WARNING

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

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

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

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

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87(8) Prohibition re identifying child.

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

87(9) Prohibition re identifying person charged.

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

142.— (3) Offences re publication.

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

DATE: December 7, 2020

COURT FILE NO.: C10616/17

ONTARIO COURT OF JUSTICE

BETWEEN:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

Fatima Husain, for the APPLICANT

APPLICANT

- and -

A.P. and N.W.

Mira Pilch, for the RESPONDENT, A.P. The RESPONDENT, N.W., Acting in person Lorna Yates, on behalf of the OFFICE OF THE CHILDREN'S LAWYER, for the child, Ni.W.

RESPONDENTS

HEARD: November 19-20, 23-27, 2020

JUSTICE S.B. SHERR

REASONS FOR JUDGMENT

Part One – Introduction

[1] This Status Review Application is about Ni.W., who is an 11-year-old boy (the child).

[2] These child protection proceedings began on April 20, 2017. At that time, the child was living with the respondent, A.P. (the mother).

[3] The child was removed from the care of the mother by the applicant (the society) and has lived with the respondent N.W. (the father) since August 9, 2017.

[4] The child was found to be a child in need of protection on October 16, 2017 and was placed in the care and custody of the father, subject to society supervision, on December 4, 2017.

[5] Presently, the mother exercises parenting time with the child on alternate weekends, supervised by a family friend.

[6] The society seeks a disposition that the child be placed in the custody of the father pursuant to section 102 of the Child, Youth and Family Services Act, 2017 (the Act). It also seeks incidents of custody, including orders permitting the father to obtain government documentation for the child and to travel with the child outside of Canada without the mother's consent.

[7] The society seeks an order that the mother's parenting time with the child be in the discretion of the father and his wife (P.W.), including whether supervision is required, such discretion to take into consideration the child's views and wishes.

[8] The society requests that it be given notice of any future motion to change this order. It also seeks an order that the respondents must first seek leave of the court before moving to change this order.

[9] The father supports the society's position.

[10] The mother seeks an order placing the child in her custody pursuant to section 102 of the Act. In closing submissions, she adjusted her position to endorse a parenting plan proposed by the Office of the Children's Lawyer (the OCL), acting on behalf of the child. That plan provides for a phased-in increase in her parenting time, to a point where the child shall alternate weeks with his parents. It also proposes a mechanism for decision-making.

[11] In the alternative, the mother seeks an order placing the child in her care and custody, subject to society supervision, for 6 months.

[12] If the child is placed with the father, the mother seeks generous, unsupervised parenting time with the child – preferably equal time sharing.

[13] The OCL shifted its position during the trial. In its opening statement, it took the position that the child's primary residence should be with the father, that the child's parenting time with the mother should be increased and that the parenting time should be unsupervised. It submitted that the child's views and wishes regarding the parenting schedule should be given little weight because they were not consistent, and possibly were not independent.

[14] The OCL delivered a detailed proposed parenting plan on November 27, 2020, just prior to closing submissions. It supported a quick transition to equal parenting time.

[15] The OCL submitted, in the alternative, that if the court is going to order a transition to unsupervised parenting time for the mother, it should make an order placing the child in the care and custody of the father, subject to society supervision, instead of making a section 102 custody order.

[16] The OCL indicated it was not taking a position on decision-making.

[17] The main issues for this court to determine are as follows:

a) Is intervention through a court order necessary to protect the child in the future?

b) If so, what dispositional orders are in the child's best interests? In particular, if an order is made under section 102 of the Act:

(i) What parenting orders are in the child's best interests?

(ii) If the child is placed with the father, is it in the child's best interests that his parenting time with the mother be supervised?

(iii) If so, what terms and conditions of supervision are in the child's best interests?

[18] This trial was heard over 7 days and was conducted, on consent, by videoconference. The court heard from 18 witnesses, including many professional witnesses. The parties also relied on police, school and society reports as business records. The parties agreed that an affidavit of a clinical investigator (the CI), working on behalf of the OCL, could be admitted without further examination.

Part Two – Background Facts and Events Leading Up to the Disposition of the Protection Application

[19] The mother is 32 years old and single. She lives in Toronto with her 6-year-old daughter (E.).

[20] The father is 38 years old. P.W. is 37 years old. They married in 2017.

[21] The father and P.W. have had four children together, ages 15, 13, 7 and 5. They live together in Ajax with the child, their four children and P.W.'s 17-year-old child from a previous relationship.

[22] The mother and father had an on and off relationship from 2009 until 2012. The child primarily resided with the mother prior to his removal from her care in August 2017.

[23] The father's relationships with the mother and P.W. overlapped. Not surprisingly, that is a root cause of the long-standing conflict between these adults.

[24] The child is the only child that the mother and father had together.

[25] The child is now in Grade 6. He has special needs that will be detailed later in this decision.

[26] The mother told the father, when E. was born, that he was her biological father. However, DNA tests conducted in 2017 revealed that he was not.

[27] The Durham Children's Aid Society had involvement with the mother and the father in 2013 and in 2015. However, no protection application was started.

[28] The mother claims that the father had been physically, emotionally and, at times, sexually abusive to her. The father denies this and states that the mother has a history of manufacturing these allegations to control his relationship with the child. He says that she makes these false allegations to the police and to the society. This has been a major source of the adult conflict.

[29] The father was charged with three counts of assaulting the mother in September 2016. Criminal release conditions prevented him from having contact with her.

[30] The mother issued a domestic application in this court in September 2016 for custody of E. and the child, together with requests for child support and a restraining order.

[31] On September 14, 2016, on a without notice motion, Justice Penny Jones made a temporary custody and no access order, as requested by the mother. She also made a temporary restraining order against the father. The orders were made without prejudice.

[32] On September 21, 2016, Justice Roselyn Zisman made a without prejudice order that the father's parenting time with the child and E. be supervised by the father's uncle. She also ordered that the father pay temporary child support for the child and E.

[33] The police, at this time, referred the matter to the society.

[34] Justice Zisman ordered the DNA testing regarding E. on March 21, 2017. They revealed, in June 2017, that the father was not her biological parent. The father and P.W. believe that this was another example of a pattern of dishonest and manipulative behaviour by the mother. It added to the lack of trust and adult conflict.

[35] The father has not seen E. since he learned that he was not her biological parent.

[36] The society issued a protection application regarding the child and E. on April 20, 2017 due to multiple protection concerns.

[37] The protection application created a statutory stay of the parenting issues in the domestic case pursuant to section 57.2 of the Child and Family Services Act (the CFSA) (now section 103 of the Act). Those issues have remained stayed.

[38] On May 2, 2017, Justice Zisman made a temporary order placing E. and the child in the mother's care, subject to society supervision, with the father's parenting time with the child in the society's discretion.

[39] On May 31, 2017, Justice Zisman made a temporary order that the father's parenting time with the child be supervised by the father's uncle.

[40] Due to concerns about the mother's non-compliance with the supervision order, the society moved in August 2017 to place the child in the father's temporary care and custody. The mother sought an adjournment of the motion. On August 9, 2017, Justice Zisman granted the adjournment, but placed the child with the father on an extended visit.

[41] Justice Zisman heard a contested placement motion on August 29, 2017. She placed the child in the temporary care and custody of the father, subject to society supervision. She ordered that the mother's parenting time be in the society's discretion, a minimum of once each week. The society set up supervised visits for the mother at its office for 90 minutes each week. The mother also had three phone calls each week with the child.

[42] On October 16, 2017, on consent, Justice Zisman found that both E. and the child were children in need of protection pursuant to subclauses 37 (2) (b) (i) and (ii) and clause 37 (2) (d) of the CFSA.

[43] On December 4, 2017, on consent, Justice Zisman made final dispositional orders on the protection application. E. was placed in the care and custody of the mother, subject to the supervision of the society for 4 months. The child was placed in the care and custody of the father, subject to the supervision of the society for 4 months. The mother's parenting time with the child was ordered to be in the discretion of the society, taking into consideration the child's treatment needs.

Part Three – The Statement of Agreed Facts for the Protection Application

3.1 Should the Court Rely on the Facts Contained in the Statement of Agreed Facts?

[44] The parties entered into a Statement of Agreed Facts in support of Justice Zisman making her final orders on the protection application.

[45] During her cross-examination, the mother claimed that she disagreed with many of those facts. She stated that the children were never in need of protection, the child should never have been placed with the father and that there was never any need for her parenting time to be supervised. She claimed that she felt forced into entering into the Statement of Agreed Facts - that she had no choice. She said that "I didn't really know what I was doing at that time".

[46] The court will rely on the facts admitted to in the Statement of Agreed Facts for the following reasons:

a) The mother was represented by experienced counsel at the time she entered into it.

b) The mother made changes to the proposed Statement of Agreed Facts. She participated in its formulation.

c) The mother did not appeal Justice Zisman's decision.

d) The mother never moved to set aside Justice Zisman's decision.

e) The mother did not provide a satisfactory explanation for why she agreed to those facts.

f) The mother did not put forward the position that she did not agree with the Statement of Agreed Facts until her cross-examination at this trial.

[47] However, the mother's attempts to dispute the Statement of Agreed Facts was important information for the court. It was part of a pattern that emerged during the trial, where she would make excuses for her actions, externalize blame, recreate history and fail to take responsibility for her actions. Other examples of this pattern will be given later in this decision.

[48] Importantly, this was critical evidence demonstrating that the mother still does not appreciate the risk concerns held by both the society and the court.

3.2 Material Facts Contained in the Statement of Agreed Facts

[49] The Statement of Agreed facts contained the following material facts:

a) There were three historical openings concerning the mother and the father and the before the society's present involvement.

b) The first opening by the Durham Children's Aid Society was regarding concern of sexual harm between the child and P.W.'s oldest child. It did not verify the allegation.

c) The second opening was regarding concerns of domestic violence between the mother and the father that were not verified.

d) The third opening related to issues of custody and access. The mother and father were advised to bring the matter to Family Court.

e) The current opening by the society was due to parental conflict and concerns about the origins of the child's inappropriate sexual behaviour and statements.

f) The society had spoken to the mother and the father about inappropriate supervision of E. and the child and the need for counseling as soon as possible. The society referred the case to Radius Child and Youth Services (Radius).

g) The child had demonstrated aggressive behaviours at school. He had outbursts where he threw chairs and desks around and as a result the class had to be evacuated.

h) On or around January 23, 2017, the child cut E.'s wrist when the children were left with the mother's friend.

i) Child-Care staff also reported concerns about the level of care provided to the child and E. by the mother.

j) On February 27, 2017, the child told the society that the mother had hit him in the face in the past.

k) The society tried to engage the mother to address the concerns about the child's emotional well-being, but there was not consistent, effective follow up and cooperation by the mother, such that the concerns persisted.

l) After the protection application was started, the child's school continued to report concerns with the mother's lack of follow-through with its recommendations.

m) The mother went to New York twice in the summer of 2017 because of a family emergency. She did not advise the society in advance and was not available for home visits by society workers. The father also could not exercise his parenting time with the child when the mother was away.

n) Once the child came into the care of the father, the child became up to date on his immunizations, was prescribed glasses and had four cavities filled.

o) The father and P.W. worked closely with the school to develop a specialized plan to meet the child's needs.

p) In September 2017, the child was hospitalized for threatening to kill himself at school. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD). It was recommended that he undergo full psychological testing, begin medication for his ADHD, and follow up with the Shoniker Clinic.

q) The father and P.W. set up appointments for the child to be assessed at Radius and to be seen at the Shoniker Clinic.

r) The mother made two allegations of abuse against the father after the child was placed in his care. With one of the allegations, the mother attended at the Durham police station. Both allegations were investigated and not verified.

Part Four – Other Material Facts Leading Up to the Completion of the Protection Application

[50] The court heard considerable evidence about events that took place prior to the completion of the protection application. The following findings of fact, being made by the court, are relevant for the purpose of informing it about what orders it should make on this status review application:

a) The child was struggling in school with his speech and language in Junior Kindergarten (2013) and was referred to Grandview Children's Centre (Grandview).

b) The mother was struggling with anxiety and seeing a psychiatrist in 2013.

c) The child was missing a lot of school in senior kindergarten (2014-2015).

d) The child was doing very poorly in school, both academically and behaviourally, in grade one (2015-2016). His school report card indicates that he appeared sad and discouraged, failed to control his anger, spoke in a disorganized way that didn't make sense, had difficulty concentrating, was defiant to authority figures, was easily distracted, destroyed and damaged property and failed to show regret for wrong things done.

e) The child's behaviour continued to deteriorate in grade two (2016-2017). On June 13, 2017, the school sent the mother and father a suspension letter. The child had assaulted three teachers – one teacher was injured.

f) The child's attendance at school in grade two was very poor. His report card states that he missed 20 days of school and was late 53 times. On March 23, 2017, the school sent the mother a warning letter about the child's attendance.

g) The child was assessed by Dr. Parveen, a psychiatrist, on October 11, 2017, at the Shoniker Clinic. Dr. Parveen testified. She said that she diagnosed the child with ADHD, ODD and a probable learning disability. She placed the child on medication for the ADHD.

h) The child's Program Support Teacher (PST) and previous school principal (the principal) provided further detail about the child's behaviour during the fall of 2017. Both are experienced educators. They described extreme behaviours by the child. They said that the child was physically aggressive with students and staff. He demonstrated sexualized behaviours. Classes had to be evacuated when the child had tantrums. They were frequently concerned about the safety of the child and other students. Staff had to sign a waiver about physical injuries before involvement with the child. The school had to implement their "Assist Protocol" with the child (this is implemented when a child expresses suicidal ideation).

The PST testified it was the most difficult year she has had in education because of the child.

The principal testified that she had a profound amount of involvement with the child, with respect to frequency, intensity and duration. She said that, "there are few kids you remember over 25 years – "the child" is one". She said that safety plans were arranged for the child on a frequent basis. She also testified that any change in routine would trigger the child. They needed a one-on-one educational assistant to assist him each day in transitioning from daycare to school.

i) The school put in multiple supports for the child, such as the one-on-one educational assistant, a social worker and a speech and language consultant.

j) The principal and PST both testified that the father and P.W. worked closely with them, communicated with them about how the child was functioning at home, supported them and were receptive to their suggestions.

k) The mother did not take the child for his immunizations after 6 months of age. She claimed that a doctor from the Hospital for Sick Children had told her not to do this because of the child's genetics. The father promptly took the child to the doctor, once the child was placed in his care, and the child caught up on his immunizations without any adverse consequences.

l) The father took the child to the dentist and had four cavities filled. He also had the child taken to get glasses. As part of a pattern in this case, the mother provided a variety of excuses for failing to do this while the child was in her care.

m) The mother did not give the father the child's government documentation despite requests.

n) The society set out concerns about the mother inappropriately questioning and examining the child at visits. She told the child at one visit to tell his teacher if the father and P.W. did not give him his medication.

o) At a meeting held on October 31, 2017 the society set out expectations for the mother. The society asked her to:

(i) Continue to attend trauma counseling at the Scarborough Woman's Centre.

(ii) Attend a parenting group at Aisling Discoveries (Circle of Security).

(iii) Stop excessive questioning of the child at visits.

(iv) Stop reporting historical concerns about the father.

p) On August 13, 2017 (just after the child was placed by Justice Zisman with the father), the mother attended at the Durham police station. The police reported to the society that:

(i) The mother was upset that the society had given full custody of the child to the father.

(ii) The mother seemed to want the police to intervene and have the child returned to her.

(iii) The mother alleged that the father had run over the child's foot with his car on August 6, 2017.

(iv) The police met with the father and child and no concerns were reported.

Part Five – Events Since the Completion of the Protection Application

5.1 2017

[51] On December 25, 2017 (shortly after the disposition of the protection application), the mother attended at the Durham police station to make a complaint that P.W.'s eldest child had sexually assaulted the child (this was the alleged incident from 2013). She also claimed that she had seen signs of physical abuse of the child. She also said that she wanted to report the father for assaulting her prior to the separation (although this was already being dealt with by the courts). What is informative are the observations of the police officer who took the report. He stated that:

a) The mother went off on tangents during her discussion with him. She could not concentrate on one topic. She stated things for many different problems, some of which had already been investigated by the Toronto Police Service, the Durham Police Service and the society. When he tried to direct her back to the topic at hand, she was flustered and couldn't remember what she was saying.

b) She couldn't provide him with any proof of abuse.

c) She complained about the society worker and P.W.

d) She told him that the child had been diagnosed with mental health issues and was being assessed by psychiatrists. She claimed they are wrong and are not looking at the fact that it is the environment, the father's residence, that is causing him to react the way he does.

e) He asked her to go home, collect her thoughts and evidence, and return the next day.

[52] The mother returned the next day. The police officer reported that:

a) It was the same as the day before - she was incoherent and all over the place. She was still talking about different problems from different dates and could not concentrate on one subject.

b) She did not give him any new evidence of the alleged assault on her or the alleged child abuse.

[53] The Durham police did not proceed further.

[54] In December 2017, Radius completed its assessment of the child and made recommendations.

5.2 2018 to May 16, 2019

[55] On January 18, 2018, the father entered into a peace bond for one year, arising out of the criminal charges from 2016. He said that he completed the PARS (Partner Assault Response) program.

[56] The child's behaviour at school continued to be extreme. On January 24, 2018, he had a tantrum and toppled over 4 chairs. On February 7, 2018, he was banging his head on a table. The class had to be evacuated.

[57] On February 1, 2018, Dr. Parveen put the child on an additional medication to help control his behaviour.

[58] In early March 2018, the society agreed to increase the mother's parenting time to permit one hour of unsupervised time in the community each week.

[59] In early March 2018, the mother called the police claiming that the father did not have a car seat for the child. The police investigated and had no concerns.

[60] The society arranged an unsupervised visit with the mother from March 10 to March 12, 2018.

[61] The mother complained to the society on March 12, 2018 that the child had been hit by his sister with a spoon in the father's home. The society's family service worker (FSW) interviewed the child and was unable to verify with him that this had happened.

[62] On March 21, 2018, the school had another Assist Protocol with the child. The child told the school that the pills that P.W. gives him makes him want to kill himself. When asked how the child had this impression, the mother said that the child might have overheard her discussing her medication concerns with Dr. Parveen.

[63] The child had another tantrum at school a few days later. The PST called the society. The child had told the PST that "the society are bad people, people who took me away from my mom".

[64] On March 26, 2018, the mother alleged to the FSW that the father and P.W. are giving the child extra medication when he is bad.

[65] The society stopped the unsupervised visits with the mother – they returned to being fully supervised. The child's behaviour then settled down.

[66] In March 2018, the society issued its status review application seeking a 4 month extension of the supervision order.

[67] In June 2018, the child was assessed at Grandview and found to be on the autism spectrum. He was placed wait-lists for services from Grandview and Kinark Child and Family Services.

[68] In August 2018, the parties consented to a temporary order that the child have parenting time with the mother from alternate Friday to Monday mornings. The parenting time was to be unsupervised.

[69] In September 2018, the mother alleged to the society that the father had spanked the child 20 times on the rear. The mother also took the child to the Scarborough Health Clinic on September 23, 2018 about the alleged abuse. The doctor examined the child and reported to the society that he saw no marks or bruises.

[70] The FSW interviewed the child twice about this allegation. On September 26, 2018, the child told her "I don't know if it is true or not, that is what my mom said". When asked when it happened, he said "it happened before a long time ago at the building we used to live in". The FSW asked what happened and he said, "My mom said it happened; my dad hit me at my old building, but I don't remember." He said he didn't remember having told the FSW two days before that his father had spanked him 20 times.

[71] The FSW dealt with multiple complaints about communication between the mother and P.W. during this time. She warned them both about inappropriate communication. Although no examples were given, it was apparent that P.W. was sometimes insulting the mother in these communications.

[72] On November 13, 2018, the mother showed the FSW pictures she had taken of the child while he was sleeping, showing a bruise on his arm. At this meeting, the FSW said (after having received complaints from the child's school), that she warned the mother that she can't go to the school without permission.

[73] The child's behaviour began to deteriorate again at school. For example:

a) On October 31, 2018, the child was humping a girl from behind in a sexualized manner. The PST expressed dismay that the child thought that this was funny and that there was nothing wrong with it.

b) On November 22, 2018, the child had another outburst, toppling over chairs and throwing things in the classroom.

c) In January 2019, the principal said the violent child protocol had to be implemented, as the child was threatening other students with thumb tacks. She was concerned that the child didn't appear to have a clear understanding of what it meant to stab someone.

d) On January 29, 2019, the child threatened to hit a teacher in the face with a ruler.

e) On February 1, 2019, the child started acting like a cat, threatening to scratch the PST. He had to be removed from the classroom.

f) In April 2019, another student made an allegation about a sexual act by the child. Also in that month, the child twice tried to leave the school, and threw a wooden door stopper at the PST.

[74] The FSW deposed that she received several other reports from the school, P.W. and the child's daycare about similar behaviours by the child.

[75] The PST testified that the child would often run away from her, screaming in the hallway, "you are trying to kill me!"

[76] The PST said that during this time, the child was often anxious when the mother came to pick him up at school.

[77] The school set up many safety meetings and plans for the child. It set up what it calls a "chill zone", a tent where the child could go, when upset, to calm down. On one occasion, the child destroyed the tent. The principal testified that the child would verbally and physically confront other students who went near it.

[78] The principal and PST were complimentary of the cooperation of the father and P.W. during this difficult period.

[79] The PST was also complimentary of the mother, saying the mother acted with her in a pleasant manner.

[80] The principal had concerns with the mother. She said that the mother was violating school rules about coming onto school property. She felt that on one occasion the mother lied to her about why she was on the property. She reported her concerns to the society.

[81] There have been no issues between the mother and the school for two years. The mother has stopped going there.

[82] Dr. Parveen testified that in the fall of 2018, she increased the child's ADHD medication, discontinued the additional medication she had previously prescribed for him, and started the child on a small dose of Risperidone.

[83] In response to the increased adult conflict and the child's decline in functioning, the society moved in October 2018 to have the mother's parenting time supervised again. The parties agreed to adjourn the motion for mediation to take place.

[84] The parties attended mediation in December 2018. They entered into an agreement to communicate through My Family Wizard. The society withdrew its motion for supervised parenting time.

[85] The parties agree that My Family Wizard did not work and that the communication between them remained poor. The mother and P.W. accused each other of not responding to the other's messages and both stopped using it. Due to the restraining order, only P.W. communicated directly with the mother.

[86] The father and P.W. set up sessions for the child to see a psychologist during 2019. The child had five sessions with him.

[87] On March 8, 2019, the child told the school that the father had choked him. The mother called the police and the society. There were no marks on the child.

[88] The FSW testified that on March 13, 2019, the mother was refusing to return the child to the father. The mother took the child to East Metro Youth Services.

[89] On March 21, 2019, the police closed its investigation into the mother's allegation that the father had choked the child. It laid no charges.

[90] On March 28, 2019 and April 1, 2019, the mother made further allegations to the society that the child was being mistreated in the father's home.

[91] The FSW testified that the mother would "raise concerns and raise concerns". She said that she spoke to the mother several times about moving forward. She observed that the mother often became overwhelmed, speaking rapidly. She was often hard to understand and kept bringing up historical issues. At trial, the FSW appeared exhausted when relaying her experiences with the mother.

[92] The society brought another motion to supervise the mother's parenting time.

[93] On May 16, 2019, Justice Zisman heard the contested motion. Justice Zisman made temporary orders that:

a) The mother's parenting time was to be supervised at a minimum of once per week. A mid-week unsupervised visit could be arranged after several weeks if all parties agreed that the supervised parenting time had gone well. If there was no agreement, further submissions on motion would be heard.

b) The mother was to undergo a psychological or psychiatric assessment if the society was able to obtain funding.

c) Neither parent or P.W. was to speak negatively about the other parent or about the court process to the child, or permit the child to overhear any such discussions.

d) The mother was to not make any complaints to any other child protection agency but the society.

e) The mother was not to take the child to any professional (doctor, counsellor, etc.) without the prior consent of the society.

f) Any communication between the parties should be through Our Family Wizard.

g) The motion was adjourned to monitor the mother's compliance and the child's behaviour and reaction.

[94] This was the last contested motion in this case.

5.3 May 16, 2019 to Present

[95] The mother's parenting time with the child returned to being fully supervised at the society's office.

[96] Justice Zisman's temporary order was an important step in this case. After this order was made, the allegations of abuse slowed down, the level of adult conflict was reduced, and the child's functioning began to significantly improve.

[97] Dr. Parveen reported that by June 2019 she was pleased about how the child was responding to the changes in medication. She described the child as happy and animated.

[98] In July 2019, the mother testified that she slipped and fell at work and suffered a concussion. She has been off work since then.

[99] In August 2019, the society arranged for Dr. Rex Collins, a psychologist, to do a psychological assessment of the mother (the assessment). The mother delayed in setting up the process. She said it was due to her concussion. The assessment was eventually completed and delivered in December 2019.

[100] In August 2019, the society increased the mother's supervised parenting time by one hour, to take place in her home.

[101] The PST and the principal testified that the child has been a totally different child since the start of the 2019-2020 school year.

[102] The PST described the child as loving, funny, friendly and eager to please. He still has bad days, but the change has been like night and day. There have been no significant incidents since the start of the fall 2020 school year. There has been no sexualized behaviour. She said that the child has made amazing gains in his reading. She agreed that he has matured.

[103] Dr. Parveen testified that she was very pleased with the child's progress when she last saw him in April 2020. The child has not been on the Risperidone since September 2019.

[104] Dr. Parveen expressed some concern that the father had removed the child from the Risperidone in September 2019, without first consulting her. She is also concerned that the father has not brought the child to see her since April 2020.

[105] In May 2020, the society amended its status review application to seek a section 102 custody order with the father.

[106] The mother had positive visits with the child. Then, the visits were interrupted by the pandemic. From March to August 2020, the mother had virtual visits with the child, supervised by the society.

[107] The society approved the mother's family friend (C.H.) to supervise the mother's parenting time in August 2020. The mother started single overnight visits on alternate weekends in September 2020. They took place either at her home or at C.H.'s home. The visits went well and were increased to full weekend visits in alternate weeks in November 2020. Two of these visits had taken place by the start of the trial and had gone well.

[108] The father, P.W. and C.H. spoke very positively about their communication and interaction with one another. C.H. testified that the mother is acting appropriately on the visits and that the child and the mother are having a wonderful time together.

[109] C.H. testified that she is prepared to supervise the visits indefinitely, if required.

[110] At the outset of the trial, the parties agreed to terminate the supervision order for E. This had been requested by the society in its status review application in 2018 but had been overlooked while everyone parties concentrated on the child.

[111] The mother and the father also agreed to terminate the restraining order that was still in effect in the domestic matter, in order that they could communicate directly. That order was made on the last day of the trial, on November 27, 2020.

Part Six – Legal Considerations on Disposition

[112] The society has brought this application pursuant to section 113 of the Act.

[113] The society filed, and the court considered, the society's plan of care pursuant to section 100 of the Act. That plan is consistent with the position it took in this case.

[114] Section 114 of the Act provides that where a status review application is made under section 113, the court may, in the child's best interests, vary or terminate the original order made under subsection 101 (1), make a further order under subsection 101 (1) or make an order under section 102 of the Act.

[115] Subsection 101(1) of the Act provides that where a court finds that a child is in need of protection, it must first satisfy itself that intervention through a court order is necessary to protect the child in the future. The importance of taking this step in a status review application was set out by the Ontario Court of Appeal in Children's Aid Society of Oxford v. W.T.C., 2013 ONCA 491.

[116] Subsection 101 (8) of the Act provides that where a court order is not necessary to protect a child in the future, the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act. In this case, that is the mother.

[117] In determining if a court order is necessary to protect a child in the future, the court can consider protection concerns other than those that resulted in the child coming into care. See: Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[118] In determining if a protection order is necessary to protect the child in the future, the importance of emotional ties between a child and the child's caregiver are an important consideration. In Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] 2. S.C.R. 165, the Supreme Court expressed, at para. 37, that the Child and Family Services Act "seeks to balance the best interests of the children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail". Because of this goal, the best interests of the child is "an important and, in the final analysis, a determining element of the decision as to the need of protection". The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time. See: Children's Aid Society of Toronto v. S.P., 2019 ONSC 3482.

[119] In any analysis, first and foremost, there must be a consideration of the paramount purpose of the Act, as set out in subsection 1 (1), which is to promote the best interests, protection and well-being of children. As long as it is consistent with the paramount purpose, other purposes of the Act as set out in subsection 1 (2) are also designed to support the autonomy and integrity of the family unit and to utilize the least disruptive course of action available. See: Children's Aid Society of Toronto v. H.F., 2020 ONCJ 526, per Justice Roselyn Zisman.

[120] Subsection 101 (1) and subsection 102 (1) of the Act read as follows:

Order where child in need of protection

101 (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child's best interests:

Supervision order

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

Interim society care

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

Extended society care

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

Consecutive orders of interim society care and supervision

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

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.

[121] Subsection 101 (2) of the Act requires the court to determine what efforts the society or another agency or person made to assist the child before intervention under Part V of the Act.

[122] Subsection 101 (3) of the Act requires that the court look at less disruptive alternatives than removing a child from the care of the persons who had charge of the child immediately before intervention, unless it determines that these alternatives would be inadequate to protect the child.

[123] Subsection 101 (4) of the Act requires the court to look at community placements, including family members, before deciding to place a child in care.

[124] In determining the appropriate disposition, the court must decide what order is in the child's best interests. The court considered the criteria set out in subsection 74 (3) of the Act in making this determination. That subsection reads as follows:

Best interests of child

74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

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

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

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

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

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

(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child's cultural and linguistic heritage,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

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

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[125] In Children's Aid Society of Toronto v. S.B., 2014 ONCJ 518, this court discussed the importance of a parent providing a child with a safe, stable and secure home as follows:

[112] The major protection issue is the mother's ability to be able to provide the child with a safe, secure and stable home. This is a critical aspect of being a parent. Children need stable housing. They need their parents to have a stable plan for them. Children need their parents to be consistent and reliable and to exercise good judgment. They need to be protected from conflict and crisis. The mother has just started to take some steps to be able to address these protection concerns, but she is still not close, at this time, to establishing that she can provide these basic needs for the child. The mother has had difficulty looking after herself, let alone the needs of a vulnerable child. Terms of supervision would be inadequate to protect the child.

Part Seven – The Child

7.1 Views and Wishes

[126] Subsection 74 (3) of the Act now mandates that, in determining the best interests of a child, the court must consider that child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

[127] The OCL indicated that the views and wishes of the child were not consistent. The CI also deposed that she was not confident that the views and wishes of the child were independent.

[128] The CI had two meetings with the child. The first meeting took place at the father's home on October 24, 2020. The child was open and engaging with her. He had positive things to say about the father, P.W. and the mother. He was asked if there was anything he would change about the current living situation. He said that he wanted to see his mother more and spend a whole weekend with his mother and a whole weekend with his father.

[129] The CI saw the child in the mother's care on November 7, 2020. She said that in contrast to her first meeting with him, the child was grumpy. His answers were short and curt. He told her that he wanted to live with his mother and only visit his father on Fridays from 5 p.m. to 7 p.m. He told her he didn't want to see the father on the weekend because he didn't want to waste a weekend. He denied to the worker that he had previously said that he wanted to live with the father.

[130] The CI deposed that she considered whether there would be any value in speaking to the child again at school and determined that there was likely to be little value in doing this. She was concerned that the child may be in a loyalty bind, or that one or both of his parents has spoken with him about his wishes regarding the residential schedule.

7.2 Child Statements

[131] Many of the witnesses provided evidence about what the child had told them. No one objected to the admissibility of these statements. Rather, they asked the court to assess the weight to be given to them.

[132] The child statements helped inform the court about how the child was being caught in the adult conflict and its impact on him. They were also important in helping explain why events unfolded in the manner they did. See: Children's Aid Society of Peel v. P.D., 2020 ONCJ 549.

[133] However, the court gave little, if any weight, to the child's statements, for the truth of their contents, for the following reasons:

a) The child has had significant emotional challenges.

b) The child has been subject to parental influence, particularly by the mother. As an example, P.W. testified that the mother constantly put to the child details of P.W.'s daughter's alleged sexual abuse of him and asked him to confirm it. The court found P.W.'s evidence credible. Other witnesses described how the mother would put the child on the phone to report allegations against the father. This was highly inappropriate and undermined the value of any statements made by the child.

c) The child is in a loyalty bind and wants to please his parents, particularly the mother, who is very needy.

d) The child's statements are not reliable. The PST described how the child would run through the school hallway claiming that she was trying to kill him. Other witnesses talked about how the child, at times, embellishes or misinterprets events.

e) The child often gave inconsistent explanations when allegations were investigated by the FSW.

f) The child's allegations escalated when he had unsupervised parenting time with the mother or was interviewed while in her care.

g) The child has been subjected to excessive questioning by many people.

h) The OCL submitted that the child's views and wishes should be given little weight. The difference between the child's views and wishes (and presentation) at the father's home during the first visit with the CI and the second visit, while the child was in the mother's care, was stark. The court draws the inference that the difference was likely due to the mother's influence.

[134] The court gave no weight to child statements related by the mother, the father and P.W., for the following reasons:

a) They have a vested interest in the outcome of the case and a motivation to interpret the child's statements to their advantage.

b) The evidence showed that the mother had a pattern of misinterpreting and embellishing events.

c) The mother admitted that she had a poor memory.

d) They did not take contemporaneous notes and records of the child's statements. The court did not have the necessary context to evaluate the reliability of these statements.

7.3 Findings About the Child

[135] Based on the evidence presented at the trial, the court makes the following findings of fact about the child:

a) He has complex special needs.

b) Everyone agreed that he struggles with transitions and changes in his routine.

c) He loves the mother, the father and P.W.

d) He has a close relationship with E. and his two younger half-siblings in his father's home. His older step and half-sisters in his father's home don't pay much attention to him.

e) He wants to please the mother, the father and P.W.

f) He is in a loyalty bind between the mother and father.

g) He is very vulnerable to adult influence.

h) He is very aware of the mother's profound need to have him returned to her care.

i) He is very aware of the conflict and dislike between the father and P.W. and his mother.

j) The father and P.W. have exposed him to inappropriate comments about the mother.

k) The mother has exposed him to inappropriate comments about the father and P.W.

l) The mother has put inappropriate pressure on him to make allegations against the father and P.W. and to come and live with her.

m) The mother has subjected him to multiple interviews that have added to his anxiety. He has been interviewed by the society, the police and doctors. She took him to East Metro Youth Services. She has put him on the phone to make allegations to professionals.

n) There has been a dramatic improvement in his functioning since May 2019. This is likely due to a combination of reasons, including his maturity, being placed on medication, the excellent supports provided by his school, not attending his day care any longer (where he was bullied), the supervision of his parenting time with the mother, and last, but not least, the calm, stable and structured home environment that has been provided to him by the father and P.W.

o) His social skills have improved. P.W. expressed her delight that the child now has two good friends.

p) The father and P.W. have met his needs, with the exception of not having followed up on his appointments with Dr. Parveen since April 2020.

q) Due to his many needs, he requires a higher quality of caregiving than most children.

r) He needs the adults in his life to communicate more effectively about his needs.

s) He needs a big reduction in adult conflict. If this does not happen, it is unlikely he will meet his potential.

t) He requires a calm, stable and structured environment.

u) He requires stable caregivers, who are able to separate his needs from their own.

v) He needs to attend school regularly and on time.

w) He needs caregivers who can work effectively with service providers, including the service providers at school.

x) He needs to have caregivers who will demonstrate good judgment about his medical needs.

y) He needs to have the mother, the father and P.W. facilitate his contact with both households.

z) He needs to have more time with his mother.

Part Eight - Services Provided

[136] Contrary to the mother's claim, the society has worked very hard to assist this family. The child has had the following services:

a) The society assisted the mother to go to Aisling Discoveries for counseling for her and the child.

b) The society referred the mother and the child to Radius. Radius completed an assessment of the child in December 2017, addressing the child's sexual and aggressive behaviours.

c) Grandview conducted an autism assessment of the child in 2018.

d) The child has been followed by the Shoniker Clinic. He has been seen by a psychiatrist, Dr. Parveen.

e) The father and P.W. had the child see a psychologist during 2019.

f) The society arranged and paid for a psychological assessment of the mother by Dr. Collins.

g) The FSW spent considerable time acting as a referee for the disputes between the mother and the father and P.W.

h) The society has held many meetings to safety plan for the child.

i) The society has held multiple meetings with the mother setting out its protection concerns and expectations of her. The mother had a very poor memory of these meetings and what was expected of her.

Part Nine – Positions of the Parties and Plans of Care

9.1 The Society

[137] The society's plan is to have the child placed in the custody of the father. They trust him and P.W. to make responsible decisions about the child, including the extent of the mother's contact with the child.

[138] The society set out that its major goal is to protect the child from the adverse effects of adult conflict. It believes that the mother's parenting time might need to be supervised for the indefinite future.

[139] The society's position was that the child has thrived since the mother's parenting time became supervised in May 2019. It pointed out that whenever supervision was lifted before, the mother's difficult conduct escalated and the child's behaviour deteriorated. Its position on closing was "if it isn't broke, don't fix it".

[140] It appeared at the outset of the trial that the society was supporting the frequency of parenting time for the mother sought by the father. However, in reply closing submissions, it submitted that it was taking no position on the frequency of the mother's contact with the child. This was a puzzling new position, given its concerns and evidence led about the mother's conduct.

9.2 The Father

[141] The father supports the society's position. He said that the mother's parenting time should remain supervised – perhaps for four months. However, he agreed it was best for the child that the mother move to generous unsupervised parenting time.

[142] It was apparent that the father had given little thought to the criteria required for ending the supervision of the mother's parenting time and he struggled in articulating this.

[143] The father said that he was supportive of the mother having parenting time on alternate weekends, with an extension of those weekends, if the weekend fell on a statutory holiday or on a professional development day. He also supported an equal sharing of holidays, including the summer.

[144] The father was very supportive of the child spending a lot of time with the mother. Understandably, he fears that once her parenting time is unsupervised, he will be faced with more allegations, police and society investigations and that the child will be subjected to interviews and increased pressure to live with the mother.

[145] The father struck the court as a peacemaker. He has not communicated with the mother directly since 2016. The adult conflict is now mostly between the mother and P.W. He testified that he has spoken to P.W. about not "being hard" on the mother. He said that he wants everyone to get along moving forward.

[146] P.W. also supported the mother having generous parenting time with the child. Unlike the father or the society, she did not support an order where she and the father would have discretion over the mother's parenting time. She felt that they were not qualified to make those decisions. The court was impressed with this acknowledgement of her limitations. She preferred that the society or the court make these decisions.

[147] P.W. also felt that the time had come to normalize the mother's parenting time with the child. She suggested a thoughtful transition to unsupervised parenting time.

[148] P.W. acknowledged that she had been inappropriate in communication with the mother in the past. She says that since the FSW spoke to her about this she has been much better and has learned "to bite my tongue".

[149] The father and P.W. are very pleased with the child's progress but are worried it will regress once the society is no longer involved and is unavailable to run interference with the mother.

[150] The father and P.W. plan to continue supporting the services the child receives from the school and follow its recommendations. The child has an Individual Education Plan. They intend to take the child back to Dr. Parveen and follow her recommendations about medication. They will also follow through with autism services once the child is accepted. Unfortunately, the wait lists for autism services are long.

[151] The father and P.W. plan to have the child continue with extra-curricular activities. He has been involved with soccer, ballet and hip-hop.

[152] The father and P.W. both suggested using WhatsApp as their method of communication with the mother. The father said that he hoped he could communicate directly with the mother about any concerns about the child. P.W. was more wary about this idea, as she said that when they previously had direct communication, the mother would bombard the father with texts.

9.3 The Mother

[153] The mother believes that she has been treated very unfairly by the society. She does not believe that a protection case should have been started, or that the child should have been removed from her care. She certainly sees no reason why her parenting time should ever have been supervised. When asked what order she wants at trial, she said that she wanted the child protection case to be dismissed and the child returned to her.

[154] The mother testified that the society "created a whole list of jargon and has used it to separate me from my child".

[155] The mother attributes many of her problems to the hostility, maliciousness and bias of the society's previous family service worker.

[156] The mother remains angry that the society would place the child with her abuser and prefer him to her.

[157] The mother feels that there is nothing she can do to please the society – whatever action she takes, it will be held against her.

[158] The mother states that she does not question the child. Rather, he spontaneously tells her about incidents of abuse, that he is not properly fed, not properly supervised and is often treated as the black sheep of the father's family.

[159] The mother believes that she can communicate with the father. She believes he is fair and a good parent – although she worries about his temper.

[160] The mother said that she and P.W. do not communicate well, although more recently, it has been more civil. She believes that P.W. would like to exclude her from the child's life.

[161] The mother seeks a section 102 order giving her custody of the child. She adjusted her position during the trial to adopt the proposal put forward by the OCL that would lead to equal time sharing of the child by March 12, 2021.

[162] In the alternative, the mother seeks an order that the child be placed with her on a 6-month supervision order.

[163] The mother said that she has lived with her daughter in a 3-bedroom townhouse for two years. This would be appropriate accommodation for the child.

[164] The mother would like to keep the child at his present school since he is doing so well, there are many services in place, and the child struggles with changes. However, she is unsure if she would be able to keep him in that school as she lives in Toronto. If not, she would change his school. She says that the child's current school is about a 20 to 30 minute drive (2 highway stops) from her home and she can get the child to school on time.

[165] The mother plans to continue to see her psychiatrist to manage her anxiety issues and will follow her recommendations.

[166] The mother said that she would follow Dr. Parveen's recommendations about the child's medication.

[167] The mother said that she would agree to a condition that she not discuss historical concerns with the child.

[168] The mother says that she is supportive of the child having generous parenting time with the father.

[169] The mother plans to have the child participate in extra-curricular activities such as scouts and dancing. She would also like to have the child attend the Shadow Lake Camp in the summer for a week or two. This is a camp for children with developmental challenges.

[170] The mother agreed with the father that she would like to communicate directly with him through WhatsApp.

9.4 The OCL

[171] The OCL takes no position on decision-making, although it put forward a detailed decision-making mechanism in its draft order in closing submissions.

[172] The OCL seeks a very structured parenting order to provide predictability and boundaries for the adults, and to protect the child from adult conflict.

[173] The OCL also seeks an order that the child immediately have unsupervised contact with the mother.

[174] The OCL, in its opening statement, supported the child having his primary residence with the father. It changed its position in closing submissions, seeking a graduated parenting schedule that would result in a week on – week off parenting plan by March 12, 2021. When asked why it supported a transitional plan, counsel for the OCL candidly admitted it was to appease the parties.

[175] If the court is going to make an order that the mother's parenting time be supervised, the OCL asked the court to make a final order placing the child with the father, subject to society supervision, instead of making a section 102 custody order.

Part Ten – The Mother

10.1 Strengths

[176] The evidence informed the court that the mother has several strengths, including:

a) She has a very close and loving relationship with the child.

b) She is very committed to the child and worried about his well-being.

c) She has a gentle and nurturing parenting style with the child.

d) She has consistently attended all parenting time with the child.

e) Her parenting time with the child, for the most part, has been excellent. More details will be provided in the parenting time section below.

f) The mother's care of E. has been good enough that the society has been willing to terminate its involvement with her since 2018.

g) The mother sought out personal counseling through the Scarborough Health Network. Her therapist testified that the mother attended for 15 sessions, starting in April 2019. She last saw her in April 2020. She attended cognitive behavioural therapy and mindfulness workshops. The therapist testified that the mother's attendance was good and that "she absolutely improved". The mother's physical symptoms of anxiety receded, although she still had underlying anxiety, sadness and low mood. The mother, the therapist said, was always worried for her son.

h) The mother arranged for and has been seeing a psychiatrist in 2020. The psychiatrist testified that she first saw the mother on January 14, 2020. The mother presented with anxiety symptoms of moderate severity. Her symptoms included worrying about a lot of things, such as her health and her children. She was anxious about being in public places, having infrequent panic episodes and feeling sometimes low. She also reported having sleep difficulties. The psychiatrist diagnosed the mother with a generalized anxiety disorder and adjustment disorder. A major depressive order has not yet been ruled out.

The psychiatrist testified that she put the mother on medication and it immediately assisted with the mother's physical symptoms of anxiety. She has seen her five times, although there was a gap between April and November 2020 where she did not see her – much of this can be explained by the pandemic.

The court views these steps taken by the mother to address her mental health issues as a strength.

i) The mother has now developed supports, including C.H. and a close friend who testified at trial.

j) The mother professed a desire to move forward and leave the past behind. She wants the adults to get along. She recognized that the adult conflict is bad for the child.

k) The mother had some positive things to say about the father. She said that he was a good father and fair. Her ability to recognize this is a strength and gives the court some level of optimism about her ability to work with the father on parenting issues going forward.

l) No real concerns were raised about the mother's parenting time with the child since it became supervised again on May 16, 2019. This is a significant development, as the evidence shows that there was a lot of chaos in this case before then.

10.2 Concerns About the Mother

[177] The evidence revealed multiple concerns about the mother.

[178] The mother often gave her evidence in a scattered and rambling manner. She had difficulty remaining focused and would go off on tangents.

[179] The mother was a very poor historian. Her recollection of events was often vague or contradictory. She admitted that her memory "is not so great about the past". She said that she didn't remember much about what had happened between 2013 to 2017. This impacted on her ability to appreciate the protection concerns that led to the society's involvement. She also had difficulty remembering more recent events at times. Her poor memory, combined with a tendency to recollect matters in a manner favourable to her, made her evidence highly unreliable.

[180] The evidence revealed that the mother has a tendency to embellish or misinterpret information. Many examples have already been set out. Here are a few other examples:

a) Her disproportionate statements to many people about the child being in danger in the father's home – this is not the case.

b) The mother thought that the child only had "some" problems in school in grade one. This was not the case.

c) The mother's description of the father's assault of her in September 2016 escalated. She testified that she suffered a concussion, injured 22 to 24 of her vertebrae, has suffered sciatica, was black and blue all over, had scratch marks from being choked and has suffered anxiety. She provided no evidence of medical injuries. The society filed a business record, dated September 13, 2016, of a call from the police officer who did the occurrence report. No injuries were mentioned. It says:

Both called police. No physical violence, both just calling in an attempt to get the other in trouble. The police cautioned both that they would be charged with mischief if calling 911 over this matter

The father was subsequently charged with assault, but no evidence of the mother's injuries was provided to the court.

d) The mother testified that she and the child had been referred to Radius because the society had verified that P.W.'s oldest daughter had sexually abused the child. This was far from the case.

e) Even on non-material matters, the mother tended to embellish her evidence. In her direct evidence, she listed an impressive resume of education and social service work. However, when probed in cross-examination, the mother said that she was in "dead-end jobs" up until 2014. She admitted struggling through her social service course, failing one year (and blaming the school). She was very unclear about her employment history in social services, except for one job at a foster home. It appears that she has often been unemployed and on social assistance. She blamed some of her employment issues on the lack of funding in this field. She said that she was starting a drywall business when it was interrupted by her physical injuries in 2019.

[181] The mother showed very little insight into the protection concerns. She saw no justification for society involvement. She felt that the child had been placed with the father only due to her New York trip in the summer of 2017. Examples of this lack of insight are as follows:

a) The child was having challenges in school as early as junior kindergarten. Yet, except for a few sessions at Aisling, the mother did not obtain services for the child. The mother blamed the society for this.

b) When first asked about how the child did in grade one, the mother said that the year went very well, although the child had some issues with focus. The child's report card showed that he already had very serious problems. The mother claimed that part of the report card had been doctored by someone.

c) The child had very poor school attendance while in her care. At one point, she was warned by the school about this. The mother came up with multiple excuses for the child's poor attendance, little of which made much sense. It is very likely that the child's poor school attendance contributed to his academic and behavioural difficulties.

d) The mother blamed the child's teacher for his poor performance in grade 2.

e) The mother was dismissive of the child being suspended in grade 2 when a teacher was injured during one of his outbursts, saying how is it that a 7-year-old boy can be so dangerous with three teachers?

f) The mother denied the validity of the protection concerns she had agreed to in the Statement of Agreed Facts (and many of the facts supporting them), claiming that she had been forced to agree to them – once again externalizing blame and failing to take any responsibility.

g) The mother claimed that the society did not communicate the protection concerns to her when, in fact, they had several meetings with her to discuss them and expectations were clearly laid out. Further, she was served with motions to reduce her parenting time that fully set out the protection concerns.

h) The mother did not vaccinate the child after he was six months of age. She claimed that the father knew about this and that she had been told by a doctor at the Hospital for Sick Children's not to vaccinate the child. She had no evidence of this advice. The court did not find this evidence to be credible.

i) She made excuses for not taking the child to the dentist or dealing with his vision issues prior to his placement with the father.

j) She showed no insight at trial into how her strong desire to have the child returned to her might be impacting the child and how he is vulnerable to her influence due to his desire to please her and meet her needs.

[182] While some of the mother's excuses given at trial might have merit if taken alone, it was the sheer breadth of them (which were often difficult to follow), on so many issues, that was staggering, and which undermined her credibility.

[183] The mother took no responsibility at trial for why the child was removed from her care or for why the child has had so many struggles. She admitted to no parenting deficits. She views herself as a victim.

[184] The danger with the mother's lack of insight, inability to take responsibility, externalization of blame, and misperception of events is that she will repeat the patterns of behaviour that have contributed to so much distress for the child.

[185] The mother's fixed views about being wronged also suggest to the court there is a significant risk that she will repeat her damaging conduct. She testified that the society placed the child "with two angry, bitter people – it is not the healthiest environment". She believes that the father abused the child. She does not think the child would lie about this – she won't even consider that the child (if he said this to her) might be trying to tell her what she wants to hear. She says in the future she would like to first ask the father about an allegation before taking the child to the police or the society, but there is a real concern that she would not act much differently than she has in the past.

[186] A related concern is the mother's lack of judgment. This resulted in her lack of appreciation for the child's needs while in her care, her delays in getting services for the child, her involving the child in parental conflict and her pressuring of the child.

[187] The evidence indicates that the mother places her own need to have the child with her over his need to be protected from adult conflict. She has been unable so far to separate her interests from the child's interests.

[188] The court recognizes that the society has determined that the mother's parenting of E. is adequate. However, there is a big difference between parenting E. and parenting the child – a child who has had profound special needs, particularly when she would have to now parent two children.

[189] The court is concerned about the mother's ability to properly identify the child's needs and to take the necessary steps to address them. Her history has been to minimize his needs and behaviour and to blame others.

[190] The court is concerned about the mother's physical and emotional ability to take care of the child on a full-time basis. The mother described having suffered significant trauma in her life. It has led to some mental health challenges that have, at times, left her feeling anxious, fearful, depressed and with low energy. This has improved with medication and therapy but is still part of her reality.

[191] The mother also related significant physical challenges that have prevented her from working. She said that she stills suffers from post-concussion syndrome and has back, neck and shoulder issues.

[192] The child needs a high-functioning parent who will be attuned to his needs and be available, physically and emotionally to meet those needs. The mother already has significant challenges caring for herself and E., without adding the child's significant needs to the equation.

[193] The court is concerned that the mother did not have the child vaccinated. She offered an unsatisfactory explanation. This can be a real concern when addressing medical issues that are likely to arise.

[194] The court is concerned about the mother's dismissive attitude about the child's poor school attendance while in her care. It is critical that the child remain in his present school, where services are in place, and that he attend school every day, on time. The court is not confident that the mother will be able to consistently do this, based on her history. She does not live close to the school. She is unsure that the child can even remain in the school. She says that her car is not presently working.

[195] The court is also not confident in the mother's ability to work effectively, on a consistent basis, with the school or service providers. She is able to work reasonably well with people who are supportive and agree with her. However, when challenged, the evidence indicates that she becomes defensive, blames others and is dismissive.

[196] The mother lacks any trust in the society. She has disregarded its directions in the past about her communication with the father and not taking the child to the police or other service providers. Even if the court were to place the child with the mother (which it finds is not in the child's best interests), it would have to be pursuant to a supervision order, due to the significant protection concerns. The court has little confidence that the mother would be able to consistently comply with such an order.

Part Eleven – The Father

[197] The court has some concerns with the father and P.W., although they pale in comparison to its concerns about the mother. The court has considered that:

a) The father had variable involvement with the child prior to the protection application and had little knowledge about the child's needs prior to his being place in his care in August 2017.

b) The court does not rule out that there was some domestic violence by the father to the mother. He was charged in 2016 and entered into a peace bond in 2018.

c) The father and P.W. have exposed the child to adult conflict with the mother.

d) P.W. admitted that she used to make inappropriate comments to the mother and does not trust her. She said, "there is no love lost there".

e) The father stopped the child's Risperidone without prior consultation with Dr. Parveen (although she subsequently agreed with the decision).

f) The father has not taken the child to Dr. Parveen since April 2020, even though follow-ups should take place every two months (as with the mother, the pandemic can partially justify this).

[198] However, the father (and P.W.) have demonstrated multiple strengths including:

a) They have shown love and commitment to the child in very difficult circumstances.

b) They have provided the child with a highly structured and stable home. They described to the court a very predictable routine for him.

c) They have worked very closely with the school and the society to meet the child's needs.

d) The child's school attendance is excellent.

e) They have integrated the child into a very busy family.

f) They have worked with the child to improve his academics.

g) They have sought the necessary services to assist the child.

h) They have a cohesive, respectful and effective relationship. They work as a team to parent the child. There is no evidence of domestic violence or conflict.

i) They both showed insight into the child's strengths and challenges.

j) The child has significantly improved in their care.

k) P.W. openly admitted her role in the adult conflict and has improved her conduct. She also admitted her limitations in being able to exercise discretion over the mother's parenting time.

l) P.W. struck the court as an organized and effective parent.

m) Both the father and P.W. have facilitated the mother's parenting time with the child and expressed a desire to have the child spend generous time with her. They both showed an understanding about how important this relationship is for the child.

Part Twelve – Is Intervention Through a Protection Order Necessary to Protect the Child in the Future?

[199] Subsection 101 (1) of the Act requires the court to ask this question before turning to the disposition options in the Act. If the answer is no, then the child must be returned to the person who had charge of him prior to society intervention under Part V of the Act.

[200] This was an easy question for the court to answer. Intervention through a protection order is necessary to protect the child in the future for the following reasons:

a) The parties all agreed that this continues to be a high conflict case. The child has been emotionally harmed by this conflict and will continue to be adversely affected unless there is a very structured protection order.

b) The court has significant concerns about the mother's ability to meet the child's needs. The mother minimized the child's needs when he was in her care and did not adequately meet them. The mother has a history of making allegations against the father and of inappropriately involving the child in those allegations. When she does so, the child's behaviour gets worse. The court is not confident that the mother will conduct herself differently once this case ends. She continued to show little insight into the protection concerns at this trial. A protection order is necessary due to the risks involved in placing the child in her care.

c) The child has been in a stable and secure placement with the father and P.W. for over three years. It has taken time and a lot of effort by the father, P.W. and many medical and educational professionals, but the child is finally doing well in that placement. A protection order is required to ensure that the child does not suffer emotional harm from being removed from that placement.

Part Thirteen – What Placement Order is in the Child's Best Interests?

[201] The evidence is overwhelming that it is in the child's best interests to be placed in the care and custody of the father pursuant to section 102 of the Act.

[202] The father and P.W. have provided an excellent home for the child for over three years. They have met his needs. It would be highly disruptive for the child to remove him from this stable, secure and structured home.

[203] The mother has far too many challenges to place the child in her care and custody. At this point, it remains to be seen if she can manage unsupervised parenting time – let alone care for the child on a full-time basis.

[204] The possibility of an order for a form of shared decision-making was raised for the first time in closing submissions by the OCL and the mother.

[205] This is not a case where there should be shared decision-making. The conflict is far too high. Over the course of many years, the parties have been unable to effectively communicate with one another. Effective communication is required for shared decision-making to work. See: Kaplanis v. Kaplanis, [2005] O.J. No. 275 (OCA); Graham v. Butto, 2008 ONCA 260. Communication becomes even more essential when parenting a special needs child. See: Ciutcu v. Dragan, 2014 ONCJ 602; N.T. v. R.R.K., 2017 ONCJ 829. Further, the mother has often shown poor judgment. It is critical that schools and service providers clearly know who is in charge of making decisions for this child so that important service and treatment decisions are made in a timely manner. The court finds that it is in the child's best interests that the father be the parent who makes these decisions.

[206] In addressing the relevant best interest clauses in subsection 74 (3) of the Act, the court finds that:

a) The child's views and wishes have not been consistent or independent about where he wants to live. However, he has consistently said that he wants to spend more time with the mother.

b) The society's and father's plan for placement will better meet the child's physical, mental and emotional needs.

c) The society's and father's plan for placement will better meet the child's physical, mental and emotional level of development.

d) The society's and father's plan for placement will better meet the child's need for continuity and stability.

e) The risk of placing the child with the mother is unacceptably high. The child would be moving from a stable environment to a potentially unstable environment.

f) The society's and father's plan for placement will better address the child's needs than the plan proposed by the mother and the OCL

g) The least disruptive disposition, consistent with the child's best interests, is to place him in the care and custody of the father pursuant to section 102 of the Act.

h) The court also finds that it is in the child's best interests to order the incidents of custody sought by the society and the father. It is in the child's best interests that the father be able to obtain his documentation and to travel with him outside of Canada without complication. The mother was uncooperative in providing the child's documents to the father when the child came into his care. She also remains bitter about the child living with him. The court is not confident that she would sign necessary consents in a timely manner.

[207] It is important for the mother to know that this was not a close decision. She will need to accept that the child will primarily live with the father and P.W. and that a vital parental role for her now is to support the child in this placement. If she fails in this role, it is the child who will suffer.

[208] The court finds that it is in the best interests of the child that the mother have access to information about the child. This is particularly important with a special needs child. The mother needs to know what the child's issues are as they develop, and the treatment recommendations from professionals, so that she can apply them consistently. She should also have school information about the child to best support the child academically and socially. Orders will be made giving the mother direct access to information from the school and the child's service providers.

Part Fourteen – The Mother's Parenting Time

14.1 Legal Considerations

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

104 (1) – Access order

The court may, in the child's best interests,

a) when making an order under this Part; or

b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[210] The best interests considerations are set out in subsection 74 (3). The court is mandated to consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be reasonably ascertained.

[211] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27; Rigillo v. Rigillo, 2019 ONCA 548.

[212] The maximum contact principle applies to child protection cases. See: Children's Aid Society of Algoma v. S.P., 2011 ONCJ 93; Catholic Children's Aid Society of Toronto v. Z.Y.J., 2017 ONCJ 353.

[213] In C.A.S. v. C.F., 2020 ONSC 3755, Justice Heather McGee discussed supervised access in the child protection context at paragraphs 32 to 34 as follows:

[32] Access is the right of a child. As stated by Justice Blishen in V.S.J. v. L.J.G., "there is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances."

[33] A child's right to access with a parent invites a further layer of complexity in a child protection proceeding. Court must engage in a careful balancing of the benefit of a parent's care, the specific risk of harm to the child while in that parent's care, and the measures in place for risk reduction.

[34] Supervised access is a critical tool in that engagement. Supervision provides a safer bridging period during which parental deficits can be assessed and whenever possible: repaired. Supervised access is clearly indicated when parenting judgement is impaired, there is a history of violence and other harmful behaviour directed toward the primary caregiver and/or evidence of abuse or neglect of the child.

[214] This court recently endorsed these principles in Catholic Children's Aid Society of Toronto v. C.P.I., 2020 ONCJ 304.

[215] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

[216] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

[217] The person seeking supervised access bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451.

[218] In all situations where supervised access is ordered, the hope and expectation is that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve. See: Izyuk v Bilousov, 2015 ONSC 3684.

[219] Supervised access is usually a temporary arrangement. However, when the court does not expect the risks addressed by supervision to diminish, it is appropriate to order long-term supervision of access. See: Tuttle v. Tuttle, 2014 ONSC 5011.

[220] An equal-parenting time plan requires a high level of communication and coordination between the parties. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: Bokor v. Hidas, 2013 ONCJ 40; L.I.O. v. I.K.A., 2019 ONCJ 962; J.N. v. A.S., 2020 ONSC 5292.

[221] This court adds that this high level of communication and coordination becomes even more important with a special needs child who has many academic and behavioural needs.

14.2 Analysis

14.2.1 Should Parenting Time Be in the Discretion of the Father and P.W.?

[222] The position of the society and the father that the mother's parenting time be left in the discretion of the father and P.W. is not in the child's best interests. The conflict between the mother and the father and P.W. is far too high. The court agrees with the OCL that it makes little sense, in these circumstances, to make one set of participants in the high conflict the arbiters of the other's parenting time.

[223] The father gave little thought as to how he would exercise his discretion. He was vague about how he would determine how to do this.

[224] P.W. was the most realistic witness on this issue, recognizing that she and the father were not qualified to make these decisions.

[225] Making this order would only lead to increased conflict and would possibly impair the mother's relationship with the child.

14.2.2 Should There Be Equal Parenting Time?

[226] Similarly, the proposal by the mother and the OCL for equal parenting time is not in the child's best interests. The court has already set out its reasons for placing the child in the custody of the father and will not repeat them.

[227] The mother and the father and P.W. do not communicate at a level that is anywhere close to the level required to make an equal-parenting plan work – particularly for this child. Such an order runs far too high a risk of destabilizing the child.

14.2.3 Frequency of Parenting Time

[228] In determining the frequency of parenting time, the court has considered the observations of the mother's interactions with the child during visits. Society workers testified that:

a) Her attendance at visits was excellent.

b) Her interactions with the child were positive. She was loving with the child. She would provide emotional support for the child, hugging, kissing and comforting him.

c) She was prepared for visits. She brought proper food and gifts.

d) Her visits were organized. She brought crafts and read educational books with the child.

e) She was complimentary with the child – telling him that he is handsome and smart.

[229] The court also considered that:

a) The child wants to spend more time with the mother.

b) The child needs to spend more time with the mother.

c) The child wants to spend more time with E.

d) The child is more mature and is less difficult to manage than he was prior to May 2019.

e) The mother has many strengths as set out in paragraph 176 above.

[230] The court will order that the mother's parenting time be increased. It will order that the mother have parenting time on two out of every three weekends. The weekend will be extended if the Friday or Monday of the weekend is either a statutory holiday or a professional development day at school, once the order moves into Phase 3 of the parenting plan (that will be set out below), on April 30, 2021.

[231] The child needs a stable and predictable routine, especially during the school week – especially since he does not manage transitions well. The court will not order mid-week visits during school weeks. The increase in parenting time will be achieved by increasing it on weekends and holidays.

[232] The mother and father agreed that holiday time should be equally shared. The court will order extended holiday parenting time once it moves into Phase 3 of the parenting time plan. This order will provide for extra days of parenting time over the upcoming winter holiday for the mother.

[233] In the summer of 2021, the mother will be permitted to have two exclusive weeks of parenting time with the child during the summer - one week in July and one week in August. She is to choose those weeks by May 15th.

[234] Starting in 2022, the child shall spend equal time with the mother and the father during the summer.

[235] The mother would like to enroll the child at the Shadow Lake camp during the summer. The order will set out that the mother can do this during her summer parenting time.

[236] The order will provide for equal parenting time during the winter school break starting in 2021 and during the March school break, starting in 2022.

14.2.4 Supervision

[237] Whether or not the mother's parenting time should be supervised was the most difficult decision for the court to make in this case.

[238] On the one hand, there is a clear correlation between the child's positive functioning and the supervision of the mother's parenting time. When the court attempted unsupervised parenting time in 2018 and 2019, chaos ensued, and the child did poorly.

[239] There is definitely a risk of the mother repeating past behaviour if her parenting time is left unsupervised. She still shows little insight into her conduct and its impact on the child. She still feels victimized and it is unlikely she will feel differently after this decision. This increases the risk of the child regressing due to exposure to increased conflict.

[240] The court has also considered that the mother has only had two full weekend supervised visits as of the trial.

[241] On the other hand:

a) The mother has exercised responsible and positive supervised parenting time for 18 months.

b) There are far fewer allegations by the mother of abuse or neglect in the father's home.

c) The child wants to spend more meaningful time with the mother.

d) The mother has engaged positively in services to address her mental health issues. She has seen a psychiatrist, a therapist for counseling, and has engaged in therapeutic workshops. Both the therapist and the psychiatrist noted improvements in the mother's functioning.

e) The mother is less anxious now. Her medication has been helping her.

f) There is a risk that third parties will not be consistently available to supervise the mother's parenting time on a long-term basis. This could jeopardize the child's relationship with the mother.

[242] It is unusual for a child this age to have his parenting time with a parent be supervised for so long. While C.H. has done very well in her role as the supervisor and is willing to continue in this role, it is unreasonable to expect her to commit to this responsibility indefinitely.

[243] The court is going to balance these considerations by crafting a parenting time order that will transition into unsupervised parenting time for the mother by the start of April 2021.

[244] The next few months will likely be the time where the risk of regression is highest for the child, due to exposure to adult conflict. It will largely depend on the mother's ability to accept the order this court is making. The court notes how the mother's conduct escalated after Justice Zisman made her order placing the child with the father in August 2017.

[245] The court will order that the mother's parenting time be supervised by C.H., or another person approved by the father, until the end of March 2021. This is to ensure that the mother's parenting time remains positive as everyone adjusts to this decision. This will be Phase One.

[246] For the first four weekends of April only, the child will have parenting time with the mother, unsupervised, from Friday at 6 p.m. until Saturday at 6 p.m. This will be Phase Two. The purpose of this phase is to have everyone adjust to the child having unsupervised time with the mother. The court wants to move quickly to full weekend visits, which is why the frequency of visits is being increased for these four weeks.

[247] Starting on April 30, 2021, the mother will have parenting time on two out of every three weekends, for the full weekend, and her parenting time shall be unsupervised. This will be Phase Three.

[248] The court finds that the child's exposure to adult conflict will be too high if the mother directly exchanges the child with the father and P.W. at this time. The order will be structured to minimize this risk.

[249] Until the end of 2021, the court will require that C.H. or any other third party agreed upon by the mother and the father shall exchange the child at the father's home. The exchange arrangements should be made directly between the third party and the father and P.W.

[250] Starting in 2022, the mother may attend to exchange the child alone at the father's home, if she so chooses. This will be Phase Four – the final phase of the order.

[251] The father and the mother agreed that the child should be able to initiate liberal video/telephone calls to the non-residential parent. This will be ordered.

14.2.5 The Alternative Request for a Supervision Order if Supervised Parenting Time is Ordered

[252] The OCL made submissions that if supervised parenting time for the mother is ordered, the society should remain involved by making an order placing the child with the father, subject to society supervision, instead of making a section 102 custody order.

[253] There is certainly a concern that the mother, the father and P.W. will be unable to manage the mother's parenting time without the intervention of the society. However, this concern applies whether the mother's parenting time is supervised or unsupervised moving forward. The supervision of her parenting time should not be the basis for society involvement.

[254] The court finds that an order placing the child with the father, subject to society supervision, is not in the child's best interests. C.H. and the father and P.W. have demonstrated that they can work well together in facilitating the mother's parenting time. The supervision of the mother's parenting time will not last long. The child protection case has gone on for over three years. It has been stressful for all the participants, including the child, and needs to end. It is not in the child's best interests to possibly have another trial at the end of a short supervision order.

14.2.6 Communication Terms

[255] The draft order provided by the OCL gave the court helpful suggestions about communication and some of these suggestions will be incorporated into the final order.

[256] However, the draft order also dealt with a number of substantive incidents of custody and parenting time (such as terms of travel and residence restrictions) which the OCL did not seek in its opening statement or raise in the evidence at trial. The parties did not have the opportunity to provide evidence about these issues. It would be unfair to make these orders now.

[257] The court will permit the mother, the father and P.W. to communicate by WhatsApp on issues regarding the child, other than about the exchange arrangements. Any urgent issues can be communicated by telephone if a party does not respond to a WhatsApp message. The court will order boundaries on communication as suggested by the OCL. All communications must be civil and child-focused.

14.2.7 Prior Leave Required

[258] The society asked the court to make an order that the mother and the father must first seek leave of the court before bringing a motion to change this order.

[259] The court will not make that order. Neither the mother or the father are unreasonably litigious. This case went to trial arising out of their sincerely held beliefs about the best interests of the child.

[260] The court is also aware of the risk of the mother repeating past behaviour and destabilizing the child's placement with the father. If this happens, the court does not want to create obstacles for the father to return to court.

Part Fifteen – The Psychological Assessment of Dr. Collins

15.1 Preliminary Comments

[261] On May 16, 2019, Justice Zisman ordered that the mother was to undergo a psychological or psychiatric assessment if the society was able to obtain funding.

[262] The parties agreed that Dr. Rex Collins would conduct a psychological assessment of the mother. The date of this assessment is December 17, 2019. It was co-authored by Dr. Alan Rokeach, a psychologist working with Dr. Collins.

[263] The mother objected to the admission of the assessment. The court conducted a voir dire and the parties agreed that the evidence on the voir dire would be applied at the trial. It was decided that the decision about the admissibility of the assessment would be provided in this decision. The parties fully cross-examined Dr. Rokeach and Dr. Collins, in the event that the assessment was admitted.

15.2 Legal Considerations

[264] Both the "Inquiry into Paediatric Forensic Pathology in Ontario" (Toronto: Queen's Printer for Ontario, 2008) (the Goudge report) and The Report of the Motherisk Commission, February 2018, The Honourable Judith C. Beaman Commissioner (the Motherisk report) assert that judges have a vital role to play in protecting the legal system from the dangers of unreliable expert evidence. Both reports urge judges to act as gatekeepers by taking a more rigorous approach to examining the reliability of expert evidence.

[265] The Supreme Court of Canada has set out the steps for courts to take in admitting expert evidence in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The process has two main components.

[266] The first component requires the court to consider the four traditional threshold requirements for the admissibility of the evidence established in R. v. Mohan, [1994] 2 S.C.R. 9. These requirements are:

1. Relevance (which has been defined as logical relevance);

2. Necessity in assisting the trier of fact;

3. Absence of an exclusionary rule and;

4. The need for the expert to be properly qualified.

[267] The party attempting to introduce the expert must establish each of the Mohan factors on a balance of probabilities. See: R. v. Terceira (1990) 3 S.C.R. 866.

[268] The second component is a discretionary gatekeeping step where the judge decides whether the potential benefits of admitting the evidence justifies the risks of doing so. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.

[269] White Burgess also sets out the following principles with respect to the admission of expert evidence:

a) Expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party's position over another. The acid test is whether the expert's opinion would not change regardless of which party retained him or her. These concepts, of course, must be applied to the realities of adversary litigation.

b) Concerns related to the expert's duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the "qualified expert" element of the Mohan framework. A proposed expert witness who is unable or unwilling to fulfill his or her duty to the court is not properly qualified to perform the role of an expert. If the expert witness does not meet this threshold admissibility requirement, his or her evidence should not be admitted. Once this threshold is met, however, remaining concerns about an expert witness's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.

c) Imposing this additional threshold requirement is not intended to and should not result in trials becoming longer or more complex. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. Absent challenge, the expert's attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. However, if a party opposing admissibility shows that there is a realistic concern that the expert is unable and/or unwilling to comply with his or her duty, the proponent of the evidence has the burden of establishing its admissibility. Exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

d) Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence (paragraph 54).

[270] The court should clearly define the subject area of a witness's expertise and vigorously confine the witness's testimony to it. See: the Goudge Report, pages 471-475; Brandiferri v. Wawanesa Mutual Insurance Co., 2011 ONSC 3200.

[271] At the core of the admissibility analysis is the reliability of the proposed evidence. Unreliable evidence should never be necessary. Unreliable evidence cannot support a fact in issue – so it can't be relevant. Reliability is also a critical consideration at the gatekeeper stage as it will not be worth the time and cost involved to introduce unreliable evidence. See: The Motherisk Report at pg. 34; The Goudge Report, pars. 477-479; R. v. Abbey, 2009 ONCA 624; Children's Aid Society of Toronto v. D.S., 2013 ONCJ 531.

15.3 Mother's Submission

[272] The mother does not challenge Dr. Collins's expertise. She agreed to his qualification as an expert in the psychology of children, adolescents and adults.

[273] The mother also did not challenge the qualification of Dr. Rokeach as an expert in child and adolescent psychology.

[274] The basis of the mother's challenge is that Dr. Rokeach is not an expert in adult psychological assessments. Dr. Rokeach acknowledged that this was his first adult assessment, although he has dealt with adults in conducting youth assessments. He said that the psychological testing for both have many similarities. At the time he was involved with the assessment, Dr. Rokeach was still designated as "Supervised Practice". He no longer has that designation.

[275] The mother submits that we cannot know which portions of the assessment are based on the opinions of Dr. Rokeach or Dr. Collins – they are too intermingled.

[276] The mother submits that the assessment is not sufficiently reliable to be admitted and that the court should exercise its gatekeeper role, as the prejudice of admitting the assessment is greater than its probative value.

[277] The mother relied on the case of Children's Aid Society of London and Middlesex and C.D.B., 2013 ONSC 2858, in support of her position. In that case, the court ordered an assessment pursuant to section 54 of the CFSA. The court refused to admit the report for many reasons which included:

a) It was co-authored by the psychologist and a social worker. No one sought the court's approval to have the report co-authored by a social worker, as required by section 54 of the CFSA. The court had ordered the psychologist to complete the report.

b) The authors exceeded the time required to complete the assessment without first obtaining the court's permission to extend the time limit.

c) Numerous people had input into the data collection for the assessment. One person, with only a Bachelor of Arts degree and social service diploma, authored a segment of the report and collected data. Another person, with similar credentials, was responsible for most of the personal collateral interviews and securing input from professional collaterals. She also authored a segment of the report.

d) The social worker who co-authored the assessment had no recollection of many of the events and had incomplete notes that weren't prepared contemporaneously. She was also unable to complete her testimony as she became ill.

e) The process adopted did not allow counsel to scrutinize from where an opinion was generated, how it was expressed or how it was shaped.

f) There was no vetting by the court into the team members who prepared the assessment.

g) The assessment was heavily edited by the executive director of the centre prior to the final version being released, but after the feedback session with the parties. One of the parties testified that it did not bear much resemblance to what he had been told.

15.4 Analysis

[278] The assessment met the first branch of the criteria set out in White Burgess. It is logically relevant. It is necessary as the court does not have the ability to clinically assess the psychological functioning of the mother and that is important information for the court to have. There is no exclusionary rule that applies to the assessment and Dr. Collins is a duly qualified expert.

[279] The court also finds that the assessment passes the second part of the White Burgess test – the gatekeeper stage. The court finds that the probative value of the assessment exceeds its prejudicial effect, it achieves threshold reliability and that any deficiencies can be considered when the court assesses the ultimate reliability of the assessment.

[280] This case is very distinguishable from C.D.B. It is not a section 98 assessment under the Act. The court did not oversee this assessment and Dr. Rokeach did not require prior approval of the court to participate. Multiple people were not involved in the assessment as in C.D.B., including some with limited qualifications. Dr. Rokeach was the only other person involved with the report and he is a psychologist – albeit not an expert in adult assessments. It was not edited by non-professionals. Both Dr. Rokeach and Dr. Collins had a clear memory of the assessment process – unlike the co-author of the assessment in C.D.B.

[281] Dr. Collins was very involved in every aspect of the assessment. He participated in the first and last interviews with the mother. Dr. Rokeach conducted the psychological testing, but Dr. Collins scored the results with him. He discussed with Dr. Rokeach the results of the testing, and the clinical findings based on the testing, interviews and the documentation provided. They discussed what would go in the report. Dr. Rokeach wrote the first draft. Dr. Collins reviewed it and made additions. Dr. Rokeach said that Dr. Collins wrote the sections answering the specific questions that he was asked to answer in the assessment. Dr. Collins took ownership of the opinion given and was fully confident in its reliability and accuracy.

[282] Dr. Collins testified that it is important that the next generation of psychologists who conduct family assessments be properly trained. The court agrees with him that this is an important objective for the family law community. The methodology in which he conducted this training was appropriate and did not compromise the reliability of the assessment.

[283] The assessment will be admitted as Exhibit #22.

15.5 Weight to Be Given to the Report

[284] The court repeats its comments made in Jewish Family and Child Service of Toronto and R.K., 2008 ONCJ 774 at par. 78:

Courts should always treat assessments with caution. The assessor does not have the benefit of the full evidentiary record that a trial judge has. Their reports, by their very nature, are predictive. They are just one piece of evidence and what is important for the court is to evaluate how the findings do or do not correspond with the evidence at trial.

[285] It is also important to note that this was not an assessment of the mother's parenting – only her psychological functioning.

[286] The court has deliberately done its analysis of the assessment at this stage of the case as it was able to make its findings of fact and best interest determinations without it.

[287] For the most part, the opinions provided in the assessment were confirmatory of the court's conclusions based on the evidence and its observation of the mother.

[288] What the assessment provided the court with was a fuller understanding of why the mother acts as she does and perhaps, more empathy for her than it might otherwise have had.

[289] The assessment will be a useful tool for any professional working with the mother in the future to ensure that they can provide her with the best possible service.

15.6 Findings in the Assessment

[290] The assessment sets out that the mother is genuinely concerned about the welfare of her children.

[291] The assessment also sets out that the mother's history of family disruptions, economic hardship and painful childhood experiences have left her understandably overwhelmed by her challenges.

[292] The mother tried to convince the assessors that the child was in constant danger. She expressed fearing that the child "could be killed, sexually or physically abused again, or he could witness illegal activity or a home invasion".

[293] The mother described the anxiety she felt. She said, "I feel a lot of weight on my chest, it's hard to breathe, and I don't feel whole because my family makes me whole".

[294] The mother was noted as tangential in her discourse. At times, it was difficult to follow her stories and understand her line of reasoning.

[295] The assessment states that mother has a significant amount of psychological symptoms, including anxiety, low mood, stress, resentment, paranoid traits, suspiciousness and abrupt intemperate outbursts.

[296] It also states that the mother has a tendency towards hypervigilance and a propensity to scan her environment for threats and perceived rejection and hostility from others.

[297] The assessment states that the mother's functioning can be characterized as reflecting largely inadequate efforts to keep at bay profound levels of chronic, pervasive and free-floating anxiety.

[298] The assessment sets out that the mother's defenses against these overwhelming emotions are often rigid and brittle, comprising externalization of blame, a hypervigilant and at times paranoid stance against the world and projection of her vulnerabilities and aggressive impulses on to others.

[299] The assessment concludes that the psychological energy to try to contain her anxieties makes it very difficult for the mother to think about and understand the perspective of other people. Her relentless preoccupation with her son's safety might be thought of as a means by which her own overwhelming fears are given a degree of focus. The danger with these ongoing preoccupations is that her intense anxieties may spill over into her son.

[300] Dr. Collins testified that the mother had very rigid views that were "quite unshakeable".

[301] The assessment recommended that the mother have a psychiatric consultation and that an appropriate medication regime will help her do this. It also recommended that the mother participate in cognitive behavioural therapy.

[302] The mother followed the recommendation to see a psychiatrist and medication has helped with her anxiety. She also participated in therapy and took a cognitive behavioural therapy workshop for six weeks. The mother described strategies she is now using to manage her stress.

Part Sixteen – Conclusion

[303] Final orders shall go on the following terms and conditions:

a) The father shall have custody of the child pursuant to section 102 of the Act.

b) The father may obtain government documentation for the child, including passports, or renewals of passports, without the mother's consent.

c) The father may travel with the child outside of Canada, for vacation purposes, without the mother's consent.

d) The father shall provide the mother with copies of the child's government documentation, including his health card.

e) The father shall sign any necessary consents or releases to permit the mother to directly speak to the child's school, doctors or other service providers.

f) The mother may also obtain her own school calendar from the school and request copies of the school notices directly.

g) The father shall keep the mother updated about the child's medication regime and any changes to it.

h) The father shall notify the mother about any changes to the child's service providers and provide her with their names and contact information.

i) The parties shall immediately notify the other if there is any urgent issue concerning the child.

j) The mother shall have parenting time with the child as follows:

1. Phase One:

i. December 11, 2020 at 5 p.m. until December 13, 2020 at 6 p.m.

ii. December 18, 2020 at 5 p.m. until December 20, 2020 at 6 p.m.

iii. December 25, 2020 at 5 p.m. until December 28, 2020 at 6 p.m.

iv. January 8, 2021 at 5 p.m. until January 10, 2021 at 6 p.m.

v. January 15, 2021 at 5 p.m. until January 17, 2021 at 6 p.m.

vi. January 29, 2021 at 5 p.m. until January 31, 2021 at 6 p.m. by

vii. February 5, 2021 at 5 p.m. until February 7, 2021 at 6 p.m.

viii. February 19, 2021 at 5 p.m. until February 21, 2021 at 6 p.m.

ix. February 26, 2021 at 5 p.m. until February 28, 2021at 6 p.m.

x. March 12, 2021 at 5 p.m. until March 14, 2021 at 6 p.m.

xi. March 19, 2021 at 5 p.m. until March 21, 2021 at 6 p.m.

xii. The visits shall be fully supervised by C.H. or by a third party approved in writing by the father. That person shall conduct the parenting exchanges.

2. Phase Two:

i. Starting on April 2, 2021, for four consecutive weeks, Friday at 5 p.m. until Saturday at 6 p.m.

ii. The visits will be unsupervised.

iii. The parenting exchanges shall be conducted or by C.H. or by a third party approved in writing by the father.

3. Phase Three:

i. Starting on April 30, 2021, two out of every three weekends from Friday at 5 p.m. until Sunday at 6 p.m. The mother shall have parenting time on two consecutive weekends, followed by one weekend where the child will have parenting time with the father.

ii. If there is a statutory holiday or a professional development day on the mother's parenting time weekend, the visit will start on Thursday at 5 p.m., if the day off school is on Friday and will end on Monday at 5 p.m., if the day off school is on Monday.

iii. The visits will be unsupervised.

iv. The parenting exchanges shall be conducted by C.H. or by a third party approved in writing by the father.

v. This will be the regular parenting schedule.

4. Phase Four

As of January 1, 2022, there will be no further requirement for a third party to conduct the parenting exchanges, if the mother so chooses.

k) Once the mother moves into Phase Three of her parenting time, as set out above, the parties shall share holiday time with the child as follows:

(i) The child shall spend Mother's Day with the mother, if it is not otherwise her day for parenting time, from 10:00 a.m. to 6:00 p.m.

(ii) The child shall spend Father's Day with the father, if it is not otherwise his day for parenting time, starting at 10:00 a.m.

(iii) Starting in 2022, the child shall spend the March school break with the mother in even-numbered years and with the father in odd-numbered years. The March break will begin on the Monday following the end of school at 10:00 a.m. until the following Sunday at 6 p.m.

(iv) Starting in 2021, the child shall spend equal time with the parents during the winter school break. The child shall spend the first half of the winter school break with the mother and the second half with the father in odd-numbered years. The child shall spend the first half of the winter school break with the father and the second half with the mother during even-numbered years. This is subject to the division of Christmas Eve and Christmas Day set out below.

(v) Starting in 2021, the parties shall alternate Christmas Day and Christmas Eve each year. In even-numbered years, the child shall be with the father from December 24th at 1 p.m. until December 25th at noon and with the mother from noon on December 25th until 1 p.m. on December 26th. In odd-numbered years, the child shall be with the mother from December 24th at 1 p.m. until December 25th at noon and with the father from noon on December 25th until 1 p.m. on December 26th.

(vi) In 2021, the mother shall have two weeks of exclusive parenting time with the child during the summer school break – one week in July and one week in August. She shall advise the father in writing by May 15, 2021, what weeks she is choosing.

(vii) Starting in 2022, the child shall spend one week on and one week off with the parents during the summer school break. The first week will be with the mother and will start on the Sunday following the end of school. Exchanges shall take place on Sundays at 6 p.m.

(viii) The mother may enroll the child in camp during her summer parenting time.

(ix) The holiday times shall take priority over the regular parenting time schedule.

l) All parenting exchanges shall take place at the father's home.

m) All communication regarding parenting exchanges shall take place between C.H. (or any other third person conducting the parenting exchanges agreed to by the father) and either the father or P.W. until the end of 2021.

n) Any communication not regarding parenting exchanges between the mother and the father and P.W. shall be by way of a WhatsApp group chat. P.W. shall be invited to join the group.

o) Any urgent issues may be communicated by telephone if a parent does not respond to a WhatsApp message.

p) The residential parent shall provide the other parent with updates weekly on Thursday evenings. The updates shall be focused and business-like. They shall not address financial issues. No response shall be required unless a specific question is asked.

q) Any other communication between the parents should be limited unless there is a specific issue related to the child that requires a response prior to the Thursday evening update.

r) The mother and father shall communicate with each in a civil and respectful manner.

s) The mother and the father are not to discuss adult matters that the child can hear.

t) The mother is not to discuss historical allegations with the child.

u) The mother and the father are not to discuss the other parent in a derogatory manner that the child can hear.

v) The child may initiate a video/telephone call to the non-residential parent whenever he wishes, including before bedtime.

w) The society is to be given notice of any future court action brought by either the mother or the father.

[304] The society shall take out this order.

[305] It is the court's hope that this order will give the mother and the father the structure and clarity to be able to move forward in their lives. They will both be important parents in the child's life. It is critical now that they do everything in their power to shield the child from conflict and support one another. This will give the child the opportunity to enjoy his childhood and adolescence, not feeling the responsibility of having to look after his parents' needs. It will give him the best opportunity to succeed.

[306] The court wishes the mother, the father, P.W. and the child the very best.

[307] The court thanks counsel for their excellent and sensitive presentation of this case.

Released: December 7, 2020

Justice S.B. Sherr