WARNING

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

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

87.—(7) Order excluding media representatives or prohibiting publication.— Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

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

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

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

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

ONTARIO COURT OF JUSTICE

CITATION: Huron-Perth Children’s Aid Society v. S.L.W., 2021 ONCJ 180

DATE: March 3, 2021

COURT FILE No.: C74/18

BETWEEN:

Huron-Perth Children’s Aid Society

Applicant,

— AND —

S. L. W.

Respondent,

M. K. W.

Respondent,

J. W.

Respondent.

Before Justice S. Bondy

Heard on January 12 and February 17, 2021

Ruling released on March 3, 2021

B. Tuer......................... counsel for the applicant, Huron-Perth Children’s Aid Society

J. McIlhargey................................................................ counsel for the respondent, S.L.W.

M.W. ........................................................................................... appearing on his own behalf

J. W. .......................................................................................... appearing on her own behalf

D. Barker............................. counsel for the subject children through the Office of the

........................................................................................................................ Children’s Lawyer

BONDY, S., J.:

RULING ON MOTIONS

Background:

[1] This is a request by the Huron-Perth Children’s Aid Society (hereinafter described as “Society”) for an Order varying the supervision terms of two temporary orders under the CYFSA (hereinafter described as the “Act”). The Respondent Father and step-mother by cross motion seek an order placing the children in their care and custody pending trial. A trial of these proceedings is scheduled to commence Monday, March 22, 2021.

[2] The parties to these motions include the Applicant Society and as Respondents, the children’s mother, S.W., the children’s father and step-mother, Mr. M.W. and Ms. J. W. and the Office of the Children’s Lawyer for the children, who are now 15 and 13 years of age. The children who are the subject of these proceedings are H.W. (D.O.B. March 16, 2005) and M.W. (D.O.B. September 14, 2007). H.W. will be 16 years of age within a matter of days. The Children’s Aid Society, the children through the OCL and Ms. W. are represented by counsel; Mr. and Mrs. W. are self-represented.

[3] When protection proceedings commenced in October of 2018, H.W. was 13 years of age and M.W. was 11 years old. The application has remained outstanding since that time. All the while, there was no agreement or finding on the issue of protection (as that term is defined under the Act) and at one point the Society sought an order withdrawing their Application. They withdrew that request by correspondence of January 6, 2021. An amended Protection Application of October 21, 2019 then still remains outstanding.

[4] The Society’s motion originally sought an order placing M.W. and H.W. in the care and custody of Ms. T.W., the children’s aunt and her partner subject to terms of supervision. On December 29, 2020, the Society sought leave to withdraw their Motion. After a judicial teleconference, the Society clarified that position and advised that they would seek an order confirming H.W. and M.W.’s placement with their Mother, but they sought amended terms of supervision. Mr. and Mrs. W’s cross motion seeking an order returning H.W. and M.W. to their care remains outstanding.

[5] There are two temporary orders in place. The Order of Brophy J. dated February 15, 2019 and Schnall J. dated August 27, 2019. Justice Brophy placed the child H.W. in the care and custody of his Mother and the child M.W. with his father and stepmother. Each placement was subject to terms of a supervision order by the Society. Each order prescribes terms of access between each child and the non-custodial parent. Justice Schnall’s order varied Justice Brophy’s order when she placed M.W. with his mother, subject to supervision terms. She also varied the access arrangements between M.W. and his father. She gave no access to his stepmother unless M.W. requests it. Subsequent to August 27, 2019 both boys then, have lived with their mother subject to supervision terms.

[6] These proceedings originate from custody proceedings in the Superior Court of Justice. Those proceedings are now stayed. The custody proceedings were conflictual. Ms. W. claimed that she had been forced to sign over custody of the children to Mr. and Mrs. W. in 2018 amidst counter allegations that she was an unfit mother suffering from chronic mental health issues. Templeton J. directed an investigation of the circumstances of the child H.W. pursuant to the provisions of the Children’s Law Reform Act and these protection proceedings resulted. Templeton J.’s endorsement of September 19, 2018 is instructive. She had this to say about the ongoing custodial conflict between the mother and the father: As I indicated to the parties, both parents have dramatically failed to keep the needs and best interests of the child H.W. in the forefront of their focus. They have allowed their relationship with each other or the child’s views and preferences without consultation or the application of calm, rational responses, to take precedence. Now, I appreciate that this Endorsement is not a factual finding but it certainly demonstrates, at least, at a given point in time, that a number of complex issues, including parental conflict, were placing the child H.W. at risk of harm and Justice Templeton considered both parents responsible for that situation.

[7] I have acted as the management judge in this matter on a number of occasions. With the question of trial delay looming, I ordered, on consent, that the parties attend for mediation forthwith and directed that the CAS worker take all necessary steps to expedite that process pursuant to s. 95 of the Act. To my knowledge, that mediation appointment has not yet commenced. I lament that such strategies were not pursued by any of the parties until the Court exercised its jurisdiction and sought the consent of the parties and children. I note that the Act provides that a society shall consider whether a prescribed method of alternative dispute resolution could assist in resolving any issue related to a child or a plan for a child’s care. I refer to s. 17 (1) of the Act. That section is one of the pillars upon which the new Act and its amendments are founded.

[8] There are no assessments available pursuant to s. 98 of Act relating to the complex mix of issues in this matter. It seems to me that this is very likely a case where an assessment would provide evidence that is not otherwise available to the court or might well assist in the determinations before the Court. The affidavit evidence reveals that Ms. W. may be suffering from a serious and chronic psychiatric disorder (i.e. bi-polar disorder) which requires psychiatric treatment and hospitalization. Mr. and Mrs. W. claim the children have been alienated from them. They blame the children’s mother concluding that she has engaged in “parental alienation syndrome”. They blame the Society for failing to intervene and remedy the situation. Parental alienation syndrome has a very specific interpretation and application. As Justice Spence found in Children’s Aid Society of Toronto v. M.S., 2018 ONCJ 14, the entire construct of alienation is something which is a matter of considerable debate. (see paragraph 120 of his ruling). Moreover, the Society alleges that Mr. and Mrs. W. have been emotionally and physically abusive to the boys, resulting in a serious estrangement in their relationship, the boys’ refusal and resistance to engage in any visitation with Mr. and Mrs. W. and hence, the need for Children’s Aid Society intervention. So, at first blush, there are at least three complex issues at play in these circumstances.

[9] The amended Protection application by the Society seeks a finding that the children are in need of protection pursuant to s. 74 (2)(b) (i) and (ii), s. 74 (2) (f), and 74 (2) (h) of the Act. Those sections support a finding of protection based on a risk of physical harm with a failure to care, provide, supervise or protect the children adequately or a pattern of neglect, emotional harm demonstrated by H.W. and the risk of suffering emotional harm exhibited by H.W. and M.W.

[10] To repeat, none of the claims addressed in the Amended Protection application of October 21^st, 2019 have been tested in court and this matter has remained outstanding in excess of two years. This is despite s. 96 of the Act which states that within three months of the commencement of proceedings, the Court SHALL by order fix a date for a hearing which should be the earliest date compatible with a just disposition of an application.

The Test for Variation of a Temporary Placement and Access Order:

[11] Section 94 establishes a “stepped” process for temporary orders for a child’s care and custody pending adjournment of a hearing after commencement of a Protection Application. In the case of a request to vary existing orders s. 94 (9) simply states that “the court may at any time vary or terminate an order under subsection (2)”. Section 94 (10) provides the court may admit and act on credible and trustworthy evidence on such proceedings. S. 94 (11) specifically directs that before any order is made under subsection 94 (2) that the Court SHALL (my emphasis) take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained. Subsection (6) allows the Court when making a supervision order in respect of a child, to impose terms and conditions on any person proposing a plan for care and custody, a plan for access or any person would participate in one of these plans.

[12] As for variation of temporary access orders section 104 (1) applies and imposes a best interests test. Moreover, s. 104 (5) provides that no order respecting access to a person 16 or older shall be made without the person’s consent.

[13] In Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, Justice Sherr distinguished the legal tests when reviewing the circumstances to changing a temporary placement order and a temporary access order. He acknowledged that the lack of statutory guidance on changing temporary care and temporary access orders had led to conflicting case law and confusion as to what legal test to apply. He suggested a flexible approach in interpreting what constitutes a material change especially at the initial stages of a protection application. As for the test on changes of temporary orders he found that the court must find a sufficiently material change in circumstances but he also opined that the risk analysis suggested by Spence J. in Children’s Aid Society of Toronto v. K.D., 2011 ONCJ 55, may not be applicable to every situation where a placement change is made. He suggested a contextual analysis of the situation and that the purposes of the Act should always be at the forefront of that analysis. Paragraph 69 of his judgment sets out the many relevant considerations for me to consider, including the extent to which the proposed change meets the objectives set out in the Act and the Act’s best interests factors.

[14] One consideration noted by Justice Sherr that is most applicable is the issue of the timing of trial. As Justice Sherr notes at paragraph 69: “if the case will proceed to trial soon, the courts needs to determine if the evidence of change is enough to change placement prior to a full testing of the evidence at trial. The risk is that the child’s placement is changed just prior to trial and changed again after trial. This could cause considerable disruption to a child”.

[15] I concur with Justice Sherr’s approach notwithstanding his decision was made prior to the Act’s 2018 amendments. Despite those amendments the subsection for a change to a temporary order has not changed.

[16] As for the change of a temporary access order Justice Sherr in R.M. rejected the argument that a material change should generally be required. Instead he suggests that the degree of change that a moving party must establish should depend on the nature of the requested change and the risk concerns. He supports a test of sufficient change in the circumstances in the child’s best interests, once again advocating for a contextual analysis. Again at paragraph 83 of his judgment he suggests a non-exhaustive list of factors which include the stage of proceedings and whether a trial that will determine the issue is imminent. If so, he felt it might be in a child’s best interests to have the trial judge determine the issue. Again, I concur with his reasoning despite the fact that his decision was made prior to the Act’s 2018 amendments. Former section 58 (1) and the current section 104 (1) remain unchanged. What has changed is that no order respecting access to a person 16 or older shall be made without the person’s consent. This is consistent with the Act’s underlying principle to consider the view and preferences of children where they can be ascertained.

Summary of the Evidence:

[17] The starting point of these Motions are the Orders of Justices Brophy and Schnall.

[18] Justice Brophy’s temporary order does not have detailed Reasons for me to read. He confirmed the original without prejudice Order of Justice Sherwood of December 14, 2018 which placed H.W. with his mother and M.W. with his father and stepmother. Justice Brophy amended H.W.’s access order to his father so that it now was subject to his views and preferences. It is not my function to review Justice Brophy’s order; rather my function is to first ascertain if there has been a significant change in circumstances that warrants varying that Order.

[19] Justice Schnall’s Order of August 27/28, 2019 included Reasons which were issued October 3, 2019. She found that for the purposes of the change in M.W.’s custody that Mr. and Mrs. W. had not complied with Justice Brophy’s Order for visitation between Ms. S.W. and M.W. She was concerned that the Respondents had posed obstacles when Society workers and the OCL attempted to meet with M.W. M.W. was described as distressed, wanting to die at his father’s house, despondent and not hopeful; with suicidal ideation and scared. She relied on his wishes and gave them “considerable weight”. She noted Mr. and Mrs. W. did not largely dispute what the children had said and that their mother had acknowledged her mental health issues and had taken steps to deal with it. She was satisfied that if M.W. lived with his brother and mother, this meant the two boys could attend school together and he would be part of a family unit. As for Mr. W’s access to M.W., she amended Justice Brophy’s order and arranged new terms. She hoped they would achieve a balance of control in their relationship and still promote that it take place. Once again, my function is not to review Justice Schnall’s order, my jurisdiction on a motion to vary is to first ascertain if there has been a material change in circumstances since the granting of Justice Schnall’s order.

[20] Those Orders and Reasons provide the backdrop to these Motions.

[21] The record before me now is nothing short of voluminous consisting of hundreds of pages of affidavits, exhibits and documentary filings. Much of the evidence is contradictory and conflictual, often consisting of inadmissible opinions and findings from either unreliable and self-serving sources. It is a veritable dump-truck of evidence with little or no focus on the statutory test for varying the temporary orders and the relevant evidence to meet those tests. As the mother’s circumstances changed, the Society changed their requests several times. This generated more filings and more requests for adjournment. At this point, the issue appears to be whether I should vary the terms of the Society’s supervision order imposed on the mother or return the boys to their Father’s custody. I am also being asked to vary the boys’ access terms with their father.

[22] As I mentioned previously the Society sought to discontinue the Protection proceedings in October of 2020. The Society social worker deposed that she was aware of the custodial conflict between the mother and father and the mother’s mental health history but she said she had no concerns about Ms. W.’s care of H.W. and M.W. or with her mental health ( my italics). I refer to paragraph 24 of her Affidavit. She believed any outstanding issues between Ms. W. and Mr. W. could be resolved in the Superior Court of Justice custody proceedings. The Respondents W. and Ms. W. were opposed. For the W’s, they were concerned the boys were not visiting with them, any accounts of abuse were lies, they were concerned about “parental alienation syndrome”, Mr. W. wanted M.W. re-enrolled in counselling and they complained that the Society was not fairly investigating their concerns. S.W. was opposed as she said both boys feared their father, her access to M.W. had been frustrated when M.W. lived with the W’s, she acknowledged there was no ongoing access between the boys and their father and she claimed they not wish to see him. If the Society withdrew their Protection application, she was worried she had no Order for their custody. The only outstanding custody Order was in favour of Mr. and Mrs. W.

[23] In October of 2020 other events took place. Sometime after October 25, 2010 S. W.’s mental health had deteriorated so significantly that she was hospitalized over the course of several days and weeks. The Society then sought a temporary order placing the children with their aunt T at her home near B., Ontario. According to the Society Ms. W. told them she was hospitalized when her prescribed medications made her feel unwell and she wasn’t sleeping. Mr. W. said that she was demonstrating a long pattern of mental health relapses and hospitalization. He raised that Ms. W. had stopped taking her prescribed medications and was taking cannabis “edibles”. He was opposed to his children living with their aunt claiming she had an extensive history of involvement with the B. CAS; at least two of her children were at one point in care and a Crown Wardship order for one of them was terminated. A homestudy report from the B. CAS approved the temporary placement; there were no current issues of risk identified, the children’s wishes had been canvassed, the CAS proposed diligent oversight.

[24] To elaborate what Mr. W. had to say, he explained that Ms. W.’s pattern of mental health relapses was nothing new; this was the reason he had assumed custody of M.W. in 2014 and later with H.W. in 2018. This all unraveled when the boys’ alleged he was abusive and the Society entered their lives. The 35.1 Affidavit filed by Ms. W. on this Motion does show that from their births until May of 2011 both boys lived with their parents. At some point there was a separation between Mr. W. and Ms. W. H.W. then lived from time to time with both of his parents, but after 2018 he stayed with his mother. There is a sibling to H.W. and M.W. I am not clear if she is in her father’s custody or the joint custody of her parents. Mr. W. is not her father. M.W. lived back and forth with his parents until 2014 when he went to live with Mr. and Mrs. W. until Justice Schnall’s order in 2019. Mr. W. raised the issue that H.W. and M.W. had remained alone and unsupervised for several days during Ms. W’s recent hospitalizations, that she left them without a proper safety plan, their aunt’s placement was unfit, and their schooling would be compromised. He wanted them both in ongoing therapy because of “parental alienation syndrome”. He was angry and upset that no one at the Society was willing to take any steps to address this issue.

[25] The Society worker’s Affidavit of November 4, 2020 acknowledges that Ms. W. has a history of mental health struggles and the conflict between the parents but she felt that up until November 1, 2020 the Society had no concerns with Ms. W.’s care of the children. Around that time, she said that Ms. W. called, told the Society workers that she had been hospitalized, she wanted the Society to take the boys “into care” but the Society suggested she think of a family member instead of foster care. The Affidavit is unclear as to when Ms. W. entered the hospital and for what reasons. Much of what the Society knew around this time was self-reported by Ms. W. One report from Ms. W. was that she asked H.W. to call 911 for her to go to hospital. She described herself to the CAS workers as anxious, manic, stressed, and her medication was causing her to be sick and interfering with her sleep. When the Society interviewed the children their views and preferences were discussed. H.W. said he had not spoken or seen his Dad in two and one-half years and was not interested in living with him temporarily. He considered his father emotionally and physically abusive. As for how long he was alone, the Society Affidavit says he told them it was one night. He went to his aunt’s the following day. As for M.W. he wasn’t sure why his mother was in hospital, he didn’t notice “anything off”. He too didn’t want to stay at his Dad’s home and he said the last time the two of them spoke was September 14, 2020. He hadn’t seen his Dad in person since the date of Justice Schnall’s order. He was okay with living with his aunt.

[26] There is also an Affidavit by T.P. who is a social worker and clinical investigator for the Office of the Children’s Lawyer. T.P. was retained to assist OCL counsel to hear the views and preferences of the children. Schedule “A” to his affidavit is over 324 paragraphs long and documents his meetings with the boys from July 24, 2019 until November 7, 2020. His affidavit details what the boys told him, how they were feeling, their ongoing relationship with their mother, how their schooling was going and what they thought about visitation and maintaining a relationship with their father and step-mother. I was most interested in knowing what was happening with the boys on or around October 25, 2020 as this seemed to be the event that changed their circumstances.

[27] For the purposes of these Motions, I consider T.P.’s investigative “notes” and “recordings” as a piece of credible and trustworthy evidence. I acknowledge that what the children have to say is hearsay – evidence sought to be admitted for either the fact that it was said or the truth of its contents, where the maker of the statements is not available for cross-examination or general impeachment, but the Act specifically allows for the admission of credible and trustworthy evidence on a temporary motion. Mr. P. appears to be an independent source who over a period of time has captured what the boys’ views and preferences are and their voices. Mr. and Mrs. W. think he is biased, that there’s no way of knowing what questions he asked, or how he asked them. They reject what his Affidavit says. I cannot agree that the evidence supports that Mr. P. is biased. All the affidavit does is capture his notes of what the boys told him over a period of time and interviews. H.W. and M.W. told him they do not want to visit with their father and did not want to be placed in his temporary care. As of November 7, 2020, they were content staying with their aunt until they could return to their mother’s care. Each “appears” to have a litany of complaints about how the father had treated them and at present they are not willing to engage in a relationship with him. Gifts and presents were not being exchanged between the boys and their father; Mr. W. was making weekly attempts to reach the boys, particularly M.W. by phone. Most of the time, M.W. did not engage with him.

[28] According to Mr. P., H.W. was aware of his mother’s hospitalizations, her mood swings, he had observed her “talking to herself” and he thought she had a medication change. What the notes reflect is that he is protective of his mother. There is nothing in these notes to draw any conclusions about “parental alienation syndrome”. At least not on this evidence. The Affidavit seems to suggest that H.W. was left to care for M.W. for several days after October 25^th until their Aunt T. came to pick them up in early November. The lack of a proper safety plan for the boys seems to have arisen when Ms. W. first went into the hospital on or about October 25^th. As for M.H., Mr. P. ’s notes show that he did not appear to observe his mother’s mood swings like H.W. He spoke about her needing time to heal. He didn’t seem to be aware of his mother’s mental health issues other than he wanted to go home to her and he knew she was at the hospital.

[29] Mrs. W’s affidavit of December 3, 2020 notes that Ms. W. has suffered 8 mental health breakdowns requiring hospitalization over the course of the boys’ lives; 4 of which occurred after October 25, 2020. When she attended for disclosure at the CAS she saw that sometime around November 20^th, Ms. W. was observed by the OPP running in and out of traffic with no shoes and then tackled a police officer and tried to disarm him. Apparently criminal charges were outstanding from this incident. She told the court that the Society recording showed that Ms. W. and her sister were not in agreement over when she (the mother) would visit with the boys, when she would return them to her sister’s, how long it would take to return the boys to their mother’s long term care and there were comments about the burden this arrangement was placing on the children’s aunt as she was driving back and forth to G. Mrs. W. also raised the boys’ ongoing schooling needs. According to the Society they would have liked to have seen the relationship with the boys and their father remedied but they had to give great weight to where the boys wanted to live.

[30] Ms. W. did not file an Affidavit until December 16^th, 2020. She was opposed to any plan that the children remain with their aunt. She too described her conflict with Mr. W. detailing how she was forced to sign over custody of the boys in 2018, that she didn’t mean to do so, that she was harassed to do so, that once both boys were with their father he stopped her from visiting with them, that M.H. came to live with her in 2018 when he complained he was being abused. She described how she was hospitalized in October 2020 and how she arranged a “back up” safety plan which involved a neighbour and former social worker stopping by to check in on the boys. To be fair, this was not what she had anticipated when she left for hospital. It appears she thought the boys would be more closely supervised. Things, however, didn’t go quite as planned.

[31] In her Affidavit she described that after October 25, 2020 she was admitted and re-admitted to hospital a number of times; she did not specify which dates and times. At first she said she needed her medications adjusted, another time she said she was paranoid, thereafter she became confused after she returned home on a leave and her children were not returned to her; they were living with her sister and she was surprised they weren’t being returned to her. She said she had another breakdown because of this, she became psychotic and while en route to hospital she was charged with attempting to disarm an officer who was accompanying her to the hospital. She denied the charges and told the Court they would be resolved. As of December 16^th, she said that she was responding well to her new medications; she said she was symptom free. Her plan was to transition the children back into her care to their home in G., from her sister’s care and on a longer term basis hoped to relocate to B. She said she would be closer to her family and the supports she had with family there.

[32] Ms. W.’s doctor provided two reports to the Court. He said he had been following Ms. W.’s bipolar disorder type 1 for many years. He described her as generally having an excellent response to treatment, and described her as symptom free most of the time, however, as he put it “she can become ill quickly and unexpectedly”. He also said, that once ill, she responded “nicely” with medications and support. He reported that on admission to hospital on October 24, 2020, Ms. W. was having symptoms of psychosis i.e. auditory hallucinations and disorganized thinking. She was placed on a leave of absence by October 28, 2020, re-admitted with paranoid thoughts on November 1^st and granted another leave on November 4^th. She was never discharged during this time. This is when, according to Dr. M., Ms. W. discontinued her oral medications he had prescribed, she became psychotic, and was Formed under the Mental Health Act for another 17 days. Thereafter she stayed at hospital voluntarily and was granted another leave of absence on December 7, 2020. He described her interaction with police as unfortunate. As of December 10^th, he had prescribed an injectable medication, observed her as symptom free with no evidence of depression, psychotic symptoms, suicidal or homicidal ideation. He opined that “I do not have any concerns about her being around the children at this point”. He spoke about a plan transitioning the children back into her care. He discharged her entirely on December 16, 2020. On that same date he offered that “he did not have any concerns about [Ms. W.’s] ability to look after the boys at this time.” He clarified what he meant by that “the mother was 100% symptom free and the children could be returned to her care”. Dr. M. proposed providing for an intensive case manager for Ms. W., i.e. a nurse, and he was planning to follow up with her by phone, from time to time.

[33] The Society’s Affidavit of December 22^nd, 2020 was filed after Ms. W.’s final discharge. The Society was aware of her medical plan through Dr. M. Ms. W. was proposing that the children would return to their schools, the children’s aunt would be used for support if she needed it and the Society would monitor the placement so that “M.W. and H.W. did not spend any night alone again”. The Society expected Ms. W. to contact her sister if she began to feel unwell again and they were agreeable that she also connect with neighbours for support if she needed it. The Society was opposed to any plan returning the boys to their father and step‑mother’s care and had a number of issues about Mr. W’s temporary plan. He was proposing that the boys be delivered over to his care at the courthouse, that no one would tell them what was going on, he would have sole discretion to arrange counselling for them, their mother was not to be advised of their counselling, her visitation would cease until a future point in time and he wanted to confiscate their cell phones. The Society thought his plan would cause trauma for the boys and emotional harm. When this motion was heard it appeared that Mr. and Mrs. W. had adopted part of a judge’s order in a “parental alienation syndrome” case and had used the same terms imposed by another judge. However, there were other aspects of Mr. W’s plan that appeared reasonable. He was interested in having the boys get involved with Cadets and referred to recreational and sporting activities for them. His plan involved their changing schools from G. to W., Ontario.

[34] The Society’s Affidavit of December 22^nd raised an entirely new issue. The social worker had discovered a file recording under Mrs. W.’s maiden name that originated from W., Ontario. Those recordings disclosed that Mrs. W. had been investigated following her hospitalization from depression and psychosis, a false claim of pregnancy, her false reporting that one of the twins had an elaborate medical condition and her false claim of sexual assault. Much of this information was dated and contained multiple layers of hearsay, inadmissible opinion, conjecture and hypotheses concerning Mrs. W. No independent corroboration of these claims was offered. The investigation resulted from an anonymous report. This new issue then generated a lengthy affidavit from Mrs. W. She denied that claim that she was involuntarily hospitalized. She included her family physician’s report that she was capable of assuming care of two teenage boys. She attached many pages of records and reports relating to H.W. and M.W. dating back to 2014. She offered the records as proof that the boys needed counselling and treatment. Some of the reports are from school professionals and the physician treating them. I also received the Inquest findings into the death of the Luft family, who came from Waterloo, Ontario and were murdered when their father/husband, who suffered from a serious case of bi-polar disorder, had murdered his wife and children.

Analysis and findings:

[35] I have two moving parties on the Motions, the Society and Mr. and Mrs. W. The OCL and Ms. W. are consenting to the Society’s request related to amended supervision terms.

[36] Having applied the legal tests set out above, the evidence does support an order maintaining the children in the care and custody of their Mother. The evidence does not support an order returning the children to their father and Mrs. W.

[37] I am satisfied that there has been a material change in circumstances since the granting of Justices Brophy and Schnall’s orders.

[38] I have examined the nature and extent of the variation sought by both the Society and the W’s and the proportionality of the requested changes to the change in circumstances since the making of the last Court Orders.

[39] What the events of the last few months show is that Ms. W. is suffering from a chronic and serious psychiatric condition that on or about October 25, 2020 and for several weeks thereafter kept her in hospital for several weeks until her medications could be stabilized and she was able to resume the boys’ care. Her bi-polar disorder is a recurring condition but is amenable to effective treatment if she takes her medications. Even with medication she can have relapses. She can become ill quickly and unexpectedly according to Dr. M. Her relapse in October was so serious that she was described by her doctor as having auditory hallucinations, disordered thinking and she was psychotic. It was so serious that she was involuntarily committed under the Mental Health Act. It was so serious that she was accompanied to the hospital by police escort and, as Dr. M. says, had an unfortunate incident with police where she was charged with assault and trying to disarm the officer. It was so serious that the children were left largely unsupervised for a number of days until arrangements were made by the Society for the boys to live with their aunt. It was serious because Ms. W. was self‑medicating with cannabis “edibles”. It was serious because H.W. had to call 911 for assistance. It was so serious she was noted as running in and out of traffic without any shoes on.

[40] I do not accept her explanation that the reason for her hospitalization was that she was simply feeling unwell with a medication change and couldn’t sleep. Her condition is complex but it is treatable if she takes her medications, follows her Doctor’s orders, sees him regularly, takes her injectables and has the right medical and community supports in place and a safety plan in place if and when her health declines. According to her doctor her health will decline from time to time and unexpectedly so.

[41] As a result of Ms. W.’s mental health episode, the boys had to change residences and their schooling was disrupted. They were unsupervised for a number of days. Clearly, they were worried about their mother and wanted to return home. From Mr. P. ’s communications with the boys, H.W. clearly observed his mother’s deteriorating mental state; as for M.W., I have inferred from Mr. P. ’s notes that he was somewhat oblivious to her declining health; nonetheless he wanted her to heal and at the same time he wanted to go home. He knows she was in the hospital. He was missing her, missing his school mates and worried about his mother.

[42] At the time of Justice Schnall’s order she noted that Ms. W. had acknowledged her mental health issues and had taken steps to address her mental health. That was not the case in October of 2020. In Ms. W.’s December 16^th Affidavit she does not disclose the dates or times of her admissions, does not disclose that she was self‑medicating with cannabis edibles, that she had stopped taking her prescribed medications and was obviously not following her psychiatric treatment plan. These are not the hallmarks of someone who understands their mental health history and what needs to be done.

[43] I find it inconceivable that the Society worker would have no concerns about Ms. W.’s mental health as of October 20^th, but within a period of 5 days, Ms. W. had deteriorated to the point that she required hospitalization. However, that may well be the unexpected nature of her illness. Another Society affidavit opined that up until November 1^st, there were no concerns about Ms. W.’s care of the children. The evidence on this Motion shows that Ms. W. was hospitalized around that time. It was also in mid-November that she was Formed and involuntarily hospitalized for a period of time. Perhaps the Society was attempting to ascertain all the facts surrounding Ms. W.’s hospitalization when that Affidavit was prepared.

[44] Ms. W.’s declining health and hospitalization has affected H.W. and M.W. They were moved out of their home and local schools. H.W. especially observed his Mother’s declining health when he observed her “talking to herself”. They were left without an adequate safety plan. Even the safety plan with the boys’ aunt was problematic as there were disagreements over when the boys would return, there was no clear transition plan, no one knew how the weekend visits with the boys and their mother would take place or take place; travelling back and forth to G., for T.W. was a huge burden. There was no agreement between Ms. W. and the Society on her safety plan. At one point she blamed the Society for causing another breakdown when her children were not returned to her. There was disagreement over who they should live with.

[45] To be clear, if the changes requested were simply about Mr. and Mrs. W.’s request for a variation based on a material change in circumstances due to the children’s mental health due to “parental alienation syndrome” I find no favour with that request. If it were that issue alone, I find there has been no material change in the circumstances as it relates to the boys’ relationship with their father, their willingness to engage in a relationship with him and their refusal and resistance to visit with him. There has been no material change in circumstances that shows that the source of their resistance and refusal is related to their mother’s conduct and “parental alienation syndrome”. Typically decisions dealing with alienation follow a trial, with testimony, with evidence that can be tested by cross-examination. These are the words of Spence J. in M.S. and I repeat them. Alienation must be considered on all the facts and all the factors supporting the cause of the children’s estrangement from their father must be ascertained. But after a trial. There has been no material change in the circumstances to the findings that the boys are still very critical of their father’s parenting and his behavior towards them. So much so that they do not seek visitation and do not want a relationship. Whether the source of those feelings and findings is fear-based parenting, parental alienation syndrome or the history of conflict between their mother and father, these are issues for the trial judge to determine as part of the decision that they are in need of protection and from whom. These same issues were the presenting problems that supported the temporary Orders in 2018 and 2019 and I find no material change in circumstances relating to those issues that would justify variation.

[46] Although the Society acknowledges Ms. W.’s mental health history, their focus on this Motion appears to be their conclusion that Mr. and Mrs. W. are the primary source of the boys’ trauma and emotional harm based on their fear-based parenting. Again, that is an issue for the trial judge to determine. At the same time that conclusion has generated an endless assembly of affidavits, each detailing the Society’s conclusions about Mr. W.’s parenting techniques and, more recently, raising historical concerns relating to Mrs. W. on largely untested and potentially inflammatory material. What appears to the Court to have been lost in translation is the very real risks to the children that Ms. W.’s untreated bi-polar disorder may generate and how the maintenance and success of that treatment directly impacts the children’s physical, emotional and psychological well-being and their best interests in the short and long term.

[47] This case is about two and a half weeks outside of the trial date. I have taken a contextual and flexible approach to the question of variation following my conclusion that there has been a material change in circumstances as a result of the mother’s mental health issues, her ensuing hospitalization and the circumstances the children faced this past fall. I have examined the nature and extent of the variation sought to the terms of supervision and the proportionality of the changes sought. I have considered the boys’ best interests as that term is defined under s. 1 and s. 74 (3) of the Act. I have weighed carefully what I understand their views and preferences to be. There is no question that the variation sought by the Society is measured, proportional and serves the children’s best interests, respecting the wishes of a near 16 year old and his younger sibling. The concepts of hearing the voices of children and providing services to them on the basis of mutual consent are interwoven into this Act and reflected in s.1, 3, 15, 17, 22 and 23. These are the just but a few of the child-centered provisions that are enshrined in this Act.

[48] I do not have the evidence before me to justify an Order varying the boys’ placement orders with their mother and change their care and custody to their Father and Step-mother. The threshold test of material change in circumstances has not been met and the order sought is completely contrary to what the boys have expressed that they want and does not appear to be consistent with the boys’ best interests. H.W. and M.W. have been residing with their mother since 2018 and 2019 respectively, and even though that placement may have its frailties, both have expressed by word and by deed that they don’t want a relationship with their father and they don’t seek visitation. The counselling and treatment proposed by Mr. W.’s plan cannot be forced on the boys. They have a right to consent to these services both under the Act and potentially the provisions of the Health Care Consent Act. They cannot be delivered into the custody of their father and step-mother without being told what’s going on. I appreciate that much of what was proposed in Mr. and Mrs. W.’s plan resulted from a judge’s ruling within the context of a custodial dispute after a trial and after a finding of parental alienation syndrome, but such measures are simply not tolerated under the Act and are completely inconsistent with the fundamental principle that children have a right to be heard and that they are the centre of decision making.

[49] I have reviewed the supervision terms proposed by the Society. A temporary order shall issue varying the supervision terms of the Orders of February 15, 2018 and August 27, 2019 as addressed in the correspondence of January 6, 2021, paragraphs a) through o). As for subparagraph p) I will not apply that term out of an abundance of caution that the issue of what parenting courses and counselling for Mr. and Mrs. W. is best addressed by the trial judge after a full review of the evidence. A copy of the proposed supervision terms is attached as Appendix “A” to this ruling.

[50] I now turn my mind to the thorny issue of whether the father and step-mother’s temporary access order should be varied. The question is whether there has been a sufficient change in circumstances since the making of the last Order that justifies variation. Both of the orders give considerable discretion to the Society as to date, time, supervision, which a recent decision of the Divisional Court would suggest is an error in law to make. I refer to J.S.R. v. The Children’s Aid Society of Ottawa 2021 ONSC 630. What causes me concern is that a trial date in this matter is looming and perhaps the issue of ongoing access should be addressed by the trial judge after a full review of the circumstances. The evidence further suggests that it is not taking place at all. For those reasons, I intend to vary the Interim orders so that any access between H.W. and M.W. and their father and stepmother shall be in accordance with the children’s views and preferences. I realize that this temporary order may not provide the promotion of the boys’ relationship with their Father as he would like. I am also bound by s. 104 (5) which limits the granting of an access order for a person 16 years or older, without that person’s consent. The question of access is a complex issue that requires full testing at trial.

[51] Under the circumstances, I think my temporary order is the only one I can make on a full review of the evidence on this motion, the tests before me, the views and preferences of the children as we understand them to presently be and the overriding principles and objectives of the Act.

[52] In summary then:

1. The cross motion of the Father and Stepmother shall be dismissed in its entirety.

2. The Society’s request for amended supervision terms shall go as follows:

H. W. and M.W. shall remain in the care and custody of their mother, Ms. S.W., on a temporary basis subject to the supervision terms and conditions found in Appendix “A” to this Ruling.

3. All temporary access between H.W. and M. W. and their father and stepmother shall be in accordance with the children’s views and preferences.

4. This temporary order shall remain in effect pending final disposition of the trial unless otherwise varied.

[53] One last issue: For the sake of clarity, on March 1, 2021, amendments were made to the Children’s Law Reform Act. Terminology related to custody and access have been replaced with parenting. Custody now becomes decision-making responsibility. Access by a parent to a child now becomes parenting time. Access by a non-parent to a child becomes contact. The Act does not appear to have changed its terminology from custody or access in relation to s. 94 or s. 104. For that reason, I have used the terms I have in this ruling.

Released: March 3, 2021

Justice S. Bondy

APPENDIX A

a) S.W. shall ensure that the social, physical, educational and psychological needs of the child, H.W. and M.W., are met;

b) S.W. shall encourage H.W. and M.W. to engage in counseling through community agencies and/or access the Social Worker with the M. Family Health Team as long as deemed necessary by the counselor, subject to the children’s consent to participate in counseling;

c) S.W. shall allow a Child Protection Worker from the Huron-Perth Children’s Aid Society independent access to the children, H.W. and M.W. at the home, the school or in the community on a scheduled or unannounced basis;

d) S.W. shall work cooperatively with the Children’s Aid Society by following recommendations for provisions and parenting of the children, H.W. and M.W.;

e) S.W. shall allow for scheduled and unscheduled appointments, attend appointments with the Huron-Perth Children’s Aid Society, and cooperate with scheduled and unscheduled appointments by the Society allowing for access to the family home on an unannounced and announced basis;

f) S.W. shall notify the Huron-Perth Children’s Aid Society of any change of address or contact information at least five days in advance of any such change;

g) S.W. shall notify the Huron-Perth Children’s Aid Society immediately upon any change in her mental health and shall not leave the children H.W. and M.W. alone overnight;

h) S.W. shall comply with the recommendations of Dr. M. and her mental health care providers, and shall attend all scheduled appointments with Dr. M. and all appointments to receive her injectable medications and attending all scheduled appointments with Dr. M.;

i) S.W. shall engage in outpatient psychiatric services through the Hospital in G., Ontario, and shall meet regularly, either virtually or in person, with her assigned case manager, and engage in all phone calls and reach out to the assigned nurse as needed;

j) In the event that S.W. experiences a mental health crisis which requires hospitalization, S.W. shall immediately notify the Huron-Perth Children’s Aid Society and comply with the safety plan completed with the Huron-Perth Children’s Aid Society;

k) S.W. shall sign consents to release and exchange information of service providers/professionals, involved with herself and/or the children, H.W. and M.W., upon request of the Society;

l) S.W. shall not make use of physical discipline on the children, H. W. and M.W.;

m) S.W. will not use derogatory terms when referring to the children, H.W., M. W., or their other parent;

n) S.W. shall ensure that the children, H.W. and M.W., will not be subjected to adult conflict; and

o) S.W. will work cooperatively with collateral resources such as counsellors, doctors, school, and Office of the Children’s Lawyer, and will follow up successfully on any recommendations made by these resources/service providers.