WARNING

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

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

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

(8) Prohibition re identifying child.

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

(9) Prohibition re identifying person charged.

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

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

Date: November 26, 2020

Court File No.: Brampton 20108/16

BETWEEN:

THE CHILDREN'S AID SOCIETY OF PEEL

Applicant,

— AND —

P.D. and K.D.

Respondents

Before: Justice Philip J. Clay

Heard on: August 31 to September 18 and October 5, 2020

Reasons for Judgment released on: November 26, 2020

Counsel:

Ms. G. Williams — counsel for the applicant society
Mr. L. Levine — counsel for the respondent father
P.D. — on her own behalf
Ms. M. Leonard — counsel for the child through the Office of the Children's Lawyer

CLAY J.:

PRE-TRIAL MOTIONS

[1] At the opening of trial Respondent mother P.D. stated that she had two pre-trial motions. The two motions were served upon the parties, but not accepted for filing by the court as they were brought after the July 31 deadline for all materials to be filed.

[2] I stated that I would receive the materials and determine if the motions should proceed to argument.

Contempt Motion

[3] The mother's motion to find the Society in contempt of the temporary access order made in this proceeding was dismissed as the issues raised would be addressed in the trial.

Recusal Motion

[4] The mother brought a motion seeking to have me recuse myself due to prior involvement in this file. This issue had already been addressed in an endorsement prior to trial. There have been domestic and child protection proceedings in this court for years. My only involvement was to dismiss the mother's urgent motion brought in the domestic file to require the father to take the child to an activity on his weekend time. I held that the domestic file was stayed due to the ongoing child protection proceedings which addressed access issues.

[5] The law with respect to recusal motions was set out by Justice P. Cory of the Supreme Court of Canada as follows:

The litmus test for bias is what would an informed person viewing the matter realistically and practically - and having thought the matter through conclude. Would he or she think that is more likely than not that the judge, whether consciously or unconsciously would decide fairly. Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369.

[6] In Bailey v. Barbour, 2012 ONCA 325, the Ontario Court of Appeal wrote:

[19] In addition to this "high" threshold set out by Cory J., the Supreme Court has made clear that, in those cases where a party seeks the recusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of judicial impartiality. Moreover, "in any case where the impartiality of a judge is in question, the appearance of the matter is just as important as the reality …

[7] I find that my past involvement in dismissing one motion for procedural reasons would not cause an informed person to think that I could not decide this matter impartially. The recusal motion was also dismissed.

OVERVIEW

[8] The matter before the court was the Society's three times amended Child Protection Application which sought a child protection finding that the child was likely to suffer emotional harm demonstrated by certain behaviours resulting from the actions, failure to act or a pattern of neglect on the part of the child's parent. The child was in the primary care of the mother since birth and the Society's concerns regarding emotional harm relate only to the mother. The Society had no protection concerns regarding the father. The Society sought an order that the father be granted custody of the child. The Office of the Children's Lawyer ("OCL") and the father supported the Society's position. The mother sought a dismissal of the Application and the return of the child to her care.

[9] The parties lived together from their marriage in March 2011 to November 2012 although during that period they were separated for a few months in the summer of 2012. Their only child was born on […], 2011. At the time of the parties' separation the mother moved out of the parties' basement apartment with the child. They were unable to arrange access and the father brought an Application. A section 112 report from the OCL was completed on May 29, 2015. The parties with the assistance of counsel and based upon the recommendations in the OCL report ultimately entered into Minutes of Settlement that became the order of Justice S.V. Khemani dated January 28, 2016 which granted custody of the child to the mother. On February 25, 2016 the father was granted overnight alternate weekend access. This custodial arrangement was still in place when the Peel Children's Aid Society (PCAS) became further involved and remained in place until November 26, 2019 when the child was placed into the custody of the father in the course of this child protection proceeding.

[10] The Society had a brief opening of a file in June 2014 when the mother suspected that the father might have sexually interfered with his daughter during access. The child was seen at The Hospital for Sick Children's Suspected Abuse and Neglect team ("SCAN") and there was no physical evidence of abuse.

[11] Most of the critical evidence in this matter occurred in the period July 2016 to January 2017 when there were a number of investigations of possible sexual abuse of the child by the father. There was never any physical evidence of abuse, but that of course did not necessarily mean that abuse did not occur. The investigations focused on the statements made by the child when she was only 4.5 years old.

[12] The mother only directly contacted the Society in July 2016 as other third parties called the Society on the other occasions. However, as will be noted in the evidence set out below it was the Society's theory that the mother's actions directly led to the child's statements. The child was interviewed by professionals on a number of occasions. The mother's position at trial was that no one was listening to her child which led to the child being repeatedly sexually abused by her father. The father denied all allegations of abuse.

[13] The Society relied on reports from the investigators which addressed the statements, the context to the statements and the inconsistency and ultimately the credibility of the statements. The Society concluded that the child would continue to be pressured into making negative statements about the father and that the mother would continue to ensure that further investigations were done until the police and/or the Society, took action. The mother was convinced that there was historic and ongoing abuse and that this abuse was being ignored by the very people she felt should do something to stop it. It should be noted that based upon the conclusions of a hybrid parenting capacity/psychological assessment of the parents completed by a psychiatrist, the Society was of the view that the mother had a personality disorder that caused her to believe that her daughter was being harmed even when there was no credible evidence that anything was happening. The child has lived in the temporary care of the father since November 26, 2019 and there have been no concerns seen by, or reported to, the Society and that is why they are proposing a final custody order in his favour.

THE VOIR DIRE

[14] At the trial management conference, the presiding justice noted that all of the parties wished to tender as evidence the out-of-court statements of the child. The judge determined that before any such statements could be admissible as evidence at the trial a voir dire would need to be held. A voir dire is a separate proceeding from the trial at which a trial judge has to determine if the conditions precedent to the admissibility of the proposed evidence have been met. On consent, the case management justice ruled that parts of the evidence at the voir dire could be evidence at the trial. The trial was organized to have the voir dire on all child statements proceed prior to the main trial.

[15] The law governing the admissibility of child statements was first established in R. v. Khan, 1990 2 S.C.R. 531. The court held that child hearsay can be admitted as an exception to the hearsay rule using the principled exception to the hearsay rule. This involves a two-part test. The first part is to determine whether the statement is necessary; and the second part is to decide if the circumstances under which the statement was received show that the statement is reliable. As this pre-admissibility stage it is threshold reliability that must be considered, not ultimate reliability. In other words, if the statement was received by an objective third party whose has a legal duty to accurately record the statement, then the statement would likely meet the threshold reliability test. If the statement is received by a party or a witness who has an interest in the outcome of a proceeding, it is less likely to meet the threshold reliability test.

[16] The other complicating factor is the purpose for which the statement is being tendered. A hearsay statement cannot be admitted into evidence as proof of the contents of the statement unless the statement comes within an exception to the hearsay rule. As noted for child statements that is the principled exception test. A hearsay statement being tendered simply for the fact it was made can be admitted into evidence.

[17] In Children' Aid Society of Toronto v. G.S., 2018 ONCJ, Justice S. Sherr, in a very helpful analysis looked at the principled exception category of statements that were sought to be introduced for the proof of their contents and also looked at other child statements that were sought to be introduced as state of mind statements. Finally, he considered statements that were admissible for purposes other than the truth of their contents. He stated at para 50:

If the court hadn't admitted the statements for the truth of their contents, it would have admitted the statements the child mad about the father for the purpose of demonstrating the nature of her relationship with him. The society and the child's counsel should be free to argue that the statements the child is making, whether true of not, are indicative of a damaged relationship the child has with the father. The father should also be free to pursue his theory that these statements are indicative of the child being unduly influenced by the maternal aunt. The statements that the child made about incidents that occurred while she lived with the father are admissible for these purposes.

[18] In the course of the voir dire it became clear that the child's statements were interwoven into every area of evidence. In fact, steps taken or not taken by the mother and the Society were based upon their respective views of the significance of things stated by the child. It would have been completely artificial, not to mention very confusing to complete a voir dire on every statement that the child made and then conclude the voir dire to see what if any evidence was left.

[19] I decided that the best way to approach this matter was to make the voir dire part of the trial. I decided to hear all of the evidence and then make a determination as to whether the child's statements were admissible based upon all of the facts in the evidentiary record.

[20] Ms. Leonard for the OCL stated at the trial management conference that the OCL would not be taking a position based upon the stated views and preferences of the child. She said that was because the child's statements were inconsistent, changed over time, and there was evidence that the child was not making statements independent of the influence of her mother.

[21] Ms. Leonard said her position would be based upon the totality of the evidence. She had no objection to all of the child's statements being received by the court for the fact that they were made. She wanted the court to consider the context of the statements and the surrounding factual foundation or lack of same. She asked the court to consider the child's demeanour and emotional state when certain things were said. Ms. Leonard said it was not possible to reach any conclusions just on the fact of a statement without considering all of the other statements made.

[22] Initially the Society and the parents wanted certain statements admitted for different reasons. Ultimately, all parties agreed that all of the statements should be received into evidence for the fact that they were made with the ultimate reliability of the statements to be determined based upon all of the surrounding evidence. It must be noted that the mother was adamant that all statements made by the child relating to abuse by the father, his family or his friends must be believed. She felt that any failure of the child to make disclosure about the abuse to the OCL, the police or SCAN was a direct result of improper questioning or intimidation. She said any recantation by the child of past statements concerning abuse was the result of extreme pressure placed upon the child by an abusive father.

[23] I determined that I would admit every statement on the basis of the fact that it was made. Many statements that might not meet the threshold reliability test resulted in actions being taken or not taken and therefore receiving evidence of the child's out-of-court statements was critical to the understanding of the narrative of events

[24] Having said that, I will set out my findings with respect to the principled exception test.

Principled Exception Test

[25] In the course of hearing evidence on the voir dire it became very apparent that the child who was between the age of 4.5 to 6 years old at the time of the statements had given many quite inconsistent statements to a number of individuals. It was clear that the child was too young to give evidence and to be cross-examined. If the statements were to be received it was necessary, that the out-of-court statements be received.

[26] With respect to the second ground of the principled exception test, I found that there were three broad categories of statements:

(1) Statements made to the Peel Regional police, the Halton Regional police and the SCAN interviewer that were the result of scheduled interviews that were videotaped and for which an objective summary of the evidence or a transcript of the evidence was available to the court.

(2) Statements made to third parties such as the PCAS, a teacher, play therapists and the clinical investigator for the OCL which were either not taped and transcribed or for which there was not sufficient authentication of the tape or transcript for it to be admitted.

(3) Statements made to the mother or the father or to a friend of the parties or to a non-professional third party.

[27] The voir dire began with evidence of the two police officers. Each of them brought with them the video of their interview, a copy of their notes and a summary and the mother provided a transcript of the Halton police interview. The officers were cross-examined. The interview done at SCAN was conducted by Ms. Kirkland-Burke and I qualified her as an expert in interviewing children. The video was also presented in court. I find that this evidence clearly met the threshold reliability test and would be admitted into the main trial at which time ultimate reliability would be determined.

[28] I also find that the second category of statements would meet the threshold reliability test. These people were involved with this family as part of their professional responsibilities. With the exceptions of the teacher they were able to make contemporaneous records of what was said. They had no personal interest in the outcome of the trial. I recognize that Society employees work for the Applicant, but they had their notes and they were cross-examined upon what they heard.

[29] I include statements made to both play therapists in this category. Much was made of the fact that the mother arranged the first play therapy and may well have been looking for the child to make statements so that she could rely upon the to terminate access. On the other hand, the mother accepted a referral from a physician and while the therapist called as a witness had no independent recollection of the statements the video taped statements were reviewed by the police and Society and led to the SCAN interview.

[30] The second play therapist was arranged by the Society and again that person was fulfilling a professional role in conducting play therapy. There may well be much concern as to what was said by the mother to the child before or after the play therapy, but at the play therapy itself there was an environment that leads me to conclude that statements made there met the threshold reliability test and should be admitted as evidence.

[31] I find that statements in the third category would not meet the threshold reliability test. This included the statements made to H.G and S.G. though neither of them knew the mother prior to the day the child made statements and have not had contact with her afterwards. I find that statements in this third category would not meet the test of threshold reliability and should not be admitted as evidence as to the truth of the statement. Utterances made by the child in the home, in a car, in a public place do not have the assurance of reliability that statements made to a professional have. This does not mean that these statements are not true. There is a difference between threshold reliability for the admission of a statement and ultimate reliability on the statement for the truth of its contents.

Conclusion

[32] The child made statements to persons in all three categories that alleged abuse by the father. She also made statements about her close and loving relationship with her father. As will be seen it is not the truth of any statement that was most important, but the fact it was made. I find that all of the child's statements needed to be in evidence for the court to be able to determine whether the child had suffered or will suffer emotional harm.

THE EVIDENCE

[33] There are certain distinct periods of activity in this matter. The first is the parties background and parenting of S. up to July 2016. The second is the investigations by the police, the PCAS and SCAN in the period July 2016 to the Easter weekend in 2017. The third period was from April 2017 to November 26, 2019 a time frame that included the hybrid psychological/parenting capacity assessment and the new allegations in the fall of 2019. The fourth and final period begins with the transfer of custody to the father and includes the OCL interviews and the mother's supervised access up to the time of trial.

[34] Rather than address each witness' evidence in turn, especially since some witnesses were called out of order, I will set some background from the parent's evidence and then set out the evidence of each witness as it relates to each period.

THE FIRST TIME PERIOD: EVIDENCE UP TO JULY 6, 2016

Father's Background

[35] The father said that he came to Canada from Kenya in 1988 when he was 10 years old. He is now 42 years old. The father has a business administration diploma from Sheridan College. He worked for a bank as a business advisor from 2000 to 2005. He met the mother there in 2003. They married in March 2011 and S. was born on […], 2011.

[36] Between 2010 and 2013 his own father was very ill, and he tried to keep his father's manufacturing business going but was ultimately unsuccessful. The parties' marriage was under a great deal of stress from the outset and the father said that some of the stress was related to family issues and some to financial strain as he was not earning much money. The parties separated in November 2012.

[37] The father lives with his mother and his twin brother in Milton. He has been licensed as a real estate agent since 2011 and now works as an assistant real estate agent. He has two sisters. One sister lives in Virginia and is married with 2 kids aged 13 and 7. Pre-pandemic they see each other about four times per year usually at the father's home. His other sister is married with a 7 year old son and he sees her quite frequently.

[38] When the mother became pregnant with S. the parties were residing with the paternal grandparents ("PGP"). There was a lot of tension and conflict. The mother alleged that the PGM hit her when she was pregnant. There was a family meeting that did not go well, and the end result was that the parties moved to the home of the mother's sister where the maternal grandmother ('MGM") resided.

[39] One day in May 2012 the father said that he returned from an open house to find the mother on the floor. There was a spilled bottle of Advil tablets and the mother told him that she had had a fight with the MGM. The MGM said that the mother had hit her on the wrist with a kitchen utensil. The mother called telehealth at the father's insistence and the PCAS were notified. Following this incident, the mother left her sister's home with S. and moved into the home of her friend M.D.

[40] The father stayed with the maternal aunt and MGM and visited S. at M.D.'s home in the summer of 2016. The mother then moved with S. into a basement apartment. The father moved into the basement in mid-October 2012. There was an incident there on November 27, 2012 that caused the police to become involved. No charges were laid. The mother and S. moved to a family shelter. The father remained in the apartment for a couple of months and then moved in with the PGP and ultimately moved with them from Brampton to Milton.

[41] Following this final separation, the father said that he was not able to see S. for about 2.5 months. He was never allowed to spend time with his daughter when the mother was not present so his parents could not see their granddaughter. On August 30, 2013, S.'s paternal grandfather died without ever seeing her.

The Domestic Proceeding

[42] The father said he issued an Application on June 18, 2013 because he was not getting to see his daughter. He said that the mother did not permit a relationship between S. and her maternal or paternal family. On October 23, 2013 there was an order made in the Children's Law Reform Act (" CLRA ") file for the father to have unsupervised access every Saturday for three hours. By December 19, 2013 the mother had a temporary custody order and the father had access every Saturday for 8 hours. On December 11, 2014 the OCL was asked to investigate.

The First Investigation

[43] In June 2014 the mother arranged to have the child seen by the SCAN team over her concerns that the father had sexually interfered with S. The child was only 2.5 at the time and there was no physical evidence of abuse. The PCAS were notified and met with the father. After the investigation the concerns were not verified.

The Final Court Orders

[44] The father explained that the mother had made his contact difficult with S. immediately after the separation. A section112 report was completed by Chris Caley-Jones on May 29, 2015. The parties ultimately signed Minutes of Settlement in accordance with the clinical investigator's recommendations. The father said that after he received the OCL report he thought it best just to agree to the mother having custody and try to make an access schedule work. A court order was made on January 28, 2016 by which the mother had custody and the father obtained overnight access. By February 25, 2016 that access became Friday at 3:30 p.m. to Sunday at noon every alternate weekend. This access order remained in place in the domestic file until November 26, 2019 when it was superseded by the temporary order made in this file.

[45] The father said that he was not informed about major decisions the mother intended to make. S. was registered into Montessori school without his knowledge much less input. The father said he was never informed about school events and if he did find out about them the mother took steps to ensure that he could not be involved. The father said that he cannot recall any instance in which the mother has attempted to cooperate with him. The father described a relationship dynamic with the mother in which she always did what she wanted, and he became resigned to accepting her decisions as he did not want to make waves for fear of losing his contact with S.

[46] The child support issue was not resolved and in the spring of 2016 the matter was set for trial. That trial never occurred due to the onset of the child protection proceedings. The Society had remained involved with the parties on a voluntary basis after the 2014 opening and by June 2016 the assigned worker was Amanda Jarvis.

[47] Due to allegations of sexual abuse of his daughter the father's access was suspended after July 6, 2016.

Mother's Evidence to July 2016

[48] The mother said that she grew up in India the youngest of nine siblings, she has five brothers and three sisters. Her parents immigrated to Canada in 1985 and she was left behind with an elder sister and a brother. She was just ten years old at the time. Her elder sister took care of her and she also lived with her paternal grandparents and went to a residential school.

[49] The mother immigrated to Canada in 1992 when she was 18 years old. She was placed into grade 10. The mother was quite intelligent and did very well at school. She obtained a degree in information technology from Humber College in 2001. She obtained a job at a bank and met her first husband. There was an arranged marriage. She moved with her first husband to England as he found employment there. The relationship ended soon after and they divorced.

[50] The mother came back to Brampton in 2002 and got a job at a bank. She met the father in 2003. They worked in the same location, but on different work teams. They dated but broke up around the time of her father's death in 2007. The mother said that her father was badly assaulted by her brothers in 2006 over a dispute regarding property in India. He was hospitalized. Her brothers were charged with offences. One brother was charged with attempted murder, but the case never went to trial. This led to a permanent breakdown in her relationship with all of her brothers and all but her eldest sister (from whom she is now estranged). The mother did see a psychiatrist in 2010 for general stress in her life secondary to family issues.

[51] The mother said that the father pursued her, and the parties got back together and married in March 2011. The mother said that after the marriage they moved in with the father's family. She said that there was a lot of conflict and fighting. She soon became pregnant. The mother said that the father's mother assaulted her when she was pregnant. She moved out of the paternal family home into a home with her mother and sister. She said the father divided his time between his family's home and sometimes sleeping over at her mother's home. S. was born on […], 2011.

[52] In May 2012 the mother said that after a dispute with her mother, in which the father supported the MGM, she and S. moved out of the maternal family home and into the home of her friend M.D. She then moved into a basement apartment. The party's tried marriage counselling and eventually the father moved into the basement apartment for about six weeks. The parties separated for the final time in November 2012. There was an incident and the police were called. Both parties say the other assaulted them and no charges were laid. The mother moved in with M.D. again and the father ended up going to his parents.

PCAS First Involved

[53] The mother contacted the Society in January 2014 with concerns that the father was not feeding their one-year old child properly during his access time which was then from 10:00 – 6:00 p.m. on a Saturday. She also complained that the father had cut the child's hair.

[54] Maxine Francis was the PCAS worker assigned from January to March 2014. After interviewing both parents she referred them to co-parenting classes. Both parties allege the other resisted attendance. They never did attend the classes recommended by Ms. Francis. Ultimately a court order was obtained on February 21, 2014 for them to attend classes together.

The June 2014 Investigation

[55] The mother said that in early June 2014, S. returned from a visit and started running around the house screaming "Dada Dada." Her friend M.D. made a video of this. I did not permit the video to be played as it was not on consent and it was not authenticated. The mother said she was worried that the father had done something to S. so she spoke to the person who ran the parenting class that both parents were attending at the time. That person reported the mother's statements to the PCAS. This led to the child being examined at SCAN on June 4, 2014. There were no findings made.

[56] After this first investigation visits still took place every Saturday. A PCAS worker continued to meet with the mother and child.

The Father's Access to July 6, 2016

[57] The father said that beginning in March 2016 he had every alternate weekend access and Friday evening access. The father said he would arrive at the school for the Friday pick up at 3:45 and wait in the hallway. The mother would always be there when he picked up. S. did not look at him while her mother was there, but as soon as she left S. would give him a hug. He said it was a very tense situation every Friday at S.'s school and the mother had no reason to be there when he was picking up.

[58] With respect to drop offs, he said that S. would give him a hug in the car and hold his hand when they walked to the Tim Hortons where the child was exchanged. The father said that when they came within view of the mother S. would let his hand go. S. told them that when she is waving hello to her mother, she is waving goodbye to him secretly from behind. The father said that S. often told him that her mother would get upset if she showed any affection towards him.

[59] The father said that during drop offs the mother would yell at him and make accusations right in front of their daughter. As soon as S. was exchanged, he would walk away, but when he looked back, he could see that the mother had put S. on a table in the restaurant and lifted up her clothes to do an examination of her body.

Report Made in the Spring of 2016

[60] Ms. H.G. filed an affidavit and was cross-examined. She said that she met the mother and child in the spring of 2016 when they attended weekly prayer meetings for a few weeks. On one occasion she was babysitting S. when the child began to touch her various body parts. When asked why she was doing this the child responded that her father touches her like that and he "pokes her down there". The child said that it hurt and sometimes she thinks she is going to bleed. S. said she had not told her mother as she did not want to upset her. She went on to say that her father is evil because he lies to her and does things to her. The child reported that her father took her to a stranger's house and the stranger put a knife to her neck.

[61] H.G. made a report to the PCAS. She said she knew to do this as at the time she was working for the YMCA. She said it was the only report she had ever made to a Society. She spoke to a worker and provided all of the information that she set out in her affidavit. It was not clear if H.G. provided her contact details to the PCAS. H.G. said she had not talked to anyone after making the report. As it happened there were other reports soon afterwards and H.G.'s report came to light in the course of the disclosure process.

[62] H.G. was a very good witness. She was completely objective. She had only met the mother and child a few times at this prayer meeting that her own mother organized. She had never met the father. The mother and child attended the prayer meeting a couple of times after the disclosure and before H.G. moved out of Brampton in July 2016.

[63] H.G. said she had a lot of experience in caring for kids and they seemed to relax around her. She was clear that she was alone with S. when S. made the statements referred to above and that the mother was far enough away that she could not hear them. H.G. said she told the mother about the disclosure and the mother appeared shocked that S., had told her this. The mother assured her that she would follow up which is why she was not too concerned when no on from the Society responded to her report.

THE SECOND TIME PERIOD: JULY 4, 2016 TO APRIL 14, 2017

[64] As noted above, the final custody order was made on January 28, 2016 and the final access order on February 25, 2016. The child support issues were still before the court.

[65] Soon after the two night overnight visits began the mother said that she started noticing changes in the child's behaviour. S. began licking her hands, and refusing to eat, she stopped communicating after access and resisted going to pre-school. The mother said that S. "had a completely different personality."

[66] The mother said she was very concerned, and her good friend M.D. shared her concerns. The mother and M.D. went to see her long-time family physician Dr. Lin on July 4. The other reason for the doctor's visit was apparently because the child fell on a few steps on July 3rd, so the mother wanted the family doctor to check her head. After hearing the mother's concerns Dr. Lin recommended counselling for the child. The mother followed that up and she was eventually referred to the Family Enhancement Centre ("FEC.")

[67] On July 6, 2016 the mother contacted the Peel Regional Police ("PRP") to report concerning behaviours by the child. They included the child sucking her fingers. M.D. gave evidence to corroborate the mother's concerns and she related that S. refused a candy, but started licking M.D.'s hands while they were in the mother's car. The mother stated that she thought the father was doing something to the child during access visits. Although she did not directly say it, the mother was clearly concerned that the father had engaged the child in oral sex, or the child had observed same. The police officer assigned was Constable Neil Harris. He contacted the PCAS and arranged with Ms. Jarvis for a joint interview of S. to be done on July 6, 2016.

PRP Interview

[68] Detective Neil Harris (as he now is) gave evidence. He stated that he had worked with the PRP Special Victims Unit ("SVU") from 2013 to 2017. In that time, he had interviewed 80 to 100 children. Detective. Harris brought with him a video of the interview which the court watched.

[69] The interview began with the officer describing the room and how everything was set up. S. hugged her mother who was permitted to remain in the interview room. The officer began with questions designed to put the child at ease. He then gently moved to the relevant line of questioning.

[70] S. spoke very softly and looked around the room. She said she had been with "Daddy " for two months when in fact alternate weekend access had been in place for about four months. S. then said that her Dad lies to her, but he pretends to be good and he wants her to keep secrets from her Mom. She said the secrets are lies about Mom. S. then talked about going swimming with her Dad at a pool and how he is was good at going underwater. In a matter of fact voice, with little emotional content, S. then said that her father "is a bad person to her. "He is bad because he likes being bad." She added that "My Mom says Daddy is bad." When asked why, she said that S. said her Daddy wanted her to kick bad strangers out of the house. She said her Dad's house was not her favourite house and she does not like spending time with her "Cha Cha" (her uncle-the father's twin brother). She then said that does not like it when her Dad does "something suspicious her" He wants me "to get hurt and drown." S. then said that her father does evil. At this point, she kept looking to her mother. She seemed uncomfortable and she wriggled in and out of her chair.

[71] Immediately after mentioning about 'evil' the child started talking about toys. When talking about benign things she was quite talkative and had to be re-directed by the officer.

[72] S. then mentioned that her cousins were not nice to her. In response to questions she said she sleeps on the bed and her father slept on a mattress in the same room. She then went on to say that her father "always does something to bad to me, he likes causing trouble to me and my Mum."

[73] S. then returned to saying her Dad did "something suspicious" and when the officer asked like what she responded like "like stealing and breaking my toys." In the course of the interview S. also mentioned that her father "has a stranger friend with hundreds of names - he looks like a monster'. She said that her father makes her eat something poisoned and there were worms in her noodles. S. added that her father "kisses me on my lips at bedtime."

[74] At no time during the interview that I watched did S. change her mood or demeanour to match the content of her statements. She spoke softly, was quite distractible and jumped back and forth between half formed thoughts. Her presentation appeared to be age appropriate. She made negative statements about her father without changing her affect and then quickly moved on to subjects like toys or swimming that she appeared to feel more comfortable talking about.

[75] After the interview, then Constable Harris had a conversation with Ms. Jarvis. He told her that based upon the interview there was nothing for the police to investigate. Ms. Jarvis said that the PCAS will monitor the situation to see if anything developed.

[76] In her direct evidence by affidavit Ms. Jarvis told the mother that she had no concerns with the father resuming access with the father. (Pending the investigations by the Society and police the father voluntarily suspended his access). Ms. Jarvis asked the mother to not expose the child to negative statements about the father. Ms. Jarvis reported that the mother told her that the child may have overheard her talking with a friend. The mother raised the issue of whether play therapy could help the child and Ms. Jarvis stated that it can be helpful in children expressing themselves. A follow-up meeting was scheduled for July 11.

[77] The mother then brought an urgent motion to suspend access on July 8 and the father tried to enforce access by contacting the police, but they could not take steps as the order did not contain an enforcement clause.

Chantal's Place

[78] The mother said that when the child learned that she was not going to be required to attend for access she made more disclosures.

[79] On July 11 the mother's then lawyer contacted Chantal's Place. It is an examination and treatment centre for victims of sexual assault and domestic violence affiliated with the Trillium Health Centre in Mississauga. Ms. Jennifer Keeler gave evidence. Ms. Keeler had qualified as a sexual assault examiner in 1995 and had led the team at Chantal's Place since 2002. In 2006 she had done peer review for the SCAN team and in 2015 she obtained her certificate as sexual assault nurse examiner. Since 2002 she had done all of the pediatric sexual assault examinations in Peel and other cases referred from other places in the Greater Toronto Area ("GTA"). She saw about one child per week in that time frame. She was qualified as an expert in the area of the investigation of possible sexual assault or sexual interference of pre-pubescent children.

[80] Ms. Keeler said that the mother's lawyer called the clinic at 9:30 a.m. on July 11, 2016 to state that she wanted to schedule an appointment for a 4.5 year old child who had yet to be medically seen after being with an alleged perpetrator on July 5. Ms. Keeler asked that the mother call the clinic directly. At 10:20 a.m. the mother called and left a message that she was on the way to the clinic with the child. Ms. Keeler re-arranged her schedule to be able to see the child when she arrived. The mother told her over the phone that the child had been interviewed by the police, but a male officer had been assigned and the child was "terrified of him." The mother said she had to have the child seen right away as she had an appointment with Ms. Jarvis of PCAS at 4:30 p.m. that day.

[81] When the mother and child arrived with the mother's friend Ms. Keeler told the mother privately that she would examine the child, but she would not ask her any questions about the alleged assault. Ms. Keeler testified that she asked the mother for the history. The mother related that she believed that the child had been sexually assaulted by the father, the uncle and two friends on or about July 5 when the child was with her father for overnight weekend access. The mother said that the child told her "Dada told me to hit you, he is evil." Ms. Keeler said that the mother was very emotional- in her notes she had written "weepy +++."

[82] Ms. Keeler said that she explained to the mother the limitations to a physical examination. She said that more often that not with younger children she does not find physical evidence. She also said that just because there was no evidence did not mean that nothing happened.

[83] After hearing that the last possible contact with the father was 6 days earlier Ms. Keeler thought it unlikely that she would find anything, but she did a full examination anyway. She said the child said that "it burns when he touches me". She did find non-specific slight redness in the child's labia majora, but she said that would not be attributed to contact with the alleged perpetrator.

[84] Ms. Keeler testified that S. was alert, happy and age appropriate. She said she definitely would have noted if she thought she acted in an unusual way. Ms. Keeler said that she discussed with the mother sexually transmitted infections in children and she told her that they can be painful. She said if the child had discharge then she should have her tested. She told the mother that even if the child was not symptomatic, she could come back in 6 weeks time so that they would only have to test once. Ms. Keeler said that the mother did not come back, and she had no further contact with the family.

[85] Ms. Keeler then telephoned Ms. Jarvis while the mother was still present. Ms. Jarvis said that there would be another interview with the SVU.

Family Enhancement Centre

[86] The mother contacted the FEC and arranged for play therapy for S. The therapist assigned was Maureen Pangan. She was called as a witness by the mother. Ms. Pangan had no independent recollection of the therapy which had occurred four years before. The child went for therapy on July 12, 14, 15, 16, 19, 20, 21 and 26, 2016. Ms. Pangan said that she did not schedule the sessions. She said that usually clients would not come in more than once per week.

[87] The mother had requested that the sessions be both audio and videotaped. Ms. Pangan said that this was the only occasion where therapy had been videotaped at FEC. Usually, she just prepares a short synopsis if requested by a client.

[88] Ms. Pangan admitted that she signed an affidavit at the direction of Ms. Dawn Griffiths who is the owner/manager of FEC. Ms. Griffiths' own affidavit was not accepted by the court and she was not then able to testify. Ms. Griffiths had no personal involvement with the child and the affidavit tendered was not based upon facts in this particular case, but rather set out her general views about the sexual abuse of children.

[89] Ms. Pangan admitted that the focus of the treatment was to address the sexual abuse of the child. She added that she did not know if S. was abused and she was aware that there can be false allegations.

[90] On July 26, 2016 Ms. Jarvis said that Ms. Griffiths called her and told her about disclosures that the child had made. She asked Ms. Jarvis to pick up the video recordings. On July 27 Ms. Jarvis watched the recordings with P.C. Harris. In her trial affidavit Ms. Jarvis said during play therapy S. said that her father makes her suck his "shu shu" which the mother said was a reference to his penis. The child also reported that:

(a) He took her clothes off, was playing with something and was looking "there"

(b) He touches her "behind me and in front of me"

(d) "He got me a cake and it was so poisonous and I don't like it"

(e) "He tried to put me in jail"

(f) "He hit me on the face, really badly"

[91] Ms. Jarvis and P.C. Harris thought that S. should be interviewed by the forensic interviewer at SCAN - Ms. Meredith Kirkland-Burke. The interview was scheduled for August 4, 2016.

[92] Ms. Jarvis spoke to the father on July 29 and he agreed to put his access on hold pending the interview. Ms. Jarvis transferred the file to the new worker Jennifer Lyttle on August 2, 2016.

August 4, 2016 SCAN Interview

[93] The PCAS and the PRP decided that the Halton Regional Police ("HRP") had jurisdiction as the father lived in Milton. P.C. Wendy Clayton was assigned to the file and she attended at the interview.

[94] Ms. Kirkland-Burke gave evidence. Ms. Williams sought to qualify her as an expert in the field of the forensic interviewing of children. Ms. Kirkland Burked has been conducting forensic interviews for SCAN since 2002. She was certified in 2012 by the National Association of Child Forensic Interviewers in the U.S. She provides training to police forces and children's aid societies. She heads the SCAN interview team and she and her colleagues are the only specialized child forensic interviewers in Ontario. Most of the cases she deals with are children between the ages of 3 and 7 as those children have additional challenges that more mature children do not have in being able to relate what, if anything, happened to them.

[95] Ms. Kirkland-Burke got a brief history from P.C. Harris on July 27. He provided the DVD of the original interview and he also provided the summary of the child's statements and the mother's statement. The interviewer also spoke to the mother to get additional information about S.

[96] Ms. Kirkland-Burke said that she took the child into the interview room and P.C. Clayton and her own forensic team colleague watched from behind one-way glass. The mother was insistent that the child told her that another person was in the interview room and that S. kept looking at her. Ms. Kirkland-Burke said that was not correct, but the mother chose to believe her 4.5 year-old daughter and said that Ms. Kirkland-Burke, the PCAS worker Jennifer Lyttle and P.C. Clayton, all of whom testified, were incorrect.

[97] The interview was videoed, and a tape was played in court. The tape was 46 minutes long. P.C. Clayton's notes said that the interview started at 11:36 and ended at 12:31 which is 54 minutes. The mother asked what happened during the missing minutes. Unlike the DVD's received directly from the police, the SCAN interview tape did not have a date and time stamp. The mother believed that someone must have edited the tape before it was disclosed. Ms. Kirkland-Burke said the police officers usually turn the camera on and off. She said she did not know why the tape was shorter than the time frame written down by the officer in her notes, but she knew that was what depicted on the tape was the full interview.

[98] Ms. Kirkland-Burke said that her plan is always to put the child at ease and then slowly build rapport with the goal of moving from easy topics to ones where that might be more difficult for the child to talk about. In this case S. quickly said in a matter of fact way that "I don't like him and he's rude… he's a bad man" S. displayed no emotion as she went on to say:

(a) He takes kids toys from her house and other kids houses.

(b) He keeps secrets from my Mum - he cut me here - give me bad food and they don't care

(d) A hundred times he slapped her

[99] The court was able to observe on the video that S. then quickly switched to talking about the crayon box in front of her. As the interviewer noted there was no change in her mood or attitude.

[100] S. wriggled about in her chair throughout the interview which seemed age appropriate. She also changed subjects quickly and went from engaging in play with the interviewer to throwing out statements like:

(a) He knows evil bad people -

(b) Puts his bum (here) - pointing to her chest.

[101] S. was unable to describe the room her father's house where this occurred. She could not describe any details other than that she was lying down when her father did this. At one point S. said to the interviewer "Forgot what I say about secrets - dada says listen to moma and dada" and then she went right back to talking about the colours of the crayons.

[102] S. then tells Ms. Kirkland-Burke that:

(a) Her father cuts her everywhere and shoots her with an arrow

(b) He uses his knife - it is sharp and it bends -it is called a sword

(d) A thousand times cut with the sword

(e) Can't show marks

(f) if he goes to jail he will have nothing

[103] Ms. Kirkland-Burke tried to explore the statements and the child said that she had no "hurts" on her body. As S. continued to colour and talk the interviewer tried to re-direct her to the slaps on the face-the child avoided the question. When she tried to go back to the knife or sword the child simply said without any emotion that most times he pokes with a sharp pen. S. then mentioned that her father hides from the police.

[104] Ms. Kirkland-Burke said that S. did not give her the opportunity to build the interview to potentially difficult areas as she simply said things about being abused and then moved on. Her statements about the physical abuse lacked credibility in that the statements lacked context and seemed exaggerated or fantastical i.e. cut a thousand times by a sword or slapped hundreds of times without any marks or even any pain.

[105] The father was not the only person about whom S. expressed concerns. She said that at Dada's house "auntie is evil". When asked about that she said that I don't know what she does that is evil- but they are lying. S. quickly jumped to showing the interviewer that she can do gymnastics and she tried a hand stand and fell down. S. then moved to a game that was before her on the table and started peeling off stickers to put in aquarium. Her statements then got merged into the game.

[106] As the interview moved on in this back and forth way, between simple play and the interviewer's efforts to drill down on the bald statements made, S. said that "when I talk about dada my head hurts."

[107] In the course of the interview there were other statements that taken alone could be quite concerning, but as viewed in this interview seemed out of place as they were not connected and lacked any emotion. The child spoke about being cut and slapped and probed in the same way as she spoke about the stickers and the crayons.

[108] Ms. Kirkland-Burke said that is was difficult to reconcile the fantastical statements with the child's presentation. She said that in this case the child had a good vocabulary for her age so this was not a case where the child lacked the ability to express what might have happened with more detail or background.

[109] The interviewer said that for children of this age source monitoring is a challenge. This means that they are not good at knowing how they know something. They often cannot distinguish between an actual experience or something they overhead or something that someone told them.

[110] Ms. Kirkland-Burke said that she was unable to decide on an explanation for the child's statements. She noted that S. was only 4.5 years old and she got off track very easily. She pointed out that S. was not really able to even narrate a morning routine with any detail. She said that because of the lack of context or detail her ability to expand upon a statement was quite limited. She said that this was quite typical for a 4 year old. Ultimately, the interviewer said that the inability to expand could be developmental or it could also be that the child did not have the experiences that she spoke about.

[111] Ms. Kirkland-Burke agreed with the father's counsel's suggestion that the download of statements made early on came after she was asked to describe the therapist's office when the interviewer was starting to build rapport. She said it was possible that the mention of Maureen caused the child to remember the statements that she made to that play therapist. The interviewer said that she did ask the child have you talked to anyone else about this, but the child did not answer that question.

[112] The forensic interviewer said the manner in which the negative statements were made did raise a concern of someone possibly influencing the child and S. had become knowledgeable about some things, but the child did not specifically say that she was told to say anything. The interviewer noted that S. may not be intentionally lying even if she is not telling the truth. This is not uncommon for her age.

[113] Ms. Kirkland-Burk said that throughout the interview if she mentioned "Dad" this was a trigger for a lot of negative statements. There were a lot of spontaneous utterances at the beginning of the interview. She noted S. had very little hesitancy about speaking to her. She did not seem at all distressed or upset when she stated things. The interview was fairy long for a child of her age and she chose to end the interview when S. told her for the second time that she had a headache.

[114] In her cross-examination the mother was critical of Ms. Kirkland-Burke for not following up upon S.'s reference to of a couple of other names as persons who had done things to her. She asked why she did not interview the father or these family members or strangers. Ms. Kirkland-Burke said that this was not her role. Her task was to interview the child. She stated that she did try to explore statements made by S., but the child kept changing topics and was unable to provide any detail about other incidents.

[115] The mother also expressed concern that the SCAN interviewer did not watch the 8-9 hours of tapes from the play therapist or interview the play therapist. Ms. Kirkland-Burke said that generally clinical and forensic interviews are quite different. She noted that the disclosures to Ms. Pangan at play therapy did cause the police to request a second interview of the child, so they did lead directly to her involvement. The mother was clearly not satisfied with this explanation.

The Mother's View of the Investigations

[116] The mother's evidence was that the PCAS acted irresponsibly and put her daughter at risk by telling the father that he could resume access on or about July 22. The disclosure from FEC and the decision for the SCAN interview put access on hold. The mother's evidence was essentially that in this time the PCAS was not taking the child's disclosures seriously and they were failing to protect the child by ensuring that the father had no access. The mother became quite upset with the Society's position and she attended at their offices with M.D. "to get answers." The mother and M.D. wanted to meet not only with the Society supervisors, but with Mr. Rav Bains the Executive Director of the PCAS. They became quite agitated and were asked to leave.

[117] The mother began a Motion to Change in the CLRA proceeding to suspend access to the father. The mother felt that the Society decided to bring a Protection Application due to her complaints. She noted that the PCAS Application stayed her Motion to Change. The mother thought that the police or the Society should have interviewed the father. She thought that the father should have been arrested based upon the child's statements. The mother never trusted the Society after the investigations in the summer of 2016.

Ms. Lyttle's Evidence

[118] Ms. Jennifer Lyttle became the worker on August 3 and attended the SCAN interview the next day. She sat in the observation room and took notes. After the interview she met briefly with Ms. Kirkland-Burke and P.C. Clayton. Based upon this interview and the other information obtained to that point Ms. Kirkland-Burke concluded that no sexual abuse had been disclosed. Ms. Lyttle said that she deferred to the forensic interviewer's expertise. P.C. Clayton advised that there would be no criminal charges brought against the father.

[119] Ms. Lyttle then consulted with her supervisors at the PCAS and the Society decided to issue a Protection Application based upon the parent's high conflict impacting the child and emotional harm to the child caused by the mother for encouraging repeated unfounded investigations.

[120] Ms. Lyttle stated in her affidavit that she spoke to the mother about the outcome of the investigation on August 8 and told the mother that the Society would be verifying emotional harm. Ms. Lyttle said that she told the mother of community services where she could learn skills to co-parent with the father.

[121] Ms. Lyttle stated that she received a voice message from a Global News reporter who advised her that she had obtained her name from the mother. In her evidence, the mother admitted contacting the media to have them investigate the Society for failing to protect her child from repeated sexual abuse by the father.

[122] The father agreed to voluntary suspend his court ordered access when the Society began investigations. In the summer of 2016 this meant that he did not see his daughter from July 5 to September 20.

The First Protection Application

[123] The Application was issued on August 31, 2019 and was returnable on September 7. The Society sought placement with the mother under a supervision order and access to the father in the Society's discretion. A without prejudice temporary order was made by Justice A.W. Sullivan on September 7, 2016. It set out terms of supervision that included the parents refraining from exposing the child to adult conversations and conflict, that the parents participate in counselling with Carey-On Therapeutic Supports and Consulting Services, and that the child undergo play therapy at Carey-On (and not attend FEC).

[124] On September 8, 2016 Ms. Lyttle received a call from SCAN about an urgent gynecological referral made by Dr. Lin, the child's family doctor. The referral was made because the mother believed that her daughter was sexually abused.

[125] On September 12, 2016 the file was transferred from Ms. Lyttle, an intake worker, to Ms. Karen Samuels, a family services worker. The Society's frontline workers were on strike from September 19 to December 19, 2016 so access was supervised by a case aide until Ms. Samuels' return.

Father's Access from September to December 2016

[126] Ms. Natasha D'Souza was a case aide who was hired just prior to the strike. She supervised the father's access to S from September 20 to December 13, 2016. She related some statements made by S. during those visits:

a) September 20 – S. showed her father a necklace and said "I can't show anything because mommy said not to show, it's for a protection thing" S. sat closely to her father and he reassured her.

b) September 27 – S. sat next to her father on the couch then said "I saw a video on Momma's phone that you tricked me and now I don't believe you I believe momma…I don't care about you Momma said that you are evil"

c) On October 4 – S. said "Dada, Momma still doesn't know that we love each other"

d) October 11 – S. said My Momma wants you put in jail" "She said you kinda lie to me" The father said "Remember I just want you to know that we both love and you and don't worry about anything else."

e) October 18, October 25 and November 1 visits featured close and positive interactions with the father reacting appropriately. On November 1 S. did not want to leave the

f) November 8 was a good visit but after S. hugged her father the supervisor noted that the mother was sitting in the waiting area despite the clear instructions to wait in the parking lot. The father avoided interaction in front of the child.

g) November 15 – was a good visit and the supervisor reminded the mother of the exchange protocol, but the mother ignored her

h) November 22 – was a positive visit and the father expressed concern over the long-term effect of this situation on S. He was worried that the mixed messages would cause irreparable damage to her. He was worried that the mother's allegations would continue.

i) November 29, December 3, 6 and 13 were all very positive visits.

j) On December 11, 2016 Justice Sullivan made an order that the overnight alternate weekend access set out in the orders in the domestic file would begin again.

[127] It is clear from the child's body language that she was happy and comfortable with her father. She seemed to be struggling with what her mother was saying about her father and what she was observing. The positive visits following the very serious allegations made in the summer of 2016 allowed the court to return to overnights.

[128] On December 13, 2016 Justice Sullivan re-instated the access orders made on January 28 and February 25, 2016. The pick up for access was to be at the child's school on a Friday at 3:30 p.m. and the return to be at a Tim Horton's at 7:30 p.m. on a Friday one week and on Sunday at noon on the alternate week.

[129] This change to unsupervised access generated new disclosures.

Access Resumption and New Investigation

[130] The father's access resumed on December 16, 2016 and he had 8 days with the child from December 31 to January 8, 2017. The father related the challenges that he encountered when parenting S. during that period. He said that when S. became angry with him, she slapped him in the face. The mother called him daily until January 1. The mother called the police when he did not pick up the phone on January 6 and later that evening the police attended at his home to check on S. The father said that after the police left S. said "my mother wants you arrested" and "did the police come to arrest you."

[131] The mother took the child to a walk-in clinic on January 10, 2017 after she said that S. had told her that her foot was poked with needles during her visit with her father. S. saw a Dr. Bir at the clinic. He told the mother that he would call the PCAS, but there is no record that he did so.

[132] The parents never did participate in the adult counselling required under the court order. The child did attend 12 sessions of play therapy at Carey-On. The therapy led to a report from the therapist to PCAS on January 26, 2017 based upon disclosures made by the child. A referral was made to the HRP.

HRP January 26, 2017 Interview

[133] HRP Detective Cindy Sunstrum gave evidence. The PCAS contacted the HRP after the report from Carey-ON. She had been in the child abuse and sexual assault unit for 6 years. She said she had probably conducted close to 100 other interviews of children. She said that on January 26, 2017 a referral was waiting for her and an interview had been scheduled at an Oakville division of the HRP. The court viewed the video taped interview and received a transcript.

[134] Detective Sunstrum said that the child was not at all reluctant to speak to her and the interview lasted about 40 minutes. The court was able to observe that the child sat on a couch and was very talkative right away. S. was asked about her school teachers and friends and then the detective tried to ask questions to determine if the child knew what it meant to tell the truth. S. said that it was "so we could put bad people in jail." Then without prompting S. put her hand up and in the same conversational tone, she said "my father like he put his privates part to my private part…and also he puts his private part to suck."

[135] The child then went on to say that her grandmother "put lemon drops in my eye and they hurted" S. kept telling the detective stories even when being asked different questions. She said that her father does not give me proper food and he gives me poison. She said the food he gave her "tasted like garbage but her mother gave her proper food." S. also said that she ran away from her father as he had a knife and she had to hide.

[136] S. then got very wriggly and got on and off the couch. She told the detective that there is nothing good about her father and she just "pretended she liked him". She added that the "judge said to my Mom to bring to bring the child to K. (father's first name ) for 8 days." She said that her mother has to go to court to because "she needs to tell everything to the Judge so she-and also my father tell the Judge a lie" She said "she heard about it because my Mum told me" The child was asked what the lie was and her response was "Don't tell him that I made a lie okay…"

[137] A little further on in the interview S. spontaneously said "And my mom doesn't know that I like him so much…" When the detective tried to explore that S. quickly changed the subject to talk about the recording of the interview.

[138] S. also avoided answering questions about the private parts disclosure that she made at the very beginning of the interview. The detective tried to take her to statements that she had made to her play therapist at Carey-On and S. said that her father made her drink the toilet water and locked her up in the toilet.

[139] It was apparent that the child was bored and very distracted and wanted to end the interview. The detective made a final effort to see if the child could provide any detail about her more serious allegations, but S. simply said, "There is nothing else I need to tell."

Investigation Closed

[140] Detective Sunstorm then said that she took statements from both parents. She set up a date to interview the mother on February 8, 2017. On that date the detective received a message from a criminal lawyer for the mother who said that he would advise her not to attend. The interview did not occur.

[141] The mother asked the detective in cross-examination why she did not order a medical examination of the child. The detective said that last time the child had seen the father was outside of the time frame that would fit with the guidelines for ordering an examination. The mother also asked why the child's teachers were not interviewed and the response was that no disclosures had been made to them.

[142] The mother asked the detective if she was going to charge her with public mischief before her lawyer called. The detective said that she was not, but that she was concerned about emotional harm and parental alienation. The detective said that the investigation was concluded on February 16, 2017 as the detective concluded that there were no grounds to proceed with charges.

The Father's Access After January 26, 2017

[143] Due to the escalation of accusations and the general tension at drop offs the father decided to bring a witness. Usually that witness was his friend M.G. The father met M.G. at the bank where they both worked in 2003. M.G. left the bank in 2004 and he said that they did not see each other until they re-connected when M.G. learned of his father's death in 2013.

[144] M.G. lives in Brampton with her husband and three daughters. The father often took S. to M.G.'s home on the alternate Friday evenings when he had access from 3:30 to 7:30. As S. had after school activities there was no time to drive to Milton and back in the four hour access window. He said that S. got along well with M.G.'s daughters.

[145] The mother said that the M.G. did not live with her husband and she was convinced that the father was in a romantic relationship with her. The mother clearly disliked M.G. and over time the feeling was mutual.

The Easter Weekend Drop-Off

[146] Both parents and M.G. testified about a particularly awful drop-off on Easter Sunday April 14, 2017. It resulted in another police occurrence report, but no charges. Both parents went over the incident in some detail as did M.G. who corroborated the father's evidence.

[147] When M.G. bent down to say goodbye to S. the mother became upset and the father and M.G. said M.G. said that the mother slapped M.G. on the arm. The mother said do not touch my child.

[148] Without anyone else knowing the mother started taping the exchange on her phone. The mother proffered a number of video and audio tapes in this proceeding. I accept that parents should be dissuaded from taping their children whether it is to "protect" themselves from allegations or to gain evidence for their own case or both.

[149] In Webster v. Suteau, 2015 ONCJ 538 Justice R. Zisman of the OCJ stated:

The photographing and videoing of children for court purposes is troublesome. What message does a child receive when after each visit with the other parent he is examined and photographed? What message does a child receive when instead of comforting him his parent videos him crying or having a tantrum? …this evidence is not helpful for the purpose tendered by the mother but does reflect on the mother's inability to put the child's needs ahead of her own need to discredit the father.

[150] While accepting the general principle against surreptitious recording the Ontario Court of Appeal in Sordi v. Sordi, 2011 ONCA 665 held that a trial judge has broad discretion to decide whether to admit recordings into evidence. As a general rule, I did not permit mother's video or audio tapes to be played for the public policy reasons articulated in the case law

[151] I made an exception for this incident and allowed this short tape to be played on consent of the parties as both the mother and the father were present when it was made and it addressed a clear conflict in the facts as they were related to the police, the Society and the court. The mother had insisted that she had not sworn at M.G. in front of the children as the father and M.G. alleged. I find that M.G. had understated her role in the conflict. However, the mother created the conflict. She intentionally walked right up to M.G. and her daughters rather than waiting for S. to walk over to her. She did slap M.G.'s arm and she chose to tape the exchange to gather evidence.

[152] While taping she kept her voice lower so that it sounded like she was being more reasonable. M.G. was clearly angry and loud and she called the mother a psychopath and said she was constantly accusing the father of sexual abuse. The father said that the mother had her friends Mr. and Ms. J. attend to video all exchanges. The mother said they did video them, but not until after this Easter drop off debacle.

M.G.'s Evidence

[153] M.G. corroborated the father's evidence as to them being friends and their daughters getting along well. She had been able to help the father either by picking up S. after school on the alternate Friday for evening access or by having the father bring S. to her home for the access.

[154] M.G. said that after an initial period of shyness S. became very comfortable with her. She confided in her and told her that "I am not allowed to love you …" S. had told her mother that she had been slapped by M.G. The child later apologized to M. G. for saying that when it was not true. S. also said that "if I love my Dad then I am loving bad people."

[155] M.G. confirmed that S. became very tense at the access exchanges. She said that as they approached the Tim Horton's S. would become quiet and anxious. M.G. said that she had observed the mother immediately lifting S's clothes to check her everywhere to see if something was wrong. M.G. stated that because of all of the allegations, the father was concerned about taking S. to the bathroom by himself. He had been conscious of the need for witnesses to his time with his daughter.

[156] M.G. said that S. was very intelligent and loving and her best friends are M.G.'s kids. M.G. thought that S. was very well aware of what was going on all around her. S. told her that she worries about what people think about her and she often asks questions seeking reassurance.

[157] M.G. said that the mother drove by her home in Brampton one day. This made her very uncomfortable. She was concerned that the mother or Mr. J. may have obtained her address from confidential bank employee records.

[158] M.G. said she thought that S. had become much more relaxed and comfortable after the November 2019 move to her father's residence.

R.J.'s Evidence

[159] Mr. J. was called as a witness for the mother. He filed an affidavit and was cross-examined. Mr. J. and his spouse had known the mother and S. since 2014. They had never met the father. Mr. J. addressed in his affidavit the close bond between mother and daughter. He noted that she paid for private education and activities designed to instill self-confidence in S. As every witness did, he noted that S. was a bright child.

[160] Mr. J. related statements that he had heard S. make. He said, "I believe every statement that S. made." He said that every time he observed S. with her father (at access exchanges) she appeared "nervous and fearful." He said that he had observed S. "talking to her mother during supervision access" and he said that she now had "low confidence." I note that the mother was expressly told that no one else was to observe supervised calls and she said that the J.'s accidentally came over once during a call.

[161] Mr. J. denied taking videos of exchanges. He admitted that that he drove with the mother to the father's home but said he did not start taking a video of the father until after the father started to take photos of him.

[162] Mr. J. admitted picking S. up from school on Fridays when the father was to have access. He said he did not know that was breaching a court order by doing so. He accompanied the mother to court on November 26, 2019 and he went to pick up S. from court even though he knew that the court was about to deliver a ruling as to whether S. would be placed in the father's custody.

Mother's Evidence Regarding Child's Statements

[163] The mother had served all parties with an audiotape recording of S. that she had made after she picked S. up from the father's first access visit after the HRP interview of January 26, 2017. The mother wanted to play the audiotape to prove that the child was miserable in the father's care and pressured to recant her allegations of abuse. The other parties wanted the tape played to show that the mother was unable or unwilling to hear what her child was really telling her.

[164] The child did not know she was being taped. Due to the probative value of the tape as evidence going toward the ultimate issue of possible emotional harm and due to the fact that all parties consented, I allowed the mother to play the tape.

[165] The court was able to hear the father saying goodbye and then the mother and child walked to their car. The mother said that as they got in the car, she hid her phone in S.'s coat in order to record their conversation. The child was crying and clearly upset as she said that she had told stories in the interview about her father that were not true. The mother drove by the gym where the child had just had her access visit at a trampoline party. S. said to her mother "I like my father and I love my mother and father too." Unlike her statements in formal interviews there was a raw emotional content to S's voice.

[166] It appeared that the mother wanted the court to hear the tape to counter any allegations that she questions or pressures her child to say things. She also wanted the court to hear that the child was very tearful when leaving access with the father, but very happy once back in her mother's home. The mother was incapable of seeing that the child's retraction of past statements could be true. She parsed the statements in her evidence and wondered how the child knew to say that she had made up "stories." Her view was that after the police interview the father had "tortured" the child during his four hour access to make her retract her negative statements about him.

[167] I find that the child's statements and the context in which they were made revealed that S. was emotionally upset. I find that S. was trying to reconcile her mother's attitude and statements about her father with the father with whom she had just enjoyed access. S. clearly loved both her mother and her father. While in the car on the way home from a visit she tentatively tried to tell the mother that she loved both of them. S. knew that her mother did not want to hear that. The mother did not respond directly to S.'s dilemma rather she ignored the child's comments.

[168] I find that whenever S. said something negative about the father her mother believed every word and immediately followed up on it. Whenever she said something positive about her father the mother disbelieved it and was convinced that the child was being pressured or threatened by the father or his family. Dr. Wittenberg addresses the mother's thinking process in the assessment set out below.

[169] On March 3, 2017 the mother took the child to Brampton Civic Hospital after Ms. J. noticed that the child's face looked reddish after coming home from her visit. Interestingly they had driven home after the 7:30 p.m. pick-up and did not notice the redness in S.'s face until much later. When asked if anything happened, the child said that M.G. hit her 10 times. The mother said that they then had dinner and then left for the emergency room at about 9:00 p.m. They were not seen by the doctor until 11:15 p.m.

[170] The mother explained the access history and the issues to the emergency room doctor. She said she was frustrated that the child made statements about the father when there was no one there to record them. The mother made a recording on her phone of her conversation with the doctor (which was not allowed into evidence). It was clear that the mother did not take the child to the hospital for treatment. She took her there to try and get a physician to make a statement that she could use in court.

[171] The mother was upset that S.'s play therapy at Carey-On was cancelled. She said that the child was continuing to make disclosures, but once the father got unsupervised access the Society did not want to hear about them. The mother found a child therapist Susan Lieberman who met with the child three times prior to March 7.

[172] The March Break access in 2018 led to more conflict. The mother taped a March 11 telephone call that she had with S. when S. was with her father. In the call S. said that her knee hurt and her mother asked how did he hurt you. The father objected to the mother's questioning. The mother said that he was trying to prevent S. from telling her the truth. The mother said she would go to the police. The father told her not to put S. in the middle of the conflict and then he hung up. The mother did call the HRP and played them the recording. The police went to the father's residence at 9:48 p.m. to do a wellness check on the child.

[173] In a very effective cross-examination by Ms. Leonard the mother's complete acceptance of S.'s negative statements about the father and her complete rejection of her positive statements was exposed. For a person with such an attention to detail the mother had no photos of the cuts that would have been caused by the knife and sword attacks. There were no photos of bruises or evidence of harm caused by being repeatedly assaulted and left outside naked in freezing weather. The mother still insisted that this abuse happened. She refused to acknowledge that S. could have noticed that there was positive reinforcement for the child if she made allegations against the father and that she received no acknowledgment, or was ignored, when she spoke positively about the father. The mother could not accept the evidence from the teacher that S. acted completely differently around her father when the mother was not present.

[174] The mother told Ms. Leonard that "Children don't really lie- maybe small things, but they will not ever lie about abuse". The mother said that the PCAS refused to take action on S.'s statements because the Society has an agenda against her.

[175] The mother was reminded of the statements that she taped while in the car with the child after the father's access following the January 26, 2017 interview. The mother could not believe that the child could possibly have enjoyed the trampoline party visit with the father. She blamed the Society for telling the father about the contents of the police interview and thereby exposing S. to revenge and punishment.

[176] Under cross-examination from Mr. Levine the mother went to great lengths to disparage the father. The mother could not see a role for the father in the child's life. She said that S. had always lived with her and she had been the sole caregiver and provider for her. She bragged about everything she had done for her child and said the father had done nothing.

[177] Mr. Levine asked her how she could be a good role model for her daughter when she did not trust anyone. The mother said that she did trust the Society, the police, the investigators and the assessor at first, but that trust ended when they demonstrated unprofessional and unethical conduct. The evidence showed that the mother was constantly seeking out people to support her fixed belief that the child was being abused by the father. She did cooperate with people until they told her that they did not believe that the child was in fact being abused. At that point she turned on them, accused them of misconduct and looked for others to support her narrative.

[178] At the end of her evidence the mother adopted conspiracy theories. She suggested that the PRP had taken the side of her brother when he assaulted her father. They dropped his charges and since 2006 they have chosen not to ignore any reports of harm that she makes. She suggested that the same network that targeted her father might have targeted her and her daughter. She has already complained about the Society and she will submit a complaint about the police. She said that contacting the media to expose the failure of authorities to protect her child was her then lawyer's decision, but she left the impression that she supported it at the time and might take that step now.

[179] The mother told Ms. Williams in cross-examination that she was treated like a slave as a child in India. She said she had been sexually abused as a child. She said that there was no point in getting further counselling (she had some counselling in the early 2000's) as what counselling could erase those memories.

[180] The mother denied that her turbulent life could be impacting upon her thoughts or decision making. She denied that she could be possibly be projecting her own trauma onto her child. She concluded by saying that as the child will grows up, she will talk about her abuse and the failure of the authorities to protect her. She said that people will find out the truth unless the Society takes steps to have S. murdered to keep her silent.

THE THIRD TIME PERIOD: APRIL 14, 2017 TO NOVEMBER 26, 2019

The Hybrid Assessment

[181] The Society sought a psychiatric assessment of the mother. The mother took the position that if there was to be an assessment it must be of both parents. After much back and forth the parties ultimately consented to an order made by Justice Sullivan on December 13, 2017 for a hybrid parenting capacity/psychological assessment. Questions were set out for the assessor in the order. The matter was adjourned to determine the person to do the assessment.

[182] On January 10, 2018 Dr. Jean-Victor Wittenberg was appointed on consent to do the assessment of the father. The Society and the father wanted the same assessor for the mother, but she did not consent to it so the matter was adjourned for a further motion. Ultimately, on February 12, 2018 Dr. Wittenberg was appointed as the assessor for both parents and the child.

Dr. Wittenberg

[183] Dr. Wittenberg's extensive C.V. was filed. Dr. Wittenberg graduated from medical school in 1971 and became a staff psychiatrist at Sick Kids in 1978. From 1995 to the present he is the head of the Infant Psychiatry Program at Sick Kids. From 2000-2008 he was also head of the Divisional Program in Child and Adolescent Psychotherapists at the University of Toronto. Dr. Wittenberg stated that he had a sub-specialty in child and infant psychiatry and the bulk of his work was in child/parent relationships. He had completed in excess of 100 parenting capacity assessments.

[184] Dr. Wittenberg said he had been qualified as an expert in parenting capacity "about a dozen times" since 2000. He said while he is not a psychologist his greatest expertise is with respect to how a parent's psychology interacts with the psychology and development of the child.

[185] Dr. Wittenberg was qualified as an expert in parenting capacity. His 43-page report dated June 14, 2018 had been filed in the Trial Record.

[186] Dr. Wittenberg reviewed the pleadings and affidavit material and interviewed each parent. He also observed each parent interacting with S. In a section entitled "Impression" that begins at page 34 he said:

… S. has been subjected to repeated investigations of allegations of sexual abuse by her father. Mother has not accepted that investigations by several different experts have not found evidence of sexual abuse. In addition to subjecting S. to these repeated investigations mother has caused confusion and internal conflict with father's access to S.

There is also evidence (S.'s statements) that mother has coached S. to say negative things about her father. Mother has taken her into therapeutic situations that have reinforced mother's confusing messages and seem to have encouraged S. to make accusations of both sexual and physical abuse against her father and father's family.

Although she is physically healthy, there are some signs of psychological challenges for S. She has shown significant oppositional behaviour in her relationships with her mother. She has shown social challenges at school. She has difficulty dealing with small disagreements with peers in her class. She is easily upset by small events.

[187] Dr. Wittenberg went on to comment on the interactions between the child and her respective parents. At page 35 he stated:

My own observations of S. were that she was a bright and articulate child who was developmentally normal. I made a few observations of unusual interactions between her and her mother when I observed a visit between them. S. repeatedly spoke of a doll with devil's ears, a devil child. There was a great deal of talk between S. and her mother about bathroom issues. There was a sense of tension between mother and S. in contrast to interactions between S. and father.

When I observed interactions between father and S. I noted that they were comfortable with each other. They played and chatted easily. S. was quite affectionate with her father. Father was sensitive and responsive to her.

[188] The assessor had this to say about his private discussion with S. at page 36 of his report:

When I spoke to S. alone she stayed with me easily and chatted easily. She spoke quite frankly of her parent's fighting. She spoke of her mother yelling at him. She spoke of her mother showing her a video of danger with red areas between your legs and your back. S. did not understand what this was about. It confused her.

[189] Dr. Wittenberg commented on the mother's background and difficulties in life. He then said:

My impression of mother is someone who has had great difficulty in relationships. It is not clear to me what are her internal thought processes that lead to her suspiciousness and fixed beliefs. Those do not reach a degree of failure in reality testing that would classify them as delusions and lead to a diagnosis of psychosis in her, but I would give Ms. D. a diagnosis of personality disorder (unspecified type-DSM-5).

[190] In the next paragraph the assessor wrote:

I believe she has brought S. into the conflict that she has with relationships. She has no insight into her behaviour or the impact of that behaviour on her daughter. She seems convinced that father has abused S. and this does not seem changeable. I am very concerned about the impact of mother's beliefs and relationships on S.'s emotional wellbeing now and into the future.

[191] At page 37, in the section of the report where he addressed whether the parents met the child's needs Dr. Wittenberg opined:

Her mother's approach threatens S.'s health. It leads to her being subjected to unnecessary examination and investigations which have repeatedly had to held in check by healthcare professionals. In fact, it is the role of good parenting to protect a child from unnecessary investigations and examinations. Mother's approach carries a threat to S. that that would not otherwise exist. This is likely to cause her to carry a sense of vulnerability, anxiety and confusion. These are experiences that are associated with disorganized attachment in children. They elevate the level of stress, rob a child of a feeling of security with her parents who are the individuals with whom she should feel most secure. Ironically, mother's approach is likely to lead S. to feel insecure and threatened when with her mother and with her father. Her mother's approach threatens the loss of relationship with her father. It threatens her sense of reality. It requires her to conceal the truth and her own feelings and perceptions. It puts her into situations in which she must repeatedly experience investigations and examinations. These investigations and examinations are carried out in places that are likely to be stressful and anxiety-provoking for children. Mother's belief evokes a sense of danger for S. when she is with her mother as well as when she is with her father. S. is unlikely to be able to entirely discount mother's belief and references to danger. This is likely to create a sense of anxiety and vulnerability in her relationship with her father.

[192] In cross-examination Dr. Wittenberg said that the mother 's fixed belief system and lack of insight caused her to undermine opinions that do not correspond with her own. The assessor said that the mother is encouraging a split representation of the world-the mother sees others in a way that S. does not. This means that S. has to have one box for her relationship with her mother and another one for her relationship with others.

[193] The assessor said that the mother's rigid view will cause confusion and upset in S. and she will not know who to trust-over time she will not trust her mother as much so she will be left without security

[194] Dr. Wittenberg said that if a child like S. is afraid of a parent's reaction the child has to modify information that she gives to that parent. Dr. Wittenberg said that a child can try to appease a parent without a role reversal, but the latter could happen.

[195] Dr. Wittenberg's opinion was that the mother's fixed belief was not amenable to treatment by medication. The mother would need to recognize that she has a problem and make a long-term commitment to treatment. The difficulty is that if you are convinced you are right-as the mother is here--you do not go for treatment.

[196] In response to questions from Ms. Leonard, Dr. Wittenberg said that at this point in time he would want the mother's access to the child to continue to be supervised. The assessor said that as the child matures, she will develop the ability to divert the attempt at negative conversations by the mother. While there is some evidence that the child is doing this already it does cause her a lot of stress. At some point it may be possible is to have unsupervised time after there has been an opportunity to look at the impact of ongoing access.

[197] Dr. Wittenberg said that any change to access should be graduated. Progressive steps allow an evaluation of the impact of access expansion before the next step is taken.

[198] Ms. D.'s cross-examination of Dr. Wittenberg was quite skilful particularly for a lay person. She tried to find areas where she felt the doctor had overstated his concerns and put to him evidence that she felt did not support the conclusion. The mother has been quite successful in many ways. She had overcome a difficult childhood in which she had been essentially abandoned by her parents by using her natural intelligence to obtain a good education and then a successful career. She said was able to form relationships with people because as a mortgage advisor she had to meet with people every day and she had formed long standing client relationships.

[199] The assessor said that many people function well in some areas while they cannot succeed in others. As an example, he said that many very successful people have narcissistic personality orders. They may be very good in business, but poor as parents, friends etc. Dr. Wittenberg said that she may be good at some professional relationships, but have problems with personal ones. The mother challenged this as well and spoke of her friends who would be witnesses for her in this trial.

[200] It was clear from the questioning that despite her careful preparation and articulate presentation the mother had a blind spot with respect to her relationship with the father and the impact of that high conflict relationship upon her child. The mother did not accept responsibility for anything with respect to her parenting. She could not understand the assessment because she felt that she had provided everything for her daughter. She did not see that her constant negative reinforcement about the child's father was a problem.

[201] Dr. Wittenberg said that personality disorders cause a person to do things over and over again that limit their lives or interfere with their relationships. These people cannot make changes. A person with the type of disorder that he diagnosed in the mother could require psychotherapeutic care for years. Dr. Wittenberg state that the disorder is very much ingrained and cannot be changed if it is not recognized.

[202] The mother challenged the assessor's ability to draw conclusions about her personality given that she only spoke to him for two hours and he only observed her with S. for an hour. The mother criticized Dr. Wittenberg for not viewing the videotapes of the play therapy or the August 4, 2016 interview at SCAN. She suggested that he did not bother to observe S. making disclosures about the father.

[203] The more the mother drilled down on evidence that she thought the assessor missed the more Dr. Wittenberg said that his opinion was strengthened. The mother was laser focused on every comment that S. made that related to possible abuse and dismissive of any comment that she made of a neutral or positive nature about the father. Ultimately, the assessor said that while the mother is convinced that no one is listening to her child he trusts in the expertise of the interviewers. Dr. Wittenberg said that he does not look at each statement in isolation -he looks at the overall picture.

[204] The mother was very concerned that the assessor may have received information from the PCAS while not looking at additional information she sent him. She was quite upset that he had viewed the child's report card as he did not have her consent to obtain it. This showed her suspicious nature because the report card showed S. to be a very bright student. The mother said that clearly S. cannot have the problems the assessor thinks she will develop.

[205] Dr. Wittenberg said that for some kids their academic performance is affected by emotional problems at home and for others not so much. The assessor said that because S. is doing well in school does not mean that she is not suffering from stress. The assessor said that stress is not necessarily constant. Coping with stress in one facet of one's life uses up resources that leave a person less able to cope with stress in another facet.

[206] The mother then asked many questions about why she is being blamed for seeking help for her daughter. She said to the assessor if she was in fact hurting her daughter would it be beneficial for her to leave her child's life. Dr. Wittenberg said that would not be in S.'s best interests as the mother may offer many positive interactions to her daughter. He added that S. cared deeply about her, she loves her and is concerned about her. If her mother were to step out of her life it would be a real loss for S. and it would create a great deal of anxiety for her.

Nada Bastasin

[207] Ms. Bastasin obtained carriage of this file on February 21, 2018 and she remained the primary worker at the time of the trial. She has 12 years experience with the Society and became the new worker after the mother had requested a change of worker. I will review her evidence leading up to the temporary change in custody at this point and then I will review her evidence post-custody change.

[208] This worker first met with the mother on March 20, 2018. The mother expressed that she was frustrated that the Society was not taking her daughter's claims seriously. On June 19, 2018 the mother stated that the Society's case notes, now referred to as contact logs were inaccurate. The mother said that she did not trust the previous worker and did not trust Ms. Bastasin. She had been recording all the interviews in her home and planned to play the recordings in court. The worker told the mother that she did not have her consent to record and she will be ending the visit.

[209] The worker said that S. appeared to be comfortable in both of her parent's homes. The mother repeatedly stated that the Society should investigate what she thought were child protection concerns in the father's failure to do certain things. One of those was a concern that he was ignoring the child's educational needs by not taking the child to language classes that the mother scheduled on his weekend time.

[210] Ms. Bastasin was the Society worker when disclosures were made to the child's teacher, Ms. Botelho. It is interesting to note that the child made different statements to the three people she spoke to being the teacher, the worker and finally the clinical investigator from the OCL. The actual statements are addressed below. The mother was quite upset that the Society did not support her in stopping the father's access at that time. Ms. Bastasin was the worker when Justice Sullivan required that the PCAS enforce access on November 8 and when an order was made on November 26, 2019 for the child to reside with the father on a temporary basis.

The Amending of the Applications

[211] Dr. Wittenberg's report was delivered on June 18, 2018. The Society then took the position that it was not necessary for the Society to have carriage of a child protection trial. The Society filed an Amended Application on February 26, 2019 seeking an order granting leave to the Society to withdraw, terminating the order of Justice Sullivan dated December 13, 2016 and permitting Dr. Wittenberg's assessment to be available to either respondent parent in the custody and access proceeding.

[212] The Society quickly reconsidered its position to not seek a child protection finding and on March 15, 2019, it filed an Amended Amended Protection Application that sought a finding on the grounds of emotional harm, but otherwise sought to have the parties litigate the disposition in a custody/access proceeding with Dr. Wittenberg's assessment as evidence.

[213] A summary judgment motion was brought on the Amended Amended Protection Application and was heard on April 24, 2019. In reasons for decision released on May 30, 2019 Justice L.S. Parent denied the motion. Her Honour's reasons set out that the Society had not complied with the requirements set out by the Court of Appeal in Kawartha Haliburton Children's Aid Society v, M. W., 2019 ONCA 316. The Society affidavits did not comply with the rules of evidence required at a trial as they were replete with hearsay evidence.

[214] On February 26, 2020 the Society filed an Amended Amended Amended Application seeking the child protection finding of emotional harm and seeking the placement of the child with the father pursuant to s. 102 of the CYFSA . After a period of relative quiet without serious allegations there was quite a bit of activity in this matter in the fall of 2019 that led to the final position taken by the Society and the move to the 3 x Amended Application that was before the court at this trial.

The Child's Teacher

[215] The mother clearly valued education and she had registered S. in a Montessori school at age 3 and then changed schools when as was required at age 6. The mother told the father about the registrations after the fact. She did not seek his input or involvement and he was not asked to contribute to the tuition costs. The mother also registered the child in self defense and dance classes. All of the evidence was that the mother was very diligent in supporting S. with her education and activities and that she was determined to provide her with enriched childhood experiences.

[216] Ms. Leonard for the OCL called the child's teacher Ms. Nice Botelho as a witness. Ms. Botleho confirmed that S. began at the Montessori school where she worked in September 2017. Ms. Botelho was her teacher at the start of the year, but she was on maternity leave from December 2017 to December 2018. S. was back in her class in September 2019 and she was the teacher for the online classes that began in March 2020 due to the pandemic.

[217] Ms. Botleho was asked to confirm that the mother had provided the father with all of the necessary information about picking up from the school including that he would have to change the child out of her school uniform. The school had been copied on all the messages effectively telling the father what he needed to do. Ms. Botleho recalled filling in a questionnaire sent by Ms. Samuels, but to the mother's clear disappointment she did not recall that the father had made missteps and was not properly engaged with his daughter's education. Ms. Botleho was able to confirm that the mother had told her there was a court case going on and that the mother told her a lot about it at the time.

[218] The teacher said that S. was shy at first. She said that she clung to her mother at drop offs and it was difficult for the mother to leave. She had not seen another child of that age as "clingy" as S. was. Ms. Botelho said that some days S. did look sad and withdrawn, but the child would not say what was bothering her. She recalled S. making comments about not being good enough. Other times she said that she had bad dreams. The teacher said that S. had very little confidence when she started Grade 1 in September 2017.

[219] During that first term the mother had told her about how S. was scared of her abusive father, so she recalled being confused when she saw S. running up and hugging her father. She then said that the mother began attending at the school when the father was to pick up on the Fridays and S. did not show affection to the father when the mother was there.

[220] Ms. Botelho said that the school sent "a brown envelope" home every week with news and information. The mother told her not to send it to the father because it was up to mother as to what information he should get because she was had custody and she was paying the tuition. Ms. Botelho said that the father fought to get the brown envelope when she was on maternity leave and she was aware that he received it in when she returned to the school in December 2018.

[221] S. was not in Ms. Botleho's class in the 2018-19 year, but she was in her grade three class in September 2019. On October 24, 2019 the mother asked to speak with her in private. She was told by the mother that the father hurt S. when she was 5 or 6 year's old.

[222] Ms. Botelho followed up with S. and she related that:

(a) Her father beats her

(b) He feeds her food she does not like

(c) He picked her up and threw her in a room and left her to starve until midnight (when questioned the child did not know what "midnight" was)

[223] The teacher said that when S. said these things, she did not look her in the eye, and she was uncomfortable and fidgeting. The child said that she was scared that she would get hurt if she said anything. The child said the last time she was hurt was the previous weekend. After making these very concerning statements S. went back to work like a normal day and she played with her friends. Ms. Botleho made a report to the PCAS.

[224] The next day Ms. Bastasin from the PCAS came to the school. Ms. Botelho walked S. from her classroom down to an interview room. S. asked her to stay so she just listened. The teacher said that S. was not able to recall most of the statements that she had just made the day before.

[225] The mother confronted Ms. Botleho at the end of the school day as to why she was not informed by the school that the Society had attended. She insisted that the school must send her an e-mail about what had occurred and what the child said. Ms. Botelho said she was instructed by her principal not to send the mother an e-mail as the Society had notes of their interview.

[226] That same day S. followed the usual routine which was to change in the washroom and then be dismissed to the father. Some five minutes later the teacher heard a knock at the door and the mother was there with S. The child was very upset, and the child said that she did not want to leave with her father. Ms. Botelho brought 3 other teachers into her classroom and they all started to talk to S. to lighten her mood. After a few minutes S. agreed to go with the father, and they left holding hands and S. gave him a hug.

[227] After this incident the mother initiated a meeting at the school which was held on November 14. She brought Mr. J. with her. Ms. Botelho recalls that the mother brought with her "a bunch of documents" which included PCAS notes and the initial questionnaire that the teacher had completed for Ms. Samuels in November 2017. The mother insisted that the teacher read the questionnaire out loud and then she proceeded to effectively cross-examine the teacher about inconsistencies between her answers two years ago and the Society's notes.

[228] The next day was a Friday and the mother walked into the school in the middle of dismissal and became very upset with Ms. Botelho and confronted her about talking to the police. The mother picked up S.'s school journal which is supposed to stay at the school for the academic year and over the protestations of the teachers she took the journal and left.

[229] Ms. Botelho stated that she did remember that S. often had headaches while at school and there were times when her mother came to pick her up because of those headaches.

[230] Ms. Botelho was asked about many e-mails between the school and the mother and the mother and the Society. She recalled that the mother had attached the father's affidavit in this child protection proceeding to one of her emails.

The Family Doctor

[231] The mother called the family doctor as a witness. Dr. Yeou Lin had been the mother's family doctor since 1990 and the child's doctor since she was a few days old. Dr. Lin saw the mother and child on July 4, 2016. The ostensible reason for the visit was to check S. for a head injury as S. fell down three steps. The doctor checked her out and made a referral for an x ray.

[232] While at the doctor's office the mother expressed serious concern about the child's behaviours. She told Dr. Lin that there were other men in the father's house when S. stayed overnight there. The mother asked for a referral to a child psychiatrist. Dr. Lin said that if she was worried about a risk of harm to S. she should call the PCAS. Dr. Lin stated that he left a message with the Society.

[233] Dr. Lin referred the mother to Dr. Mills, a psychologist, for play therapy for S. Ultimately Dr. Mills referred the mother to the Family Enhancement Centre ("FEC").

[234] It was clear from Dr. Lin's evidence that he did not ignore the child's statements or the mother's worries. His oral evidence supported by his clinical notes show that he recorded everything stated and dealt with medical concerns with medical referrals. In June 2014 he made a referral for a sexual abuse investigation at SCAN based only upon the mother's stated concerns.

[235] Dr. Lin was very careful to just comment on things that he had noted in his chart. He made referrals, but he took no steps to advocate on behalf of his patients- both mother and child-for more investigation of the mother's repeated concerns. He did not criticize the mother even after repeated unfounded allegations were made. He also took no steps to direct the mother to therapy or counselling even when it was clear that the mother believed every statement made by S. no matter how bizarre.

[236] This point is illustrated by the May 11, 2017 visit in which the mother attended and told her physician that during a visit S. had been blindfolded and given needles during overnight visits. He met with the child privately and asked open ended questions. The child told him that she was given needles with poison so she would forget what had happened. Dr. Lin followed up by making a referral to a laboratory for a urine drug screen. The test the next day came back negative. He took no further steps.

[237] Dr. Lin noted that he was aware that the Society was already involved with the family and the child was seeing a therapist, so he felt he did not need to make a separate report to the PCAS on every occasion the mother brought the child in. He said the Society asked him for a report on April 7, 2017 and he responded by letter of May 23, 2017. He did not feel there was any urgent need to get back to them promptly.

[238] Dr. Lin said that many of the statements he noted were things that the mother said. He made a separate notation if the child told him anything on her own. He said that he never saw any marks or bruises on the child that might be consistent with abuse. He conceded under cross-examination that he did think the mother was bringing the child to him for evidence to use in court, but he said he never raised that concern with her. His notes show that he saw the child on 10 separate occasions in 2019.

The Father's Access April 14, 2017 – October, 2019

[239] The father said that access exchanges remained fraught with tension. Both sides called the police to do wellness checks on the other. On one occasion the mother called 911 and said she was worried about S. in his care. She then drove with Mr. J. to the father's home and Mr. J. video taped the father.

[240] The father became emotional when he said that he always thought that if he gave up trying have a relationship with his daughter, he would be compromising her future. He said that he needed to give S. a fair chance to have a normal and healthy life.

[241] The father acknowledged on a number of occasions that S. loves her mother and she needed to continue to see her. He said that given that the mother continues to state that he is abusing his daughter that the access will need to be supervised until S. is a little older, more independent of her parents and less susceptible to her mother's false narrative. He recognized that for age S. had had to develop ways to manage her relationship with her mother, she knew what she could say and what she could not say. She had developed some skill in re-directing her mother when she started on with negative comments about her father.

OCL Appointed and Motion Scheduled

[242] The OCL was appointed in this child protection file on September 3, 2019 and counsel Ms. Leonard was assigned to work with Mr. Roy Reid, a clinical investigator. They conducted all of their meetings jointly. They interviewed the parents on October 15 and 16 respectively and met with S. on October 22. They had not done enough work to be able to take a position when the mother suspended the father's access on October 24, 2019.

[243] After the child stopped coming for access there was a teleconference with Justice Sullivan on November 8. During that call the mother put S. on the line to talk directly to the judge. She had kept her home from school that day for that purpose. Justice Sullivan told her not to put S. on the phone, but she did it anyway. He then ordered that the child was to be delivered to the PCAS to ensure that that weekend's access would occur. That access did not happen. The father said that the mother clenched S.'s hand at the PCAS office and S. refused to go. The mother's friend Mr. J. stood in the hallway video recording.

[244] The matter was then scheduled for a motion for a temporary custody change to be heard on November 26. It was in this context that the mother took the child with her to see S.G. on November 10.

The Disclosure to S.G.

[245] S.G. was called as a witness by the mother. She filed an affidavit and was cross-examined. S.G. described herself as a personal energy consultant and transformation coach and a published author and speaker.

[246] The mother was referred to S.G. by a Punjabi community activist. She met the mother and the child for the first time on November 10, 2019. The mother had come to her home office in a community an hour's drive from Brampton for a consultation ostensibly due to her feelings of distress and anxiety.

[247] S.G. said that the child was placed in another room, but she joined the mother and S.G. S. started talking about what was happening when she was with her father. S.G. said she recorded the conversation, but the mother was not permitted to play the tape in court.

[248] The mother and child came back a week later and more disclosures were made. The disclosures made on the two occasions included:

(a) He really hurt my leg…he pushed me on the ground, and he locked me up with a baby gate

(b) He lies about things and other people believe his lies

(d) Nada who comes to my house and my school lies

(e) I just want this to end with my father… I don't want to see him again

(f) But I 've been brave. I didn't go with him for three weeks now. I said I am not going

(g) Friday they made me go to the CAS office and they asked me to go with my Dad and I said no (shaking her head)

(h) I think he is going to keep doing it so I rather not go with him and not get hurt anymore

(i) So when I was little he hurted me but I was too little to speak up, like I was four. He hurt me private. He made me freeze outside no clothes on. He slaps me. He ties me up.

(j) I get a lot of headaches.

[249] Although the first disclosures were made on November 10, they were not reported to the PCAS until November 21, 2019 S.G. attached a number of e-mails to her affidavit. Her "duty to report" was sent to many people at the Society including the E/D Mr. Bains. It initially appeared that the Society was going to request an adjournment of the November 26 th motion, but when they stated they would proceed the mother contacted S.G. On November 25 S.G. sent e-mail to everyone involved in the file including Justice Sullivan.

[250] The November 25 th e-mail sheds some light on S.G.'s state of mind. She told Justice Sullivan that the PCAS was intentionally holding back information that he needed to know. She referred to "The Millennium Report" about PEDOGATE. She said she was totally opposed to Ontario's new sexual education curriculum which she implied was being driven by pedophiles. She said the then Attorney-General of the province was compromised by the actions of a family member and as a result had taken oversight away from Children's Aid Societies.

[251] To say that S.G. was a conspiracy theorist is an understatement. She had some very odd ideas and she saw the mother and S. as being ignored by everyone in authority. She was convinced that the child was being repeatedly abused and no one was doing anything about it. The mother had finally found someone who agreed with her view of the situation.

[252] S.G. was so concerned at what she thought was a threat to this young child that she drove to the court in Brampton to be with the mother and to confront the Society workers. The change in custody motion was argued on November 25. The OCL took no position on the motion as their work was in the early stages. The decision was reserved until the next day. The order made for temporary custody to the father was made on November 26, 2019.

THE FOURTH TIME PERIOD: DECEMBER 2019 TO TIME OF TRIAL

Temporary Custody to the Father

[253] On November 26, 2019 Justice Sullivan made an order for S. to be in the father's custody with no access to the mother until further court order. The order stated that the father was to pick the child up and the mother was not to attend the school. The father called the school and told them he was coming to pick her up. The principal's assistant said that Mr. J. was already there attempting to leave the school with S. The child was kept at the school and the father picked her up. S. was very upset. He tried to comfort her, and she left with him and the PCAS worker. He reassured her that she would see her mother again and she settled down into his home.

Mother's Access to Time of Trial

[254] There was a period between November 26 and December 13 when the mother did not have access as the mother's access was in the discretion of the Society and no agreement had been reached. Beginning December 13, 2019, the father brought S. to the Society for supervised access with the mother.

[255] The father stated that it was made clear by the Society to the parents that they were not to linger at the Society as S. was not to put in the position of seeing them in the same place. The father said that the mother repeatedly broke that rule and she was late coming out of access. The father said that the mother would say inappropriate things to S. as they left.

[256] The father acknowledged that it was difficult to get S. to her Montessori school in Brampton from his Milton home and he was late a few times. He also acknowledged that S. loved her dance class which went until 8:00 p.m. on a Friday night. The father said that he tried to keep S. in that class initially, but due to the length of the drive and the pick-up time he did remove her from that class. The father said he was committed to putting S. in activities in Milton once they resume following the pandemic.

[257] Around mid-March the in-person access was suspended due to the provincial COVID-19 lockdown. The parties were advised that the Society would transition them to supervised telephone access. The first telephone call did not occur as the mother refused to do the call unless it was a video call. When the calls moved to Zoom twice a week the father facilitated them by putting his laptop in S.'s bedroom.

[258] The father said that S. sometimes looked forward to the calls, but at other times she became anxious because her mother asked her difficult questions that make her feel uncomfortable. The father said that he always encouraged S. to talk to her mother. He repeatedly said that he thought it was important that S. have a good relationship with her mother.

[259] The father said that since S. has been in his home she seems more relaxed and happy. She enjoys spending times with her cousins and having her extended family around. The father said he tried to maintain a relationship with the MGM as she had been ill throughout 2019 and passed away in the summer of 2020. Prior to the custody change, the father said that during his access on alternate Friday evenings he took S. to the maternal aunt's home. The mother had become estranged from her older sister. It was the mother's sister who told him that the MGM was dying, and he was able to arrange a What's App call so S. could talk with her MGM 2 days prior to her death. The mother did not contact him about her own mother's illness or death.

[260] At the start of the trial the father sought consent from the mother to permit S. to begin school online at the local public school in Milton. The mother did not consent and insisted that the father should be continuing S.'s attendance in the private Montessori school in Brampton. I refused to make an order for a school change prior to hearing evidence as Justice Sullivan had provided in the temporary custody order that the school was not to be changed. Following the completion of evidence on September 18, 2020, I said that the child was missing too much school and told the father that he could register her for online classes at the Milton school. The mother did not consent to this, but to be fair she had always emphasized education for her daughter and did not strongly oppose online classes beginning.

The Children's Lawyer

[261] As noted, Ms. Leonard and Mr. Reid were appointed on September 3, 2019. Mr. Reid filed an affidavit dated July 29/20 as his direct evidence in this matter. Mr. Reid had been a social worker for 30 years and had worked with the OCL since 2014. He stated that Ms. Leonard was with him for all interviews he conducted. In addition to two meetings with each parent they also met with a number of collaterals being three teachers, a counsellor and Society worker Nadia Bastasin. Mr. Reid and Ms. Leonard met with S. a total of six times prior to his affidavit and they did one Zoom meeting on August 25, 2020 after the affidavit was completed.

[262] Mr. Reid said that before the order of November 26 S. was negative about her father and exclusively positive about her mother. Since the custody switch, with one exception on December 17 after a visit with her mother, she has been positive about both of her parents.

[263] The first interview with S. was at her school on October 22, 2019. S. spontaneously told Mr. Reid that her PGM kicked her mother out of her home when she was pregnant with her. She was asked to list her family and in the list she mentioned her cat and dog, but not her father. Until she was asked to speak about her father S. was open and cheerful. As soon as Ms. Leonard was introduced as a lawyer S.'s mood changed and she said her Mum had a lawyer and she was fighting in court a long time "because my Dad hurts me." S. went on to say her father was a "bad Dad" and she spoke of being locked in a room at his home.

[264] Mr. Reid next met S. at her school on November 5. At this time, she had not had access with her father since shortly before the last meeting. She became exasperated about having to repeatedly explain that she never wanted to see her father again. She refused to see her father with the OCL present and said that why would she want to see someone who hurts her. She said that her mother asked her about what happened at the October 22 meeting.

[265] S. told Mr. Reid that her mom loves her more than anything, but her Dad does not love her-he hurts her. She said that her mom would not force her to see her Dad.

[266] The next meeting occurred at S.'s school on December 10 about two weeks after the custody reversal. S. had not seen her mother since November 26. She said she was sad that she was not seeing her mother. Mr. Reid said that he was surprised about how S. talked about her father. Her discussion of him was "neutral to positive." She could describe her day in a normal way. She rated her father a 9/10 (while her mother was "infinity out of infinity"). She then spontaneously amended the father's rating to 49/50. The only thing keeping him from a 50/50 was her annoying cousins and the dog at his home. She said she loved her parents equally, her mom a little more. She said that she did not want to be separated from either of her parents.

[267] Mr. Reid met S. again at her school on December 17. This time S. spoke about her father more positively and neutrally at the beginning of the meeting and more negatively about him at the end. S. changed her mind repeatedly as to what family situation she wanted.

[268] On February 1, 2020 S. started the meeting in good spirits, but as the conversation moved to her parents she started to feel ill. Mr. Reid's impression was that she found this topic quite stressful. She missed her mother whom she now saw twice a week in supervised visits and spoke neutrally to positively about her father. She said that she is half her Mom and half her Dad and that her Dad loves her.

[269] Mr. Reid did check in meetings with S. after the COVID-19 lockdown and she was quite positive about her father with her complaints being "age appropriate gripes." Mr. Reid stated that "…she has been less willing or less able to show nuance in her relationship with her mother…"

[270] Mr. Reid stated that S.'s views have not been consistent over time and they have not been fully independent. For that reason, Ms. Leonard did not rely solely on the child's stated views and preferences for her position at this trial. Rather the OCL relied on the context of the views particularly the shift in S's statements depending upon her caregiver at the time of each meeting. Initially her views were not independent as they were exclusively positive about the mother and exclusively negative about the father.

[271] Mr. Reid said that in October and November S. held very negative views about her father, but since she has been living with her father, she has had balanced views of both of her parents. She made no allegations about the father once she started living with him. Interestingly, S. could discuss what minor changes she would like at her father's home but could not offer improvements upon life in her mother's care.

[272] Mr. Reid's last contact with S. was in the Zoom call on August 25. S appeared at ease. She was laughing and happy.

[273] Mr. Reid said that S.'s central personal view is that she loves each of her parents. The OCL position is that the court must protect her beneficial relationship with each parent and protect her from emotional harm.

The Mother's Evidence After the Custody Reversal

[274] The mother had refused to attend supervised access at the Society offices because she did not trust the Society to accurately report what occurred. The OCL was very concerned about the child not being able to see her mother. Ultimately the parties consented to an unusual order that permitted the mother to audio record the visits on her phone. There were very specific rules about how the tapes could be admitted into evidence. It required disclosure of the tape and a transcript very soon after the visit. The mother taped every visit, but she did not comply with any of the conditions that could have made the tapes admissible. I refused to admit the tapes as exhibits.

[275] The mother spent an inordinate amount of time at the trial in trying to find differences between what the Society put in their detailed supervision notes and what she alleged was actually said or done at visits.

[276] The mother had an impressive attention to detail and was very organized in dealing with the 84 exhibits filed in this trial. It often appeared though that her obsession with the minor differences in the evidence meant that she was completely unable to see the forest for the trees. She called or cross-examined many witnesses to attempt to prove that she did not coach the child to make statements and to show that she did not personally make reports to the Society. She often seemed to feel vindicated by slight concessions by the witnesses. Many of the witnesses she called actually hurt her position as they exposed her obsession with proving to authorities that the father was an abusive monster as well as her complete inability to see the impact of her actions on her daughter.

[277] The mother was extremely disappointed in the work of the OCL. She said she gave them a list of names of people to talk to and provided them with all of her tape recordings. She felt that Ms. Leonard and Mr. Reid were biased and that they refused to listen to her or her child.

[278] The mother now works as a mortgage agent for a private company. She works from home and she referred in her evidence to having thousands of clients and she stated that she earned about $200,000 a year. She made a point of noting that she had been very financially successful in business and that is why she could afford private school for her daughter as well as drive a BMW. The mother clearly saw herself as a very successful person in all facets of her life and she saw the father as unsuccessful and unmotivated. She could not understand why a court would consider having the child live with the pathetic father when she could live with a mother who would be an excellent role model.

Society Evidence Regarding Mother's Visits

[279] Ms. Bastasin noted some concerns with respect to the mother's supervised visits in four different periods of time in late 2019 and in 2020. December to March when they were at the Society's offices, March to July when the visits were by Zoom, July to August when in person access resumed and August to present when they went back to Zoom.

[280] Ms. Bastasin said that at the March 13, 2020 supervised visit the mother questioned the child to have her confirm "on the record' that she has never been hurt by her mother.

[281] The mother arrived early for the March 15 visit as she was upset that she had been criticized for questioning the child. She then admitted that her questions the week before were to gather evidence for court. She said she that did not attend visits "just to toss a balloon", she wanted to question her child about what she had said to S.G. The mother could not see that there was anything wrong with using access to try and get her daughter to make statements that she could use in court. The mother then added that the Society's mission was to further break the bond she had with her child.

[282] Ms. Bastasin said that after the visits moved to Zoom the mother tried to get S. to move her computer around so that she could see whether the father was observing. The privacy rules had been explained by the worker and the father complied with them. By way of contrast the mother was observed to have invited her friends the J's to attend a virtual visit. The mother said that they just happened to drop by at the same time as her scheduled visit. I do not accept that explanation as the J.'s had enabled the mother throughout this matter and did not question her actions at any point.

[283] When the visits moved to the Society visit centre the mother wrote notes to S. on an erasable board. She told her daughter to 'speak up" as she encouraged S. to talk about her father. S. pretended not to notice the messages and did not respond. After the visit S. told Ms. Bastasin that she does not want to talk about her father to her mother as it makes her feel uncomfortable. She said that she was too nervous to tell her mother that she felt that way.

[284] Ms. Bastasin stated that both parents were e-mailed the rules for in-person access at the centre. The father complied with the rules, but the mother did not. On July 31, 2020 the mother broke the rules when she came outside the centre when the father arrived. The visits supervisor Natasha Hungler said that S. was uncomfortable when both parents were in the same place.

[285] On August 19 the mother broke the rules by not wearing a face covering to the centre. S. did wear a mask, but the mother did not respect social distancing rules. She justified it by saying it was a PCAS rule not a city rule (at the time). E-mails were sent reminding the mother to remain in the centre.

[286] On August 21 the mother was told that due to repeated breaches of the rules she could not have in-person visits and the visits returned to video calls twice per week.

THE LAW

[287] The Society is the Applicant and bears the onus of proof throughout. The statutory findings are not in dispute in this matter. The Society must persuade the court that the child is in need of protection before any disposition order can be made. If there is no finding of protection, then the child protection proceedings are terminated.

[288] The section of the Child Youth and Family Services Act ("CYFSA") that addresses protection findings is s. 74 (2). The sub-section relied upon by the Society in this matter is s. 74 (2)( h) which cross-references ss. 74 (2) (f) and those subsections read as follows:

Child in need of protection

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

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

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

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

(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) 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;

[289] In Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458 the court held that the harm must be demonstrated by a serious form of one of the listed conditions or behaviours. The Society must establish prescribed symptoms of emotional harm and must show a real likelihood of harm on a balance of probabilities.

[290] Although the facts of the case are quite different from the facts before this court Justice Kukurin set out a useful summary of the of what the Society is required to do to discharge the onus upon them in Children's Aid Society of Algoma v. A.B., 2018 ONCJ 831. At paragraphs 12-14 he stated:

[12] The society wishes the court to make a finding that T. is a child in need of protection under s.74(2)(h) CYFSA (formerly s.37(2)(g) CFSA ) as well. This is, in my view, one of the more difficult grounds for a society to establish. It is even more difficult when the child is a newborn.

[13] Firstly, the society must show that there is a risk is that the child will suffer at least one of the emotional harms specified in the subsection. The harms are anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development.

[14] Secondly, not any degree of these possible future harms is sufficient. The society must establish that the degree of the harm is one that is serious, as opposed to minimal, mild or moderate.

[15] Thirdly, it has to establish that the risk of whatever emotional harm it is alleging, is causally connected to, or, in the words of the subsection, is "resulting from" the parents, who are admittedly the persons who had charge, and specifically by the actions, failure to act, or pattern of neglect of these parents.

[291] If the Society is able to establish that the child is in need of protection, then the disposition sought is that of a custody order in favour of the Respondent father. The sub-sections of the CYFSA that are applicable are ss. 102 (1) and (2) which read as follows:

Custody order

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

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

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

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

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

ANALYSIS

PROTECTION FINDINGS

[292] As noted in Algoma there are three elements to be satisfied before any finding can be made on the grounds of emotional harm. The Society sought a finding based upon s. 74 (2) (h) of the CYFSA that it is likely that emotional harm will result in the future. The court can make an order under any sub-section of s. 74 (2) disclosed by the evidence. I will consider not just the likelihood of future emotional harm, but also emotional harm already caused to the child under s. 74 (2) (f).

[293] It is probably trite to say that all children suffer some emotional consequences when their parents separate. The higher the conflict after separation the more serious and long-lasting those consequences might be. The emotional consequences of a separation do not become emotional harm as contemplated by the provisions of the Act unless they are demonstrated by certain listed behaviours.

[294] The Society's position is that the mother's actions have caused the child severe anxiety and could cause depression, withdrawal, self-destructive or aggressive behaviour.

[295] I have set out some analysis within my review of the facts and those statements form as much a part of my reasons for decision as the statements made in this section of my judgment.

[296] I will now look at the child' statements and behaviours over time and examine the extent to which they can be linked to the mother's actions. The Society must prove the indicia of emotional harm and that such harm is being caused by the actions of the mother. As there is no one act, or simple series of acts, that could be said to cause emotional harm in this matter the mother's actions and their consequences have to be looked at over all of the years of conflict which began at the time of the parties' separation when the child was only a year old. Dr. Wittenberg explained the mother's thinking process by going back even further to the parties' own personal histories.

First Period

Family Background

[297] The parties' backgrounds were set out as they provided some context for Dr. Wittenberg's conclusions. It was clear that the parties' relationship had been on and off from 2003 until shortly before their marriage in 2011. The marriage did not change their relationship dynamic. It was clear from the background that the father had always had a positive relationship with his family members, but that the mother had either never been accepted by the paternal family (her version) or had rejected them and acted rudely and abusively towards them (father's version).

[298] It is also clear that the mother had had a very emotionally difficult relationship with her own family. She had been effectively abandoned by her parents when she was 10, been subject to abuse while with her maternal family in India, had reconnected with her parents when she came to Canada only to see her family destroyed by what she described as a vicious assault upon her father by her brothers. The mother said she acted as a caregiver for each of her parents. She had been cared for by her eldest sister in India and she lived with her sister and her mother after she left the father's family when pregnant. She then alleged that her own mother assaulted her, and she took some pills which led to the first involvement with the Society. She ultimately became estranged from all of her family members.

[299] The evidence was that the mother was a very focused and driven person. Despite her very challenging child and adolescent years she obtained an education and found rewarding and lucrative work in the financial sector. By way of contrast, the father presented as a much more relaxed individual who was very close to his parents. His possible career had been interrupted by trying unsuccessfully to revive his father's business.

[300] The father appeared to be the one who wanted the relationship to succeed and, partly because of his emotional needs, the mother appeared to be the one who dominated the relationship.

[301] The mother's evidence was contradictory. She often spoke about her determination and strength, but at other times she talked of being dominated and abused by the father and his family. I find that the mother has a very strong personality and that all of the evidence showed that she was used to getting her own way. In all of her interactions with all of the witnesses who testified the mother was the one who set the terms of the relationship and either ended the relationship or was aggrieved when anyone saw things differently than she did.

Early Concerns

[302] The investigation in June 2014 was based upon very little evidence. At the time it could be seen as a reaction that was not atypical as many separated parents attribute concerning behaviours in their children to actions taken, or not taken, by the other parent during access.

[303] The investigation though should be seen in the context of the mother's strong opposition to any expansion of access. The father finally obtained 8 hours of access on a Saturday in December 2013. The mother then sought the appointment of the OCL and an order was made in April 2014. This first concerns about possible sexual abuse was made shortly thereafter. The mother reported to Dr. Lin who set up the SCAN investigation. The fact that there was no physical evidence of sexual abuse was not conclusive of the concerns raised in June 2014 or in the subsequent physical examination done at Chantal's Place in July 2016. Nevertheless, given the number of investigations it should be noted that there was never any physical evidence of abuse, sexual or otherwise, in the long history of this matter.

[304] The SCAN investigation led to the Society becoming involved and they remained involved in one capacity or another from then on. Initially this matter presented as a high conflict separation where the child was caught in the middle. The first OCL investigation was done in that context. The s.112 report made a recommendation for sole, rather than joint, custody because of the high conflict and because the mother had always parented the young child and the father had not even had overnight access at that point.

[305] There is no doubt that the mother and the child have a close and loving bond and that the mother is able to meet all of the child's instrumental needs. The mother is very articulate and presents well at least initially. The father is much less assertive, and he was not seeking to obtain custody, his goal was simply to obtain meaningful overnight and holiday access and to be a significant presence in his daughter's life. Clearly the OCL investigator did not believe that the mother was committed to eliminating the father's role in S.'s life. At that time the father did not see that either.

[306] There was evidence from the mother and her friends, the J.'s, that the child was not being treated well by the father during this phase of day access. There were complaints about the child being hungry and not being properly cared for.

[307] There was then some evidence prior to July 2016 of the mother's determination to be the sole parent for S. That evidence, in and of itself, was not sufficient to warrant further investigation by child protection authorities. The Society was involved while the parties engaged in high conflict litigation. The child was under 4 years old and there was no evidence of the risk of likely harm coming to the child in this first period.

SECOND TIME PERIOD

[308] In February 2016 the father began to have overnight access. The mother began reporting behavioural changes in the child and said that S. had a completely different personality after overnight access began.

[309] By the spring of 2016 H.G. reported to the Society some very concerning statements made by the child to her at a prayer meeting. H.G. was a very credible witness. She did not know the mother well, but she told her what the child said to her and she made a report to the Society. The mother said that she was unaware that H.G. had made a report to the Society. This is not credible. H.G. knew of her duty to report and would have told the mother that. The mother did not make her own report which was completely inconsistent with all of her other actions in that she wanted the Society to know everything negative about the father. It may well be that the mother knew the report was made but did not see H.G.'s actual report until she obtained disclosure.

[310] The circumstances of the child being taken to the prayer meeting are interesting. There was no evidence that the mother went to prayer meetings with the child before the spring of 2016 and she only went twice after that. The child spontaneously began touching someone she did not know well and then made statements that were suggestive of sexual abuse.

[311] In early June 2016, the child started acting in an odd way by licking M.D.'s fingers. When S. returned from an access and ran around yelling about her "Dada" it was M.D, not the mother, who videoed the child. The mother did not report her concerns directly to the Society even though she still had an open file and a worker. The mother took the child to the doctor. The mother obtained the doctor's appointment by stating that the child fell and hit her head. Once in Dr. Lin's office the mother was completely focused on what the father might have done to S. Dr. Lin obtained the concerns from the mother and then met briefly with the child. Dr. Lin said he would make a report. The mother asked for a play therapy referral which was made.

[312] Then on July 6 the mother went to the police station to make a report directly which led to the PRP interview. In preparation for trial the mother knew that the Society's position was that she had caused emotional harm to the child by repeatedly making unfounded allegations and causing unnecessary investigations.

[313] The mother was very focused upon proving that she was not the one who made allegations and she was not the one who reported her daughter's statements. The mother said that there were only two times when she initiated investigations. She contacted the PRP on July 6 and she took the child to Chantal's Place on July 11 (and then only after he lawyer told her to do it and placed the first call). The mother said that other people heard S.'s disturbing statements or observed her concerning behaviour and they reported it. She simply cooperated with the investigations that followed.

[314] This argument is belied by the facts. The mother had convinced herself by July 5, 2016 that the father had sexually abused the child. I find that she took her to the doctor not to have a possible concussion examined, but to have the child make a statement to a professional. She did ask for a referral to play therapy, but she was not going to wait to see if the therapy might explain her daughter's behaviours. The mother had her mind made up. She went to the police station to make a report.

[315] It is clear that the mother was very disappointed with the results of the PRP interview. The police did not believe that there was evidence that could lead to criminal charges. Not only did the police not arrest the father they did not even interview him. The mother's reaction was to instruct her lawyer to help her get a physical examination of S. done and she insisted that Ms. Keeler see the child on the very day that she called. She also instructed her lawyer to bring an urgent motion to suspend the father's access.

[316] At no point did the mother contact the father directly to ask him anything about the child's statements. There is not one e-mail from the mother to the father telling him what the child is saying and doing, setting out her concerns and asking for an explanation. There is not even an accusatory e-mail. The mother believed the father was abusing S. In her mind there could be no alternate explanation. She wanted the access stopped and the father arrested.

[317] The mother first became upset with the police and the Society when the matter turned from a police investigation of the father to a forensic interview of the child at SCAN. The mother did not trust any person involved in the investigation of her daughter's statements from that point forward.

[318] The mother was wrong when she said that the police and the Society ignored her daughter's statements and did not investigate properly. I find that both the police and the Society were completely open minded about what might have happened and investigated the matter professionally and thoroughly.

[319] The video of Detective Harris' interview with S. on July 6, 2016 was illuminating. The child made statements with very disturbing content in a very casual way. There was no context to her statements and no emotional content. The statements were not credible without some supporting information. The child did not present with any indicia of concern, much less trauma, about what she claimed her father did or said.

[320] The investigation would have ended there, but for the new statements made in play therapy. The circumstances of these statements raised questions. There is nothing wrong with the mother registering the child in play therapy given the behaviours she said she witnessed and the statements that the child made. However, the mother required that the therapy be video taped which Ms. Pangan said had never been done before or since. The mother also brought the child to therapy nearly every day. Those actions certainly raised a question as to whether the therapy was for a therapeutic purpose or an evidence gathering purpose.

[321] The child did make statements and those statements were reported to the PCAS (though not until the therapy was almost concluded as the child kept being brought back until there were no new statements.) Ms. Griffiths from FEC. advocated for more PCAS involvement and insisted that their worker pick up and view the video tapes.

[322] The statements made led to a referral to the HRP and the SCAN interview at which more statements were made. The court did not review the 11 hours or so of tapes from FEC, but did review the tapes of the SCAN interview on August 4, 2016.

[323] The SCAN interview was similar to the PRP interview in that S. made a lot of statements as soon as the interview began. When the experienced forensic interviewer tried to obtain context or details the child ignored her or changed the subject. Once again there was no emotion in S.'s voice as she related what would be horrific events if true.

[324] The mother had major concerns with the SCAN interview but none of them were legitimate. I find as a fact that the entire interview was captured on the DVD. I find that there was no third person in the interview room distracting the child. The interview was conducted professionally and the HRP officer's conclusions based upon Ms. Kirkland-Burke's observations were well supported. The child's statements were not credible.

[325] The end result of the investigations in the summer of 2016 was that the child had no access to her father from July 3 to September 16. He then only had supervised access until December 13.

Mother's Position

[326] The mother was determined to show that there was no causal connection between the child's disclosures and anything that she had done or said.

[327] The mother spent an inordinate amount of time at the trial in trying to find differences between what the Society put in their detailed supervision notes and what she alleged was actually said or done at visits. The mother had an impressive attention to detail and was very organized in dealing with the 84 exhibits filed in this trial. It often appeared though that her obsession with the minor differences in the evidence meant that she was completely unable to see major concerns.

[328] She called many witnesses to attempt to prove that she did not coach the child to make statements and to show that she did not personally make reports to the Society. She often seemed to feel vindicated by slight concessions by the witnesses. Many of the witnesses she called actually hurt her position as they exposed her obsession with proving to authorities that the father was an abusive monster as well as her complete inability to see the impact of her actions on her child.

[329] The mother was very diligent in asking every witness if they had ever seen her coach her daughter to do or say anything. No one could point to an example of that. In all of her many inconsistent statements over the years S. did say that her mother said things about her father, but the young child never actually said that her mother directly told her to say something negative.

[330] The mother said the child was fine at all times when she was not seeing her father. The mother said noted that the reports to the Society of the child's statements were not coming from her, but were coming from third parties. She said this meant that the Society had no proof that if the child had suffered emotional harm that she was the cause of that harm.

[331] The mother's argument was that the child's statements were not consistent and were clearly not rehearsed. She said that the evidence was that her daughter had a good memory for her age so if she did rehearse, she would have her statements simple and consistent. I find that the statements were not directly rehearsed before the child was interviewed. I find that the mother was too clever too allow her manipulation of her child to be so easily exposed.

[332] The mother's stated position was that children do no lie about abuse. She answered the inconsistences in the child's statements by alleging that the father intimidated or even "tortured" the child to recant. The mother said that the child could not provide detail or context to her statements because the interviewers did not ask the right questions or ignored opportunities to get further information.

[333] The mother made a submission that she is a victim of an oppressive Society who wanted to punish her for advocating for her child's safety. The mother effectively said that she was powerless against the forces lined up against her-the institutional authorities who refused to listen to a little girl's pleas to be protected from her abusive father.

Child's Struggles

[334] The Society must prove that the child suffered emotional harm from the mother's actions. There was a great deal of evidence of the stress caused to S. by being required to make or support negative statements about her father when in the presence of her mother.

[335] In the fall of 2016 S. said to her father that "mom says you are evil, but I know that you aren't. I love you but mum can't know that." Despite the very disturbing statements made in the summer of 2016 S. had some positive visits with her father in the fall of 2016. It was apparent from all of the evidence that the child was struggling to reconcile what her mother thought about her father with what she observed about him.

Disclosures and Regret

[336] The resumption of overnight access on December 13, 2019, and especially the 8-day long holiday visit that ended January 7, 2017 resulted in further disclosures. This time the disclosures were made at Carey-On play therapy. Access was once again suspended and the HRP interview of January 26. 2017 resulted.

[337] The DVD of this interview was reviewed in court and it was similar to the two previous interviews. If anything, the child was even more distractible. Once again S. clearly felt a need to make some statements and then was uncomfortable with any effort to follow up on them. This interview provided more evidence to show that the child felt it necessary to make negative statements about her father in order to please her mother. It also showed that the child did care for her father despite the terrible things she attributed to him. At just barely 5 years old S. had to figure out how to hold on to a relationship with both of her parents. She made her statements and then told P.C. Sunstrum "And my mom doesn't know that I like him so much…" As the officer tried to get more information S. told her "There is nothing else I need to tell". The child clearly felt that she had done what she had to do.

Demonstration of Emotional Harm

[338] The child told Ms. Kirkland-Burke on two separate occasions that she had a headache. The second time the interviewer terminated the interview. S. reported frequent headaches to her mother and teachers as well. In the police and SCAN interviews S. tried to avoid talking about her parents. She made her statements about her father then tried to play.

[339] The teachers observed S. to be comfortable and affectionate with her father when her mother was not present and withdrawn and sad with him when she was. On one occasion she went to her father at dismissal and 5 minutes later her mother was banging on the teacher's door saying the child was crying and refusing to go with the father.

[340] The first visit after the January 26 interview really illustrated the intense emotional bind that the child was in and the mother's complete inability to understand it. S. was crying and very upset as she told her mother that she had told the interviewer "stories" about her father that are not true. She was really struggling but finally was able to say "I like my father and I love my mother and father too."

[341] The court only heard the raw emotion in the child's voice as she said this because the mother chose to put her phone in the child's coat hoping to get evidence that her visit with her father was a disaster. Either consciously or unconsciously the mother heard a totally different message in the child's statements. In the mother's internal edit of the child's statements S. was upset about the access visit and very happy to be back with her mother. The fact, that the mother wanted the court to hear the tape of that conversation demonstrated how incapable she was of internalizing what her child was going through. She only allowed herself to hear negative things about the father and she was able to completely ignore any signals that her daughter just wanted to be able to love both of her parents. The child's anguished plea to her mother to allow her to love her father fell on deaf ears.

[342] Overnight access resumed and the exchanges of the child became filled with tension which boiled over in the ugly confrontation in front of S. and M.G.'s daughters on Easter Sunday 2017.

THIRD TIME PERIOD

The Assessment

[343] By the time of the January 26 interview and its aftermath it was clear that the child was not being abused in any way by her father. It was also clear that the mother was still fixated on finding this non-existent abuse. For the Society to proceed with its Application it needed to find out what was really going on and why. At this time there was some evidence of emotional harm as noted above, but despite everything S. was quite a resilient child who at a very young age had developed coping skills that allowed her to deflect her mother's questions about her father and redirect their conversations. S. was bright and loved school, she participated in extra-curricular activities. She was a healthy child with no developmental delays. S. had friends at school and outwardly seemed to have a good life.

[344] In order to find out what caused the child to make the statements that she did, and to try and understand the mother's role in that, the Society sought a psychological assessment of the mother. After much legal wrangling the hybrid assessment described above was ordered in January 2018. Dr. Wittenberg's assessment was addressed above. He saw S.'s resilience as set out above, but he also saw some early evidence of the impact of the mother's fixation on alleged abuse of the child. As noted above he said:

Although she is physically healthy, there are some signs of psychological challenges for S. She has shown significant oppositional behaviour in her relationships with her mother. She has shown social challenges at school. She has difficulty dealing with small disagreements with peers in her class. She is easily upset by small events.

[345] Dr. Wittenberg also commented on the emotional harm that the child was likely to have in the future:

Her mother's approach threatens S.'s health. It leads to her being subjected to unnecessary examination and investigations which have repeatedly had to held in check by healthcare professionals. In fact, it is the role of good parenting to protect a child from unnecessary investigations and examinations. Mother's approach carries a threat to S. that that would not otherwise exist. This is likely to cause her to carry a sense of vulnerability, anxiety and confusion. These are experiences that are associated with disorganized attachment in children. They elevate the level of stress, rob a child of a feeling of security with her parents who are the individuals with whom she should feel most secure.

[346] The report was released in June 2018. While the access exchanges remained tense and there was the intermittent involvement of the police for wellness checks the period between the Easter 2017 debacle and the suspension of access in mid-October 2019 was a period of relative calm. There were no new statements or investigations. It may be that after the delivery of the assessment the parties were focused on how this matter might move forward to resolution.

[347] The Society convinced itself that this matter could proceed as a custody/access matter as both parties were then represented and the report was available to them. Quite properly the Society quickly changed course again as this was clearly a child protection matter given Dr. Wittenberg's conclusions. After the denial of the summary judgment motion based on procedural grounds it was clear that this matter was going to a full child protection trial by the fall of 2019. The looming trial led to an access suspension and new allegations.

FOURTH TIME PERIOD

Crisis Created

[348] It was in the fall of 2019 that the mother's actions created a real crisis. The OCL order was made in September and interviews began in mid-October. The mother, now self-represented, had wanted the OCL. She noted on a few occasions at trial that the OCL report in June 2015 had recommended that she have sole custody. She may well have thought that with that history and the fact that she had excellent communication skills she would be able to persuade the OCL to support her position. As noted above, the mother was used to either getting her own way or severing relationships. The mother became very upset with both Mr. Reid and Ms. Leonard very early in the process and well before the OCL was even ready to take a position.

[349] The nadir of this legal proceeding was reached on November 8, 2019 when the mother put the child on the phone with Justice Sullivan and insisted that she tell the judge that she did not want to see her father. That resulted in the mother being ordered to bring the child to the Society offices to be exchanged with the father. The matter was adjourned for a motion on whether custody should be changed.

[350] It was with this motion pending that the mother really panicked. She denied access for a few weeks and then arranged to see S.G. The child then made more disclosures. It was notable throughout this matter that the child made disclosures when she had limited contact with her father. The summer of 2016 was in the early days of overnight access. The continued disclosures in 2016 were made when the father's access was suspended. It is true that the mid-January 2017 disclosures were made after an 8 day period of access with the father (which followed the long block of no access), but that holiday access was fraught with tension with the battle over phone calls and then access was unilaterally suspended again around the time of the disclosures. It is also noteworthy that the child recanted her police interview statements as soon as she had a positive four hour visit with her father.

[351] S.G.'s evidence was bizarre. I set out the statements made and there was no evidence before me that proved that either the mother or S.G. told the child what to say. This was though the most clear example of evidence gathering in this entire matter. I find that the mother went to this energy consultant not because of a new-found interest in crystals, but solely due to her determination to have an "independent" third party provide evidence. S.G. who clearly subscribed wholeheartedly to conspiracy theories adopted the mother's cause and attended court. She not only enabled the mother she encouraged her in her battle with the Society and what she saw as the forces of evil that were putting S. and countless other children at risk.

Change in Custody and Change in Child

[352] The end result of the motion was Justice Sullivan's temporary order of November 26, 2019. The mother could not accept the order and I find that she directed Mr. J. to get the child and keep her away from the father. Fortunately, that did not happen.

[353] The evidence from the interviews with the OCL illustrated how the child changed over time as she thrived in the care of her father. To the father's credit he continued to encourage the child's relationship with the mother. It was the mother who frustrated her own access when she could not get what she wanted. She missed a telephone call because she wanted a video one and she broke the COVID19 rules at the visit centre.

[354] The testimony of the father, Ms. Bastasin and Mr. Reid all showed that the change in custody had a very positive effect upon S.'s emotional make up. She was no longer stressed and appeared happy. Interestingly she felt able to criticize her father, but could never say a negative word about her mother. S. continued to walk the tightrope of her mother's emotions but now she was able to openly show affection for her father without any repercussions.

Finding of Emotional Harm

[355] For the reasons stated above, I find that this child was suffering from emotional harm when living with her mother. The emotional harm was demonstrated by the child's frequent headaches and her serious anxiety at the time of access exchanges not to mention the stress she must have felt as she was subjected to many physical examinations and interviews.

[356] I also find that based upon all of the evidence and Dr. Wittenberg's opinion, that emotional harm would have been exacerbated in the future if a change in custody was not made.

Causal Connection

[357] I find that there is a causal connection between the mother's actions and behaviours and the child's emotional harm. There is no simple explanation for the timing or the content of the child's statements. As noted, there is no evidence that proves the child was coached to say things or that the child rehearsed what she was going to say.

[358] The Society position was that the only thing that made sense is that the mother, intentionally or otherwise, created in S. a negative narrative about the father. The OCL shared that position.

[359] Mr. Levine for the father said that from the time of the child's birth the mother had been determined to limit the child's contact with the father and she has been fixated on the fantasy that S. is suffering abuse from father, the PGM and other family members. The evidence supports that submission. I find that the child grew up with that narrative and learned over time that she could not show affection for her father without risking losing affection from her mother. The child felt forced to not only deny her love and affection for the father, but to actively demonstrate that she was afraid of him and tell others of the abuse that he inflicted upon her. She did what she thought she was required to do but it came at an emotional cost to her.

DISPOSITION

[360] As a child protection finding has been made the court is required to consider whether it is necessary to make a further court order. For all of the reasons set out above, I find that this child cannot be returned to the care of the mother.

[361] I am then directed to s. 101 of the CYFSA to determine the least intrusive order necessary to protect the child. It is clear from my factual findings that this is not an appropriate case for a supervision order. The emotional harm was ongoing and despite the services offered by the Society over the course of their involvement since 2014 there continue to be child protection concerns when the child is in the care of the mother.

[362] It is true that initially the child protection concerns were stated to be the exposure of the child to high conflict, but over time it became clear that the father was not creating conflict and that the mother's actions were causing the child emotional harm. The evidence was explained in the detailed assessment of Dr. Wittenberg and I accept his conclusions.

[363] The mother failed to attend for counselling, but Dr. Wittenberg found that the mother's personality disorder was so long lasting and pervasive that counselling would not be effective unless she gained insight into the fact that it was her behaviour that was causing the emotional harm. He did not think that it was likely that she would ever gain that insight.

[364] There have been long periods of interaction with the Society, with the police, with the health care system and with child's school. All of these interactions showed that the mother would not accept any direction or guidance which did not fit her unfounded belief that S. was being abused. I am satisfied that there is no intervention that could be put in place that would allow the child to be retuned to the care of the mother under a supervision order. Nothing about her behaviour would change and the child would be at continued risk of emotional harm.

CUSTODY AND ACCESS

Custody

[365] S. has been in the temporary care of her father since November 26, 2019. All of the evidence is that she has thrived in his care. The Society seeks an order under s. 102 (1) of the Act granting custody of the child to the father. The father and the OCL consent to such an order.

[366] Prior to making a custody order, I must determine if such an order is in the child's best interests. I have looked at the best interest's factors set out in s. 74 (3) of the Act . Given the extensive review of the evidence above, I find that it is not necessary to separately review each factor. The father has been involved with the child throughout her entire life. He would have been far more involved had the mother not taken every step available to her to minimize his contact due to her fixed belief that he was harming S.

[367] It is quite remarkable that despite all of the false allegations and the lengthy legal proceedings to which he has been subjected the father has never wavered from his view that it is in the child's best interests to see her mother and to try and develop a positive and healthy relationship with her. This willingness to share time and to allow his child to speak openly and affectionately about the mother in his presence is perhaps the best indicator that the father will act in the child's best interests. I will grant him custody.

Incidents of Custody

[368] An order made under s. 102 is deemed to be an order made under the CLRA so the final order that is made will replace the final orders in the CLRA file for the same relief. The CLRA file can of course continue with respect to child support. Pursuant to s. 102 (2) (a) the court my make any orders that could be made under s. 28 of the CLRA .

[369] Ms. Leonard submitted that the court should refrain from making an order that is too detailed or too complex as it would not doubt encourage further litigation to interpret the order. The point is well taken but there have already been motions brought about travel rights and restrictions so I find that issue should be addressed. As the mother believes the father is abusing the child she will never consent to his travelling with the child. The father will be permitted to obtain the child's passport and other required government documentation without notice to or consent of the mother. I will not provide for it in the order as I do not want any issues arising out of the timing or quality of notification but the father should advise the mother if he plans to take the child outside of the province of Ontario for more than seven consecutive days as such a trip will have an impact upon access.

[370] The mother should be able to obtain information about S. from any educational or health care provider, but she must understand that as she is not a custodial parent, she cannot make health care or educational decisions or give the providers restrictions or directions. I trust the father to ensure that the mother's right to information is not abused. Therefore, if the mother takes steps that interfere with the educational and health care providers ability to interact with the father or impacts upon the child's well being in any way the father may limit the mother's involvement to the receipt of written information only.

Access

[371] There is no doubt that it is in the child's best interests to have access with her mother. They share a close and loving bond. The only issue is how the access should occur. The Protection Application sought supervised access by child to the mother twice per week for a total or at least three hours.

[372] Since November 16, 2019 the mother's access to S. has been supervised by the PCAS. Initially the supervision was in person and then due to pandemic restrictions it became virtual access. After a brief resumption of in person access it returned to virtual access and is currently two days a week. After this decision is released the Society will no longer be required to supervise access.

[373] Access must continue to be supervised. The long history of this matter shows that the mother will continue her false narrative about the father if she is not actively prevented from doing so. At a young age the child began to learn how to deflect her mother's questions and re-direct the conversation, but it is not fair to S., who is not yet 9 years old, to ask her to continue to do this. As noted above, the stress caused resulted in headaches, and anxiety and based upon Dr. Wittenberg's assessment it will lead to more emotional harm.

[374] Dr. Wittenberg stated that access should be supervised. He also said that any change to access should be graduated as progressive steps allow an evaluation of the impact of access expansion before the next step is taken.

[375] As I find that the father supports the child's access to the mother, I find that access can be both frequent and flexible. I find that the Society's request for at least three hours of access divided into at least two visits is a good guideline. I will not require that the access be for a specific number of hours or a specific number of times per week. If a specific court order is made it can only be changed by another court order and that does not provide the flexibility required in this matter.

[376] The access must be capable of adjustment as it will need to be coordinated with the availability of supervisors. It should also gradually expand if the access is positive. It must be able to contract if the expansion leads to problems. It may be that some video access can become unsupervised before in-person access becomes unsupervised. There will be times when the child is on vacation with the father and there should not necessarily be make-up access for those potentially missed visits. The best way to make the access flexible is to make all access in the discretion of the father. This is not the same as stating that the father can determine if there is access. There must be some form of access. The father's responsibility will be to adjust access in the best interests of the child.

[377] At this point it is clear that a neutral professional who is able to provide supervised access notes is required. I cannot designate a specific supervised access service, but I do note that there is the Ministry of the Attorney General ("MAG") approved programs in both Peel and Halton which can offer supervised access. Due to the pandemic that access can only be virtual at this time.

[378] There are other private organizations that provide excellent services in the Peel region. Once the health crisis abates in-person supervised access should occur. The MAG programs are quite limited in the hours available per family. The private programs are more flexible, but also significantly more expensive. I note that the mother is currently not paying any child support and she is working on a full-time basis. Her own evidence was that she is very financially successful. I find that the mother should pay all of the costs of supervised access.

[379] I am concerned that the mother may not take any steps to organize supervised access as she does not think her contact with S. should be supervised. Access is the right of the child. The father has acknowledged that he understands that and will promote access. There will likely be a waiting period before any professional supervised access can occur. Ideally, the Society would continue to supervise access on a voluntary basis until there can be a transition to other professionally supervised access. I cannot order the Society to do so once I make a custody order, but it would be in the child's best interests if they could continue to supervise video access at least once a week until other professionally supervised access is in place.

[380] My expectation is that immediately upon receiving this decision the parties will contact the PSAP or a private supervision provider and complete the intake process as soon as possible. The father should not wait for the mother to initiate supervised access. It is in S.'s best interests to have supervised access so he should take steps to arrange it. Hopefully the mother will also take immediate steps to register for supervised access and pay the fees for same.

COSTS

[381] Costs in child protection proceedings are approached quite differently than costs in domestic proceedings. Mr. Levine sought the ability to address costs and the parties will be given that opportunity.

FINAL ORDER

(1) The following statutory findings are made:

Name of child: S. D.-D. born […], 2011

Mother of the child: P. D.

Father of the child: K. D.

The child does not have FNIM status

The child was not apprehended.

(2) The said child is found to be in need of protection pursuant to s. 74 (2) (f) and (h) of the CYFSA .

(3) K.D. shall have custody of the child S D-D born […], 2011 and her primary residence shall be with him.

(4) K.D. may obtain and renew all government documentation for the said child without notice to or consent of P.D.

(5) K.D. may obtain and/or renew the said child's passport and travel with, or authorize travel of the child, outside of Canada without notice to P.D.

(6)

(a) P.D. shall have access to the said child in the discretion of K.D. as to time, duration, location and supervision.

(b) The access shall begin as supervised access by a neutral third party, but it may change in K.D.'s sole discretion.

(c) If the access becomes unsupervised P.D. shall not take the said child outside of the regional municipalities of Peel or Halton without the express written permission of K.D. P.D. shall not take the said child outside of the province of Ontario.

(d) The Peel Regional police, the Halton regional police and any police force with jurisdiction shall enforce this order pursuant to s. 36 of the CLRA.

(7) K.D. shall sign consents with educational and health care providers for P.D. to receive written information about the said child. K.D. may determine in his sole discretion as to whether P.D. can contact such providers directly.

(8) The parties may seek costs of this Application as follows:

(a) If the Society or the OCL are seeking costs as against P.D. by December 11/20 they shall serve and file a costs submission which shall included references to relevant case law on costs to the Society and OCL respectively. They shall attach a bill of costs.

(b) K.D. may file a costs submission by December 18/20 which shall include references to relevant case law on the issue of costs by one respondent against another in a child protection proceeding. He shall attach a bill of costs.

(d) All costs submissions are limited to 5 pages double spaced not including the bill of costs and an appendix of cases.

Released: November 26, 2020

Justice Philip J. Clay