F.K.T. v. A.A.H., 2023 ONCJ 110

Date: March 10, 2023 Court File No.: D41854/21 Ontario Court of Justice

Between:

F.K.T. Applicant (Arthur Brown, for the Applicant)

- and -

A.A.H. Respondent (Feven Glaizghi, for the Respondent)

Heard: March 2-3, 2023

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] On July 11, 2020, the applicant (the mother), while in a state of psychosis, attempted to kill the parties’ two children (then ages 4 years and 6 months) by repeatedly stabbing them.

[2] The children underwent emergency surgery and survived. The older child (P.) has suffered permanent damage. Both children have attended many follow-up medical appointments and have received physical therapy. They both bear the physical scars of the attack.

[3] The mother was charged with two counts of aggravated assault, two counts of attempted murder and assault with a weapon.

[4] The mother was imprisoned. The respondent (the father) has cared for the children since then.

[5] On May 7, 2021, the mother was found not criminally responsible by reason of mental illness. The court declined to make a disposition and referred the matter to the Ontario Review Board (the ORB).

[6] The mother has been required to reside at the Forensic Unit of the Centre for Mental Health and Addiction (CAMH) since then. On October 4, 2021, the ORB found that she is a significant threat to the safety of the public.

[7] The mother has not seen the children since she was arrested on July 11, 2020. She now seeks supervised parenting time with the children. She also seeks an order to permit her to obtain or receive information about the children’s education, health, therapy and counseling.

[8] The father submits that it is premature to order parenting time. He says that he and P. have been traumatized by what has happened. He does not want parenting time to begin until P. has received professional treatment and he receives professional advice that P. is ready to have parenting time with the mother. He also submits that if, and when, parenting time starts, it should be conducted with professional assistance and monitoring to ensure that P. does not suffer any further emotional damage.

[9] The father also submits that parenting time is not in the younger child’s (R.’s) best interests. R. does not know the mother and has not been told about what the mother did to her and P. The father seeks professional assistance for R., to explain to her what has happened in an age-appropriate way and to assist her in any reintroduction to the mother.

[10] The father proposed that the mother’s parenting time be in his discretion. The mother submitted that such an order would be tantamount to a “no parenting time” order as the father will not permit her to have any parenting time with the children.

[11] The father also seeks orders that the mother not contact or communicate with him and the children pursuant to section 28 of the Children’s Law Reform Act (the Act). He opposes the mother’s request to have the right to obtain information about the children.

[12] The parties both filed affidavits for their direct evidence for this focused trial and were permitted to give supplementary oral evidence. The mother’s brother (the brother) also filed an affidavit for his direct evidence and was cross-examined. The mother filed extensive medical records, reports and decisions related to her appearances before the ORB. The father filed business records from the Children’s Aid Society of Toronto (CAST).

[13] The mother advised the court during the trial management process that she would participate in the trial remotely from CAMH and arrangements were made. Instead, she came to court in person, which surprised and shook up the father. He requested and was granted permission to participate in the trial remotely from another room in the courthouse.

[14] The parties were both assisted by Tigrinya interpreters throughout the trial.

[15] The issues for the court to determine are:

a) What parenting time orders are in the children’s best interests. In particular, is it in the children’s best interests to have in-person or virtual parenting time with the mother? b) What communication and contact restrictions, if any, are in the children’s best interests? c) Is it in the children’s best interests to grant the mother rights to information regarding them?

Part Two – Background facts

[16] The mother is 39 years old. The father is 42 years old.

[17] The parties were both born in Eritrea.

[18] The father moved to Sudan in 2008. The mother moved to Sudan in 2013.

[19] The parties met in Sudan and were married there in 2015. They have the two children together. P. is now six years old. R. is now three years old.

[20] The parties immigrated to Canada in November 2018.

[21] The father obtained employment upon the family’s arrival in Canada and the mother stayed home and looked after P.

[22] The mother’s mental health seriously declined after R. was born in December 2019. She deposed that she became extremely depressed. She feared that her husband and brother wanted to sell the children to wealthy families who could not have children in Sudan. There were times when she was worried that the father might try to hurt or kill the children. [1]

[23] In February 2020, the father took parental leave because he was very concerned about the mother’s declining mental health and her inability to look after the children.

[24] The mother called the police on May 26, 2020 in a stressed state. She expressed fears that the father was going to leave her and take the children and their money.

[25] The brother called the police again on May 31, 2020 and the mother expressed the same concerns to the police. The mother went to her brother’s apartment in the same building.

[26] The father deposed that on May 31, 2020, the mother had thrown a glass and plate at him while P. was beside him [2].

[27] On May 31, 2020, CAST became involved with the family after the police made a referral to it.

[28] The police attended the brother’s home on June 1, 2020, after the mother called 911. The mother told the police that she was not happy living with the brother and wanted to move back with the father.

[29] On June 11, 2020, the police attended again at the parties’ home when called by the mother. The mother again expressed fears that the father was going to leave her and take the children with him. The police referred the mother to victim services.

[30] The mother was involuntarily admitted to hospital under a Form 1 pursuant to the Mental Health Act from June 13 to June 19, 2020.

[31] On June 15, 2020, the mother called the police claiming that the father was harming the children. The police attended at the family home. The father explained that the mother was at the psychiatric unit at the hospital.

[32] On discharge from the hospital, the mother was referred to outpatient psychiatric services.

[33] The father left the home on July 11, 2020 for 15 minutes to go to an ATM. While he was away, the mother attempted to kill the children by stabbing them multiple times with a knife.

[34] The mother called the police after she stabbed the children. When connected to an interpreter, she said, “Problem, and “Come Police Danger”.

[35] The father came home and found P. lying in the hallway in front of the bathroom bleeding from the neck and chest. He entered the children’s bedroom and found R. lying on the bed bleeding from the stomach.

[36] The mother told the father, “I would rather kill my own kids than have you sell them”.

[37] P. had been stabbed in the neck and the left side of his chest, where he punctured a lung. He had emergency surgery.

[38] P. has permanent nerve damage and is expected to have limited mobility in his arm for the rest of his life. He has had many medical appointments since this attack and receives physical therapy for his injuries.

[39] R. was stabbed in the chest and abdomen resulting in her intestines falling outside of her body. She had a smaller laceration to her chest. She had emergency surgery to seal her abdomen. She also required follow-up appointments and physiotherapy.

[40] CAST provided some assistance to the father. It closed its file in December 2020 and referred the father to the Yonge Street Mission for services.

[41] The father has cared for the children since the attack on the children. He has not returned to work. He takes the children to their medical and therapy appointments.

[42] The father and the children lived with the brother for one to two months after the children were released from the hospital. They then returned to their own apartment. In December 2020, the father found new housing and he and the children have lived there since.

[43] The mother received psychiatric treatment while she was incarcerated at the Vanier Center for Women.

[44] The mother was admitted to CAMH in June 2021 and remains there.

[45] On October 4, 2021, the ORB ordered that the mother be detained at CAMH. The mother was refrained from contacting the father without his written revocable consent. She was also refrained from contacting the children, except in accordance with a court order and the prior approval of the person in charge at CAMH. CAMH was directed to create a program for the mother.

[46] The mother attached to her trial affidavit the ORB reasons for decision dated October 22, 2021. The reasons include the following findings:

a) The mother poses a significant threat to the safety of the public. b) The mother’s insight into her major mental illness and the need for medication is partial. c) The mother has just begun to understand what is required to maintain her mental stability. d) Although the mother’s symptoms are relatively well controlled with medication, it is unlikely that she has developed insight into the need for continuing treatment, and in the absence of external monitoring she will likely disengage with services and become non-compliant with medication. This will increase her risk of relapsing into a depressive episode with psychotic features, similar to her mental state at the time she stabbed the children. [3] e) The mother requires structured psychoeducation to assist her in coming to terms with her mental illness and its consequences prior to her discharge into the community. f) The mother will require structure and support when living in the community. g) The hospital reported that the mother had no incidents of aggression, violence or inappropriate behaviour and as being engaged and compliant with unit rules.

[47] The mother has received intensive treatment at CAMH. She said that she has seven staff members involved in her care. She is followed by psychiatrists and is on medication.

[48] The mother is in the midst of another ORB hearing that has been adjourned until March 31, 2023. She testified that she hopes to be released to her brother’s care. The brother testified that he supports this.

[49] Recently, the mother was given permission to leave CAMH during weekday mornings to attend school. She is upgrading her English.

[50] The children and the father are on wait-lists for treatment for the trauma they have suffered. It is unknown when they will be reached.

Part Three – Court proceedings

[51] The mother issued her application on September 10, 2021 seeking supervised parenting time with the children.

[52] On December 30, 2021, the father served the mother with his Answer/Claim. He opposed the mother’s application and he sought parenting orders, including orders for sole decision-making responsibility, primary residence of the children and orders permitting him to obtain government documentation for the children and to travel with the children outside of Canada without the mother’s consent.

[53] On May 30, 2022, at a case conference, Justice Sager endorsed that the mother’s lawyer [4] agreed that the mother is not opposing the father’s claims for primary residence, sole decision-making responsibility, government documentation and the right to travel with the children. The father was given leave to file a Form 23C affidavit in support of an uncontested trial on these issues that were not contested by the mother.

[54] On September 13, 2022, Justice Sager released an endorsement granting those final orders.

[55] The mother retained her present counsel and brought a motion to set aside that order. The motion was heard on November 21, 2022.

[56] On November 22, 2022, Justice Sager released an endorsement dismissing the mother’s motion.

Part Four – Legal considerations for parenting orders

4.1 Statutory considerations

[57] Subsection 24 (2) of the Children’s Law Reform Act (the Act) provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.

[58] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

Factors

(3) Factors related to the circumstances of a child include,

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; d) the history of care of the child; e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; g) any plans for the child’s care; h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; j) any family violence and its impact on, among other things, k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[59] Subsection 24 (4) of the Act sets out factors relating to family violence and a child’s best interests. Subsections 18 (1) and (2) of the Act define family violence.

[60] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[61] Section 28 of the Act sets out the types of parenting orders the court can make.

4.2 Best interests

[62] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

[63] An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. See: Mokhov v. Ratayeva, 2021 ONSC 5454.

[64] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz, 1996 SCC 191. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young, 1993 SCC 34; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.

[65] In S.S. v. R.S., 2021 ONSC 2137, at paragraphs 26 to 28, Justice Renu Mandhane states “[a] human rights-based approach to the amended Divorce Act calls on the Courts to recognize, respect and reflect each child as an individual distinct from their parents, and to empower children to be actors in their own destiny. In practice it requires judges to probe into each child’s lived experience, to meaningfully consider their views and preferences, and to craft an order that promotes that child’s best interests and overall wellbeing.”

[66] Family violence has been given a heightened importance as a best interests factor[s] in the amendments that were made to the Act in 2021. See: Barendregt v. Grebliunis, 2022 SCC 22.

4.3 Parenting time

[67] A starting point to assess a child’s best interests when making a parenting time order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting time order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615; J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

[68] 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.

[69] 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 ONCJ 52807, [2003] O.J. No. 2946 (OCJ); Dayboll v. Binag, 2022 ONSC 6510.

[70] In V. S. J. v. L.J.G., 2004 ONSC 17126, at para. 135, Justice Jennifer Blishen provided a useful overview of the factors that have led courts to terminate parenting time as follows:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.
2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being.
3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.
4. Ongoing severe denigration of the other parent.
5. Lack of relationship or attachment between noncustodial parent and child.
6. Neglect or abuse to a child on the access visits.
7. Older children's wishes and preferences to terminate access.

[71] Justice Blishen stated at paragraph 136:

None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child.

[72] In M.K. v. T.R., 2014 ONCJ 54, this court denied parenting time to a father and considered the following:

a) The father had been violent and controlling towards the mother during their relationship. b) The father denied having been violent. This made him a poor candidate to change. c) The mother's stress and anxiety over the prospect of reintroducing the father into the family life was a significant consideration as it risked destabilizing the children and causing them anxiety. d) Access is only to be ordered in circumstances where it will benefit the child.

[73] This case was followed, in very similar circumstances, by Justice Robert Spence in Scarlett v. Farrell, 2015 ONCJ 35. Justice Spence denied parenting time to the father, finding that parenting time would not add anything beneficial to the child's life, but rather that it would likely risk destabilizing the child, thereby resulting in significant emotional harm (par. 161).

[74] In I.A. v. M.Z., 2016 ONCJ 615, supra, this court wrote at paragraph 36:

A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access should only be ordered in extreme circumstances. See: Worthington v. Worthington, 2000 ONSC 22469, 2000CarswellOnt 4889 (SCJ).

[75] This approach was followed in T.P. v. K.L.S., 2018 ONCJ 785, where the court made an order that the father have no access to his 4-year-old child, and in Catholic Children’s Aid Society of Toronto v. I.A., 2019 ONCJ 49, where the court ordered that a mother have no in-person parenting time with her 3-year-old child.

[76] The lapse of time without seeing a child is also a very important consideration in parenting time decisions. See: H.P. v. P.L.C., 2013 ONCJ 440 and Grube and Grube v. Binks and Grube-Binks, 2003 ONCJ 67751.

Part Five – The mother’s position and evidence on her behalf

5.1 The mother

[77] The mother asks for as much in-person parenting time as the court will permit. If the court does not order in-person parenting time, she says that she will take any form of parenting time the court is prepared to order.

[78] The mother deposed that the children deserve to know what happened to her emotionally, and about her mental health at the time they were injured. She said that they also deserve to know that she loves them very much and for her to be part of their lives.

[79] The mother said that she has not received any information about the children other than what is contained in the court papers. She seeks an order to permit her to obtain or receive information about the children’s education, health, therapy and counseling.

[80] The mother submits that it is not in the children’s best interests that parenting time wait until the children receive treatment and the treatment providers say that the children are ready for parenting time, as proposed by the father. She says it may be years before this happens because the family is poor and on wait-lists.

[81] The mother submits that the father has not done enough to alleviate the emotional damage that P. has suffered. She feels that he had delayed in obtaining services for him. She submits that he has cut the child off from the maternal family. She argues that the major impediment in this case is the father’s fear of engaging with her and her family.

[82] The mother proposed that the court set a review date for any parenting time order.

[83] The mother attested that:

a) CAMH has a child-friendly area set up for supervised visitation. She said that there are toys there for the children. b) She has no recollection of stabbing the children but accepts that it happened. c) Her mental health seriously declined after R. was born. She denied flying into rages, as alleged by the father. d) She had been the children’s primary caregiver. The father worked and supported the family. She said that she had a very close relationship with P. e) She hopes to be released from CAMH soon. She said that she hopes to find a place of her own. f) She hopes to have the children live with her once she is released from CAMH. She said this is because she is healed and her health is good. She disagreed that it would be unrealistic for the children to be returned to her right away. She said there is no problem. g) She is prepared to live with her brother, if required, but would prefer her own place. h) She is appreciative for the help that she has received from the professionals at CAMH. i) The doctor said that she cannot live on her own now. j) She is on medication and understands that she needs to remain on medication. She is taking monthly injections for her mental health k) She misses the children very much and believes that P. misses her very much. l) She does not believe the children will be emotionally affected by seeing her since they are still kids. She said that she will treat them well. She believes that they will be happy to see her. m) She could assist P. in recovering from any emotional damage he suffered. n) She has a great contribution to make to the children’s lives. o) She could assist the children in obtaining any services they require. p) It is in the children’s best interests to have relationships with her family. She feels it is important for the children to learn her family’s culture and traditions. [5]

[84] The brother testified in support of the mother. He was assisted by a Tigrinya interpreter. The brother deposed that:

a) He visits the mother every Sunday and does whatever she asks. b) He is willing to have the mother live with him and has discussed this with her treatment team. He will do whatever is necessary to support her. c) There is a big difference in the mother’s mental health. She was “very, very sick at the time” and she is much better. d) In 2020 the mother was accusing him of planning to sell the children. e) The father and the children lived with him on two occasions for about 1-2 months after the children were released from the hospital in 2020. f) P. would ask daily where the mother was and would say that he wanted to see the mother. g) P. showed no other signs of emotional distress. h) The father moved with the children in December 2020 and cut off all contact with the maternal family. He said that he tried several times to contact the father.

5.3 Medical evidence

[85] The mother attached to her trial affidavit a report from CAMH, dated August 30, 2022 (the CAMH report), that was prepared for her current ORB hearing.

[86] The CAMH report sets out that:

a) The mother suffers from a major mental illness consisting of symptoms of depression and psychosis. b) The mother showed partial insight into her stabbing the children and acknowledged that her actions were precipitated by the psychotic symptoms she was experiencing. c) The mother stated that she did not recall her actions and stated that she was told that she “hit” her children. When the offences were explained, she acknowledged them. However, she had difficulty speaking to them further. d) Overall, the mother’s insight into her major mental illness and her risk factors for reoffending was superficial. e) The mother was skeptical about the risk of relapse if she discontinued treatment. f) The mother showed limited understanding and remained ambivalent about the need for long term treatment for her psychiatric condition. g) The mother showed limited understanding or awareness of her risk of violence moving forward. h) If the mother were to reoffend, it would likely be in the context of treatment and medication non-compliance, coupled with stress and poor coping from unstable family relationships. Alternatively, stressors, surrounding her relationships with the father and the children could also lead to increased risk of relapse that would then lead to non-compliance with medications and treatment. i) In the absence of external monitoring, the mother will likely disengage with services and become non-compliant with medication, which will increase her risk of relapsing into a depressive episode with psychotic features, similar to her mental state at the time she stabbed the children.

[87] The CAMH report recommended that a detention order at the Forensic Service of CAMH, with the provision for community living, is necessary and appropriate to manage the mother’s risk to the public.

[88] The mother attached to her trial affidavit psychiatric progress reports. The most recent report (the progress report) is dated November 22, 2022. The progress report sets out that:

a) The mother has been cooperative with treatment and has a positive alliance with her treatment providers. b) The mother has had no behavioural problems. c) The mother is demonstrating increasing insight into her mental illness. She has been compliant with her treatment. She has been seen to have become increasingly self-reliant in terms of self-care and seems invested in her recovery. d) The mother has strong support from her family who are supporting her treatment. e) The mother is engaged in programming at CAMH. She is working at CAMH with a multi-disciplinary team. f) CAMH will work with the mother towards supportive community housing and helping her obtain Ontario Disability Benefits. It will provide supports for psychotherapy and occupational therapy even once the mother is released into the community.

[89] The report concluded that the mother is at low risk to reoffend given that she is following the regimen that has been recommended and intends to do so in the future. It states that she is managing her psychosis.

Part Six – The father’s position and evidence

[90] The father’s position is that it is premature to order parenting time for the mother. He asks that any parenting time be in his discretion.

[91] The father said that both he and P. have been traumatized by these events. He said that R. was too young to remember being stabbed by her mother.

[92] The father submits that it is essential that a therapeutic approach be taken to starting any parenting time with the mother. He wants P. to first receive treatment for his trauma. He wants guidance from trained professionals to determine if, when and how parenting time with the mother takes place. He seeks professional guidance about how and when to explain these events to R.

[93] The father says that he is very afraid of the mother. He fears that she may harm the children and him. He suffers nightmares. He is afraid to even see her.

[94] The father is afraid of the mother finding out where he and the children live. He does not want her to have any access to information about the children. He fears what she will do if she is released from CAMH and finds out where he is living.

[95] The father deposed that:

a) The mother had significant mental health issues for a long time. b) The mother’s mental health declined after P. was born. It became even worse after R. was born. c) He worked when the family came to Canada. He became increasingly concerned about the mother’s ability to care for the children. Sometimes she would not clean, feed and bathe the children on a consistent basis. He took parental leave in February 2020 because of these concerns. d) The mother was abusive during their relationship. She would often fly into rages and berate him or throw items at him. She did this in front of the children. e) The mother constantly called him and left abusive messages after July 11, 2020. f) After the mother was refrained from contacting him by the ORB, she began contacting mutual friends and relatives to try to convince him to reconcile. He found this very distressing. g) He has exclusively cared for the children since July 11, 2020. He has been responsible for their medical treatment and P.’s education. h) It was very difficult to return to his apartment when the children were released from the hospital. He and the children lived with the brother for two weeks but the brother’s apartment was very crowded. He eventually found a new apartment. i) He was disappointed that the mother’s parents never called him. He said that he did not reach out to the mother’s family but they also did not try to contact him. j) The father said that P. had a positive relationship with the brother and that he was prepared to make separate arrangements for the brother to see the children. k) He has been deeply traumatized by these events. He is unable to sleep and has flashbacks of the bloodied and disfigured bodies of the children. l) It is very difficult for him to talk about these events. m) He has been under a great deal of distress and in a constant state of fear that the mother will return and bring harm to them again. He is very stressed about the recent development of the mother being permitted to go into the community to attend school. n) He experiences great guilt for being unable to protect the children.

[96] The father testified that P. has suffered serious physical and emotional damage from the mother’s attack. He deposed that:

a) P. is terrified that the mother will return and kill them. b) P. does not want to see the mother. P. begs him to “not allow mom to come close to him” and to “not let her ever return to kill them”. c) P. continues to have nightmares. He wakes up in the middle of the night screaming hysterically, shaking and trembling. He is grinding his teeth at night. d) P. tells the father that he remembers what happened that day when the father left the home. He says that the mother came to him with the knife, that he pleaded with her to put it away and she wouldn’t listen to him. He recalls the mother hitting him with the knife and then stabbing R. e) P. is fearful of being alone in the apartment. He won’t even go into the washroom alone.

[97] The father said that he hopes that R. has no memories of the incident and that her scars fade away. He said that recently she has been asking P. about his scars.

[98] The father said that R. has a lot of fears and is not friendly to people, even though this has improved a bit recently.

[99] The father filed business records from CAST. CAST reports in the business records that:

a) Following the incident, P. repeatedly spoke about it and that future mental and emotional health support/therapy is recommended. b) The father tried to shield the children from reliving what happened by using distraction techniques but was advised that he should not do this by the CAST worker. c) The father and the children experienced a deeply traumatic event and suffer from ongoing physical and mental effects. d) The father and P. had difficulty sleeping.

[100] The father said that he was consumed with taking the children to their medical and rehabilitation appointments after they were released from the hospital and was dealing with the stress of caring for two young children on his own. He was doing this while trying to manage his own trauma. He said that he had no family members to help him out. He testified that, “I was out of my mind, not thinking right, God help me.”

[101] The father did not immediately pursue psychological treatment for P. or himself. He said that he started pursuing this treatment after a case conference held on February 18, 2022 before Justice Sager. He contacted his social worker at Yonge Street Mission, the Hospital for Sick Children, CAST and his family doctor for a referral.

[102] The father said that CAST provided him with a trauma counselor through the Canadian Center for Victims of Torture. However, this counseling was not appropriate for the children. He completed the intake process for himself with this organization.

[103] CAST then attempted to have the children attend the BOOST Child and Youth Advocacy Centre, but it was closed for referrals.

[104] Eventually, the father was referred to Radius Child and Youth Services (Radius). He has completed the intake process and is on a waitlist. The father’s counsel has advocated for him to be short wait-listed.

[105] Despite his fears of the mother, the father said that he would comply with any parenting time order made by the court.

Part Seven – Assessment of the parties and the brother

7.1 The mother and the brother

[106] The mother was quiet-spoken and polite at trial. She presented with a flat affect and was often yawning. Maybe this was due to the medication.

[107] The court did not have concerns about the mother’s credibility. She answered questions to the best of her ability.

[108] However, the court had considerable concerns with the reliability of the mother’s evidence.

[109] The mother had a poor memory of events. She answered many questions tangentially, although this may be due in part to the stress of being in court and the difficulties with translation.

[110] The mother also tended to agree with any proposition put to her – even when it did not help her case. The best example of this was when she was asked if she agreed that parenting time should not take place until a child psychiatrist said that the children were ready for it. This is a core question in this case. The mother said yes, she agreed. She repeated this when her counsel put it to her again in reexamination. [6]

[111] However, the court does not think she meant this. When asked, she said that she wanted in-person parenting time immediately. The court believes this is what the mother wants and did not place weight on her previous answer.

[112] The medical evidence informs the court that the mother has superficial insight into her serious mental illness, although there has been some improvement, as set out in the progress report.

[113] The mother did not demonstrate much insight into her mental illness at trial. She thinks that she will be living on her own soon and the children will return to her. That isn’t going to happen.

[114] The mother thinks that she is well now, and everything can return to normal. The mother is functioning better, while on medication, and while being closely monitored, but she has a long way to go in addressing her mental health. She is just starting this process. When she is released from CAMH she will still need considerable support.

[115] The mother demonstrated absolutely no insight or empathy at trial into the impact of her actions on the father and the children.

[116] The mother’s focus was on her needs and how much she misses the children and how the children need her.

[117] The mother attributes any distress P. is suffering to not seeing her.

[118] The mother said that there is no problem for the children to be immediately returned to her. She said that the children will not be emotionally affected by seeing her because they are just kids. This is an alarming lack of insight and empathy for what the children have experienced.

[119] The mother expressed no appreciation for the father stepping up to care for the children in terrible circumstances. Instead, she criticized him for not providing her with information or agreeing to parenting time.

[120] The mother demonstrated poor judgment by bringing a motion to set aside the final order that had granted the father primary residence and decision-making responsibility for the children. [7] She had no chance of success on these issues. This only escalated the father’s fear that the mother’s agenda was to take the children away from him and reinforced to him that she remained a significant threat.

[121] There is a very low risk of physical harm to the children if they have properly monitored supervised parenting time with the mother. However, the court is very concerned about the emotional risks of the children seeing the mother and the mother’s inability to understand or support those emotional risks.

[122] The court is concerned that the mother will act inappropriately at supervised visits. This might take the form of promising them they will return to her or providing them with a skewed version of events. This runs the risk of destabilizing the children.

[123] The court found that the brother minimized the mother’s historical mental health issues at trial. His trial evidence was not consistent with what he had reported to CAMH about the mother having serious mental health issues when she lived in Sudan. At trial, he claimed that the mother did not have mental health issues in Sudan – she was just angry.

[124] The brother also showed no appreciation for the role the father assumed in parenting the children after July 11, 2020. Instead, he criticized him.

[125] The children will require a skilled and neutral professional to supervise parenting time if and when it takes place. The brother is not that person.

7.2 The father

[126] The father presented as both a credible and reliable witness. The father answered questions to the best of his ability. He had a good memory of events. He demonstrated a good understanding of the children’s needs.

[127] The father has suffered tremendous emotional damage from the attack on the children. He admits that he has had difficulty coping. He suffers nightmares and flashbacks of seeing the children injured.

[128] The father is terrified that the mother will return and harm him and the children. He is hypervigilant and protective of the children. He feels tremendous guilt that he was unable to protect them. He is determined to do that now.

[129] The father’s fear of the mother was evident at trial. He was afraid to even see her and be in the same room as her. The court accommodated that fear by permitting him to participate in a separate room. The mother should have advised him in advance that she was going to attend in person.

[130] The court accepts the father’s evidence about P.’s state of mind. It accepts that P. is afraid to see the mother and does not want to see her. The court accepts the father’s evidence about the emotional distress P. is suffering. These reactions are understandable given what P. has experienced.

[131] It is also very possible that P. is attuned to the father’s fear of the mother and that this is increasing P.’s fear of her. The father requires therapeutic help to reduce the impact of his fear on the child.

[132] The father delayed in obtaining psychological treatment for P. and himself. This needs to be considered in context. The father was overwhelmed by these events and suffering his own trauma. He was completely responsible for two young children. He had poor English skills, little money and had a limited ability to navigate the social services system. He had no family support. In addition, he was managing all of this during a pandemic.

[133] Given these obstacles, the father has done an admirable job in trying to meet the children’s needs. He is the parent who comforts and supports them. He has made the children his first priority.

[134] The court wants to emphasize to the father that what happened to the children was not his fault.

[135] However, it is evident that the father’s ability to care for the children is fragile. CAST has been involved. The father has not received badly needed therapeutic help. He and P. are struggling.

Part Eight – Discussion

[136] It is a positive development that the mother has made some gains in her mental health.

[137] The court recognizes that the mother misses the children and wants them to live with her. At the very least, she wants to be a big part of their lives.

[138] However, this case is not about the mother’s interests. It is about the children’s best interests.

[139] The jurisprudence sets out that “no parenting time” orders are reserved to exceptional cases.

[140] This is an exceptional case. The mother tried to kill the children. The children will likely bear the physical and emotional scars of this attack for the rest of their lives.

[141] The evidence indicates that the father and P. continue to suffer severe emotional distress. They require skilled therapeutic intervention as soon as possible before this damage becomes entrenched.

[142] The primary best interests consideration is the children’s physical, emotional and psychological safety, security and well-being.

[143] The court finds that in-person parenting time with the mother will adversely affect the children’s emotional and psychological safety, security and well-being.

[144] The court finds that the mother lacks any insight into the children’s experiences from the attack. She is not presently capable of emotionally supporting them during visits. This would undermine the children’s sense of security and stability.

[145] The court must also consider P.’s views and preferences. He is afraid of the mother and does not want to see her. Although P. is very young, this view and preference is logical.

[146] It is in the children’s best interests that the court focus on the stability of the children’s placement with the father – not on their parenting time with the mother. This placement is fragile, given the father’s and P.’s emotional struggles. Forcing the children and father to engage with the mother before they receive therapeutic treatment runs the real risk of destabilizing the placement.

[147] The court agrees with the mother that any parenting time order that is in the father’s discretion will mean “no parenting time”. The court will not make that order.

[148] The court finds that P. is not ready to have parenting time with the mother. He should first have therapeutic treatment from a skilled professional who is experienced in child trauma. Any eventual reintroduction to the mother should be done with the assistance and monitoring of a trained professional. We are a long way from this.

[149] The father will also need therapeutic assistance on how to explain these events to R. Any eventual reintroduction of R. to the mother should also be done with the assistance and monitoring of a skilled professional.

[150] Once any parenting time with the mother takes place, it should take place in a controlled environment with highly skilled professionals who have worked with the children and who can facilitate positive visits, and intervene and terminate visits, if required.

[151] For the same reasons, it is not in the children’s best interests to have virtual parenting time with the mother or to permit her to write letters to the children at this time.

[152] It is unfortunate that there are limited therapeutic resources to assist the father and the children and that there are long wait-lists. However, that is the reality. The court will not compromise the children’s welfare by short-cutting the therapeutic process.

[153] The court finds that it is in the children’s best interests to make the orders regarding contact and communication sought by the father pursuant to section 28 of the Act. The mother has previously harassed the father with calls and messages. Hopefully, she won’t do this now that her mental health is improving, but making this order will provide the father and the children with an additional measure of security.

[154] The court will not order the rights to information regarding the children sought by the mother. It is not in the children’s best interests for her to know where they are living or going to school.

[155] The court will order the father to provide the mother with some information about the children. He is to send a picture of the children to the mother every three months and send her copies of the children’s report cards, with the names and addresses of the schools, and the names of any school staff blacked out. [8] He can send this to the brother.

[156] This leaves the question of how the mother can change this order and start supervised parenting time in the future. The following are factors that would affect this decision:

a) The children receiving therapeutic assistance from professionals trained in child trauma. b) The father engaging in trauma therapy. c) A report from the children’s therapists that the children are ready to be reintroducted to the mother with a plan of how that would take place. d) The views and preferences of the children. e) The stability of the children’s placement with the father. f) The mother maintaining her mental health stability. g) The mother complying with treatment recommendations. h) The mother being permitted to leave CAMH and live in the community. i) The mother demonstrating increased insight into the children’s needs and experiences.

[157] The court expects the father to make reasonable efforts to obtain and follow through with therapeutic counseling for him and the children. This is essential for their long-term welfare.

[158] The court expects that this process will take at least two years. The father and the children need the chance to heal without the additional stress of litigation.

[159] The court will order that either party may seek a review of this order after two years.

Part Nine – Conclusion

[160] A final order shall go on the following terms:

a) The mother shall have no in-person or virtual parenting time with the children. b) The father shall send a picture of the children to the mother every three months and send her copies of the children’s report cards, with the names and addresses of the schools, and the names of any school staff blacked out. He may send this to the brother. He is to send the first set of pictures and P.’s report card to the mother by March 28, 2023. c) Pursuant to section 28 of the Act the mother shall not contact the father and the children directly or indirectly, by any form of communication, except through legal counsel, or with the father’s written consent. d) Pursuant to section 28 of the Act, the mother shall not come within 250 meters of the father’s home, the children’s school, or any other place that the father and the children may be reasonably expected to be, except with the father’s written consent. e) The balance of the mother’s claims are dismissed. f) Either party may seek a review of this order after two years.

[161] If either party seeks costs, they are to serve and file written costs submissions by March 24, 2023. The other party will then have until April 11, 2023 to make their written response (not make their own costs request). The submissions shall be no more than 3 pages, double-spaced, in 12-point font, not including any bill of costs or offer to settle. They are to be delivered to the trial coordinator’s office on the second floor of the courthouse.

[162] It is critical that the children and the father receive therapeutic assistance as soon as possible. The court asks the father’s counsel to send this decision to Radius with the hope that this family’s treatment will be expedited.

[163] The court thanks counsel for their professional presentation of this case.

Released: March 10, 2023 Justice Stanley B. Sherr

Footnotes

[1] Many of the facts in this Part are taken from CAMH reports dated December 10, 2020 and August 30, 2022 that were prepared for the mother’s ORB hearings, and the reasons for decision of the ORB dated October 22, 2021. The mother attached these reports to her trial affidavit and both parties relied on their contents at trial. The facts set out in this Part were not disputed by the parties. [2] The mother was charged months later with assault arising out of this incident. [3] The ORB and CAMH documents refer to this as the “index offence”. [4] The mother had a different lawyer at this time. [5] The father submitted that this is a neutral best interests factor since he is from the same culture as the mother. However, people within the same culture may exercise their culture and traditions differently. Neither party led evidence on this point. [6] After a few prompting questions from her lawyer, the mother said she was limiting her answer to in-person parenting time and not other forms of parenting time. [7] The mother also moved to set aside incidents of parenting ordered. [8] The court is including R.’s report cards in case this order is not changed before she starts school.