Humber River Emergency department that the father brought in the child S. after she had disclosed to the paternal grandmother that her mother tried to choke her and beat her with a belt. The child had a slight bruise on her neck but no other suspicious findings. However, the older child C. disclosed being hit with a belt and had bruises on her upper arm and abrasions on her left and right upper arm and had a bruise on her forehead that she said was from hitting her head on a bunk bed. The father reported that he was suspicious that the mother was hitting the children but this was the first time there had been any bruises.

[26] The allegations regarding the mother hitting the children were investigated and were not verified as there was no information to verify the children were intentionally hit by the mother. However, the allegation of the children's exposure to ongoing conflict between the parents was verified as all four children were exposed to post-separation conflict which continued to be impacting them emotionally in a negative way. The file was transferred for ongoing service and deemed high risk.

[27] In April 2017, the CAST conducted an investigation regarding allegations of physical discipline by the father against the child C. who disclosed that her father had become angry with her for throwing her brother A.'s clothes into his food and he then "stomped" on her head three times. Her mouth was bleeding and her tooth fell out. The CAST investigated this allegation and after interviewing all of the children verified the allegation of inappropriate physical discipline. At the time, the CAST contemplated commencing a Protection Application but decided not to do so in the hope that the parties would settle their dispute in their outstanding domestic proceedings.

[28] CAST only serviced the file briefly as the father requested a transfer to CCAS. The father wanted his file transferred to the CCAS as he was Catholic, the children were being raised partly as Catholic and he felt that society would better represent his values. However, it was explained that both parents needed to agree and that the file would not be transferred with a pending investigation. However, once the allegation of physical discipline by the father was verified and the mother agreed the file was transferred to the CCAS.

4.2 Domestic Proceedings

[29] While the CAST was involved with the parents, as indicated there was also an ongoing custody and access proceeding. The father commenced an Application on March 6, 2014 for custody and paternity testing and the mother filed an Answer and Claim for custody and child support. The father took the position that he was not certain he was the biological father of the children. The test results confirmed he was the biological father of all of the children.

[30] In the domestic proceedings, there were many court attendances with the father's access being initially supervised to gradually being increased and becoming unsupervised. The temporary court orders provided that the parents communicate by email or text and each parent was permitted to consult with and obtain information about the children directly from their teachers, doctors or other professionals.

[31] On May 21, 2015, the mother signed an agreement with the father to enable the children to spend the week-days with the father and paternal grandmother and every week-end with the mother. This arrangement was made as the father and paternal grandmother had enrolled the children in summer camp and other activities and as the mother did not drive she was unable to easily arrange to take the children to these activities. Shortly thereafter, the father and paternal grandmother returned E. to the mother's care as he would not listen to them or eat. Although this was admitted by the father and the paternal grandmother, the paternal grandmother testified that this was only to be for a short time but she did not explain what was to happen for E. to be returned to the care of herself and the father.

[32] According to the mother, the father and paternal grandmother would then not let her see the other children and after attending at the home of paternal grandmother with her friend and the police, the mother commenced an urgent motion for the return of the three children after not seeing them for almost a month.

[33] According to the paternal grandmother's evidence, the mother kept E. in her care and the paternal grandmother continued to bring the other children to the mother and the mother would then return them to her care. The paternal grandmother's version of this event makes no logical sense. I accept the mother's evidence as being credible.

[34] At the hearing of the mother's motion on July 21, 2015, the court essentially ordered that the parties were to comply with the agreement that they had entered into except that, E. was to continue to reside with the mother and the father was to have access. The court also ordered that the other children were to remain with the father in accordance with the agreement between the parties and the mother was to have access to those children every week-end. As of August 28, 2015 the three other children were to be returned to the custody of the mother and the father's day access would resume.

[35] The mother testified that she felt she had been manipulated and tricked by the father and paternal grandmother into signing the agreement for the care of the children over the summer and after this time no longer trusted them.

[36] On October 21, 2015 the parties consented to a temporary order that the father have access on alternate week-ends from Friday to Sunday and on the alternate weeks when the father did not have week-end access, on Tuesdays and Thursdays from after school to 7:00 p.m. The father was ordered to pay child support of $549 per month, as of December 1, 2015, based on an imputed income of $22,800 and the child support guidelines and he was required to advise the mother if he obtained employment.

[37] After attending mediation, on July 28, 2016 the parties entered into a final consent order that in summary provided as follows:

• the mother to have custody and final decision making regarding the health and the general well-being of the children;
• the father to have final decision making regarding education;
• primary residence of the children with the mother and secondary residence with the father;
• both parties to provide prior notice and consult with the other party in writing by text or email prior to making a decision and to provide notice prior to making any decision; both parties to exercise good faith and be child focused when consulting the other party; both parties to be able to consult and obtain information regarding the children directly from teachers, counsellors, doctors and other professionals;
• children attend a Catholic school and may attend Church on Sundays and are being taught Catholic religion by father; children attend church on Saturday and are being taught Seventh Day Adventist religion by mother; neither parent shall interfere or undermine the other party's religious influence on the children and both parties are free to continue to raise the children in the religious sphere they are currently part of;
• neither parent can enroll the children in any activity that conflicts with other parents' parenting time without other parents' consent;
• parties shall communicate by text or email and only about the children and both parties shall respond in a timely manner;
• parenting time with father: Week 1: Tuesday pick up at school to Thursday drop off at school and Friday to Monday pick up and drop off at school and Week 2: Wednesday to Thursday pick up and drop off at school; holiday access summer alternating weeks and other holidays divided equally;
• consent for travel required not to be unreasonably withheld; and
• based on father's income of $9,000 and mother's income of zero, no child support payable; parties will pay 50% of any extraordinary expenses; mother to continue to receive the child tax credit; father to advise mother of any new employment; both parties to provide annual financial disclosure; child support arrears owing to the mother fixed at $3,500 up to July 2016 and payable at a rate of $50 per month.

[38] Almost from the inception of this order, I find that the parties' conflict intensified. The father removed the children from the English language Catholic school they were attending and placed three children in a French language school and placed E. in a French immersion program in a Catholic school.

[39] The father denied that his actions resulted in any conflict and that he was simply exercising his decision making authority regarding education. However, the schools were quite far apart and the mother who did not drive, needed to use public transportation, this resulted in some or all of the children frequently being late in the mornings and being removed from school early in the afternoons. The older children E. and C. and especially E. had a great deal of difficulty adjusting to the French language curriculum as they had no previous French language education. The father blamed the mother and alleged that she was sabotaging the children's French language education and purposely bringing them late to school or removing them early.

[40] Despite the fact that the mother had final decision-making authority with respect to health and well-being, the father took the child E. to the hospital on July 28, 2017 and took him to a pediatrician without the consent of the mother or without any prior consultation or notification to her.

[41] The CAST continued to attempt to assist the parents in problem solving and attempted to encourage them to attend mediation to resolve their conflict.

[42] Both parents agreed that the order of July 28, 2016 was not working. The mother commenced a Motion to Change on October 19, 2016 seeking sole custody and child support. There were several delays as the mother had difficulty serving her Motion to Change on the father.

[43] During the course of that proceeding, on consent an order was made on August 31, 2017 appointing the Office of the Children's Lawyer ("OCL"). Julie Albert was assigned as the clinical investigator in September 2017 but her investigation was delayed and complicated because of the ongoing involvement of the CAST.

[44] The file was transferred to the CCAS in June 2017. As a result of the CCAS issuing a Protection Application on January 17, 2018 the outstanding Motion to Change was stayed.

4.3 Involvement of Catholic Children's Aid Society

[45] On January 30, 2018 a temporary without prejudice order was made placing all of the children in the care and custody of the mother with access to the father in accordance with the outstanding domestic court order.

[46] On February 20, 2018, the child protection proceeding was adjourned as Justice Sherr, who was the case management judge, requested the OCL report that had been ordered in the domestic proceeding filed with the court and if the report was not available the clinical investigator Ms Albert was to attend court.

[47] On March 31, 2018 the OCL report was filed. The endorsement indicates that the father did not agree with the recommendations namely, that the mother have sole custody and the father have access on alternate week-ends and weekday access. The father subsequently filed a Dispute to the OCL report. The father also opposed a finding of need of protection. A date was set for the temporary care and custody motion.

[48] The following is a brief summary of the subsequent relevant court attendances:

• May 31, 2018: temporary care and custody motion, children placed with mother on terms of supervision; father supervised access at society office 1x a week minimum 2 hours; community access on Saturdays from 10:30 a.m. to 2:30 p.m. with exchanges at society offices; paternal grandmother not to be present;

• July 4, 2018: temporary motion regarding access: father to have 1 mid-week visit at society office for 3 hours with first half hour to be supervised; community access on Saturdays from 10:30 a.m. to 3:30 p.m. or earlier if Saturday access program closes earlier; paternal grandmother not to be present and father to ensure the children have no contact with her during his access; parties agree to child protection mediation. The father was represented by counsel up to this point in the proceedings;

• September 25, 2018: settlement conference held; father advised regarding need to serve Evidence Act notices for medical and police reports; society and parties expected to file Evidence Chart regarding contested evidence that likely would be the children's statements; parties to serve any documents or videotapes that they intend to rely on at trial by October 12th;

• October 2, 2018: paternal grandmother's motion to be added as a party dismissed; statutory findings per section 90 (2) of the CYFSA made regarding the names of children, birth dates and finding that the children were not First nations, Inuit or Metis; father's access to be supervised at discretion of society minimum 2 x per week; father's motion to increase access dismissed;

• October 10, 2018: at the assignment court the father advises he plans to bring motion for state funded counsel and he was advised to bring the motion on notice to Justice Sherr as the case management judge;

• October 22, 2018: father seeks order regarding legal aid providing him with counsel and files Notice of Constitutional Question seeking that remedy but father ordered to properly serve all parties including the Attorney General of Ontario and Legal Aid Ontario; "the court strongly suggests that the father consult with counsel so that he brings this Application in the proper form and that he ensures that it is properly served on the relevant parties;" due to the imminent trial court staff instructed to schedule return of Application on any date Justice Sherr was sitting prior to the scheduled trial date;

• October 24, 2018: trial management conference before myself; positions of parties outlined; evidentiary issues discussed, admissibility of the children's statements to be addressed at commencement of trial; father advised wishes to introduce video of "abuse"; father did not advise that he was proceeding with a motion for the appointment of state funded counsel or seek an adjournment of trial;

• November 9, 2018: father submits 14B to dismiss the child protection case; Justice Sherr dismissed motion with no need for other parties to respond;

• November 16, 2018: father's motion for state funded counsel heard by Justice Carole Curtis; motion was not served on society, counsel for the mother or counsel for the children; motion only served on Attorney General of Ontario that filed a letter agreeing to the order sought for state funded representation at legal aid rates; court order issued on those terms; father not asking for adjournment; father cautioned to serve all parties with any materials he intends to rely upon and on the possible consequences of failing to serve or serving inadequate notice; father's request for audio recordings of trial not dealt with as request to be made to trial judge.

5. Evidence at This Trial

[49] The trial consumed 10 full days of evidence and another day for submissions. There was extensive evidence both in documentary form with 58 exhibits filed and viva voce evidence. The society called 12 witnesses most of whom provided their evidence in chief by means of affidavits and called one of the CCAS supervisors, at the request of the father, as their own witness. Counsel for the mother called 4 witnesses, all of whom including the mother, provided their evidence in chief by means of an affidavit that greatly shortened the time required for the case. The father called 8 witnesses including himself and he filed two affidavits from medical specialists that were admitted on consent and counsel agreed that there was no need for cross-examination.

6. Procedural Issues

6.1 Adjournment

[50] At the outset of the trial, I requested confirmation with respect to whether or not the father who was unrepresented was requesting an adjournment. The father advised he has just received a legal aid certificate. The father was advised that there was another trial sittings during the weeks of January 21 to February 1, 2019. The father confirmed that he was not seeking an adjournment and was prepared to proceed with the trial without counsel.

6.2 Admissibility of Videotapes of Interviews with the Children

[51] In order for photographs or videos to be admitted into evidence they must:

a) accurately depict facts;

b) there must be an absence of any intention to mislead; and

c) they have to be verified by the photographer or videographer.

[52] Detective Constable Christine Knill was called as a witness by the society with respect to a police investigation and interview she conducted on May 23, 2018 with the child A. regarding allegations made by the paternal grandmother that the mother's partner had inappropriately "tickled" him and pulled down his pants. A copy of the DVD interview was introduced as an exhibit. Constable Knill confirmed that she checked the equipment, that she was present for the entire interview and that the video depicts the entire interview.

[53] Constable Knill concluded that there was no disclosure made by the child but did caution the paternal grandmother and the father about coaching the child. Portions of the interview were played in court as part of the father's cross-examination. I advised counsel that I would review the entire DVD interview in chambers and have done so. I find that there was no disclosure made by A. during the interview. However, S. stated that A. was lying when he said the mother's partner pulled down his pants and it was just a joke but he was afraid of the paternal grandmother. S. stated that she does not like spending time with the paternal grandmother who tells them to lie.

[54] As part of his evidence in chief the father attempted to introduce a video of a police interview with C. and S. conducted on July 27, 2016 with respect to allegations that the mother had choked S. and hit C. with a belt. Constable Maxwell was the officer who interviewed the children along with a society worker who was not one of the workers called as a witness in this trial. Neither Constable Maxwell nor the society worker were called as witnesses so that the videotape of the interview could not be authenticated or verified by any witness who was present for the interview. The videotape of these interviews was ruled inadmissible.

[55] Although I appreciate that the father was self-represented and may not have totally understood the legal requirements of the admissibility of videotaped evidence, nevertheless the rules of evidence must be complied with especially as the father had been previously advised about ensuring that he complied with the evidentiary issues. Further, the father had been previously represented by two different counsel and then chose to be self-represented for this trial having declined to adjourn the trial and despite having obtained an order that he be provided with state funded counsel.

[56] As the father had taken the children to the hospital as a result of these allegations there was evidence of these allegations in the hospital records that were entered as exhibits. Further, the allegations were investigated by the CAST and not verified. Accordingly, the evidence with respect to this incident was before the court so that there was no prejudice to the father in ruling that the actual videotaped interview was inadmissible.

6.3 Admissibility of Documents with Respect to Benefits of French Language Education

[57] The father sought to introduce several documents with respect to the benefits of a French language education. I ruled that these general statements were not relevant as the issue before the court was with respect to the needs of each of these children and if a French language education was in their individual best interests.

[58] In this case, the principals of both schools that the children attended testified and were able to provide evidence with respect to each child's experience in their French language education program.

6.4 Violation of Rule in Browne v. Dunn

[59] The rule in Browne v. Dunn applies when a witness is contradicted by other testimony but opposing counsel has not put the alternate version of events to that witness to be cross-examined on. In essence, a witness should be given an opportunity to explain any contradictory evidence. The rule is based on fairness; fairness to the witness whose credibility is attacked, fairness to the party whose witness is impeached and fairness to the trier of fact. The court is required to determine that the evidence in question is significant or important and what the appropriate remedy would be in the circumstances including giving the witness an opportunity to testify.

[60] In this case, although there were several such breaches of this rule by the father, the society objected to only one that was of significance. The concern arose with respect to the evidence of Dr. Shirely Sit whose evidence was filed by the father in the form of an affidavit and without her being called as a witness.

[61] The father had taken the children to see Dr. Sit without the mother's consent or prior knowledge. The issue arose as to whether or not Dr. Sit was aware of the July 28, 2016 order that gave the mother sole decision making authority with respect to the children's health issues and that despite the order she nevertheless continued to act as the children's pediatrician. The father testified that he gave Dr. Sit a copy of the court order. Dr. Sit's affidavit did not address this issue. If the father's evidence is accepted, then Dr. Sit would have been treating the children in violation of a court order and in all likelihood in violation of her own ethical responsibilities.

[62] I find that this was a serious breach of the rule in Browne v. Dunn. However, the option of issuing a summons for Dr. Sit to appear would have caused an unacceptable delay in this proceeding as the issue only arose on the last day of hearing evidence. I agree with counsel for the society that the court should consider this breach when assessing the weight to be placed on the father's evidence and when assessing the credibility of the father.

6.5 Admissibility of Children's Statements

6.5 (a) General Observations

[63] The most contentious evidentiary issue related to the admission of various statements made by the children. All parties, except the father, agreed to the admissibility of the statements. I have carefully reviewed the law and evidence with respect to the admissibility of the children's statements in view of the importance of this evidence to the proceedings and the father's insistence that the children should be called as witnesses as he believed the children were coached by the mother and/or the society workers are misleading the court by alleging that the children made the statements.

[64] Counsel for the society prepared a very helpful chart setting out the children's statements that she wished to admit that were made to various society workers, Constable Knill and the clinical investigator for the OCL. Beside each statement she set out the legal basis and purpose for which she sought to admit the statement and also attached where applicable a copy of the worker's case note. The society sought to introduce the statements for three different purposes, firstly for the purpose of proving the children's state of mind, secondly for the truth of their contents and thirdly to simply indicate that the statement was made to explain the narrative and the subsequent steps taken by the society as a result of receiving the information.

[65] It was agreed that the voir dire would be conducted as a blended voir dire and that the evidence from the trial would be used in the voir dire at the conclusion of the trial to determine ultimate admissibility and the weight of the statement. It was also agreed that the determination of threshold admissibility would be determined based on submissions and on the affidavit materials filed.

[66] Discrete voir dires were not held as there were practical considerations related to the unavailability of several witnesses on multiple days and of completing the trial within the allotted timeframe as the father added several witnesses to his trial list after the assignment court and after the trial management conference.

[67] The court gave brief oral reasons indicating that on a threshold basis and subject to further submissions at the end of the trial, that the society had met its burden of establishing that it was reasonably necessary to introduce the hearsay statements of the children and that the society met the test of threshold reliability. I will now expand on the reasons for this ruling.

[68] It is important to initially outline what comprises hearsay and the exact purpose for which a statement is being adduced.

[69] Hearsay is an out of court statement of a person, tendered by a party to prove the truth of the statements. Hearsay statements are presumptively inadmissible because the opposite party is deprived of the opportunity to test the reliability and credibility of the statement through cross-examination in the presence of the judge and the judge is therefore unable to ascertain whether there are frailties in the evidence.

[70] If a statement is found to be hearsay, then it is only admissible if it falls within a categorical exception to the hearsay rule such as, admissions by a party, business records, spontaneous statements (excited utterances or res gestae) and statements about physical, mental or emotional state (state of mind exception).

6.5 (b) State of Mind

[71] In this case, the first category of statements the society seeks to introduce are statements as to the children's state of mind which is a categorical exception to the hearsay rule.

[72] The basic requirements for the state of mind exception are:

a) a statement asserting a condition or state

b) the statement must comprise a contemporaneous physical, mental or emotional state of the declarant

c) the statement may not describe the cause of the state, whether it be past or present events

d) the mental state can include a person's present intention to do a future act

e) the statement must not be made under circumstances of suspicion.

[73] The statements tendered under this exception by the society relate to the following categories:

• the children's views and preferences about where they wish to live
• statements not to tell their father or paternal grandmother as they are afraid as to what they may do
• their fear that the father may get angry and hurt them
• their awareness of the conflict between their parents
• A. and C.'s comments that they wish to attend English school
• A.'s statements that his academic performance makes him feel sad
• statements by all of the children that their father forced them to draw a picture of their family but not include their mother or younger sister
• general statements about their fears, anxiety and worries

[74] The father objected to the admissibility of these statements as he submitted that the children were either coached by the mother, that the various workers to whom these statements were made were biased against him and that he simply did not believe the children made these statements.

[75] As the court must consider the circumstances under which the statements were made, this imposes a threshold reliability requirement for admissibility of any such statements.

[76] The statements were made to different society workers from two different agencies and to a social worker from the OCL over a period of time. The statements were all transcribed by these workers who had no motive to lie and the children had no motive to lie. Most of the statements were made spontaneously. The statements are all first-hand hearsay and the workers to whom the statements were made were all available for cross-examination. The workers all kept notes that were either made simultaneously or shortly after their interviews with the children. The notes were in the possession of the father and he could therefore cross-examine the workers regarding the accuracy of their notes and their note taking process.

[77] I find that the society has met the burden of proving that the statements meet the criteria with respect to depicting the children's present state of mind and that the circumstances under which they were made were not suspicious. Therefore the statements should be admitted on a threshold reliability basis. The father's objections with respect to coaching of the children or bias by the workers will be dealt with in assessing the ultimate reliability of the statements.

6.5 (c) Truth of Contents

[78] The second category of statements that the society wishes to admit are statements that are being tendered for their truth. As these statements do not fit into one of the categorical exceptions to the hearsay rule, the court must consider if the statements are admissible under what is known as the "principled exception." Basically, the person tendering the hearsay statement must establish on a balance of probabilities that the evidence meets the twin requirements of necessity and reliability.

[79] In R. v. Khan, the Supreme Court of Canada adopted a principled approach to the hearsay rule as to the admissibility of out of court statements of children. The court supported a more flexible approach to the hearsay rule with respect to the test of "necessity and reliability." The court stated that the term "necessary" is to be interpreted as "reasonably necessary."

[80] As it was the father's position that the children should testify at the trial, the court must determine if it is necessary for the children's out of court statements to be entered into evidence rather than calling them to testify.

[81] The statements being tendered under this exception relate to the following:

• the children's allegations that the father "stomped" on C.'s head in April 2017
• E.'s statement that he witnessed the father hurting his mother and though it was a long time ago he feared his father would hurt him
• S.'s statement that she saw the father hurt the mother a long time ago
• A.'s statement that his father does not like his mother and a long time ago he stepped on the mother's head and the father says bad words about the mother
• statements by the children S., E. and C. that their mother never hurt them and that their paternal grandmother told them to lie
• A.'s statements that his grandmother slapped him
• A.'s statement that if he does not listen his father slaps him or grabs his ears
• statements by the children that the father makes negative comments about the family service worker Jaimie Goldstein and makes fun of her
• C.'s statement that her father does not allow her to wear her prescription glasses at his home
• statements by the children that the father forced them to draw a picture of their family but not include their mother or younger sister

[82] The father objected to the admission of any of these statements and wished the children to testify as he submitted that was "the only way the truth would be known". He also submits that the statements should not be admitted on the basis that they were made prior to the commencement of this Protection Application to a society worker from the CAST and that society is no longer involved in this proceeding. He further objected to the admissibility of the statements made to the clinical investigator from the OCL as she was unduly influenced by the former family service workers from the CCAS and that the repetition of these statements to the current family service worker Jaimie Goldstein was not reliable as Ms Goldstein is biased against him.

[83] In this case, the children have not refused to testify and in fact there is no evidence that they have ever been asked to testify. The children have on other occasions been videotaped as part of investigations by the police as to allegations of physical harm and A. with respect to allegations of sexual harm and there is no evidence that they suffered any trauma.

[84] The necessity test was considered by Justice Blishen in the case of Children's Aid Society of Ottawa v. L.L. at para. 6:

As stated above, [referred to R. v. Khan] necessity has been interpreted to mean "reasonably necessary". In addition, it "must be given a flexible definition, capable of encompassing diverse situations". See R. v. Smith, [1992] 2 S.C.R. 915 (S.C.C.). The requirement of necessity may be established if the child will suffer emotional trauma from testifying.

[85] Justice Blishen also reviewed the case law with respect to the type of evidence that a society needs to produce and concluded that expert evidence was not always required to establish threshold necessity based on emotional harm. At paragraph 10 she stated as follows:

It is my view that the nature of the evidence required on the issue of necessity should depend upon the age of the child, nature of the statements and the circumstances of the case. As stated by Madam Justice Jones in Catholic Children's Aid Society of Metropolitan Toronto v. R.M., [1992] O.J. No. 1097 (Prov. Div.):

Prior to the admission of such evidence, some inquiry should be routinely undertaken on the issue of necessity as well as on the issue of reliability. The nature and extent of such inquiry on the issue of necessity would depend on the facts of each particular case and the court could consider, but not be limited to, a combination of the following issues, whether the counsel consent to the admission of the evidence, the age of the child, the emotional fragility of the child, the level of understanding of the child, with the understanding that the weight of the evidence to be presented in favour of invoking this hearsay exception would vary in reverse proportion to the age of the child, with a heavy onus to be satisfied if the child is over fourteen years of age and presumed to be capable of giving evidence. Otherwise, the court is being asked to act on less than the best evidence available.

[86] With respect to determining threshold reliability, the court in R. v. Khan set out the following considerations to assess reliability namely, timing, demeanour, the personality of the child, the intelligence of the child and the absence of any reason to expect fabrication in the statement. The court also indicated that this was not a strict list of considerations for reliability and that matters with respect to reliability will vary with the child and with the circumstances.

[87] At the voir dire to determine threshold reliability, the court must consider the dangers inherent in admitting hearsay evidence and whether the proffered statements were made in such a way as to overcome those dangers and are therefore sufficiently reliable to be admitted.

[88] In the recent case of R. v. Bradshaw the Supreme Court of Justice provides a synthesis and reorganization of the law with respect to the admissibility of hearsay statements. In the case of Children's Aid Society of Toronto v. G.L. Justice Sherr summarized the statements made in Bradshaw relevant to hearsay statements as follows:

a) The presumptive inadmissibility of hearsay may be overcome where its proponent establishes on a balance of probabilities that what is proposed for admission falls within a categorical exception, or satisfies the twin criteria of necessity and threshold reliability under the principled approach. -- Bradshaw at pars. 22-23.

b) In determining threshold reliability, the trier of fact must identify the specific hearsay dangers inherent in the out-of-court declaration. The trier of fact must then identify the means by which these dangers can be overcome. These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome. -- Bradshaw at para. 26.

c) The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah 5, at para. 30) -- Bradshaw at para. 27.

d) Procedural reliability is established when "there are adequate substitutes for testing the evidence", given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination" (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36).

e) A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55). -- Bradshaw at para. 30.

f) The two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive (Khelawon, at para. 65) and "factors relevant to one can complement the other". -- Bradshaw at para. 32.

g) The distinction between threshold and ultimate reliability, while "a source of confusion", is crucial (Khelawon, at para. 50). Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). -- Bradshaw at para. 39.

h) In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge's inquiry serves a distinct purpose. In assessing substantive reliability, the trial judge does not usurp the trier of fact's role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value. -- Bradshaw at para. 41.

6.5 (c)(i) Conclusion with Respect to Threshold Admission of the Children's Statements for the Truth of Contents

[89] With respect to the issue of necessity, in this case the children are 10, 8 and 7 years old and their mother and their counsel object to them being called as witnesses. In explaining her view that the children should not be required to testify, the family service worker testified that the children are young; they are already caught in the middle of the conflict; they have all made statements that they are anxious, fearful and worried about the father and paternal grandmother knowing that they wish to live with the mother; they are fearful of the father hurting them; and, they have all confirmed that the paternal grandmother told them to lie. I adopt these concerns as valid reasons as to why the children should not be required to testify.

[90] I also find that most significant in this case is the fact that the father is self-represented and if the children are required to testify, their father will be directly asking his children questions. As the father maintains that the issue is about the children's credibility, he would be cross-examining the children about their truthfulness with respect to their statements that he assaulted C. by stomping on her head, that the paternal grandmother slapped A. and about their statements that their fear him and the paternal grandmother. I find that this would be traumatic for the children.

[91] I am satisfied that in the circumstances of this case, that the children will suffer emotional harm if required to testify and be cross-examined by their father. I find that I do not need expert evidence to come to this common sense conclusion. I find that it is not reasonably necessary for the children to testify and the truthfulness and accuracy of the children's statements can be met by cross-examination by the father of the various social workers to whom the children made the statements other than by him cross-examining the children.

[92] With respect to the issue of reliability, I find that there are sufficient elements of both procedural and substantive reliability to find admit the children's statements for the truth of their contents.

[93] With respect to procedural reliability, I find that the society workers, Ashdeep Singh and Jaimie Goldstein, recorded the statements with the children accurately. Ms Singh is an experienced worker and received training in interviewing children. Although Ms Goldstein is not as experienced, she also received training in interviewing children. A copy of Ms Goldstein's case notes are attached to the chart of the children's statements that the society is seeking to admit. The questions asked are all recorded as well as the responses. There are no leading questions or prompting and the children spoke spontaneously about their relationship with their father and the paternal grandmother. Both workers had a duty to record their interviews with the children and did so within 24 hours of the interviews. Both workers testified that their recordings are accurate. Their evidence was not diminished in cross-examination. The allegations that the family service workers were biased against the father are baseless.

[94] Ms Albert, the clinical investigator from the OCL also recorded her interviews with the children as part of her duties and her evidence as to the accuracy of her recordings was also not diminished in cross-examination. The father's allegation that she was influenced by the society workers was denied by Ms Albert who confirmed that she conducted an independent investigation. There was absolutely no evidence to substantiate the father's allegation against her.

[95] Constable Knill is an experienced police officer with the child and youth unit and has specific training in conducting child forensic interviews. She testified that she had conducted thousands of interviews with children. The accuracy of her evidence with respect to the interviews with A. and S. was not challenged by the father and the video recording of those interviews corroborated her evidence.

[96] With respect to substantive reliability, the statements of each of the children are very similar and made to multiple workers over a lengthy period of time. For example, the details of the incident with respect to the father stomping on C.'s head are detailed and specific. Both Ms Singh and Ms Goldstein were confident that the children knew the difference between telling the truth and a lie. The interviews with the children were conducted in private and separately. Both workers testified that there was no evidence that the children had been coached or unduly influenced by the mother. Other than the father's statement that he felt the children were coached by the mother, he offered no evidence in support of this allegation. I find that children of this age could not be coached to say the same thing over multiple interviews to different workers over a lengthy period of time.

[97] The hearsay is first-hand hearsay. The father has the opportunity to cross-examine the various social workers and Constable Knill to whom the children made statements and he also has a copy of their notes. In most ways their evidence is more reliable than any oral evidence the children could provide with respect to incidents that have now occurred over a year ago. Further, there is a strong likelihood that children would be afraid of repeating those statements if required to testify in court in view of the fact that the children have expressed fear of the father knowing that they made these statements.

[98] Therefore, the statements tendered by the society for their truth are admitted as having met the threshold requirements of both procedural and substantive reliability.

6.5 (d) Statements Made for Other Purposes

[99] The third category of statements that the society seeks to introduce relate to statements made by the children not for the truth but merely to prove the statement was made, for narrative and to explain subsequent steps taken.

[100] For example, in March 2018, S. stated that her mother hurt her but then could not verify any details and in a later interview stated that her grandmother told her that her mother hit her. S.'s statements were introduced not to prove that her mother hit her but simply as a statement S. made.

[101] There are also some statements by collaterals that were introduced simply to prove they were made and to explain the subsequent steps taken by the society as a result of obtaining this information. For example, the society received a call from a woman identified as "Anna" who alleged that the children were not well cared for, looked like they were starving, were being left alone in their the mother's home and were being hit by the mother. As a result of these allegations, Ms Goldstein conducted an investigation and interviewed with the children. Ms Goldstein was available to be cross-examined as to the information she received and the steps she took to investigate. This category of statements is therefore not hearsay as they are not being admitted for the truth and are therefore admissible.

6.5 (e) Past Parenting

[102] As a further alternate with respect to the admissibility of the children's statements, counsel for the society submitted that the children's statements can be admitted pursuant section 93 (1) of the CYFSA that provides that the court may consider the past conduct of a person towards any child, if that person may care for or have access to a child who is the subject of the proceeding, and that the court may consider any oral or written statement or report that the court considers relevant.

[103] However, I interpret that section to refer to the past child-rearing conduct on the part of the same parent or parents in relation to a child in the care of one of both of them other than the child who is the subject-matter of the current proceeding in which the evidence is being offered. In other words, how a parent treated this child or children, who are the subject-matter of the proceeding, will always be relevant and admissible, subject to the general evidentiary rules regarding admissible.

[104] Accordingly, this is not an alternate basis for admitting the children's statements.

6.5 (f) Ultimate Admissibility

[105] Having found that the children's out of court statements met the threshold requirement of being necessary and reliable, the court must consider whether or not the statements meet the test of ultimate necessity and reliability.

[106] I find that the society has met its burden of proving the children's out of court statements meet the ultimate test for admission on the basis of their ultimate necessity and reliability. The evidence heard during the trial reinforced the findings made on the voir dire.

[107] I find that it is reasonably necessary for the children's out of court statements to be admitted and that the children should not have to testify. The father would have cross-examined his children to prove that he did not assault C., or that the paternal grandmother did not slap A., or that the paternal grandmother did not tell them lie about their mother hitting them or that they wanted to live with the mother.

[108] The evidence heard at trial clearly established that the father does not accept any information from anyone who does not agree with him. Therefore, regardless of what the children said, unless it coincided with the father's sense of reality, the father would not have accepted their evidence. Therefore, the children would have been exposed to unnecessary harm or they may have felt so fearful of the father that they would have agreed to anything he wanted them to say. In either scenario a requirement that they testify in court would not have advanced the case and would have exposed the children to the trauma of testifying against their father.

[109] With respect to the ultimate reliability of the statements, I find that after cross-examination by the father, the credibility of the society workers, the clinical investigator and the police officer to whom the children made statements was not diminished. The father's allegations that the society workers were biased and therefore made up the statements was without any basis or sense of reality.

[110] For example, the father alleged that because Ms Singh knew the mother's partner, she should not be believed. Ms Singh testified that the mother's partner was a security guard in the society's parking lot and she would regular greet him but other than that she had no discussions with him. Such a casual greeting certainly cannot form the basis of a finding that Ms Singh's evidence should not be believed.

[111] The father also alleged that because Ms Albert made an error in the OCL report that he had been convicted of assaulting the mother that therefore nothing in her report should be relied upon. There was evidence from every society worker and Ms Albert that it was extremely difficult to discuss anything with the father as he would not answer directly and go off on tangents. Therefore it is quite understandable that Ms Albert misunderstood the father's comments about the results of the criminal trial. However, that does not even remotely suggest that the children's statements she recorded are therefore also in error. Especially as the children's statements made to her are corroborated by similar statements made by the children to society workers.

[112] All of these witnesses are professionals who had no motive to lie. Further, the circumstances and manner in which the statements were made by the children, with respect to their state of mind and the statements tendered for their truth, raised no concern about their truthfulness.

[113] Therefore, the children's statements are admissible and are relied upon by the court.

7. Finding of Need for Protection

7.1 General Principles

[114] The paramount purpose of the CYFSA is to promote the best interests, protection and well-being of children. The act is remedial legislation and as such should be interpreted broadly with a view to achieving the paramount purposes.

[115] Section 90 of the CYFSA states that the court shall hold a hearing to determine whether a child is in need of protection and shall pursuant to section 93 (2), only consider evidence relating to this determination and not consider evidence relating to disposition. The court may consider the dispositional evidence once a finding has been made. Therefore, at the protection finding stage, the court will only consider evidence that relates to the finding of need of protection.

[116] The protection finding is an essential stage of a child protection proceedings. If a finding is not made, then there will be no other orders, not even a section 102 custody order, and the case is over. In this case, if the father is successful in disputing that there should not be a protection finding, the case will be dismissed and the stay currently in effect with respect to the mother's Motion to Change would be lifted and the parties would continue their domestic litigation with respect to the parenting and support issues.

[117] In this case, at the time the Protection Application was commenced the children were in the joint care of both parents, pursuant to the order of July 28, 2016, that essentially provided for a shared parenting arrangement.

[118] 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.

[119] Therefore, in this case, it is only necessary for the society to establish that there is a risk for harm to the children as a result of the father's actions and it is not necessary to find that the children are at risk of harm with respect to the mother.

[120] The society is seeking a finding that the children are in need of protection pursuant to section 74 (2) (b) (i) risk of physical harm and 74 (2) (f) risk of emotional harm.

[121] The onus is on the society to prove on a balance of probabilities that the children are at risk of harm. The risk must be real and not speculative.

[122] It is not necessary for the society to prove an intention to cause harm before finding that a child is in need of protection.

[123] The society can prove causation by act, omission or pattern.

[124] Harm caused by neglect or error in judgment comes within the finding. But risk of physical harm must be more that trifling harm.

7.2 Timing of Finding of Need of Protection

[125] Counsel for the society submits that although there is some conflict in the case law with respect to the timing of the risk finding, the preferable approach to the timing should be a flexible approach. The father made no submissions on this issue.

[126] The conflicting view is the decision Justice Wilson in N.V.C. v. Catholic Children's Aid Society of Toronto that held that the risk of harm must be determined at the date of the hearing and not at the date of apprehension or the beginning of the proceedings. I agree with the several cases that have been critical of this analysis and the majority of cases have followed a flexible approach as to the timing of a finding. The case may be distinguishable on the facts as it appears to have dealt with only one episode of intoxication as the basis for ongoing intervention.

[127] This rigid approach in the N.V.C. case conflicts with a long line of cases that follow the reasoning of Justice Czutrin in Children's Aid Society of Hamilton-Wentworth v. K.R. and C.W. In that case, Justice Czutrin rejected the parents' submissions that the court could only consider the evidence available at the time of the initial apprehension or protection application and that the court cannot consider any subsequent facts in determining the question of whether the child is in need of protection. Justice Czutrin in rejecting this submission stated at paragraph 49 of his decision:

The conclusion that s. 37(2), 47(1) and 57(1) [now sections 74(2), 90 (1) and 101 CYFSA] refer only to the start date is to interpret the Act in a manner that would undermine the purposes of the CFSA. If under the CFSA the only time that can be considered when determining protection is the start date, it might result in the court returning a child to a person even if the court came to the conclusion the child was in need of protection at the time of the hearing as opposed to the date of apprehension. This could potentially put a child in need of protection and potentially at risk, and would require a new apprehension after return. This cannot be in the best interests of a child. The legislation emphasizes the need to avoid having children in limbo. It cannot be in the child's best interests to create such a scenario. The act intends to eliminate delays within the Child and Family Services Act and places limits on how long children can spend time in care. Restricting the relevant date for a finding to the start date is an interpretation that conflicts with the other sections of the Act and may be contrary to the best interests of protecting children from harm. It is contrary certainly to the direction of the Supreme Court of Canada.

[128] In my view, the court should follow a flexible and child-focused approach in determining the relevant time for a finding that a child is in need of protection. A court can admit and consider evidence as to whether a child is in need of protection at the commencement of the proceeding, at the hearing date or at any other date depending on the circumstances of each case. Such an approach is consistent with the paramount purpose of the legislation and is consistent with the majority of the case law that has followed Justice Czutrin's analysis.

[129] The court must assess the extent to which any need for protection found at the initial stage has been resolved over the course of the litigation or whether other grounds for protection have emerged over time. However, even if the need for protection at the initial stage was found to have been resolved that does not change the court's ability to make a finding of need for protection. For example, in this case although the initial concerns were ameliorated by placing the children in the care of the mother, the fact the children were at risk of harm initially in the shared care of both parents and as a result of the father's behaviour can result in a finding of need for protection.

[130] In this case at the time of the commencement of the Protection Application the society's concerns related to the children being exposed to a high level of conflict between the parents that resulted in numerous investigations due to the father expressing concerns about the children's overall care, ongoing concerns about the father's understanding of the children's needs and his ability to manage the children's behaviour, the children having being exposed to domestic violence and physical discipline by both parents and the father's unwillingness to cooperate and work with the society in order to address the protection concerns.

[131] The society then amended its Protection Application on October 2, 2018 and stated that their concerns related to the children being physically disciplined only related to the father and the paternal grandmother not the mother, that the level of conflict between the parties had escalated, the father's lack of co-operation had escalated and all attempts to mediate the issues had been unsuccessful and that since the children have been residing with the mother there have been no concerns with the mother's care of the children.

[132] The society seeks findings that the children are at risk of physical harm and emotional harm pursuant to sections 74 (2) (b) and (h). Those provisions read as follows:

74(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;

(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (ii) (iv) or (v) [anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development] resulting 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.

7.3 Risk of Physical Harm

[133] Applying these principles to the finding of risk of physical harm, I find that there is overwhelming evidence that all of the children are at risk of physical harm. In coming to this conclusion I make the following findings.

7.3 (a) History of Physical Violence

[134] I find that the father has a history of physical violence against the mother. The mother deposed that during the relationship the father hit her throughout her three pregnancies, hit her in front of the children and taught the children to hit her and call her derogatory names. The mother also alleged that the father sexually assaulted her multiple times. Although the police came to the apartment on two different occasions prior to 2014, after being called by a neighbour, the father forced the mother to tell the police that there was only a misunderstanding and she did so as she was fearful of the father.

[135] On February 27, 2014, the mother alleges that the father violently attempted to choke her and hit the child E. who was only 5 years old at the time with a belt. According to the mother, she returned from work and the children were excited to see her as she brought them Timbits and the father became upset because the children were too loud and he began to yell at her to do something about E. and he then began to spank E. When the mother took E. away the father began to chase them both with a belt and then told C. who was 4 years old, to hit E. with the belt which she did. When the mother took E. to the bathroom to clean his nose that was bleeding, the father pushed himself into the bathroom and began to choke her. The mother managed to leave the apartment and called the police. When the police arrived the father would not open the door so the police needed to kick down the door. The father was charged with assaulting her. Although the father was acquitted after a trial, the society verified his abuse of the mother.

[136] The father denies the mother's allegations. I found the mother's evidence to be credible and accept her evidence that there was a history of domestic violence in the relationship and that the mother did not report the incidents in the past or end the relationship as the father would threaten her that his mother was a paralegal and he would have her deported to St. Vincent. I also accept the mother's evidence that a year later when she was asked to review her video statement for the criminal trial she found it incredibly traumatic to have to watch her interview and relive the experience and could not watch the interview. Therefore, at trial she was uncertain about many details and the father was found not guilty.

[137] Two of the mother's witnesses testified about hearing and witnessing episodes of violence between the parties. Both of them were aware of the incident on February 27, 2014. They heard the parties arguing and saw the state of the mother as she ran out of the apartment. One witness who was the superintendent of the building, testified that the police never asked him any questions so he minded his own business but he was stepping forward now as the mother was his friend. The other witness who is a friend and cousin of the mother testified that the police told her they would contact her if she was needed as a witness but they never did. I found both witnesses to be credible as to their evidence with respect to the abusive behaviour by the father.

[138] In his evidence the father placed a great deal of emphasis on the fact that the mother's claims of being a victim of domestic violence were found at the criminal trial "not to be credible and were untrue."

[139] Although I am mindful of the fact that the father was found not guilty in his criminal trial nevertheless, that only supports a finding that the court found that the Crown did not prove its case beyond a reasonable doubt. A transcript of the reasons for the not guilty finding was not provided. Further and more importantly, the onus of proof in this proceeding is the civil standard of a balance of probabilities. The evidence of the mother despite the lengthy cross-examination of her by the father was not diminished nor was the evidence of her two witnesses.

[140] Ashdeep Singh who is a family service worker with the CAST with experience in domestic violence was assigned to the file in March 2017. She testified that she found the mother's statements about being a victim of domestic violence and being fearful of the father credible and accordingly referred her to Yorktown for counselling as the mother was unaware of the different types of domestic violence.

[141] The mother deposed that she grew up in a home where domestic violence was normalized as her father was physically abusive to her mother and she witnessed the abuse as a child. When she experienced abuse from the father she believed to a certain extent that it was normal. She explained that she did not understand domestic violence, and what was happening to her and tended to minimize and brush it aside. But she attended counselling at Yorktown with respect to domestic violence and she now has a better understanding of the abuse she suffered.

[142] I therefore find that on a balance of probabilities that the mother was a victim of domestic violence throughout the relationship and in particular that the father assaulted the mother during the incident on February 27, 2014 that led to the final separation.

[143] During cross-examination by the father, Ms Singh stated that she was afraid that the court system was being used as a form of abuse against the mother. She also agreed with the mother's view that the father's insistence that the file be transferred to the CCAS could be another form of abuse as domestic violence was about power and control and the mother did not want the file to be transferred.

[144] I find that the father has used the court process as a way of exerting emotional abuse upon the mother.

7.3 (b) Exposure of the Children to Domestic Violence

[145] I find that the children have been exposed to domestic violence between the father and the mother.

[146] I adopt the observations of Justice Pazaratz in Children's Aid Society of Hamilton v. O. (E.) that exposure to verbal abuse, aggression and inappropriate situations can constitute a risk of physical harm.

[147] The mother's evidence that the children were present when the father verbally and physically assaulted her was not challenged by the father in cross-examination.

[148] S. advised Ms Singh about how she saw her father hurt her mother a long time ago and described how the mother would hide and showed the worker how her mother would crouch.

[149] In cross-examination of Ms Singh by the father, the father questioned how this could be true as S. would only have been 2 or 3 years old at the time. Ms Singh responded that that if an event is traumatic enough even a young child can recall it. Based on her experience as family service worker with specific knowledge and training about domestic violence, I find that Ms Singh can offer this opinion, not as an expert, but based on experience and knowledge of the effects of domestic violence.

[150] E. told Ms Singh that he witnessed his father hurting his mother and though it was a long time ago, he feared that he would also be hurt.

[151] A. told Ms Singh that his father does not like their mother and a long time ago he stepped on the mother's head, that his father says bad words against the mother and the uses the "F" word but his mother does not say anything bad about his father.

7.3 (c) Inappropriate Physical Discipline of the Children

[152] I find that the father has physically disciplined the children as has the paternal grandmother.

[153] In April 2017, the mother reported to Ms Singh that she received a text message from the father while the children were in his care that C. had a cut in her mouth. When she picked up the children after a visit with their father she saw C. holding her mouth and then C. told her that the father had "stomped on her head" and the other children confirmed this was true. The mother told Ms Singh that she believed what the children said as in the past the father used to stomp on her head and hit her with a broom handle.

[154] As a result of the mother's report, Ms Singh conducted an investigation into the alleged assault by the father on C. in April 2017. On April 12th, 2017 all of the children were interviewed privately and individually in the kitchen of the mother's home. Ms Singh confirmed in cross-examination by the father, that given the physical layout of the home, the children could not hear each other's interview.

[155] C. reported that the week before her father had been angry at her for throwing A.'s clothes into his food, he told her to behave and she did not listen. He then pushed her, "stomped on her head three times," there was blood on her face and her tooth fell out. But she said that she was not afraid of her father.

[156] S. stated that she had a good visit with her father but he became angry and "stomped" on C.'s head, that he made C. go to the bathroom and she saw C.'s tooth fall out and she told her mother. S. stated that she is afraid of her father though he has not hit her but a long time ago he hit her mother.

[157] A. reported that the visit was good until his father got mad and "stepped on C.'s head four times", there was blood and his father made C. wash out her mouth. He told Ms Singh that his mother said she was going to call the police but then did not call because she did not want to get his father in trouble. A. also stated that if he does not listen his father slaps him or grabs his ears.

[158] E. told Ms Singh that he knew she had spoken to the other children and agreed with what they said about his father being mad at C. and "stomping on her head".

[159] Ms Singh consulted with her supervisor and the police. She was concerned about the father's access if there was no safety plan in place as she had concluded that the children's accounts were consistent and credible.

[160] Ms Singh interviewed the children again on April 20th, 2017.

[161] S. stated "Daddy said don't tell Mommy anything" and she repeated the details of the father stomping on C.'s head. When asked if she knew the difference between the truth and a lie, she said "no it is the truth" and said that the mother did not tell them to say this.

[162] C. repeated the details of the incident and was adamant, "I am telling the truth" and said it happened and no one told her to say this.

[163] E. also confirmed that the incident happened and added that the visit with his father had been "weird".

[164] A. when asked again about the incident said, "I don't tell lies". He also said that his mother told them to tell the truth.

[165] Ms Singh verified inappropriate physical discipline by the father as the children's statements were credible and consistent over two interviews and they were indignant when asked if they were telling the truth.

[166] Ms Singh was unable to speak to the father about the children's statements as after meeting with her initially, the father refused to engage with her and told her she was not doing her job. She tried to reach out to the father to get his perspective about the children's allegations and to see how they could work together. The father would not return her calls. The father began to call her supervisor and the branch manager and was alleging that the mother was coaching the children.

[167] The mother deposed that when they resided together the father would hit the children with a belt or his hand and when she spoke to him about this he told her, "don't tell me how to raise my children".

[168] The mother acknowledged that in in the past both parents used physical disciple. The mother deposed that she had hit the children with a belt but that there was only one time in July 2016 when she hit C. with a belt hard enough that it left a bruise. The CAST investigated this incident and did not verify that the mother had intentionally hurt the children.

[169] In cross-examination by counsel for the society, the mother acknowledged the incident and testified that in the Caribbean where she was raised physical discipline was used. However, in working with the society workers she learnt other ways of disciplining the children and since then she has never used any physical discipline against the children.

[170] Despite the many allegations made by the father and the paternal grandmother that the mother is physically abusive to the children and despite the many investigations by both the CAST, the CCAS and the OCL, there has never been a verification that the mother hits the children, other than the mother's prior admission. The children have never reported that they are afraid of their mother.

[171] The one time S. reported that her mother hurt her was on March 14, 2018 to Ms Goldstein who was assigned as the new family service worker. The society did not verify the allegation as S. was unclear with respect to many details and then on the next day she stated that the paternal grandmother told her that her mother hit her and that was a lie and she did not know why her grandmother was lying to her.

[172] On January 8, 2018, A. disclosed to Ms Goldstein that the paternal grandmother slapped him on the face when they were going to church. On January 29, 2018 A. disclosed to Ms Goldstein that paternal grandmother slapped him again at his father's house a week before. He said she did this because he would not eat his porridge. S. confirmed that this happened and demonstrated that A. was hit with an open palm on both sides of his face. The allegation of inappropriate physical discipline was verified by the society.

[173] The father denied these allegations as he testified that he had never seen the paternal grandmother hit the children. The paternal grandmother also denied the incidents. The father testified that he found the allegations suspicious as Ms Goldstein had just been assigned to the file and met with the children on January 8th when A. made his first allegation against the paternal grandmother. As a result he felt that Ms Goldstein was biased against him and the paternal grandmother or made up the allegation. Other than simply making this statement, there was no evidence that Ms Goldstein acted inappropriately in her dealings with the father and the paternal grandmother. Further, I find that A.'s allegations as supported by S. are credible.

7.3 (d) Lack of Acknowledgment of Harm

[174] I find that the father has never acknowledged that he inappropriately physically disciplined the children either during the relationship or after the separation.

[175] The father was unwilling to meet with Ms Singh in April 2017 so she could hear his perspective and continued to insist that the mother coached the children.

[176] As the father would not meet with Ms Singh, her supervisor Cherishes Ramona met with the father and his support person Michelle Conner. Ms Ramona attempted to conduct an investigation and obtain the father's perspective. She also verified physical harm by the father against C. and a risk of harm to the other children as the father's version of what happened was not consistent and kept changing in the interview and was not consistent with the children's versions.

[177] When the file was then transferred to the CCAS, in June 2017, Courtney McCabe was assigned to the file. She met with the father and although she tried to discuss the incident with C. that had been verified by the CAST, the father continued to talk about other issues and she was unable to redirect him and unable to discuss the allegations. The father did state that he did not hurt the children and that all of the social workers at CAST were "liars" and how the mother "was manipulating the system to her favour".

[178] The father was unwilling to work with the society to learn other methods of discipline. Despite the consistent statements by the children of his inappropriate use of physical discipline, and in particular the incident regarding C., and the children's ongoing fear of the father, the father maintained that he used a reward system and that neither he or the paternal grandmother ever hit the children.

[179] The father submitted that if the CAST was so concerned about his alleged physical discipline of C. in April 2017, it should have commenced a Protection Application. Counsel for the society agreed with this submission and stated that in retrospect a Protection Application should have been commenced or the father's access should have been supervised. But Ms Singh testified that she thought the mother would deal with the issue in the domestic proceedings. Subsequently, when the CCAS had carriage of the file, a Protection Application was commenced as the concerns escalated.

[180] Without any acknowledgement of harming the children or addressing this concern, the children remain at risk of future physical harm by the father. Although the father has taken some parenting courses, he has never taken any program with respect to anger management or engaged in counselling.

7.3 (e) Endangering the Health of the Children

[181] I find that the father's failure to follow medical advice, taking the children to various medical professionals and providing incomplete or inaccurate information to those medical professionals has endangered the children's physical well-being and as a result puts them at risk of physical harm.

[182] There is undisputed evidence that C. was prescribed eye glasses and was required to wear them at all times. Yet despite the father being provided with her prescription and despite being told numerous times that she must wear her glasses, the father persisted in not letting C. wear them at his home.

[183] During the months of July to November 2017 the mother continued to report to the family service workers Courtney McCabe and Claudia French that C. was not wearing her eye glasses when at her father's home.

[184] When Ms McCabe met with the father and his support, Ms Conner on July 25, 2017 and tried to discuss the need for C., to wear her glasses, the father went off on a tangent. Ms McCabe continued to try to re-direct the father and explained that it was not okay that C. did not wear her glasses while in his care.

[185] On August 1, 2017, Ms McCabe interviewed C. separately at her mother's home. C. stated that "daddy wanted to trick you last time". When asked what she meant, she said that her father told her to put on her glasses when Ms McCabe came to the house because he wanted to trick Ms McCabe but that she only wears her glasses at her mother's home.

[186] When C. was interviewed by Ms Albert on January 15 and February 27, 2018 she reported that her father does not allow her to wear her glasses at his home and that she tells him she has to wear them but he ignores her and removes them from her face. She reported that her father tells her that wearing glasses "is monkey business."

[187] The father offered no explanation for C.'s statements and either neglected to answer questions around this issue or denied it.

[188] Dr. Beverley Kupfert has been the children's pediatrician since March 2009 when E. was 6 months old. According to the mother, the father was aware that Dr. Kupfert was the children's pediatrician as prior to the separation in 2014, he would drive her to the appointments although he would not come into the office.

[189] Dr. Kupfert also confirmed that the father was aware she was the children's pediatrician although her main contact was with the mother.

[190] Dr. Kupfert testified that there was a concern with children having more than one pediatrician as this can result in poor health care if not co-ordinated. She became aware that the father had taken the children to another pediatrician, Dr. Shirley Sit. Dr. Sit had ordered tests for E. and directed the father to take him to the hospital on July 28th, 2017. Dr. Kupfert left a message for Dr. Sit but never received a call back as she was not aware if Dr. Sit knew that there was another pediatrician and from the records she saw, the father had reported to other doctors that the children did not have a pediatrician.

[191] During Dr. Kupfert's examination she was shown a report from the Humber River Hospital that she had never seen dated July 16, 2017 with respect to E. The father told the attending doctor that the children did not have a pediatrician and also only gave his contact information and not the mother's.

[192] Dr. Kupfert also had only recently become aware of the involvement of Dr. Leona Fishman Shapiro who is a pediatric endocrinologist, a hormone specialist for children. Dr. Fishman Shapiro's affidavit, that was filed, states that she received a referral from Dr. Sit, "E.'s pediatrician".

[193] The father took E. to see Dr. Shapiro on January 4, 2017. The father advised Dr. Shapiro that E. had been hospitalized at Humber River Hospital for 4 days for constipation and malnutrition, requiring enemas. There was no evidence that E. was ever diagnosed with malnutrition.

[194] The affidavit of Dr. Sit states that. "I am the pediatrician for the Respondent D.G.'s children." She outlines that she saw them with their father on March 9, 2016, May 10, 2017, July 12, 2017 and July 28, 2017. The mother saw Dr. Sit on May 10, 2017 with her baby daughter.

[195] The mother explained that as Dr. Sit's office was closer than Dr. Kupfert's office and she wanted to try her as a pediatrician for her baby daughter. She took E. with her as he had an allergic reaction. This was when she found out the Dr. Sit had seen the children before without her knowledge and she never returned.

[196] The father took E. to Dr. Sit on July 12, 2017 for management of chronic constipation. The father also took him to the hospital on July 16th and July 25th for diarrhea where he had several tests and the x-rays showed extreme constipation. The father returned to see Dr. Sit with E. on July 28th and she advised that E. be taken to the hospital. E. was admitted that day and stayed until August 1, 2017. The father did all of this without advising the mother and in contravention of the existing court order. The mother only found out that E. was in the hospital when she received a call that he was being discharged and she should come pick him up.

[197] It is unclear from Dr. Sit's affidavit if she was aware that as of July 28, 2016 that the mother had the final decision-making regarding the children's health and nevertheless continued to treat the children without the mother's consent or if she was not aware of the court order. The opening words of her affidavit leave many questions as to her knowledge.

[198] It may be that Dr. Sit was unaware of the court order. As in this regard the society worker Courtney McCabe deposed that on August 11, 2017 she received a telephone call from another doctor in Dr. Sit's office seeking clarification of the custody arrangements as the father had attended at the office with all of the children and demanded to see all of the medical records and she did not wish to overstep her legal grounds. Ms McCabe advised that the mother had custody with respect to medical decisions and that the children's pediatrician was Dr. Kupfert. On August 15, 2017 Ms McCabe deposed that she received a call from staff from Dr. Sit's office requesting that she fax a copy of the parents' custody order so that Dr. Sit could understand her legal boundaries as the father continues to bring the children into their office without permission from the mother. As a result of this call and with the permission of the mother she faxed a copy of the July 28, 2016 order to Dr. Sit.

[199] I therefore do not accept the father's evidence that he gave Dr. Sit a copy of the court order and draw the conclusion that the father took the children to Dr. Sit and to the hospital in contravention of the outstanding court order.

[200] When cross-examined about his breach of the court order giving the mother decision making with respect to health issues, the father testified that he did not make a "medical decision" when he took the children to Dr. Sit or to the hospital as he was only going to obtain information. The father also contradicted himself several times with respect to knowing that the children's pediatrician was Dr. Kupfert. He testified that he was under the impression it was a Dr. Bekhit, then he said it was Dr. Sit and then could not explain why he at times told the hospital the pediatrician was unknown and other times told them it was Dr. Kupfert.

[201] I find that the father misled doctors, the hospital staff and the court on the issues regarding the medical care of the children. He misled the doctors and hospital staff with respect to the fact that Dr. Kupfert was the children's pediatrician. He continued to advise the doctors, the society workers and his own supports that E. had been diagnosed with malnutrition although there was no finding of malnutrition made by any doctor. He breached the court order by taking E. and the other children to several doctors and the hospital.

[202] Without the hospital, Dr. Sit or Dr. Shapiro knowing that Dr. Kupfert was the children's pediatrician, any tests, examination results and recommendations would not have been sent to her. Also the treating doctors would not have had access to the children's medical history. This could have resulted in unnecessary tests and procedures that put the children's health at risk.

[203] The father gave no plausible explanation for his actions, no appreciation that he breached a court order and seemed to have no insight that his actions could have endangered the health of the children.

7.4 Risk of Emotional Harm

7.4 (a) General Observations

[204] As stated above in regard to risk of physical harm, it is not necessary to prove a parent's intention to cause that harm. It can be caused by an act, omission or pattern of conduct by a parent. The risk of emotional harm must be demonstrated by a serious form of one of the listed conditions or behaviours.

[205] There is some debate in the case law as to the need for expert evidence with respect to a finding of risk of emotional harm. I agree and adopt the reasoning of Justice Robert Spence in the case of Chukwunomso v. Ransome wherein he concludes that expert evidence is not always required. He states that:

I am aware of the recent decision in the case of N.V.C. v. Catholic Children's Aid Society of Toronto 2017 ONSC 796, [2017] O.J. No. 525. In paragraphs 101 and following of that decision, Wilson, J., seems to suggest that a court is precluded from deciding that a child is at risk of emotional harm without evidence from an expert. If I correctly understand that to be the learned judge's reasoning, I must respectfully disagree. Courts will often make decisions about emotional harm -- or risk of emotional harm -- to a child based on panoply of evidence. That panoply may include an expert's report. But an expert's report is only one piece of evidence. In my view, the presence or absence of an expert's report regarding harm, or potential harm to a child, is neither conclusive nor, in many cases, even mandatory in order to permit the court to arrive at a correct conclusion. For example, in Simcoe Muskoka Child, Youth and Family Services v. L. V., 2016 ONSC 7039, Quinlan, J. stated at paragraph 18: "Expert evidence will sometimes [my emphasis] be required to establish a risk of emotional harm, but it is not a necessary prerequisite". As well, see paragraphs 31 and 32 of the decision of Parfett, J. in Children's Aid Society of Ottawa v. P.Y. for a similar opinion. Furthermore, courts are required to consider not only the available evidence in any case -- expert or otherwise - but, as well, judges should employ intelligence and common sense in drawing logical inferences from their general understanding of life itself. This application of intelligence and common sense is often referred to as taking judicial notice. An example of this application of judicial notice in the context of satisfying a court that emotional harm has occurred, can be found in the decision of MacAdam, J. in A.B.C. v. Nova Scotia (Attorney General), 2011 NSSC 475, where the learned judge stated in paragraph 50: "Experts are not required to establish that ABC suffered psychological and emotional harm as a result of the assaults by Lalo. The court is entitled to take judicial notice that such effects can be expected [my emphasis] albeit they may not occur in every case."

[206] In this case, no expert evidence was called however, there was evidence from several experienced family service workers who expressed serious concerns about the risk of emotional harm to the children. I also draw on my own common sense conclusion that children who are exposed to years of domestic violence, turmoil and conflict in the parents' relationship and children who have been the subject of litigation for the last 4.5 years and as a result have been subjected to numerous investigations are at risk of suffering emotional harm.

[207] I conclude that based on an accumulation of factors these children are at risk of emotional harm.

7.4 (b) Exposure to Domestic Violence

[208] The exposure to a pattern of domestic violence has been accepted in various cases as creating a risk of emotional harm. As stated by Justice Sherr in the case of Jewish Family and Child Service v. K.(R.) at paragraphs 26 and 27:

It is not necessary for the society to prove an intention to cause the child harm before finding that a child is in need of protection. A pervasive pattern of exposing a child to domestic abuse is sufficient: Children's Aid Society of Niagara Region v. T.P. and R.G., 35 R.F.L. (5th) 290, [2003] O.J. No. 412, 2003 CarswellOnt 403 (Ont. Fam. Ct.).

Domestic violence places children at risk on a number of levels. Witnessing violence perpetrated against the mother may have an abusive and detrimental impact on a child's development. Children may feel guilty, blame themselves and feel depressed. They can develop fears, insecurity and low self-esteem as a result of witnessing domestic violence. They can suffer emotional confusion that can result in bedwetting, nightmares, sleeping or eating disturbances, self-harm and weight loss: See Children's Aid Society of Toronto v. Sheila Ann C., [2005] O.J. No. 2154, 143 A.C.W.S. (3d) 869, [2005] W.D.F.L. 3688, 2005 ONCJ 274, 2005 CarswellOnt 2424 (Ont. C.J.); affirmed at Children's Aid Society of Toronto v. Sheila Ann C., 143 A.C.W.S. 3d 510, [2005] O.J. No. 4718, 2005 CarswellOnt 5932 (Ont. S.C.); further affirmed at Children's Aid Society of Toronto v. Sheila Ann C., 2007 ONCA 474, 158 A.C.W.S. (3d) 610, [2007] W.D.F.L. 2844, [2007] O.J. No. 2609, 2007 CarswellOnt 4267 (Ont. C.A.); permission to appeal to the Supreme Court of Canada refused at Sheila Ann C. v. Children's Aid Society of Toronto, [2007] 3 S.C.R. xiv, [2007] S.C.C.A. No. 462, 2007 CarswellOnt 7859.

[209] In this case although the children have been exposed to a history of domestic violence and continue to speak about their experiences, they are not yet showing any serious adverse effects. This may be a result of the counselling the children have received and the fact that as of the parents' separation in February 2014 they have been removed from exposure to domestic violence between their parents. However, based on the historical pattern of domestic violence and as of the commencement of the Protection Application the risk of emotional harm has been established.

7.4 (c) Exposure to Parental Conflict

[210] The primary concern of the society at the commencement of the Protection Application related to the children's exposure to their parents' conflict. I find that this concern has not only continued but has increased as a result of the conduct of the father.

[211] It is the father's position that there is no conflict because he does not communicate with the mother and if he communicates with her it is only by text or email.

[212] The father's lack of insight into the effect of his behaviour on the children is staggering.

[213] The father does not appreciate that making disparaging comments about the mother, her partner or their children puts the children in a loyalty bind. For example, S. reported that the father told her that her mother wears ugly clothes and that her clothes are from St. Vincent because she's from there. C. disclosed that her father kept saying that their mother looks ridiculous because she wears African clothes. The father never denied these statements.

[214] On other occasions the father has blamed the mother who has a Caribbean accent for the children's speech difficulties. He was critical of the mother using Google translation and a French language computer program to help the children with their French. The father never denied these statements and seemed to imply in his testimony that the mother was to blame for the children's speech difficulties and for their inability to do well in their French language school programs.

[215] The mother testified that while they residing together, he would call her a "stupid black bitch". When he was angry that E. was misbehaving he would tell her to do something about "that black child". The mother explained that E. had the darkest skin of all of the children. The father did not deny these statements. The father seems to have no insight that as the children are biracial attacking their black heritage is damaging to them.

[216] E. spoke at length to Ms Albert about an incident where his father told him not to speak to his mother who was in the bank with her baby. He stated that he wanted to play with his "baby sister" and speak to his mother but didn't because he was afraid to anger his father in case he hit him the same way he hit C. He felt badly because he knew he did not do the right thing. The father did not address this issue in his testimony other than repeating that Ms Albert did not conduct an independent investigation, that she erroneously stated he was convicted of assaulting the mother and therefore nothing in her report should be relied upon by the court.

[217] The father questioned the children about what they do when they are with the mother's partner, S.L. and when they told him they go swimming, C. disclosed that he told them that S.L. touches private parts when he swims. The father did not deny he made this statement.

[218] The father does not appreciate that he and the paternal grandmother telling the children to lie about their mother or her partner puts the children in a loyalty bind. For example, the paternal grandmother reporting that A. told her that the mother's partner pulled down his pants and alluded that he tickled him in an in appropriate way. S. stated that this was not true but A. was afraid of the paternal grandmother so he continued to tell the story. This allegation resulted in a police investigation that did not verify any sexual touching by the mother's partner but did result in the father and paternal grandmother being warned about public mischief.

[219] The father does not appreciate that taking the children to a variety of doctors and disparaging the care they receive from their mother is another example of escalating conflict and puts the children in a loyalty bind since they have no concerns about the care they receive from their mother.

[220] The father does not appreciate that continually complaining about various family service workers and wanting the file transferred from the CAST to the CCAS meant that the children had to be interviewed by a variety of workers and is another example of exposing the children to conflict.

[221] The father does not appreciate that telling the children to deceive the society workers whereas the mother tells them to tell the truth puts the children in a loyalty bind. For example, C. said her father told her to put on her glasses when the family service worker was at his home to trick the family service worker but her father did not otherwise let her wear her glasses at his home.

[222] The father does not appreciate that making disparaging comments about the family service worker puts the children, who have a good relationship with her, in a loyalty bind and is another example of an increase in conflict.

[223] For example, during private and separate interviews with the children on July 12, 2018, all of the children disclosed to Ms Goldstein that the father said, she was "a Jew and racist", that the father says this when he sees someone with money and a guy says "oh ya." When Ms Goldstein asked what that meant, A. said he did not know but his father makes fun of her. The mother later explained that she thinks the children were referring to a commercial about Oliver Jewellers. When the worker asked if it was okay that she was Jewish, A. said "No, Jews are bad" and when asked why he said, "Jews kill Jesus." The mother was very concerned as she did not want her children to be racist and was worried about the father was telling the children during his access visits.

[224] On a subsequent interview on October 24, 2018, C. told Ms Goldstein that she had something to tell her and stated that, "At that place [presumably the society's access centre] daddy called you a Jew." C. then asked the worker what she gets sad about and then answered herself that, "When people make fun of you, because that's what calling you a Jew is and he is making fun of you".

[225] During the same interview each child told Ms Goldstein that their father forced them to draw a picture of their family with only him and them and without their mother or younger sister.

[226] The father's only response to these allegations by the children was that Ms Goldstein is lying or the mother must have coached the children to say this.

[227] The father does not appreciate that his continued baseless allegations against the mother and his refusal to accept the outcome of the society's investigations or accept the information provided by the health professionals has required that the children be interviewed multiple times, examined by various doctors and by the police. The father has no insight about the damage this causes his children.

[228] Ms Albert testified that E. told her he was nervous about being harmed when he and his siblings were with their father and slept over at a home in Scarborough. He told her that since he did not know where they were, he wouldn't know how to call anyone. He described when they slept over, all the kids on one side and a woman and all of the grown-ups slept on the other side. C. also mentioned that she did not like spending time at the house in Scarborough.

[229] The children's statements about sleeping at this home were not clear although what was clear was that they did not like being there.

[230] When Ms Albert tried to discuss this concern and others with the father, he was dismissive and minimized the children's concerns and he was skillful at circling around questions and being tangential so it was hard to get an answer. She was never able to ascertain if the father agreed that he took the children to a home in Scarborough or the circumstances around the sleeping arrangements.

[231] All of the society workers from both the CAST and the CCAS have expressed the same concerns about their inability to work with the father to find solutions to minimize the high level of conflict that the children are being exposed to as he continues to focus on historical allegations against the mother and not respond to any of the concerns expressed by the children about himself and the paternal grandmother.

7.4 (d) Concerns About the Children's Education

[232] Some of the most concerning evidence in this trial dealt with the children's struggles in the French schools the father enrolled them in after he removed them from the English Catholic school they were attended at the time of the domestic order on July 28, 2016.

[233] This issue of whether or not a failure to provide children with a proper education can be viewed as a child protection concern was canvassed in the case of Durham Children's Aid Society v. B.P. In that case the issue before the court was whether there could be a protection concern with respect to parents who home schooled their children and were not providing adequate education. Justice Shaughnessy held that neglect of education which causes either emotional harm or risk of emotional harm may be dealt with pursuant to child protection legislation as long as it relates to a protection concern. He states as follows:

31 …… I find that the broad purpose or object of the CFSA is to intervene in all matters that relate to the best interest, protection and well-being of children subject only to the limitations imposed by the Act.

32 I further find that the Court has jurisdiction and the Society's mandate is to intervene when neglect of education becomes a protection issue. To suggest that such issues are best left to the provisions of the Education Act would lead to an inconsistent and unsatisfactory result which would not be in the best interest of children …….

33 The CFSA then is engaged where neglect of education becomes a child protection issue. To decide otherwise is to relegate children who are at risk of emotional harm due to a parent's failure to provide educational instruction without the remedies and protection afforded to any other child who is at risk of emotional harm. In my view this would be an absurd, illogical and inequitable result which would be incompatible with the object of the CFSA found in S. 1(1) of its preamble [now sec. 1(1) CYFSA] …..

44 The CFSA focuses on the consequences of abuse and neglect, or the reasonable risk thereof, of any number of unspecified parental responsibilities. There is no limit to the kind of responsibility that a parent may breach for the purpose of scrutiny under the CFSA, provided the breach gives rise to a protection concern under the provisions of the Act. It follows then that the education of a child is one of the responsibilities of parents. Accordingly, neglect of education which either causes emotional harm, or the risk thereof, may be dealt with under the CFSA provided the Society can relate it to a protection issue under S. 37(2) of the Act [now sec. 70 (2) CYFSA].

45 In the result there is a finding that neglect of education is properly an issue before the Court and the Court has jurisdiction under the CFSA to hear the matter.

[234] I find that the father placed the children at risk of emotional harm when he decided to enroll E. in a French immersion school and the other children in a French language school. The father neglected the children's educational needs and their development was delayed as a result of the father's decision.

[235] By way of context and based on the children's report cards that were filed as exhibits, at the time of the July 28, 2016 order in the domestic proceeding, E. had completed Grade 2 and C. had completed Grade 1 in an English Catholic school. E. was already struggling with his reading skills and had been in a reading Empowerment Program and although he made improvements at the end of Grade 2 he was only reading at a beginning Grade 2 level. C. has done well in senior kindergarten and no concerns were noted. A. and S. had completed junior kindergarten in the English Catholic school where their siblings attended and no academic concerns were noted. However, they both had some speech problems.

[236] The father removed all of the children from their school as of September 2017 and placed E. in a Catholic French immersion school and the other three children in a French language school.

[237] The mother testified that she did not understand that the July 28th, 2016 order gave the father the right to change the children's entire education as she thought it only gave him decision-making within their current school system.

[238] The father and paternal grandmother advised the mother of the decision shortly before the school year. They testified that in their opinion this constituted consulting with the mother.

[239] The order of July 26, 2016, not only required prior notice and consultation but also required that the parties exercise good faith and be child focused when consulting with the other party.

[240] I find that there was no consultation as required by the court order. The father did not exercise good faith nor was he child focused when he made the decision to remove the children from their previous English language school.

[241] The mother voiced her concerns as she did not speak French and would not be able to help the children with their homework. Further, the two schools were quite far apart, the times of the school days were different and as the mother did not drive she would have difficulty transporting the children. The father offered to drive the children but the mother refused as she was concerned that the father would use this against her in the Motion to Change she commenced.

[242] The father felt strongly that his children should have the opportunity to learn two languages and as a Francophone he had the right for his children to have a French education. The father testified that he had numerous consultations with the principals of the schools and other people and "after much thought" he removed the children from their previous school and enrolled them in French schools.

[243] However, the evidence given by the witnesses the father consulted with is that they were all against the children being enrolled or staying in the French programs.

[244] The principal of the French language school, who was called as a witness by the father, testified that this was a French language school, not a French immersion program. This meant that all of the children came from homes where French was spoken and she was aware the mother did not speak French and therefore the children would be at a great disadvantage in attending a French language school.

[245] She recommended that E. not attend the school because he was entering Grade 3. She also had concerns about C. being enrolled in Grade 1 as she had no French language competency and worried about her socialization. She did not agree that C. should be enrolled but the father insisted and he had the right to enroll her. With respect to the twins, she had less concerns as they were entering kindergarten, but even they were behind the other children who spoke French at home. There were concerns that the mother was bringing the children late and picking them up early.

[246] The principal testified that despite the supports the school was able to offer, none of the children could read or write French. The program was extremely difficult for C. and she made minimal progress. A. needed a lot of support and made little progress. He only had a few words in French and was not performing up to provincial standards. He exhibited behavioural problems and was seeing a counsellor and in her opinion his behavioural problems were partly because he did not understand French. S. was very motivated and did well. She needed to learn to read and write French and was still under the provincial norms although she made gains in the second year.

[247] The principal testified that the school used all of their best efforts and resources to assist the children. In her opinion, C. and A. should not continue with French education but perhaps S. could continue.

[248] With respect to E., the principal of the French immersion school testified that he had several discussions with the father who wished to enroll both E. and C. in the program. But he advised the father that it was not typical to enroll the children at this stage that is, Grade 3 and Grade 1 as the children would already be behind and fall further behind. The father spoke about his constitutional rights to enroll his children in the French program. It was the principal's recommendation that the children develop their skills and then apply to enter extended French in Grade 5.

[249] The principal refused to admit E. as the school policy provided that all children are entitled to a French education at kindergarten level but the school had the right to refuse admittance if it was against a child's best interests. The father did not accept this decision and applied to the superintendent of education who supported the principal's decision. The father then went to the next level of authority and ultimately the principal was required to enroll E.

[250] The principal testified that E. struggled academically and become more and more withdrawn, disengaged and involved in more and more mischief as time went on and one incident in March 2018 was serious enough that he was suspended. He was sent to the office numerous times and told the principal that he did not like French.

[251] At the end of Grade 3, it was clear that E. was struggling academically and despite daily accommodation including one on one support, extra time, use of resources, fewer tasks and questions on tests, E. was unable to achieve a passing grade. It was the father's position and his evidence that with more time E. would do better. The principal agreed in cross examination by the father that E. made small gains but the gap that remained was massive.

[252] In March 2018, E.'s second year at the school, the school arranged a case conference with E.'s teachers, school social worker, school administrators, speech and language teacher, resource teacher and a psychologist. The father wanted the superintendent present which was unusual. The father did not like the unanimous recommendation that E. was struggling and it was not in his best interests to stay in French immersion and requested another meeting with another psychologist. Another meeting was held in May 2018, which again was unusual, but the same recommendation was made.

[253] The father had other conflicts with the school as he was upset that the mother was permitted to consent to E. participating in the school meal program as he stated, "I am the only parent to be receiving and signing custodial forms." The father was concerned that the mother was given copies of documents that were presented at the Individual Education Plan meeting. He was upset that the vice principal had assisted the mother, who had accessed a program that gives children computers, by signing a needed form for her. The father was upset that E. was given the computer since if he used it for school purposes he should have been asked.

[254] It was the principal's opinion that changing schools back to an English program in September 2018 was the right decision for E. and that he had been against E. being enrolled from the outset and continued in that opinion throughout the 2 years E. was in his school.

[255] The father also did not listen to his own supports. Michelle Conner who is a social worker with the McCauley Child Development Centre testified that she attended a meeting with the father and Ms Singh on July 6, 2017 and at that meeting Ms Singh voiced her concerns about the children remaining in the French program as they were struggling and it was harmful to them. Although Ms Conner agreed it was not a good idea and discussed this with the father, he decided the children should attend French language schools and he did not discuss the issue further with her.

[256] If the father had consulted with the children's pediatrician's Dr. Kupfert, he would have received her opinion that since speech delay was an issue for both twins she had concerns with them learning two languages.

[257] It is also important to note that the OCL report was released on March 21, 2018 and the father would have been aware that E. told Ms Albert that he wants to do well at school, he wants "to get A's again, that he is not able to speak or understand French well enough so he is "dumb". Ms Albert described A. as very sad when describing how he feels. Instead of feeling any empathy for his son, the father's evidence was that E. never got A's. In the second interview, E. again spoke about wanting to attend an English school and he was frustrated as he is failing and he does not feel good about himself. He added that he is afraid to make his father angry and defy him. It makes him sad and he is not sure what to do.

[258] In the OCL report, C. in both interviews repeated that she was not doing well in school and wanted to return to her old school and be in an English language program

[259] A. also stated that he would like to go back to his old school and did not really like his French school. The interviews with S. were not productive and she did not speak about school preferences.

[260] As a result of the court order placing the children in the mother's custody and limiting the father's access to the children, the mother was able to enroll all of the children in their previous school as of September 2018.

[261] A school meeting was held on November 14, 2018 with the mother, the current family service worker Ms Goldstein, the principal, teachers and special education teachers. It was the consensus that all the children were struggling because of their move to French schools, all of the children lost two years of English language instruction and education.

[262] With respect to E. modifications in the reading and writing program were needed, and another meeting is scheduled to set up a possible psychological educational assessment.

[263] C. is struggling with math and reading and organizational skills. Modifications to her school program were required and a reading empowerment program was recommended as well as a speech and language referral. A hearing test was recommended as she had trouble focusing and staying on task. It was recommended that all of the children have a hearing test although the main concern was with respect to C. The mother has already arranged for this testing to be done.

[264] A. required accommodations to his school program including one on one support, reduced amount of work and extra time to process and complete his work. He was referred to occupational therapy and the reading empowerment program as he was 1-2 years behind in reading.

[265] S. also required accommodations to her program similar to A. She was referred to the speech and language and reading empowerment program.

[266] Quite astoundingly and despite all of the evidence, the father testified that he did not accept that E. was unhappy at his French school, he felt that the mother was purposely bringing the children late and picking them up early so they would fail. He testified that he did not hear the evidence of the principals that all of the children's grades were below the provincial averages. He thought it was great for the children to attend a French school and still does. He could not explain why he enrolled the children in different French schools. He testified that he had a French tutor for the children but when cross-examined admitted that this was only once a week for only a few months.

[267] The father chose to ignore the children's struggles and unhappiness in their French schools and chose to ignore their wishes about returning to their old school. He chose to ignore the recommendations of all of the professionals.

[268] The father's position is that he is an advocate for the children. Instead I find that he has put his self-interest in wishing a French education for his children, because it is his right to do so, above any consideration of the wishes or needs of his children. As a result he has seriously delayed the development of all of the children and in particular caused E. and C. unnecessary emotional distress for the last two years.

7.5 Conclusion

[269] I find that there is overwhelming evidence that these children are at risk of both physical and emotional harm as a result of the father's actions at the commencement of the Protection Application.

[270] The court, must then assess the extent to which any need for protection found at the initial stage has been resolved over the course of litigation.

[271] As outlined, the level of the conflict between the parents has intensified during the proceedings and the protection concerns have continued until the present time placing the children at a high risk of harm.

[272] The father has intensified his campaign to place the children in the middle of his conflict with the mother and in the middle of the conflict he has created with the society. The father has refused to work co-operatively with the society workers to alleviate the child protection concerns.

[273] The father's lack of regard for the impact of his decisions and actions on the children has intensified especially with respect to his enrollment of the children in French language programs and refusal to withdraw them when it became clear that it was causing them emotional harm and impeding their educational developmental.

[274] The father's ongoing refusal to accept the recommendations and opinions of any medical or other professionals if the opinion does not coincide with his own views has continued to place the children at risk of both emotional and physical harm and has not ameliorated over time.

8. Disposition

8.1 General Principles

[275] Having found that the children are at risk of harm, the court is required to make an order pursuant to either section 101 or 102 CYFSA. Those sections read as follows:

101 (1) 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 one of the following orders or an order under section 102, in the child's best interests:

1. Supervision order - That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

2. Interim society care - That the child be placed in interim society care and custody for a specified period not exceeding 12 months.

3. Extended society care - That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

4. Consecutive orders of interim society care and supervision - That the child be placed in interim society care and custody under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding a total of 12 months.

Section 102 (1) Custody order – 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, with the consent of the person or persons.

[276] Pursuant to section 101 (2) CYFSA the court is also required to inquire when making an order under either section 101 (a) or 102 what efforts the society or another person or entity has made to assist the child before intervention.

[277] In determining what order is in a child's best interests, section 74 (3) reads that the court shall:

(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) the 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) the 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.

[278] In this case, the society seeks an order placing the children in the custody of the mother pursuant to section 102 of the CYFSA. As the children have been found to be in need of protection, the court needs to consider the father's alternative position namely, that the children be placed in his sole custody or in the further alternative that the children be placed in his care subject to a 3 month supervision order.

8.2 Services Provided

[279] Prior to the commencement of the Protection Application, the society workers at both the CAST and CCAS attempted to assist both parents with respect to reducing the children's exposure to their conflict and attempted to encourage the parents to change the shared parenting plan to reduce the number of exchanges between the parents that in turn lead to conflict and confusion.

[280] The mother has availed herself of the support of the various family service workers. She has attended for counselling for over a year at Yorktown for victims of domestic violence as recommended by the society.

[281] The mother was also open to having the children attend the Here to Help group counselling at Yorktown as recommended by the school social worker. The group met on Tuesday nights and at that time the father had the children in his care on alternate Tuesdays. The mother was agreeable to the father taking the children to the group on his nights but the father never followed through. The mother also told various workers that she was agreeable to the father taking the children to any counselling that he wished to arrange but he never arranged any such counselling. When the father's access was reduced and he no longer had access on Tuesday evenings, the mother enrolled the children in the Here to Help program that she attended with them.

[282] The father on the other hand has frustrated every attempt by both societies to work with him.

[283] The CAST was initially involved for about a year when the father asked for a change of service teams as he did not want to work with the prior society worker.

[284] The file was then transferred Chereches Ramona's team and she assigned Ms Singh. The father would only met with Ms Singh with his support Michelle Conner present which Ms Singh agreed to. The father told Ms Singh that he had a negative experience with the prior society workers and that they were all "unprofessional" and aligned with the mother.

[285] Ms Singh attempted to speak to father about the concerns with respect to the children attending French schools but the father insisted the children were having a positive experience at school and would not allow her to explain the problems as the mother did not speak French and could not do the homework. The father only wished to speak about his concerns regarding the mother's physical abuse of the children and her neglect of the children's health care.

[286] The father then refused to meet or speak to Ms Singh.

[287] Ms Singh testified that if the father had been willing to work with her, she would have recommended that the father attend a Caring Dads program and would have worked with him to rebuild trust with his children and to understand the impact of domestic violence on the children.

[288] After the father refused to meet with Ms Singh, he began calling her supervisor Ms Ramona as he wished his file transferred to the CCAS. Although it was unusual for a supervisor to conduct an interview, she offered to meet with him as he refused to deal with Ms Singh and would not even agree to have her present at the meeting. The father expressed many worries about working with the society as it was not taking his concerns seriously, he felt that Ms Singh was taking the mother's side, and he did not trust the society. But he offered no specifics. Ms Ramona attempted to listen to the father's concerns but she also needed to conduct an investigation into the allegations that the father had physically disciplined C.

[289] Ms Ramona subsequently advised the father that the society had followed up with respect to his concerns about the mother and found there were no concerns and that it was toxic for the children to be in the middle of the conflict. The father would not listen and alleged "gross negligence" by the society and it was "trying to cover up" and that the society worker fabricated their notes. The father contacted his MPP who called Ms Ramona but she advised that she could not discuss the case due to confidential issues without the consent of the parties.

[290] Ms Ramona agreed to transfer the file to the CCAS as their agency had already assigned a new service team and that did not work out, the father would not agree to a school meeting or mediation and the father was not open to working with the CAST. She hoped that a transfer would be better for the children as it would offer a fresh perspective and she hoped that the father would be more open and engaged in the process and be prepared to work on a safety plan for the children. The mother agreed to the transfer.

[291] The file was then transferred in May 2017 to the CCAS. The file was transferred to Charmaine King's team and she assigned Courtney McCabe as the society worker.

[292] The father expressed his hostility and frustration in working with CAST who he stated did not take his concerns seriously, they were liars and added things to his file. Whenever Ms McCabe brought up the reasons the society was involved and tried to speak to him about the allegations against him, the father went off on tangents and spoke about medical issues and the mother's use of physical discipline.

[293] Due to the father's hostility at their first meeting, Ms McCabe asked another worker to accompany her to her next meeting in the father's home. At that meeting, she met with the paternal grandmother alone who became aggressive and hostile with her, grabbed her arm and accused her of not listening. Ms McCabe needed to ask the other worker to come into the room.

[294] Ms McCabe set up a Family Group Conference but the father did not attend as he wished Ms Conner to be present. However, he never asked her to reschedule so he and Ms Conner could attend. Although the paternal grandmother did attend, once she saw the mother and her friend there, she refused to participate even though she was offered the option to participate by not sitting in the same room as the mother and listening by phone.

[295] Ms McCabe tried to discuss with the father the concerns about him taking E. to the hospital and to see Dr. Sit and the need for consistent medical care by one doctor and he stated, "all you are doing is giving me warnings, threats and intimidations."

[296] Ms McCabe only worked with the family from June to September 2017 as she left the agency for a new position. During her involvement, she found the father difficult to work with, aggressive and she often felt unsafe while meeting in the home with him and his mother due to their level of aggression. She also found it concerning that in their meeting the father was unable to refer to the mother by her name and would refer to her as "the mother".

[297] Claudia French was then assigned to the file. The father wished the transfer meeting to take place at McCauley Centre with Ms Conner and paternal grandmother present and Ms French agreed. At that meeting the father expressed his concerns and worries about working with the society. He wished a new service team and he did not want to work with her supervisor Ms King. The father expressed concerns about the children related to their care by the mother, their health, their nutrition, school and their overall well-being.

[298] A detailed letter was sent to the father on October 19, 2017 outlining the society's concerns, the results of their investigations and their expectations of the father. The letter was sent as Ms French was unable to address the concerns with the father and he kept saying that he did not know why the society was involved.

[299] As a result of the father's wish to change the service team, he made a complaint to Melanie Dignam, a Quality Assurance Supervisor and requested a meeting with the Internal Complaint Review Panel that was held on November 1, 2017. The father, paternal grandmother, Ms Conner and Andrew Tramontin from the Men's and Families Legal Support attended.

[300] The father was able to voice his concerns related to the fact that he felt there was bias by the team against him, that the worker had been "hostile towards him and did not know all of the facts of the file" and he voiced his many concerns about the mother's care of the children and the service team's lack of following up on his concerns. Ms French and Ms King then presented their responses.

[301] The Internal Complaint Review Panel did not recommend a change of service teams. It recommended that the father be given the full name of the nutritionist as the father alleged that although both parents met with the nutritionist, that he did not have her name. This was done.

[302] The panel also recommended that the father think about "what it would look like for Mr. G. to feel satisfied that the medical issues are being addressed with E." and share his thoughts with the worker. Ms French testified that the father never discussed this with her directly but she assumed it meant the father could call the doctors directly and obtain information.

[303] The panel also recommended that the file remain open for ongoing services to focus on: the physical and emotional wellbeing of all of the children, bringing all stakeholders together to review the well-being of the children and ensuring the children have all of the supports and services they need.

[304] The panel further recommended that the worker meet with the mother, the father and children in both homes at least once a month.

[305] The father was encouraged to think about "what would an ideal service team look like" and share his expectations during the next home visit so the father and Ms French could contract for their work to move forward. The father never followed up with this recommendation.

[306] The father was not satisfied with the recommendations of the Internal Complaints Review Panel and told Ms French he would take this further and that he had made a complaint to the Director. The father told Ms French that he had lost all confidence in her supervisor Ms King and her and that they are "unethical and unprofessional."

[307] The father made a further complaint to the Child Family Service Review Board. The results of that hearing were not before the court as they cannot be released without the consent of the board. However, as the society continued to service the family without any changes, I assume that there was a finding that there is no validity to the father's further complaints. The father also testified about making a complaint to the Human Rights Tribunal but no evidence was presented about the details of this complaint or the outcome.

[308] Ms French attempted to meet with the father to follow up on the recommendations of the Internal Complaint Review Panel but he refused to meet with her. She also contacted Ms Conner to ask her to speak to the father about sharing what "an ideal service team" would look like for him and to encourage him to meet with her as it was against the Ministry standards for her not to meet with the father and see the children and as a result the protection concerns were not being addressed.

[309] Ms French did speak with the father on December 19, 2018. As he would not meet with her, she advised him that the society had made the decision to take the case to court.

[310] Ms French left the society for another position and Ms King assigned Jaimie Goldstein to the file on January 8, 2018.

[311] From August 8, 2017 to January 31, 2018 Ms French and Ms Goldstein were unable to meet with the father and the children in his home. Ms Goldstein sent the father texts on January 10th and 18th and a letter on the 18th to contact her but he did not respond.

[312] At court on January 30th, the paternal grandmother spoke to Ms Goldstein about how the society was bad, her supervisor Ms King was "evil" and that they will be going to the "public and to the press". When Ms Goldstein attempted to interrupt her, she threatened to call the police if she continued to speak to her and the father. However, they agreed to meet at her home the next day.

[313] Ms Goldstein was able to meet with the father and paternal grandmother at their home several times. Each time, they both expressed many concerns about the mother and denied any allegations that were made against them by the children.

[314] At a meeting on March 14, 2018, Ms Goldstein advised the father and the paternal grandmother that she had not verified the allegation of the mother's use of force against S. The paternal grandmother told her she was lying and that S. had told her that her mother had hit her, that the mother was pushing and swearing at her and that the mother's partner was hurting the children. When Ms Goldstein repeated that S. had not disclosed any such allegations to her, the paternal grandmother stated that the children told her friend, who would be calling her, that they are being abused and that is why the former family service worker Ms McCabe quit. She told Ms Goldstein that she was going to lose her job and was going to jail.

[315] The paternal grandmother alleged that E. was being malnourished and hit by the mother. When Ms Goldstein again explained the children had not made any such disclosures, the paternal grandmother repeated that S. told her this. When the paternal grandmother went to bring S. into the room, Ms Goldstein advised that it was not a good idea to put S. in that position. The paternal grandmother then said that she "was covering up for the organization" and that she would report Ms Goldstein to the police and that she was dishonest.

[316] The father also told Ms Goldstein that she was lying about A. stating that the paternal grandmother hit him. The father also alleged that E. told him that the mother and "that man" [the mother's partner] swear at them. Ms Goldstein interviewed each child privately in the home and they made no disclosures about the mother's partner. However, S. did disclose that the mother hit her. As a result Ms Goldstein opened an investigation.

[317] When Ms Goldstein advised the father and the paternal grandmother that the S.'s allegations had not been verified, the father and paternal grandmother would not accept the outcome. The father was calm but upset and frustrated and accused her of being irresponsible.

[318] When Ms Goldstein next attended the father's home on April 25th, 2018, the paternal grandmother barged into the meeting. She raised her voice and spoke sternly and told Ms Goldstein several times that she is not to be in her home and that she did not care about the children. She then yelled at her that she was a "sick woman" and needed to get out of her home. The children were present in the home and the father just let it happen and did nothing. Ms Goldstein felt uneasy and decided it was just best to leave.

[319] The father complained multiple times to Ms Goldstein that the society was not assisting him with preparing the children for communion classes. But when she tried to obtain information about the details from him he would not provide them. He continued to complain that when E. was with him he would take him Tuesdays after school and that both E. and C. should also be going. He complained that the mother was not cooperating. But Ms Goldstein advised him that the mother was agreeable to him taking the children as long as he would pick them up and take them. The father refused, he wanted the children with him every Tuesday, he was not prepared to pick up the children from the mother's home and said he was "not a taxi service".

[320] The father never provided Ms Goldstein with any details about the location or time of the classes however, he continued to complain that the society was not assisting him in arranging the communion classes.

[321] On May 31, 2018, Ms Goldstein advised the father and his counsel that a new worker had been assigned to worker only with him in view of his concerns about working with her and his request for a new worker. The decision had been made not to change Ms Goldstein as she was connected with the mother and the children and there was no reason to remove her.

[322] Laurentiu Sasarean was assigned to work only with the father including attending for any home visits and Ms Goldstein would continue to be the case manager. His role was to communicate with the father and provide him with whatever information was needed from Ms Goldstein. He testified that in this case there was no communication issue with having two workers.

[323] At the time he began to work with the father, the father's access was reduced to one supervised access and one community access visit a week and then on October 2, 2018 all of the father's access became supervised due to ongoing concerns about the father's conduct, non-compliance with directions from the society and the effect of his behaviour on the children.

[324] Mr. Sasarean met the father for the first time on June 6, 2018 and the father immediately advised that he wanted to meet with the branch manager. He continued to make complaints about E.'s health care alleging that he was not growing, that he had been admitted to the hospital for malnutrition and he wanted information about E.'s health. Mr. Sasarean told the father he would follow up on his concerns. The father alleged that the mother was feeding the children sugary foods. The father expressed concerns that C. was tired and wondered if she was well.

[325] On June 26, 2018 when Mr. Sasarean met again with the father and the paternal grandmother, she made it clear that she would not meet with Ms Goldstein. No specific reason was given. The paternal grandmother made allegations that the children were all sleeping in the same room as the mother, that there was no supervision at the mother's home and that the mother's partner tried to pull down A.'s pants and another lady [referring to the anonymous call from "Anna"] had reported inappropriate touching to the society. Despite the fact that there had already been a police investigation of this allegation that was found not to be verified, the paternal grandmother threatened that if nothing was done she would go to the press. The paternal grandmother also complained that the society had a feminist agenda.

[326] Mr. Sasarean reminded the father to bring food to the access visits as the visits were over lunch and that he should not whisper to the children during the portion of the visits that were supervised.

[327] Mr. Sasarean also cautioned the father against providing racist messages to the children regarding their current worker Ms Goldstein or against anyone else.

[328] The father complained that he wanted a new worker, would not work with Ms Goldstein and had again notified Melanie Dignam, a Quality Assurance Supervisor and filed a complaint against Ms King. He again requested a meeting with the branch manager.

[329] Mr. Sasarean testified that the father met with one branch manager and then met with the new branch manager and wanted to meet with the Executive Director of the society. Mr. Sasarean testified that it was unusual for a branch manager or an executive director to meet with parents as they oversee all of the work and any knowledge about individual cases comes from the society workers and supervisors.

[330] On October 22, 2018 Mr. Sasarean telephoned the father and again cautioned him to bring food for the children during the access visits as he had been told that they were hungry and had been asking the access supervisor for money to buy food from the vending machine. The father responded, "Do not tell me what to do. I don't have to feed them. It's too short a time. Mother has to feed the children. If you don't like it, take me to court, I am actually in court."

[331] Even in the short time that Mr. Sasarean was involved with the father, he expressed concerns about the father's level of animosity against his colleagues Ms King and Ms Goldstein and to some extent against the mother. He was also concerned about the father's level of functioning as he fixated on issues despite evidence that his complaints had been investigated and were without foundation or had been addressed.

[332] Despite the best efforts of all of the society workers from both societies they were unable to provide services to the father as he was unwilling to work co-operatively with any of them.

[333] The father and the paternal grandmother in their testimony did not dispute any of the statements or conduct attributed to them by these various society workers, but continued to maintain that their accusations against the society were warranted.

[334] The father did obtain services through his own efforts. A referral was made from the Early Years Program to the social work program at the Macauley Child Development Centre in August 2015 as the father appeared to be overwhelmed regarding his custody issues. He met with Michelle Conner for weekly counselling sessions but as of November 2015, she met with him on an as needed basis. She then acted more as a sounding board and a support for the father so he would have someone to talk.

[335] However, the father did not take her advice either. Ms Conner testified that she discussed with the father that enrolling the children in French programs was not a good idea but he decided to enroll them anyway and did not discuss the issue further with her.

[336] Although the father advised her that E. had been hospitalized for "malnutrition" she was aware that the doctor did not agree as she saw the discharge summary. But when she pointed this out to the father he disagreed. She also pointed out to the father that the children should only have one pediatrician. She testified that her role was not to make decisions and the father had strong views and ultimately it was his decision. She expressed her concerns that he did not have a good relationship with any of the society workers and tried to assist him with his communication issues with the society.

[337] Ms Conner referred the father to other services. The father attended the Nobody's Perfect parenting program, a Super Dad Super Kids workshop through Ujima House and completed an 8 week program called Fathering After Separation or Divorce given by the Canadian Centre for Men and Families. He also attended the Ujima House for some assistance with respect to legal issues.

[338] The father sought spiritual guidance from Reverend Terence McKenna who is the spiritual director of the Cursillo movement of the Archdiocese of Toronto. He visited E. in the hospital and was told by the father and paternal grandmother that E. was a patient due to malnutrition. He then changed his evidence to say it was due to a nutrition issue and he thought E. had been in the hospital for two weeks if not more. He confirmed that he had written a letter to be filed with the court stating that E. was in the hospital due to malnutrition and is struggling with this condition in his mother's home because of her difficulty in maintaining a proper diet. He confirmed in cross-examination that any information he had only came from the father.

[339] With regard to the children involved in communion, the Reverend McKenna stated in his letter that, "What is puzzling and disturbing abuot D.'s [the father] attempts to communicate with the Catholic Children's Aid Society about this upcoming need for negotiations with N.[the mother] for the children's access to catechism classes is the following. The Society workers seem to be quite illiterate about these Catholic matters and consider them unnecessary and frivolous."

[340] He confirmed in cross-examination that he heard these comments from other people and the father, that he had never spoken to any of the society workers in this case or anyone involved with this society and was not aware that the mother had actually agreed that the children could attend communion. I found his evidence to be quite concerning in that someone in his position would make such serious allegations against the CCAS and the society workers without ever having verified the information.

[341] It appears from the evidence of Ms Conner, Reverend McKenna and other witnesses called by the father that he tells them what he wants them to know and that they either do not offer him any objective advice or he is unwilling to follow any advice that is given.

8.3 Views and Wishes of the Children

[342] The CYFSA has made significant changes to child protection law in Ontario. The legislation is child focused and there is a new emphasis on the children's wishes.

[343] The first factor that a court is required to consider when determining what order is in a child's best interests is a child's views and wishes. The court is required to give those wishes due weight in accordance with the child's age and maturity.

[344] In this case, the children have consistently told various society workers and the OCL that they wish to reside with their mother. Despite the many allegations by the father that the children have been coached or the society workers are biased, there is not a shred of evidence to support his position.

[345] I find that the children are of an age and maturity that those wishes should be given a great deal of weight. However, I acknowledge that even if children express strong views about where they wish to reside the court must still consider the other factors in section 74 (3)(c) to ensure that the order made is in the children's best interests.

[346] I have considered those factors in assessing the plan of the society and the mother and the plan of the father.

8.4 Plan to Place the Children in the Custody of the Mother

[347] The society, the mother and counsel for the children all support the plan to place the children in the custody of the mother.

[348] The mother is currently residing on her own with the four children before the court and her two other children. Although the apartment is small, there are no concerns about the home environment.

[349] The children will continue to attend their current school. The mother is working co-operatively with the school to assist the children with catching up on the two years of English education they missed as a result of the father's decision to remove them from this school.

[350] The children will continue to have their medical needs met by attending with their pediatrician Dr. Kupfert. Dr. Kupfert testified that she had no concerns about the mother's overall care of the children, other than having many children in a short period of time but the mother was coping well. The mother followed her recommendations and other than the children being small and some nutritional and constipation issues the children were well.

[351] Dr. Kupfert testified that the mother had not taken the children to see her from 2014 to 2016 but that during that time the children were still up to date with their immunizations. The mother explained that this was during the time of the separation and court proceedings and she was quite overwhelmed and none of the children had any serious medical issues during the time.

[352] Despite the many allegations made by the father, Dr. Kupfert did not express any ongoing concerns about the mother's care of the children or in particular the well-being of E. She testified that he was small at birth and therefore it was not uncommon that he would continue to be small. She testified that there had never been an issue with E. suffering from malnutrition as alleged by the father. He was being followed by a specialist, Dr. Shapiro, who indicated that his height and weight had improved and she did not feel that any further investigation was necessary and would follow up in 5 to 6 months.

[353] The mother was referred to a nutritionist and was following the recommendations that were made and feeding the children healthy meals. The society workers who attended at the mother's home also confirmed this.

[354] The mother would also ensure that the children attend any counselling that was recommended.

[355] According to the evidence the children had a good relationship with the mother's partner and were close to their half siblings.

[356] The mother would ensure that the children understand and respect their heritage. This is quite important as the father had made racial slurs against the mother and E.

[357] Although initially the Protection Application alleged concerns about the mother's use of physical discipline, the mother accepted the assistance of the society and learnt new methods of managing the children's behaviour and the effect of physical discipline on children and this is no longer an issue.

[358] The father and paternal grandmother's ongoing allegations that the mother is physically disciplining and abusing the children are totally without any merit whatsoever and have unfortunately caused the children to be needlessly examined by doctors and interviewed by various family service worker and the police. There are no protection concerns about the children in the care of the mother.

[359] Despite the relentless allegations by the father against her, the mother has never interfered with his access or spoken negatively about him to the children. She was prepared to permit the father to expose the children to his Catholic religion.

[360] The mother's plan will provide the children with stability and continuity and she has demonstrated that she is able to meet all of the children's physical, mental, and emotional needs.

8.5 Father's Plan

[361] It is the father's plan that the children reside with him and the paternal grandmother in her home. The home is large and each child would have their own bedroom and a backyard.

[362] The father plans on taking courses as a legal assistant and working from home. This is despite the fact that other than completing a diploma course in social work through the Academy of Learning in about 2011 or 2012 and taking one or two courses at the University of Alberta in about 2005, he has not worked or attended school.

[363] The father's present source of income in Ontario Works. The paternal grandmother will support him and the children. He explained that he had not been paying the mother $50 per month on account of child support arrears as required in the order on July 28, 2016 as he was only in receipt of Ontario Works.

[364] The father would enroll E. in extended French in Grade 5, place the twins back in a French language school program and with respect to C. he did not want her to lose her French and was open to more consultation as he wondered if she had a learning disability.

[365] The father further planned to enroll the children in after school activities and arrange for tutoring.

[366] He was prepared to continue with Dr. Kupfert as their pediatrician. He would arrange for further investigation with respect to E. as he was not convinced there were no issues with him.

[367] The father would also ensure that the children continue to be raised in the Catholic religion and obtain proper counselling as the only counselling they received was for domestic violence that was not appropriate.

8.6 Conclusion

[368] The father's plan has no air of reality to it.

[369] Both the father and the paternal grandmother have demonstrated hostile and aggressive behaviour. The father confirmed that his mother was an important part of his plan. There is evidence that both Ms Goldstein and Ms McCabe did not feel safe in their home.

[370] The mother's partner testified that the father attended at his workplace and threatened to kill him. He also testified that the paternal grandmother saw him and his young daughter on the street and did a u-turn and pulled up so close to them that she blocked their path and he had to stop walking. The grandmother yelled at him that what he was doing was against the law and that the mother would do him what she did to her son. He had no idea what she was yelling about but he told her to stay away or he would call the police.

[371] Despite the fact the children do not want any contact with the paternal grandmother and despite the fact A. disclosed that the paternal grandmother slapped him twice and despite the children saying that she has told them to lie, the father appears to feel that there would not be an issue with the children living with him and his mother.

[372] The father did not address how he would integrate the children into his care given this evidence except to continue to maintain that the statements allegedly made by the children are not true.

[373] Both the father and the paternal grandmother have such a distorted view of reality, that they believe the society has made up all of the children's statements or that the mother coached them and therefore there would be no issue of the children being placed in the care of the father with the assistance of the paternal grandmother.

[374] Despite all of the evidence that the children failed in their French language programs, the father's plan is to re-enroll them in a French language school program.

[375] The father also has a lack of understanding of the needs of the children. For example, he refused to accept the children were struggling in French language school because he felt that it was beneficial for them to learn two languages.

[376] The father also says one thing and then does another to the detriment of the children. For example, he has repeatedly voiced concerns that the children are not fed properly by the mother, or that they are losing weight or with respect to E. that he is malnourished. Yet when told numerous times that he needed to bring food to the access visit as the children were hungry, he refused. He repeatedly said that they children needed to be in counselling yet when the mother agreed that he could take them, he never arranged for counselling. He repeatedly said he wanted the children to take communion classes but again when the mother agreed he refuse to take them if he had to transport them.

[377] As previously outlined there were extensive attempts by both the society workers from both the CAST and CCAS to offer services to the father and work cooperatively with him but unless the society workers agree with his concerns he refuses to work with them and continually criticizes their professionalism and impartiality.

[378] The father simply does not have the ability to meet any of the children's physical, mental or emotional needs. He has demonstrated he is either unable or unwilling to follow any advice if it does not coincide with his views. Placing the children in his care would expose them to utter chaos and cause them irreparable harm.

[379] Placing the children in the custody of the mother is consistent with the strong wishes and views of the children and is the plan that is in their best interests.

9. Father's Access

[380] At the commencement of this Protection Application the father had a shared parenting plan and the children spent equal time with both parents. However, as a result of the children's allegations against the paternal grandmother and concerns about the father's conduct, at a motion on May 31st and on a further hearing on July 4th, 2018, the father's access was reduced to one mid-week access for three hours with the first and last half-hour being supervised and one community visit for four hours on Saturdays with the paternal grandmother having no contact with the children.

[381] On October 2nd, 2018 the father's access was again varied to being fully supervised, twice a week for two hours each visit.

[382] The father has attended access consistently. The children seem to generally like the visits and there are times when there have been positive interactions.

[383] The OCL recommended that the father have access on alternate week-ends and one mid-week visit. As Ms Albert's observations of the father and concerns she raised in her report did not appear to coincide with her recommendations, I inquired about her thought process and the basis for making her recommendations.

[384] Ms Albert testified that she struggled with her recommendations because of the father's unfounded allegations and unfounded concerns he raised about the mother and the bad decisions he made regarding the children's health and education. However, she felt that if the mother had sole custody and decision-making authority then the mother would be able to make all decisions about the children. She did worry about all of the time the children were with their father and was puzzled as to why the CAST did not remove them from his care. She felt that the father needed to work with a parenting coach to improve his parenting and struggled with whether or not his access should be supervised while he worked on this. She chose a compromise and recommended a reduction in father's time from a shared parenting arrangement to alternate week-ends.

[385] However, since Ms Albert completed her report, the concerns about the father and his ability to meet the needs of the children have escalated.

[386] Sheri Da Silva who is the access supervisor for the Saturday access program deposed and testified about the following concerns regarding the father's access:

• he does not have control over the children and they go in different directions and to different access rooms
• he looks exhausted and the children do whatever they want
• she is the one to usually tell the children to clean up. She clarified that although the father tells them to do this they do not listen
• he puts the children on his lap and whispers to them so she is unable to hear what he is saying
• the children are hesitant to approach the father and have to be prompted to do so but at the end of the visit they run to greet their mother
• when the children are with the father they are quieter and more reserved than with the mother and when the children are with the father and see the mother, her partner or their sister they do not acknowledge them
• there is not a lot of interaction or eye contact by father with E. and E. often just does his own thing whereas A. gets all of the attention
• she raised issues with the father feeding the children during the visits

[387] On October 13, 2018, Ms DaSilva testified that she received a message from the worker who was supervising the visit that S. had fallen off a chair. When Ms DaSilva went to investigate, she found S. lying down with her jacket over her head and the father was not in the room. As she was talking to S. the father brushed past her, picked up S. and turned his back on her as she asked if everyone was okay. The father rolled his eyes at her, refused to talk outside of the room and when he finally agreed to step outside, as she tried to explain her role and how a fully supervised access worked, he mocked her and was disrespectful and refused to finish the conversation. She told the father that she would not play games with him and let him finish the visit but she remained inside to ensure the children were not affected by the way the father acted. The father began to stare at her and roll his eyes during the visit and in the presence of the children.

[388] Mr. Sasarean supervised several visits between June and October 2018. He had the following concerns:

• despite the father expressing concerns about E.'s health at their prior meetings, he did not bring food or drinks to the visit
• on the next visit the father again expressed concerns about E.'s weight but the father only brought a snack. The worker tried to impress upon the father that the children were coming directly from school and were hungry but he denied this and said they went home first and it was the mother's job to feed them. The worker cautioned the father who was angry that this issue had been brought up multiple times
• on a following visit, the father only brought cookies and the children stated that they could see ants in the container. The father allowed the children to eat the cookies while he sat with E. Mr. Sasarean looked and after he saw one ant, he stopped looking; the father then put the lid on the container and put it away and told the children not to eat the cookies and to throw them in the garbage
• the father complained that 2 hours was not enough time for him to bring food and also do work with the children; despite being told that in the midweek visits the children were coming directly from school and so would not have eaten for over 6 hours if they had to wait until they were home, the father still refused to bring any healthy cooked food to the visit
• he had to warn the father again to not whisper to the children during access visit but he needed to talk loudly enough for the supervisors to hear
• despite the A. and E, resisting, the father insisted they needed to finish their French study work; he tried to convince A. to read from a French book and when he wouldn't he gave him a time out but forgot to time the time out and largely ignored A. for the rest of the visit
• he raised his voice at the children when they would not listen to him to clean up

[389] Based on the interviews with the children, they have not requested more time with the father, at times they are not eager to attend visits, at times they express wishing less visits but overall they appear to be generally content with the supervised access visits.

[390] The father presently has supervised access twice weekly for 2 hours, I have some serious concerns about what the father may be saying to the children during these visits as despite many warnings he continues to whisper to them. It was during one of these visits that the children reported that he made racist comments about Ms Goldstein.

[391] Based on his persistent allegations against the mother and her partner, I also have concerns about what he may say to the children about her and her partner. As for example, despite the findings that there was no inappropriate touching of A. by the mother's partner the father submitted that he believes something happened and that the partner admitted in his oral testimony that there was inappropriate tickling but there was no such evidence.

[392] The father has shown a complete lack of understanding the children's basic needs such as providing them with a nutritious snack during his visits. He has difficulty managing his emotions during access visits as there is evidence of several unpleasant exchanges between him and the access supervisors. He has also demonstrated some difficulty in managing the children's behaviour during the access visits.

[393] Even though his access was reduced during the course of these proceedings and even though he was under the scrutiny of the society and the court, he could not change his behaviour, he could not follow the recommendations of the society workers and this resulted in his access becoming gradually reduced and ultimately becoming fully supervised.

[394] I have no doubt that the father loves the children. At this time, it appears to be in the children's best interests to continue to have contact with the father but if he persists in this behaviour there will need to be a consideration as to whether or not access needs to be terminated.

10. Conclusion

[395] During the course of these proceedings, the risk of physical and emotional harm to the children have intensified due to the father's relentless unfounded allegations against the mother and her partner, his breach of the court order regarding decision making with respect to the educational and medical needs of the children and his failure to act in the children's best interests. Despite the best efforts of the society workers from both the CAST and the CCAS and the involvement of other service providers, no progress has been made over the years with respect to the father's ability to understand the needs of the children or the impact of his actions on them.

[396] The father's refusal to accept the outcomes of any investigation or the advice of the society workers, the school principals or the medical professionals if those opinions do not coincide with his own views, raises serious concerns about his level of functioning. The father's repeated allegations that all of the society workers are lying, are biased against him or the children were manipulated into making the statements also raise serious concerns about his level of functioning.

[397] The only possible order available is for supervised access to the father. This order is necessary based on the father's animosity against the mother, the impact of the conflict between the parents, his past history of domestic violence against the mother, the impact on the children of being exposed to such domestic violence, the inappropriate discipline by him and the paternal grandmother against the children, his refusal to acknowledge any inappropriate violence, his lack of any counselling to deal with his anger management issues and the fear that the children have expressed against him and paternal grandmother.

[398] Given that the children are doing well in their mother's care and as there are no protection concerns with respect to the mother, there is no further need for the society to be involved any further.

[399] There will be an order as follows:

1. The children E., C., A. and S. are found to be in need of protection pursuant to subsection 74 (2) (b) and (h) of the Child, Youth and Family Services Act.

2. The children shall be placed in the custody of their mother, N.G. pursuant to subsection 102 of the Child, Youth and Family Services Act.

3. The mother N.G. may apply for all government documents such as health card renewals, social insurance cards and passports for the children without the prior written consent of the father D.G.

4. The mother N.G. shall be permitted to travel outside of Canada without the prior written consent of the father D.G.

5. Access to the father D.G. shall be supervised at the Access for Parents and Children Ontario. Both parents shall immediately contact APCO to arrange an intake appointment. Access shall occur at a site convenient to the mother and at times available to the access centre to occur if possible once a week for two hours. The father shall be responsible for any costs. The paternal grandmother C.H. shall not be present at any access visit unless the mother consents taking into consideration the wishes of the children.

6. The Catholic Children's Aid Society of Toronto shall be notified if a Motion to Change this Order is commenced.

7. The stay with respect to the proceedings pursuant to the Family Law Act shall be lifted only with respect to the issue of ongoing and retroactive child support. A date for a case conference before Justice Sherr, the case management judge, shall be obtained from the trial co-ordinator.

8. Subject to paragraph 7, neither parent shall commence a motion to change without prior leave of the court. Leave to be sought by a Form 14B submitted only to the court and not to exceed three pages setting out the basis for the motion to change.

[400] Counsel for the society shall promptly prepare this order. If no approval or notice disputing approval is served within 10 days, the order shall be presented to the court to be issued and entered without approval.

[401] As this is a child protection proceeding, there is no presumption that the successful party is entitled to costs. I assume that neither the Catholic Children's Aid Society of Toronto nor the Office of the Children's Lawyer is seeking costs. I also assume that in the circumstances counsel for the mother is also not seeking costs. But if costs are being sought, brief cost submissions not to exceed 3 pages with a Bill of Costs and any offer to settle should be served and filed within 30 days and the responding party shall have 30 days from the receipt of the Bill of Costs to serve and file a response. All cost submissions should be filed with the trial coordinator.

Released: January 7, 2019

Justice Roselyn Zisman