WARNING

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

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

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

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

(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.

Nogdawindamin Family and Community Services v. J.N., 2024 ONCJ 376

ONTARIO COURT OF JUSTICE

CITATION: Nogdawindamin Family and Community Services v. J.N., 2024 ONCJ 376

DATE: 2024 08 02

COURT FILE No.: Elliot Lake 22/23

BETWEEN:

Nogdawindamin Family and Community Services

Applicant,

— AND —

J.N., F.R., Batchewana First Nation, Mississauga First Nation

Respondents

Before Justice G. Jenner

Heard May 27-30, 2024

Reasons for Judgment released on August 2, 2024

Réjean Parisé................................................................... counsel for the applicant society

Jasmine Gassi Harnden................................................ counsel for the respondent, F.R.

Lynn Tegosh............................. counsel for the respondent, Batchewana First Nation

J.N.................................................................................................................. on her own behalf

Mississauga First Nation........................................................ not participating in the trial.

Cait Tomlinson................................... counsel for the Office of the Children’s Lawyer,

legal representative for the child

JENNER J.:

REASONS FOR DECISION

Part One: Introduction

[1] This was the trial in a child protection application brought by Nogdawindamin Family and Community Services (the society) under the Child, Youth, and Family Services Act, 2017, SO 2017, C. 14, Sch. 1 (CYFSA). The application pertains to a six-year-old child. The child’s mother is the respondent J.N., a member of the Mississauga First Nation (MFN). The child’s father is the respondent F.R., a member of the Batchewana First Nation (BFN). The parents are separated and unaligned with one another. BFN participated in the trial. MFN did not. The Office of the Children’s Lawyer (OCL) participated on the child’s behalf.

[2] The trial was about (i) whether the child is in need of protection (the protection finding), and if so (ii) what disposition was appropriate, and (iii) what order ought to be made with respect to the parents’ access.

[3] With respect to the protection finding, the society’s concerns are limited to the mother. The society initially sought an order finding the child to be in need of protection on two grounds. First, the society was concerned about a risk of physical harm due to the mother’s abuse of substances and a resultant inability to supervise and care for the child. These concerns, which motivated the society’s initial intervention, arose out of an event in March 2022 wherein the mother was allegedly intoxicated by alcohol while in a caregiving role.

[4] Over time, that ground was eclipsed by the second concern, that the mother posed a risk to the child’s emotional health. Specifically, the mother has long advanced her view that the father sexually abused the child. The society contends that in persistently prosecuting her claims, which have been taken seriously, investigated, and subsequently dismissed by the relevant authorities, the mother has alienated the child from the father and the father’s family. The mother’s campaign against the father has included, the society alleges, slanderous public attacks on the father’s character, inappropriate discussions in front of the child, withdrawal of the child from school and social activities, and subjection of the child to repeated and invasive medical examinations.

[5] The mother’s concerns have been squarely before this court at earlier stages in this litigation. When the mother has been dissatisfied with the court’s decisions, she has disregarded them entirely, and withheld the child from the father. This culminated in the mother’s arrest for abduction-related offences in January of this year.

[6] As to disposition, the society seeks an order placing the child in the father’s care. The society initially invited the court to do so either in the form of a supervision order under s. 101 of the CYFSA or alternatively pursuant to a custody order under s. 102 of the Act. By the close of trial, it became clear that the society’s preference was a s. 102 custody order. As to access, the society seeks to limit the mother’s access to supervised access by virtual means.

[7] The trial proceeded in a hybrid fashion. Counsel for the society appeared in person with his client representative. All other parties and counsel appeared virtually. There was both in-person and virtual testimony. The father, BFN, and the OCL support the society’s positions. As is detailed below, the mother quit the trial at an early stage, following a series of unsuccessful procedural challenges. She did not convey her position on the substantive issues, but it is clear she seeks a return of the child to her care.

[8] For the reasons that follow, I conclude that the child is in need of protection, that a court order is required to protect the child in the future, and that a s. 102 custody order in favour of the father is in the child’s best interests. I further conclude that the mother’s access must be limited to supervised virtual access at this time.

Part Two: Background, Procedural History, and Evidentiary Issues

[9] The mother was self-represented and advanced several procedural issues leading up to the trial and during the phase of the trial in which she participated. The court will go into considerable detail in this section to demonstrate the complaints raised and steps taken in response.

[10] The court made best efforts to navigate these concerns fairly but efficiently, conscious of the paramount purpose of the Act, “to promote the best interests, protection, and well-being of children,” and of the primary objective of the Family Law Rules, O. Reg. 114/99, to “enable the court to deal with cases justly,” including by ensuring the procedure is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity, and giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[11] Where appropriate I have included more detail as to the principles animating the court’s decisions and have included additional citations.

2.1 Family background and the genesis of the society’s involvement

[12] The respondent parents began their relationship in 2017. Their daughter, the child subject to this application, was born in 2018. The parties separated in September 2020, when the father moved out of the family home. The child was two years and five months old at the time. Following the separation, the father did not initially have any access to the child. It was not until he agreed to supervised access at a supervised access centre that he began to have time with the child in March 2021.

[13] The society first became engaged with the family in late 2020 following the mother’s reports that the father had sexually abused the child. The society provided supportive services and investigated. At times, the society struggled to communicate with the mother, who frustrated its efforts to meet privately with the child. Police referrals were made, and officers interviewed the child, but no charges were laid.

[14] The society initiated this application in March 2022 following an alleged event wherein the mother was caring for the child while in an intoxicated state. The child was three years and 11 months old at the time. On March 23, 2022, by order of Justice Restoule-Mallozzi, the child was placed in the temporary care of the society, with supervised access a minimum of once weekly for each of the parents. While the application was in response to the mother’s conduct, as a precautionary measure the society avoided placing the child with the father, considering the allegations that had been made.

2.2 Earlier stages of the application

[15] Both parents, as well as BFN and MFN subsequently filed answers and plans of care. Following a contested temporary care and custody hearing on October 7, 2022, the initial temporary order was replaced by the order of Justice Peterson dated November 10, 2022. The child was returned to the mother’s care, subject to the supervision of the society and subject to terms and conditions. Provision was made for the father to have reasonable access subject to society supervision. The access was to include a minimum of two weekends per month, supervised by the father’s adult daughter, J.B.

[16] In early 2023, the father sought to expand his access, and to remove the need for supervision. By order of Justice Peterson dated February 1, 2023, the father was granted unsupervised access. Justice Peterson also made an order appointing the OCL on behalf of the child.

[17] The father brought a contempt motion on July 7, 2023 before Justice Condon. He argued that the mother had withheld the child from him, contrary to the terms of the governing temporary order. The mother did not contest that she had withheld the child, but advanced several justifications, including her repeated concern that the child was being sexually abused by the father. In written reasons released July 20, 2023, Justice Condon concluded that the mother intentionally failed to comply with the father’s access provisions in the orders of Justice Peterson. The court was satisfied that a declaration to that effect, rather than a declaration of formal contempt, was sufficient to influence future compliance.

[18] Unfortunately, the declaration did not have its intended effect. The mother continued to flout the court’s orders respecting access. On January 15, 2024, Justice Klein ordered that the child be placed in the father’s care, subject to society supervision, with the mother having reasonable access two weekends per month.

[19] The mother did not comply with the order of Justice Klein. She did not return the child to the father’s care and was subsequently arrested by police and charged with abduction-related offences. An urgent ex parte motion was brought by the father, and by order of Justice Peterson dated January 19, 2024, the mother’s access with the child was suspended.

[20] A trial management conference was held on March 28, 2024. The parties revisited the issue of the mother’s access and on consent Justice Peterson ordered that the mother shall have weekly supervised virtual access to the child. MFN brought a motion to withdraw from the proceedings, which was granted. A five-day hybrid trial on all issues—the finding, disposition, and access—was confirmed for May 27-31, 2024. A further date of April 18, 2024, was set for pretrial motions, which at the time were contemplated to be the society’s motion for certain police records, and the mother’s motion to remove redactions from certain society records.

2.3 The pseudo-legal challenge to the court’s jurisdiction

[21] On April 17, 2024, the mother served and filed an affidavit attaching several documents, including one labeled ‘Official Notice of Law.’ These materials targeted the court’s jurisdiction. The following day, the matter was before Justice Peterson for pretrial motions. Neither party filed nor pursued their motions, but at that time the mother advanced her jurisdictional challenge.

[22] Justice Peterson dismissed the jurisdictional challenge and provided the following oral reasons:

When I review the materials, it falls squarely under a broad heading that the courts have referred to as pseudo-legal arguments. The leading case is a family law case out of Alberta called Meads v. Meads, 2012 ABQB 571. It dealt with all sorts of different forms of these arguments referring to Magna Carta, Natural Law—Freeman on the Land rely on this pseudo-legal argument and now we are seeing it being presented by [the mother] with an Indigenous foundation as well. So, I am relying today on Meads v. Meads to show that in addition to the Ontario Courts of Justice Act that these arguments are frivolous, litigious and unfounded in law, so I reject the argument that we do not have jurisdiction to preside over this matter.

The Supreme Court of Canada in R. v. Barton, 2019 SCC 33, which was a significant criminal case, said no one in this country is entitled to their own law.

The statutes that govern this matter include the Child, Youth and Family Service Act which recognizes in s. 87(8)… that First Nations, Inuit and Metis children have special rights that consider their culture, heritage, tradition and who they see as family. Similarly, this proceeding is also governed by An Act respecting First Nations, Inuit and Metis Children, Youth and Families, which is the federal legislation, and in 2021 the federal government passed, or enacted the United Nations Declaration on the Rights of Indigenous People’s Act.

Similarly, we have the Charter of Rights and Freedoms, s. 25. This is a guarantee that certain rights and freedoms will not be construed so as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to Aboriginal peoples. So, while [the mother] may want to frame and advance arguments based on Indigenous Law, it will have to be through the channels of the [statutes] or the Charter of Rights and Freedoms. It will not be under natural law. It will not be under pseudo-law, and the court has jurisdiction, maintains jurisdiction and this debate as far as I’m concerned is over.

[Interruptions by the mother omitted].

[23] The mother renewed her jurisdictional challenge at the outset of this trial by indicating that she had “no contract with the society.”

[24] While Justice Peterson indicated she did not view the trial judge to be bound by her ruling, I declined to revisit the issue. In making that determination, I was mindful that the mother had filed no new material to support her jurisdictional argument, and that a mere two months earlier the court had determined the issue within this very litigation, with the very same parties participating in the very same capacity. I viewed the matter to be governed by issue estoppel. Courts retain discretion to revisit prior rulings even where the prerequisites of issue estoppel are all met: Danyluk v. Ainsworth Technologies Inc., [2001] S.C.R. 460. I would not, however, exercise my discretion to do so in this case, as it would be contrary to clear purposes outlined in the Family Law Rules. The judicial system operates with finite resources. No litigant is entitled to serially pursue an identical procedural argument. It was entirely appropriate for the jurisdictional challenge to be considered by the court in advance of the trial dates, conserving the valuable time set aside for the trial.

[25] In any event, having carefully reviewed materials filed by the mother and the decision of Justice Peterson, I would have arrived at the same conclusion, on the very same basis.

2.4 The mother’s application to adjourn the trial

[26] At the outset of the trial the mother applied to adjourn the proceeding. Her request had two components. She told the court that (i) she wished to retain counsel and (ii) she had only just received disclosure of certain society records, which she needed time to review. She also took issue with redactions in the material provided.

[27] The court was guided by the following principles. Adjournments are a matter of discretion to be exercised judicially. The concerns of the parties and the public interest must be considered: see Barrette v. The Queen 1976 180 (SCC), 29 CCC (2d) 189; Re: Flamboro Downs Holdings Ltd. And Teamster Local 879 (1979) 1979 1669 (ON SC), 24 O.R. (2d) 400 at 404. Where the requesting party is self-represented, the court must consider whether the party can receive a fair trial without counsel: R. v. Gonsalves (2005) O.J. No. 1238 (CA). Where the case involves children, their interests must also be taken into account: W.A.C. v. C.V.F., 2021 ONSC 3942. Delay, in particular, is often contrary to children’s best interests insofar as children require finality and peace: Rigillo v. Rigillo, 2019 ONCA 647 at para. 6; Ammar v. Perdelwitz, 2022 ONCA 425.

[28] For reasons provided orally, the court dismissed the adjournment application. The court emphasized the following:

• The child protection application had been issued on March 23, 2022. The adjournment application was being made without notice on the first day of trial. Five days of trial time had been set aside, and the other parties and their witnesses, several of whom had traveled long distances to attend, were prepared to proceed.
• The applicant had been representing herself through various stages of the litigation, including at a recent trial management conference on March 28, 2024. At that conference, the mother participated in a discussion of various issues, including the mode of appearance, time estimates, the witness lists of the various parties, deadlines for filing trial materials, and potential pretrial motions. From the trial management conference endorsement, it does not appear the mother articulated any concern over proceeding to trial without counsel.
• The mother’s disclosure request was made very late in the process, less than one month before the trial. The society made considerable efforts to assist in facilitating a court order and providing the material. While self-represented, the applicant demonstrated at the trial management conference an understanding that active steps needed to be taken to pursue disclosure in a timely fashion, and that she may be required to bring a motion. She did not act diligently.
• The new materials were not overly voluminous. While time was short, the materials were available to her in advance of the trial and she would have had the opportunity to review them. The court expressed that reasonable pauses in the trial could be accommodated if the mother required more time to consider the new material and apply it to certain steps, such as the cross-examination of a witness.

[29] Ultimately, I was not persuaded that the prejudice to the mother in proceeding as scheduled outweighed the prejudice to the other parties or the child in delaying the matter. Nor was I persuaded that proceeding as scheduled would render the trial unfair. More time and the assistance of counsel would no doubt be of potential benefit to the mother, but she placed herself in that position. The court must again be mindful of the paramount purpose of the Act, to “promote the best interests, protection and well-being of children.” Those interests, which include stability, consistency, and the benefits of long-term planning, are prejudiced by protracted litigation delays. This protection application was initiated in March 2022. Given the various parties and witnesses involved, a delay would likely have postponed the trial into early 2025. That would not be acceptable.

[30] While it did not form part of my reasoning, further review of the transcript of April 18, 2024 reminds the court that one of the original purposes of that appearance was for the mother to bring a disclosure motion for unredacted child protection records. The court noted that the mother had not brought her motion. Litigants, self-represented or not, who disregard clearly communicated opportunities to advance issues, only to raise those issues on the morning of trial, cannot reasonably claim entitlement to an adjournment.

2.5 The mother’s complaint that she was not served with the trial documents

[31] After dismissing the mother’s adjournment application, the court took inventory of the filed trial materials to confirm alignment with the parties’ expectations. This precipitated the mother’s complaint that she had not been served with the society’s Trial Record, the Trial Affidavit Record, or the Book of Documents.

[32] The court recessed to allow counsel to gather the applicable affidavits of service. These were presented and confirmed that the mother had been served with the materials through email. When pressed on this, the mother indicated that she recently changed her email address and advised a society worker of such. Notably, the mother made no claim that she communicated the change to any of the other parties to this litigation. Counsel for the society countered that his client had been receiving emails from the mother at the email address used for service as recently as May 8, 2024, and that in any event the preponderance of the material was previously served, filed, and stored in the continuing record. The court dismissed the mother’s complaint without prejudice to her providing the court with proof that she had in fact clearly communicated her change of email address to the parties. In the interim, the court allowed the society to begin to call evidence, mindful that the first witnesses scheduled had not provided affidavits and were unlikely to trench on the records in issue.

[33] Later during the afternoon of the first day of trial, the mother provided the court with a copy of an email where she does advise a society worker, Avery Litke, of a new email address she is using. The email is dated April 29, 2024. Specifically, the mother stated:

This is my new email and here’s my new phone number to use for zoom meetings with my daughter…

[34] I do not read this email as a clear request to the society to use this new email address for all purposes, including communications related to the application before the court. It speaks to using this new email address for access visits arranged over Zoom and mentions no other purpose. It was not sent to the society’s counsel, but rather to the society employee facilitating the mother’s access visits. There is no evidence that a similar communication was sent to the other participating parties to the litigation, or the court.

[35] Moreover, the mother does not appear to have stopped using her older email address. The society also tendered an email dated May 8, 2024, sent by the mother to the various parties. That email was sent from the mother’s original email address. This satisfied the court that, while the mother may have adopted an additional address and communicated it to one society worker for a limited purpose, she neither stopped checking nor using her older email address, including to conduct business relating to this litigation. The email furnished by the society also tended to contradict the mother’s claim that she had entirely lost access to her older email. I concluded there was no basis to revisit the question of proper service or to delay the trial.[^1]

2.6 The mother’s simultaneous phone communication during the trial, her recusal motion, and her absence from the balance of the trial

[36] During that first afternoon of trial, it became apparent that the mother was on a telephone call with a third party during the trial. I asked the mother directly whether she was speaking with someone. She responded that she had someone with her and helping her. The court then asked whether that person was a lawyer. The mother responded that the person was an advocate, and offered no information on which the court could confirm they were a licensed legal professional. The court directed the mother to end the phone call with this unidentified third party.

[37] Child protection hearings are private proceedings. Pursuant to s. 87(4) of the CYFSA, a hearing shall be held in the absence of the public unless the court orders otherwise. To date, the court is not aware of the identity of the individual communicating with the mother, but it was clear she is not a party to this proceeding. Nor was this individual an authorized representative of the mother. Rule 4(1)(c) of the Family Law Rules stipulates that a party may act in person, be represented by a lawyer, or be represented “by a person who is not a lawyer, but only if the court gives permission in advance.” Section 26.1 of the Law Society Act, R.S.O. 1990, c. L.8, directs that no person other than a licensee shall practice law or provide legal services in Ontario.

[38] The court advised the mother in the clearest of terms that she was not permitted to engage in this simultaneous communication with a non-party, non-counsel. The court emphasized that the mother certainly had the right to seek guidance of a non-legal nature from other individuals during court breaks, bearing in mind the publication ban that applies to the trial, but explained that it could not occur while the trial was proceeding. The court cautioned the mother that if she resumed such conduct the court would reluctantly be required to take steps which may limit her participation in the trial.

[39] It was not long before the mother resumed her behaviour, and the third party’s voice could again be heard on the court conference. When confronted, the mother invited the court to simply proceed to its judgment immediately, such that she could appeal, and requested that I recuse myself. During this exchange, the unidentified third party could be heard several times.

[40] In response, the court advised the mother in clear terms that she is not permitted to be on the telephone with another individual while the trial is proceeding. I also communicated that the court is not permitted to short-circuit the trial process and proceed to judgment without hearing all the evidence. I invited further submissions from the mother to elaborate on the basis for her request that I recuse myself. She did not detail her complaint, except to indicate that the court was not being culturally sensitive.

[41] The court took a brief recess, but I first cautioned the mother that if she were to be on the telephone with another person when the trial resumes, I would have no choice but to exclude her from the virtual courtroom and require in-person attendance only. When court resumed, the simple question was put to the mother: did she agree not to be on the telephone with another person during the trial? She would not agree, and advised the court that she was withdrawing from the trial. She quit the virtual conference.

[42] After the mother absented herself from the virtual courtroom, the court took the following steps:

(1) The court issued a ruling orally on the recusal motion. Given the complete lack of evidence speaking to bias or apprehension of bias, the court dismissed the motion.

(2) The court instructed the clerk of the court to obtain a transcript of the trial at each end of day, on an expedited basis, so that the mother could review and rely on the record if and when she resumed her participation in the trial.

(3) The court instructed the clerk to send an email to the mother at all her known email addresses containing the outcome of the recusal motion and advising her that court would shortly resume. The email also advised that the mother would be permitted to re-enter the virtual court waiting room and would be given an opportunity to satisfy the court that she will participate in a manner that respects the court’s rules, including the prohibition on simultaneous communication with a non-party, non-counsel during the trial. Absent that, she would only be permitted to attend court in-person on the next court day.[^2]

[43] The trial resumed. The mother did not rejoin the virtual court conference, but she did receive and review the clerk’s email. She replied to it, simply stating “I did not and do not consent to the trial”. The court resumed hearing evidence.

2.7 The mother’s email to the court on the second day of trial

[44] The mother did not attend the second day of the trial. She did, however, send an email to the generic courthouse email address stating the following:

I am forming [sic] you that I have withdrawn from this hearing, as I am not being given time to find a lawyer, have not been given full disclosure (much is missing and blacked out) by the agency, I have not been served the paper work for this trial, by a server to myself from Nogdawindamin and all other affidavits that are being used within this trial. I have not been given a list of the new witnesses, I have not been given the proper documentation to even proceed with this trial. I can recall that justice Peterson stated that I could have a council appointed to help me during this trial. Yet none has been assigned. I have stated all my concerns to the justice overseeing this trial which all was ignored as I have no witnesses, no legal help, no emotional support, and no advocacy. I have been denied all that has been stated on the record. I will be requesting all the transcripts from yesterday and so on with the continuation with these proceedings. Again I withdraw and do not consent to these proceedings moving forward, but yet they are. I will be appealing this all to kings court (equity court).

[45] The concerns articulated largely tracked previous complaints which had already been addressed. The novel complaint was that the mother expected amicus to be appointed to help her during the trial, and none was.

[46] Amicus orders are available in child protection proceedings: see, for example, Children’s Aid Society of Toronto v. S.A., 2017 ONCJ 553, and Children’s Aid Society of Toronto v. A.T., 2018 ONCJ 720. However, it is important to recognize that amicus is not appointed to stand in the place of counsel for a self-represented party: Children’s Aid Society of Toronto v. C.G., 2018 ONCJ 193. Moreover, it is not automatic on the presentation of a self-represented litigant. Far from it. The Court of Appeal for Ontario in Morwald-Benevides v. Benevides, 2019 ONCA 1023, observed that amicus should be used sparingly and with caution, in response to exceptional circumstances. While the stakes in this case are serious, the case was not legally complex. This was not a situation in which the mother would be unable, with a degree of appropriate assistance from the court, to participate. This is a case where she chose not to participate. The appointment amicus was not justified on those circumstances alone. The court must also be cognizant of the paramount purpose of the Act, to promote the best interests, protection, and well-being of children. Any assistance that amicus might provide the court in advancing those interests would come at the cost of significant delay. I determined that the benefit to the child would be outweighed by those costs, and no amicus order was made.

[47] The court did convey to the parties present that it would continue to exercise its role in a manner that protects trial fairness. Indeed, this role is demonstrated in the court’s approach to certain issues with respect to admissibility of evidence.

2.8 The society’s evidentiary concerns

[48] At the outset of the trial, in canvassing the various filings, the court alerted the parties to its concerns over hearsay contained in affidavits. The court explained to the parties that, as the mother was self-represented, the court would be attentive to its duty to screen for inadmissible evidence: see Kawartha- Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 80; Children’s Aid Society of Toronto v. B.B., [2012] O.J. No. 4855, at para. 25.

[49] The court cautioned that the parties should not assume acceptance or reliance on presumptively inadmissible hearsay and should draw the court’s attention to any hearsay material they wished to rely on and request a voir dire. At several junctures during viva voce evidence, the court identified hearsay, and reiterated that absent a clear request by a party to enter into a voir dire, the court would not consider the evidence for the truth of its contents.

[50] When the mother did not attend court for the second day of trial, counsel on behalf of the society raised a number of evidentiary issues. The society’s laudable goal was to seek the direction of the court so that potential issues would not emerge only at a later stage of the trial.

[51] Counsel for the society explained that at the trial management conference, the parties had been directed to file affidavits for their anticipated witnesses, which was intended to capture their evidence in chief and save valuable court time. The society had done so, and its material included detailed background on the file collated by their main witness, Child Welfare Worker Leann Meawasige. That material would include hearsay but remained, in the society’s submission, important information for the court to consider in assessing the protection concerns.

[52] The society was also concerned that the mother’s absence from the trial prejudicially changed the evidentiary landscape. It was anticipated that she would testify. But now the society was unable to cross-examine her or put documents to her, including her prior affidavits filed as part of the continuing record. The society was confident that the mother would make certain admissions that were important to its case; for example, that she had pursued and would continue to pursue her allegations with respect to the father. The society further indicated it had the capacity to respond to the changing landscape by calling further witnesses if the court wished.

[53] Finally, the society suggested the court could receive two medical documents, a report of pediatrician Dr. Corbeil and a note of Dr. Wakegigig, as medical reports under s. 52(2) of the Evidence Act, R.S.O., c. E.23, which reads:

MEDICAL REPORTS

(2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action

[54] The court canvassed the views of the other participating parties, all of whom echoed the position of the society.

[55] The court saw need to emphasize the following points in response to the issues raised:

(1) It would be inappropriate for the court to offer its preliminary views on the evidence thus far. It is for the parties to determine what further evidence to call, and in what form, subject to the rules of evidence.

(2) While the parties may have anticipated the mother’s participation at trial and her opting to testify, they could not count on it with certainty. Nor could they count on her giving specific responses under cross-examination. To the extent they formulated their trial strategy based on these assumptions, they did so at their own risk. While the mother was directed, like the other parties, to file affidavit evidence in advance, that did not place an obligation on her to do so or to take the witness stand as part of her case.[^3] While the lack of participation may cause the trial to resemble in certain respects an uncontested trial, that does not relieve the society of its onus.

(3) The parties had options available to them to pursue evidence from the mother in the absence of her filing an affidavit or choosing to testify. To the extent that the mother had filed previous affidavits in this protection application, the parties could seek to avail themselves of the traditional hearsay exception with respect to admissions against interest. The parties could also simply call the mother as their own witness, as contemplated by r. 23(11) of the Family Law Rules.

(4) Neither these developments nor the trial management conference altered the foundational rules concerning hearsay. Hearsay is presumptively inadmissible: R. v. Baldree, [2013] 2. S.C.R. 520, at para. 2. Absent consent, hearsay can only be admitted pursuant to a statutory exception, a common law exception, or by applying the principled approach to the admissibility of hearsay. The principled approach and the necessity and threshold reliability criteria identified by the Supreme Court of Canada in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, apply to both criminal and non-criminal proceedings: Khan v. College of Physicians and Surgeons of Ontario, 1992 2784 (ON CA), [1992] O.J. No. 1725 (C.A.); Children’s Aid Society of Ottawa-Carleton v. L.(L.), 2001 28153 (ON SC), [2001] O.J. No. 4587, (S.C.); Children’s Aid Society of Metropolitan Toronto v. M.(R.), [1992] O.J. No. 1097. The case management judge’s determination that the parties are to file affidavit evidence to shorten examinations-in-chief is not an invitation to bypass these rules. A party tendering hearsay evidence must still bring themselves within an exception or navigate the principled approach. The court stressed that it would continue to screen evidence and that any party wishing for the court to rely on hearsay would be expected to identify it and request a voir dire.

(5) The court expressed concern at whether the society had complied with the 10-day notice requirement for medical documents under s. 52(2) of the Evidence Act, and specifically, whether the mere serving and filing of the report was adequate. The society was encouraged to consider that question, and the issue was deferred to later in the trial.

[56] Ultimately, the society did not pursue admissibility of the reports under the Ontario Evidence Act. The society did indicate that, given the court’s comments, it would make arrangements to have certain additional witnesses testify as the trial progressed, which was, as previously noted, any party’s prerogative.

2.9 The opportunity for the mother to make submissions

[57] Ultimately, the court heard evidence over the course of three days. Corresponding with the completion of the evidence on the third day of trial, and following discussions with respect to the scheduling of submissions, the court made the following order:

The respondent [mother] is ordered to appear in person or virtually for the continuation of this trial on May 30, 2024, at 10:00am, to advise the court of her intentions with respect to her participation in the submission stage of this trial, including:

• Whether she wishes to have transcripts of the evidence and the submissions of the other parties sent to her when available, and

• Whether, once she has had an opportunity to review those transcripts, she wishes to have a further date scheduled for her to make closing submissions.

Failing her attendance on May 30, 2024 at 10:00am, the court will conclude that she does not wish the opportunity to make closing submissions.

[58] The mother did not attend court on May 30, 2024, and submissions proceeded in her absence. During submissions, the court received a further email from the mother. She reiterated several of her complaints and confirmed that she had “withdrawn from this court.”

[59] A final comment on the mother’s approach to this trial: while the court assessed each of the mother’s various procedural objections and requests independently as they arose, the court ought not miss the forest for the trees. The mother’s course of conduct, both leading up to and during the outset of the trial, reaffirms that she had no intention of participating in this trial in good faith.

Part Three: Issues

[60] This trial requires the court to answer the following questions:

(1) Is the child in need of protection?

(2) Is a court order necessary to protect the child in the future?

[61] If the answer to both questions is yes, then the court must consider the following further questions:

(3) What order should be made under ss. 101 or 102 of the Act?

(4) What provisions should such an order make with respect to access?

(5) What ancillary orders, if any, may be appropriate?

Part Four: Evidence before the court

[62] The court heard from 13 witnesses over the course of the four-day trial. They were, in order:

(1) Carrie Caibaiosai, Women’s Shelter Worker

(2) Kennadi Fletcher, Society Child Welfare Worker

(3) Jennifer Grasley, Society Supervisor

(4) Cst. Ashley Hope, Ontario Provincial Police (OPP), Blind River

(5) Avery Litke, Society Child Welfare Worker

(6) Leeann Meawasige, Child Welfare Worker

(7) Dr. Paul Valliant, Psychologist

(8) The father

(9) Dr. Chantal Corbeil, Medical Doctor

(10) J.B., the father’s adult daughter

(11) Desire Mitchell, School Social Worker

(12) Darlene Corbiere, Band Representative, BFN

(13) David Paquin, Supervised Access Centre Coordinator

[63] In addition to viva voce evidence, and pursuant to orders made at the trial management conference, the court accepted and reviewed the affidavits of Leann Meawasige, Avery Litke, J.B., Darlene Corbiere, and the father.

[64] The society also relied on a number of court documents filed under s. 93 of the CYFSA. That provision reads as follows:

93 (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[65] Pursuant to s. 93, the court accepted into evidence the following:

(1) The Reasons for Judgment of Justice Peterson dated November 10, 2022, which pertain to a motion for temporary care and custody.

(2) The endorsement of Justice Peterson dated February 1, 2023, relating to the father’s motion for increased and unsupervised access.

(3) The Reasons for Judgment of Justice Gareau, of the Superior Court of Justice, dated July 24, 2023, reported at 2023 ONSC 3324, with respect to the father’s defamation action against the mother.

(4) The Reasons for Judgment of Justice Condon dated July 20, 2023 relating to the father’s motion to have the mother held in contempt.

(5) The endorsement of Justice Peterson dated January 19, 2024, in relation to the father’s ex parte motion to suspend the mother’s access.

[66] Absent from this group are the endorsement and order of Justice Klein dated January 15, 2024. They are included in the continuing record and in the society’s trial record and I have considered them.

[67] I will address my assessment of the evidence, including matters of credibility and reliability, as it arises in the context of the legal analysis, below.

Part Five: Analysis

5.1 Is the child in need of protection?

[68] On a child protection application, the court must first ascertain whether the child is a child in need of protection. The term “child in need of protection” is statutorily defined, with s. 74 of the CYFSA fixing multiple pathways to a finding. The definitional pathways pursued by the society in this case are that there is a risk that the child is likely to suffer physical harm resulting from the mother’s failure to adequately care for, provide for, or supervise the child or her pattern of neglect in caring for, providing for, supervising or protecting the child (s. 74(2)(b)(i)-(ii)), and that there is a risk that the child is likely to suffer emotional harm resulting from the actions, failure to act, or pattern of neglect on the part of the mother (s. 74(2)(h)).

[69] Within these definitions, the term “likely” has been interpreted to mean “more probable than not”: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, at para. 17.

5.1.1 Risk of physical harm

[70] With respect to the risk of physical harm, there is no need for the society to prove an intention to harm: Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, at para. 28, affirmed at Jewish Family and Child Service v. K.(R.), 2009 ONCA 903. The qualifying harm may arise through neglect or error in judgment: C.A.S. Niagara v. P.(T.), 2003 2397 (Ont. SC), at para. 65. The risk of harm must nonetheless be real and likely, not merely speculative: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458, at para. 19.

[71] The evidence with respect to risk of physical harm centred around the events of March 18, 2022. This evidence was provided by three society witnesses, (i) women’s shelter worker Kerrie Caibaiosha, (ii) Child Welfare Worker Kennadi Fletcher, and (iii) society supervisor Jennifer Grasley.

Kerrie Caibaioshai, Women’s Shelter Worker

[72] Ms. Caibaioshai was employed as a frontline worker at a women’s shelter within the MFN. She testified that on the evening of March 18, 2022 the mother arrived at the shelter with the child in a taxi. Ms. Caibaioshai went to the front door when she saw the mother staggering towards the shelter, but would not admit her, due to the shelter’s zero-tolerance policy for alcohol or drugs. When asked about the mother’s reaction to being refused entry, Ms. Caibaioshai was unable to assist. She had remained in the office and called the society while a colleague interacted with the mother. She recalled that the mother was falling down and slurring her words. She also noted that the child seemed scared, but when asked to elaborate, she could only offer that it “was just how everything happened to unfold at that time.”

[73] I found Ms. Caibaioshai to be a credible witness. Though her testimony was brief, she was balanced in her approach, as evidenced by her acknowledgement that she was not in a position to describe the mother’s reaction to being refused entry. There were times that she resorted to vague rather than detailed responses, as in her conclusion the child seemed scared. I did not view this to be evasive; rather, she either could not recall details, or was not pressed on the importance of providing the foundations for her conclusions.

[74] The witness’s reliability is a different matter. Given her testimony that she remained in the office and did not directly interact with the mother, her vantage point for her observations remains unclear. For example, if the witness did not let the mother inside the shelter, and did not speak with the mother, how did she come to know she was slurring her words? I am concerned that while this witness is making her best effort to be honest and truthful, her recall of events may be impacted by the observations of her colleague. I do accept her evidence insofar as she testified that on the day in question, the mother arrived at the shelter via taxi, with the child present, and was turned away from the shelter.

Kennadi Fletcher, Child Welfare Worker

[75] Ms. Fletcher was employed as a child welfare worker with the society in March 2022. She testified that on March 18, 2022, she received an after-hours call regarding the mother and the child. She responded to the call with her supervisor, Ms. Jennifer Grasley, and a police officer, Cst. Mathias. As they were aware that the mother was a member of MFN, they contacted a band representative to assist them, and were joined by Samantha Robinson.

[76] Together, the four of them attended the mother’s residence, first at approximately 11:00pm. When they first arrived, they knocked on the front door. There was no answer, but the lights were on, and it appeared to Ms. Fletcher that someone was home. They waited 15-30 minutes, after which they decided to go to the women’s shelter where the call had originated, to see if the mother and child had returned. They had not. The group then searched a local bar unsuccessfully before parting ways. Ms. Fletcher, Ms. Grasley, and the band representative decided to try the mother’s residence again. Cst. Mathias left but advised that they could be reached if necessary.

[77] When the three of them arrived at the residence, there had been a change. The home was now dark, which led Ms. Fletcher to believe that someone had been there. The group contacted Cst. Mathias, who returned to assist. The mother answered the door. Ms. Fletcher observed empty alcohol bottles at the front door. She noted the mother had dry lips, and glossy and red eyes. As she began to speak with the mother, she noted slurred speech, and later, when closer to her, the odour of alcohol on her breath. The mother was also angry and frustrated with the visitors. When asked if the mother said anything to the group, Ms. Fletcher testified that the mother acknowledged she had been drinking that evening, because the society was causing her to drink. She had communicated concerns regarding the father and complained that the society was not doing their job to protect the child from his sexual abuse.

[78] Ms. Fletcher’s testified that she advised the mother she would need to observe the child and the home. She was permitted to do so and located the child sleeping in her bed. At a later point however, in response to the mother’s raised voice, the child woke up and joined the group. In the child’s presence, the mother made utterances about the society workers being “Indian snatchers” and the father being a “child diddler”.

[79] As Ms. Fletcher’s efforts to locate an alternative caregiver for the evening met with no results, the situation escalated and the mother became increasingly frustrated and hostile, screaming, yelling and continuing to call the workers “Indian snatchers”, all in front of the child. The child appeared scared and kept saying “mommy stop.”

[80] Ms. Fletcher was asked whether the child expressed anything about the father. She testified that the child shared she was afraid of him but could not remember anything further.

Jennifer Grasley, Society Supervisor

[81] Ms. Grasley was employed at the society as a supervisor on March 18, 2022. Her account of the overall timeframe and order of events aligned with that of Ms. Fletcher. As to the second attendance at the mother’s residence, Ms. Grasley testified that the mother initially did not want them to enter the home. When they did enter, there was a case of 24 beer and several empty bottles visible. She observed the mother to have glossy eyes, slurred speech, and to respond to questions slowly. She heard the mother acknowledge that she had been drinking.

[82] Ms. Grasley also testified as to the mother’s demeanor changing over time. The mother became more and more upset, stating she would not allow the child to leave the home. Ms. Grasley recalled the mother calling them “Indian agents” or “Indian snatchers” and “child diddlers.” She and her colleague explored placements for the child, including friends and relatives. She provided more detail than Ms. Fletcher about these efforts. She added that Cst. Mathias transported them to a family member’s residence, but after 15 to 20 minutes of knocking, no one answered. It was at that time the society workers determined they needed to look for a place of safety. Ms. Grasley recalls that at one point during this period, the mother began to walk down the road with the child. The child appeared fearful. The band representative walked over to the mother to de-escalate the situation. The mother asked to call the manager of MFN, which occurred. Once the manager confirmed their support for the society workers’ plan, the mother picked up the child and pushed herself and the child into the workers, saying “take her and do your job.” During cross-examination by the OCL, Mr. Grasley was asked about the temperature that night. She responded that it was not that cold. It was cool, but they also were not outside for very long.

[83] Ms. Grasley was asked specifically about statements the mother may have made about the workers or the father in the presence of the child. She confirmed that the mother called the society workers a “cunt” and “Indian snatchers” and accused them of taking the child to a “baby diddler.” Ms. Grasley understood that comment to be in relation to the father, as she was aware that the mother had been registering complaints with the society about the father and that a file had been opened.

[84] When asked whether she considered placing the child with the father, Ms. Grasley testified that because the child had made a statement that her “daddy hurts” her, they could not consider such a place at that time, out of precaution.

[85] I found both Ms. Grasley and Ms. Fletcher to be credible and reliable witnesses. They answered questions in a calm and straightforward manner. They demonstrated fairness to the mother. For example, Ms. Fletcher acknowledged the instances of the mother’s cooperation despite the evening’s overall escalating trend. Ms. Grasley rejected the implication that the mother was endangering the child by walking outside the vehicle on a cold March night. Neither was protective of the father, and they acknowledged the child’s utterance concerning him. Their accounts are also corroborated by one another, and while they would have had the opportunity to discuss events afterwards, I had no impression of collusion. I accept their account of the events of March 18, 2022.

Further evidence re: risk of physical harm

[86] While no further witness testified specifically about the events of March 18, 2022, the primary Child Welfare Worker assigned to the family, Leeann Meawasige, did provide important evidence with respect to the mother’s alleged substance abuse issue. She confirmed that following the child’s removal in March 2022, the mother attended a recovery program and mitigated some of the society’s substance abuse concerns. As she attended treatment, the mother’s parenting was increased ultimately to extended access, with the child residing with the mother during the week and with an alternative caregiver on weekends.

Conclusion re: risk of physical harm

[87] I would have no trouble concluding that the events of March 18, 2022 justified the society’s initial intervention. The mother’s intoxication jeopardized her ability to supervise her young daughter. Do these events justify, however, a finding at this time that there is a risk the child is likely to suffer physical harm? I conclude that they do not. In arriving at that conclusion, I am mindful of the following:

i. No party advanced any evidence of a similar nature or similar event before or after March 18, 2022. The evidence is of a singular event, a singular night.

ii. The uncontradicted evidence of Ms. Meawasige demonstrated, and all participating parties acknowledged, that the mother had taken steps to mitigate the concerns around her abuse of alcohol, and that there were no extant concerns about the mother’s ability to supervise the child. Indeed, in closing submissions, counsel for the society conceded that the substance abuse concerns dissipated as early as July 2022, as the mother had taken the remedial steps that the society had sought.

iii. When applying less recent evidence to the question of a protection finding, courts have endorsed a flexible approach. The judge must consider all the facts to determine whether the risk exists or may return, even if it is under control or resolved at the time of the hearing: K.R. v Children’s Aid Society of London and Middlesex, 2023 ONSC 3798, at para. 42 (Div. Ct.). The flexible approach does not mandate a finding simply because at any point in the litigation the child was in need of protection. In some circumstances the court may view a past risk as resolved, or sufficiently resolved so as to bring the risk below the legal threshold for a protection finding: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. D.C., 2024 ONCJ 253, at para. 41.

[88] In the face of the mother’s acknowledged mitigation of the society’s substance abuse concerns and the passage of more than two years, I do not accept that the events of March 18, 2022, standing alone as they do, meet the threshold of real and likely risk as contemplated by the Act.

5.1.2 Risk of emotional harm

[89] I come to a different conclusion with respect to the risk of emotional harm.

[90] To qualify the risk must be of emotional harm demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development: s. 74(2)(f),(h) of the CYFSA. Expert evidence is often, though not universally required: Children’s Aid Society of Ottawa-Carleton v. T., 2000 21157 (ON SC), [2000] O.J. No. 2273 (S.C.); Children’s Aid Society of Owen Sound and Grey (County) v. T.(J.)., [2003] O.J. No. 5904; Halton Children’s Aid Society v. M.M., 2017 ONCJ 569.

[91] Emotional harm can have a broad range of potential causes. High levels of parental conflict have qualified: see, for example, Family and Children’s Services of St. Thomas and Elgin v. M. and O., 2022 ONSC 28; Children’s Aid Society of Waterloo (Regional Municipality) v. A.(B.), 2005 ONCJ 220.

[92] In the present case, the specific pattern of behaviour at issue is the mother’s sustained and continuing campaign alleging that the father sexually abused the child. The society submits this falls within a category recognized by courts as “parental alienation”. This category was the subject of comprehensive discussion by the Superior Court of Justice in Catholic Children’s Aid Society of Hamilton v. V.A., 2022 ONSC 4684, at paras. 132-144. Justice Madsen recognized that behaviour which seeks to estrange a child from a parent has been found to create a risk of emotional harm in many cases.

[93] Those cases have included circumstances where one parent continuously and doggedly maintains allegations that another parent has abused, physically or sexually, a mutual child. For example, in Children’s Aid Society of Toronto v. L.R., 2020 ONCJ 22, affirmed 2020 ONSC 4341, risk of emotional harm was grounded in the mother’s maintaining a false narrative that the father had sexually abused the child, despite the child having made no disclosures and despite two police investigations determining charges were not warranted. The appellate court characterized the evidence of risk as overwhelming and emphasized the mother’s pattern of non-cooperation with the father’s court ordered access: see para. 65.

[94] Justice Madsen also reviewed the prevailing authorities and emphasized, at paras. 134-137, that parental alienation claims do not depend on expert psychiatric evidence. As the Court of Appeal for Ontario observed in A.M. v. C.H., at para. 34, when trial judges make findings about parental alienation, they are not purporting to make psychiatric diagnoses, but are making factual findings about what has transpired within a family, “the stuff of which custody trials are made.” See also Children’s Aid Society of Toronto v L.R., 2020 ONSC 4341 at para. 74; Leelaratna v. Leelaratna, 2018 ONSC 5983, at para. 68; S.(C.) v. S.(M.), 2007 CarswellOnt 1267 at 65, affirmed 2010 ONCA 196; Bouchard v Sgovio, 2021 ONCA 709, 2021 CarswellOnt, at paras. 73-75.

[95] In the present case there is considerable evidence which leads the court to conclude that the mother’s conduct is alienating the child from the father in a manner that risks the child’s emotional well-being.

[96] I will commence my discussion of that evidence with a review of the court orders that preceded this trial. The court’s previous findings and orders demonstrate the escalating pattern of the mother’s conduct and the failure of earlier court intervention to curb that conduct, and provide a chronological backdrop for the balance of the evidence.

The Reasons for Judgment of Justice Peterson dated November 10, 2022

[97] These reasons provide a partial history of the mother’s allegations and the investigations which ensued. The mother’s evidence was that the child first disclosed “what her father did” on October 4, 2020. She would have been two years and six months old at the time.

[98] As Justice Peterson notes, the allegations were taken seriously by the society. The matter was twice referred to the OPP, and the child was subjected to medical exams in October 2020 and June 2022, which revealed no physical evidence to support the allegations. Two police interviews were conducted with the child. No charges were laid. The father has consistently and unequivocally denied that he abused the child. He voluntarily sat for a psycho-sexual assessment, and no concerns have been raised by staff at the Algoma Family Service Supervised Access site. The evidence from supervisors of the access demonstrated that the father behaves in a loving and appropriate manner and that the child responds to her father affectionately.

[99] In her reasons, Justice Peterson details the efforts of Child Welfare Worker Leanne Meawasige. Ms. Meawasige raised the issue of sexual abuse with the child during a visit on August 4, 2022. The child told her that her father hurt her but also that she did not remember it happening. When asked how she knew, the child replied that her mother had told her he did. and that she knew it happened because her mother told her it did.

[100] In her reasons, Justice Peterson also notes that the mother posted the allegations on social media, along with her contempt for the society.

[101] Based on her findings, Justice Peterson concluded that there were reasonable grounds to believe that there was a real possibility that if the child was returned to the mother’s care, it was more probable than not that the child would suffer harm. However, Justice Peterson also concluded that these risks could be adequately protected by terms and conditions. The court placed the child with the mother. Conditions included the (i) that the mother not post on social media about the father or his family, (ii) that the mother not initiate conversation with the child about sexual abuse allegations involving the father, and (iii) that the mother not speak negatively about the father or his family around the child. The court also ordered that the father have supervised access a minimum of two weekends per month, supervised by his adult daughter, J.B.

The endorsement of Justice Peterson February 1, 2023

[102] This endorsement followed the father’s request for increased and unsupervised access. The father had received the results of his psycho-sexual assessment by Dr. Valliant and relied on the report to support his request. Dr. Valliant’s report concluded there was no truth to the allegations, and that the father was at a low risk to commit this type of abuse. Dr. Valliant also gave evidence directly in this trial, so I will not summarize the report here. Justice Peterson found the report to be thorough and objective. The court acknowledged that no report could ever be determinative of the issue, a theme I will revisit in respect of my assessment of Dr. Valliant’s trial evidence. The court did find the report to be some evidence speaking to the issue of risk of harm, if any, from the father. The court concluded that that it was in the child’s best interest to have unsupervised parenting time with the father, and so ordered.

The Reasons for Judgment of Justice E.E. Gareau, of the Superior Court of Justice, dated July 24, 2023

[103] Parallel to this litigation, the father filed a civil action against the mother for defamation. The mother did not defend the action, which proceeded to an uncontested trial. The decision details how, in the fall of 2020, following the parties’ separation, the mother took to social media to describe the father as someone who is abusive, suffers from an addiction problem, and has abandoned his family emotionally and financially. She urged community members not to support the father’s business. These defamatory statements were contradicted by the father’s own evidence at the uncontested trial.

[104] Justice Gareau concluded that the mother had defamed the father and awarded damages of $75,000. The court found, at para. 21 of its reasons, that,

…the actions of the conduct were high-handed and oppressive in that they were designed to paint the [father] in an unfavourable position post separation to obviously attempt to gain an advantage in the family law proceedings involving the parties, and to damage the relationship that the [father] has with his daughter.

[105] I am reluctant to place too great a weight on the court’s Reasons for Judgment in the mother’s civil suit. They arose from an uncontested trial, and related to defamatory conduct outside of, if parallel to, the mother’s allegations of sexual abuse. The reasons do, however, have some probative value insofar as they suggest a capacity on the mother’s part to mislead others about the father’s character and behaviour.

The Reasons for Judgment of Justice J.P. Condon dated July 20, 2023

[106] Following Justice Peterson’s endorsement converting the father’s access from supervised to unsupervised on February 1, 2023, the mother began to withhold the child from the father. The father responded with a contempt motion. The motion was heard by Justice Condon on July 7, 2023, with reasons delivered on July 20, 2023.

[107] The mother did not deny that the father’s access had not occurred. She offered two explanations to the court for the missed access. First, she indicated that in March 2023 her own mother (the child’s maternal grandmother) was ill and required constant care. The mother claimed that as the child goes with her everywhere, she attended with the mother and offered support to her grandmother.

[108] The second explanation for the missed access was a restatement of the mother’s allegations of sexual abuse. She claimed that the child had disclosed fear of her father and “the reasons why” to Ms. Meawasige. In her affidavit filed in response to the contempt motion the mother continued to press the allegations of abuse.

[109] Justice Condon recognized, at para. 22 of his reasons, that “[a]llegations by the mother asserting that the father has sexually abused the child… have been recurring and almost constant.” He recognized that “[s]uch allegations were before Justice Peterson at the temporary care and custody hearing, and were addressed in her reasons for judgment.”

[110] Justice Condon concluded that, to the extent the mother was repeating allegations that were before Justice Peterson, the mother knew that those allegations are not a basis for withholding the child from the father, regardless of whether the mother views herself to be acting to protect the child: see para. 52. To the extent the mother was making fresh allegations of a new sexual assault, Justice Condon determined that the allegations were vague and unparticularized. This was part of a recurring pattern, the court held, and the mother had ample time leading up to the contempt motion to provide details. This caused the court to doubt the veracity of the allegations.

[111] Justice Condon made the following further observations, at paras. 54-55:

It is also noted that the most recent allegation appears to have been advanced on May 19, 2023, to Leean Meawasige of Nogdawindamin in the presence of the mother. Again, the absence of any details regarding the communications between the child and Ms. Meawasige undermines the credibility of the mother’s claim.

As set out in the reasons for judgment of November 10, 2022, most of the allegations by the child are purported to have been made while she was alone with the mother. On the one hand, perhaps that is when the child has been most comfortable. On the other hand, it raises a concern given other information about the child saying that she knew about the abuse because the mother told her. The mother’s affidavit indicates that [the child] has been working with Stephanie Collins, a community mental health worker, and that they have been meeting on a weekly basis. There is no evidence that the child has advanced any such allegation of abuse in this counselling session even though the mother reports that there has been a “noticeable improvement in [the child]” arising from this counseling.

[112] Justice Condon also rejected as not credible the mother’s explanation with respect to the maternal grandmother’s care. The court concluded that the mother “used her circumstance as a rationalization for her decision not to allow access to occur” and that the mother’s “underlying belief that access should not occur as set out in the court order is evident and predominate despite the circumstances of the maternal grandmother”: see paras. 65-68.

[113] Justice Condon was satisfied beyond a reasonable doubt that the mother intentionally failed to comply with the father’s access provisions in the orders of Justice Peterson. As previously noted, the court was satisfied that a declaration to that effect, rather than a declaration of formal contempt, was sufficient to influence future compliance.

The endorsement and order of Justice Klein dated January 15, 2024

[114] When Justice’s Condon’s declaration failed to motivate the mother to comply, the father brought a further motion before Justice Klein. I do not have the benefit of Justice’s Klein’s reasons, which were given orally, but they resulted in an order removing the child from the mother’s care and placing her in the father’s care subject to conditions. The mother was provided reasonable access to occur two weekends per month, subject to conditions. A police enforcement clause was included.

The endorsement of Justice Peterson dated January 19, 2024

[115] Despite Justice’s Klein’s order, the mother did not return the child to the father’s care. The father was compelled to bring a urgent, ex parte motion to suspend the mother’s access.

[116] Justice Peterson heard the motion on January 19, 2024. The evidence before her demonstrated that the mother was present in court on January 15, 2024, when the order was made, and reacted by stating that she did not consent to or authorize the decision. The mother did not return the child to the father’s care. In fact, the father could not locate them, despite engaging the assistance of police and the society.

[117] Justice Peterson granted the father’s motion to immediately suspend the mother’s access. She concluded that the child was in immediate danger of being removed from Ontario, and that there was an immediate danger to the child’s health and safety considering the mother’s flight.

Leeann Meawasige, Child Welfare Worker

[118] Of all the society employees who testified, Ms. Meawasige had the most longstanding involvement with the family. She was the Child Welfare Worker assigned to the case from November 2021 until early 2024. In addition to her testimony, she swore two affidavits, dated September 27, 2023, and March 22, 2024. I have considered the admissible portions of these affidavits, and disregarded any hearsay, having not been asked to enter into a voir dire on any portions.

[119] Ms. Meawasige confirmed that while the child’s removal to a place of safety occurred in March 2022, the file was originally opened in 2020 due to sexual abuse allegations the mother was making against the father pertaining to the child. Early in her involvement, Ms. Meawasige had multiple discussions with the mother about the allegations. She testified that the mother had claimed the father would stick a cloth down the child’s throat and would touch the child inappropriately in her genital area, including by sticking his fingers in the child’s anus and vagina. During this early period the mother would allow frequent home visits and would often request for Ms. Meawasige to attend. The mother would raise the allegations at every visit and would request that the father’s access be suspended. The mother would also advise Ms. Meawasige of allegations that the child’s paternal grandfather had a history of sexually abusing children.

[120] Ms. Meawasige testified that the society investigated the allegations. She was aware that, prior to her involvement, past medical examinations had been done. Her affidavit evidence demonstrates that the police were also apprised.

[121] Ms. Meawasige had many private meetings with the child and spent a great deal of less formal one-on-one time with the child, including during many long car rides while Ms. Meawasige assisted with transportation. Ms. Meawasige testified that the child grew to be very comfortable with her, and that the child’s description of her relationship with her father would depend on the context.

[122] If interviews took place at the mother’s home, the child would know the worker was coming, would know why the worker was coming, and would be waiting ready in her bedroom. On those occasions, the child would tell Ms. Meawasige that “daddy touched her peepee,” and that her father had stuck his finger “in her peepee and in her bum.” Ms. Meawasige was aware that the medical evidence gathered to date—again, prior to her involvement—was that there was no evidence that there was any penetration. She discussed these findings with the mother, who reacted negatively, and indicated she did not agree with the results.[^4] According to her affidavit, Ms. Meawasige nonetheless relayed the disclosures she received to the OPP.

[123] In contrast, when Ms. Meawasige would see the child at her father’s home, the visits would be much less formal. The group, which would include the father, the child, and a band representative, would typically first chat around the kitchen table. The child would then want to show Ms. Meawasige her bedroom and toys. The child would move freely around the house. During the private portions of these visits, the child would express that she is happy being with her father, and that she only felt safe around her father. Ms. Meawasige noted the child’s strong attachment to her father, and that the child would interrupt their play or conversation to find him. The child voiced that she becomes afraid when she cannot see him.

[124] Ms. Meawasige’s affidavit evidence describes one private interview that took place at a more neutral location, the child’s school, in December 2022. Band representatives from both BFN and MFN were present. The child disclosed that she felt “bad” about going to see her father, because “he hurts me lots”. When the BFN band representative, Darlene Corbiere, asked the child where she had heard that, the child replied “my mom told me.”

[125] The following month, on January 18, 2023, Ms. Meawasige conducted a forensic interview of the child at the OPP detachment in Blind River. The child disclosed that the abuse happened at the home of her adult half-sister, J.B., while J.B.’s children were at school. This appeared to be inconsistent with the father’s actual access period, which at that time only occurred on weekends. On March 8, 2023, the child was interviewed by OPP Sgt. Allison Campbell. When asked to tell the truth, the child indicated “I’m going to tell you a story about my dad, he hurt my bum and my pee pee and I went to the doctor’s in the Sault.” When asked for details, she was only able to say that it happened at “9 o’clock.” When asked about an incident involving paper, the child advised that “my dad put paper in my pee pee, he ripped it apart and stuck it inside.” She said the paper was “kleenex”. Ms. Meawasige checked the mother’s initial report which, had stated the paper to be printer paper. During a break in the interview, Sgt. Campbell advised Ms. Meawasige that the child was very smart, and in her view would be able to articulate it if something had happened.[^5]

[126] Ms. Meawasige was asked under cross-examination whether she held concerns that the mother was coaching the child in her disclosures. She responded that she believed there had been coaching.[^6] Concerning the allegations, the child disclosed the mother had “told her so.” Specifically, on one occasion the child had said that her father had hurt her since she was a baby. Ms. Meawasige asked how she could know that as she was an infant at the time. The child responded, “mum told me.” In her affidavit evidence, Ms. Meawasige related another visit, on August 4, 2022, when she asked the child whether she remembered her father hurting her. The child said she did not, but she knows it happened because her mother told her it happened.

[127] Ms. Meawasige was asked about a virtual appointment the child had with a Dr. Dundas in September 2022. Ms. Meawasige learned that this had been arranged through Sick Kids Hospital to seek out counseling. She attended the appointment with the mother and the child. During the appointment, the mother disclosed to the physician, in graphic detail, allegations that the father had been sexually abusing the child since she was an infant. Ms. Meawasige interrupted out of concern that the matter should not be discussed in that way in the child’s presence. Per her affidavits, Ms. Meawasige drove the child to school following the appointment, and the child asked her to call the mother and tell her that the child was going to live with the father. This request echoed a previous statement that the child made to Ms. Meawasige on August 26, 2022.

[128] Ms. Meawasige also testified about a further medical appointment in March 2023 when the child was examined by Dr. Corbeil. She testified that she attended the hospital with the child. The mother had instigated the examination. Her affidavit evidence indicates that during the appointment, the mother had to be cautioned by Dr. Corbeil to stop her from discussing the allegations in front of the child. Dr. Corbeil advised the mother that the child’s genital area showed no signs of trauma or infection, and that the child’s hymen was still intact. The mother indicated she was not satisfied with the results.

[129] Ms. Meawasige was asked about the father’s access following Justice Peterson’s order in February of 2023. She testified that the access did not occur because the mother advised the society on multiple occasions that the child no longer wanted to attend, and claimed the child was afraid. The mother attributed that fear to the sexual allegations she was making against the father. Ms. Meawasige confirmed that between March of 2023 and Justice Klein’s order in January 2024, the father’s access with the child was limited to a single virtual visit on December 5, 2023. That visit was intended to be the first in a weekly series, but the mother cancelled the following week without explanation.

[130] Ms. Meawasige was also asked whether the mother complied with the terms of Justice Peterson’s order allowing the society to visit the mother’s home and meet with the mother. Ms. Meawasige testified that she was generally not permitted that access. Despite the governing order, she was not permitted direct communication with the mother, and was required to work through a band representative for MFN. The mother would not answer direct calls and would not return voicemails or respond to emails. Ms. Meawasige’s repeated requests for private interviews with the child were declined. The mother would not sign consent forms for third parties to share information about the child.

[131] Ms. Meawasige testified to one occasion where she was permitted to attend a home visit with the mother and the child on September 18, 2023. Also present was MFN band representative Brent Nikanobe. Ms. Meawasige conducted a private interview with the child. The child informed Ms. Meawasige that she was being home-schooled, because there was fluoride in the air at school and she would miss her mother too much if she was away from her at school. The child also refused to accept a t-shirt that Ms. Meawasige had brought as a gift from the father. Ms. Meawasige testified that the child was about to put the shirt on when the mother asked, “do you even want that shirt?” The child said “no” and gave it back to Ms. Meawasige. Before the visit ended, all those present were in the kitchen, and the mother picked up the child in her arms and asked her if “she wasn’t ready yet?” The child shook her head, and the mother told Ms. Meawasige that the child was not comfortable disclosing anything. I infer from this evidence that the mother’s purpose in allowing this rare home visit, was to facilitate a disclosure of sexual abuse to the society, and that she had discussed that plan with the child in advance.

[132] Ms. Meawasige was also asked about the mother’s social media posts, specifically those raising sexual abuse allegations against the father. This, Ms. Meawasige testified, had been an ongoing issue since 2022. When Ms. Meawasige confronted the mother about the posts, and how they were exploiting the child, the mother was displeased, and claimed she could post whatever she wanted on her own Facebook account. Ms. Meawasige confronted the mother multiple times about the posts, and the mother would sometimes remove them.

[133] In her affidavit, Ms. Meawasige also details allegations that the mother brought to her direct attention which were unrelated to sexual abuse. The mother advised Ms. Meawasige on March 8, 2022 that the father had been breaking into her home to tamper with their food. As evidence, she offered that she had discovered an oily substance on a dessert she had made, and a white substance she had discovered inside a bruised apple. She also claimed that her water supply had been tampered with. This behaviour presented in the days leading up to the removal to a place of safety. On June 16, 2022, the mother suggested to Ms. Meawasige that the father had given the child chewing gum that he had contaminated with drugs. On May 19, 2023, during a home visit, the mother advised Ms. Meawasige that she had tested the child’s urine using a kit purchased from a pharmacy, and claimed it indicated, albeit faintly, for a controlled substance. Ms. Meawasige advises she observed the test, and it was negative.

[134] Ms. Meawasige also provided evidence as to the events of January 2024, which she characterizes as the abduction of the child. In light of the mother’s comments on the record in the wake of Justice Klein’s order—that she would not comply with it—and the mother’s history of non-compliance, Ms. Meawasige arranged to attend the mother’s home to pick up the child. At 11:30am on January 15, 2024, Ms. Meawasige attended the mother’s home with OPP Cst. Sarah Moore. They knocked on the door several times, to no avail. They observed suitcase wheel marks in the snow leading to tire tracks from a vehicle. Cst. Moore placed a request with her supervisor to ‘ping’ the mother’s cell phone to ascertain her location, but was denied. Ms. Meawasige and Ms. Jacques checked the homes of family and friends but obtained no leads. Though that is the extent of the evidence with respect to Ms. Meawasige’s direct involvement, the search for the mother and child continued over the course of several days. Ultimately Ms. Meawasige learned that on January 20, 2024, the mother had been arrested by the OPP in Dryden, Ontario. The child was with her at the time, and arrangements were made for her to be returned to her father’s care. Ms. Meawasige attended the father’s home on January 23, 2024, observed the family, and made plans with the father to arrange services for the child.

[135] The mother was charged in relation to her actions, and as of March 22, 2024, was on a release order with sureties. The release order, which is attached to Ms. Meawasige’s most recent affidavit, requires the mother to remain in her residence daily, except while in the presence of a surety. It also indicates that she is not to have contact with the father or the child, except in accordance with a later family court order.

[136] Overall, I find Ms. Meawasige to be a credible and reliable witness. In both affidavit and live format, she provided straightforward, balanced evidence. While she explained her reasons for believing that the mother had coached the child with respect to the disclosures, she made no effort to minimize the child’s statements to her. She further demonstrated her impartial approach when she candidly acknowledged the mother’s mitigation of the initial substance abuse concerns. Her evidence is consistent with the balance of the evidence.

[137] Ms. Meawasige also provided evidence relevant to the question of disposition, which I will address at that later juncture.

The father

[138] The father testified at trial and filed his affidavit dated May 10, 2024. He provided background on his relationship with the mother. He also testified to his present circumstances and relationship with the child, which I will address below with respect to the issue of disposition.

[139] When asked about the mother’s allegations his evidence was that in the first two-and-a-half years of the child’s life, before the parties separated, not once did the mother suggest he had mistreated the child. Following the separation in September 2020, he initially had no contact with the child, because the mother would not allow it. He was not able to resume contact with the child until January or February 2021, and only at the access centre in Sault Ste. Marie. The mother would not allow anything else.

[140] He first learned of the allegations on November 1, 2020, when he received a call from a police officer. A meeting was set up between him, his lawyer, his band representative Darlene Corbiere, and the police. The police did not attend.

[141] When asked directly what his reaction to the allegations was, he stated they disgusted him. They were untrue. The particulars of several allegations were put to him, and he forcefully denied each.

[142] The father was asked about any opportunities he had to visit with the child following February 1, 2023, when he was permitted to have access. He testified that he was able to have visits only three or four times, and that, on the advice of his society worker and the band representative, he exercised that access at his adult daughter, J.B.’s house, as there was a fear that the mother would level new allegations of sexual abuse. Thereafter the mother withheld the child, who the father did not see again until December 2023.

[143] The father was asked about the events surrounding January 15, 2024, when the court ordered the child be placed in his care. He stated that when his daughter was not returned to him, he searched for her, including by traveling to Toronto for five days based on a tip they had received. He advocated unsuccessfully for an Amber Alert. He described the emotional moment when the child was located, and he was able to pick her up in his arms.

[144] I find the father’s account to be both credible and reliable. He appeared reflective in giving his responses. His evidence consistent with that of the other witnesses. Despite having undergone a tremendous ordeal with respect to this litigation, he did not appear to embellish in his testimony, or go out of his way to denigrate the mother. I accept his evidence. As discussed below, the question of whether the father sexually abused the child is not the direct issue before the court, but I nonetheless accept the father’s denial when I consider it in the context of the evidence as a whole.

J.B., the father’s adult daughter

[145] J.B. is the father’s adult daughter from a previous relationship. She is 33 years old. J.B. has her own children. She is the child’s half-sister, and they refer to each other as sisters. Though they lost time together following the mother’s separation from the father, J.B. had a close relationship with the child that predated the separation.

[146] J.B. is also close with her father. He raised her and has been supportive of her. She emphasized that he never exhibited any abusive behaviour towards her while she was growing up. J.B. came to know the mother during her father’s relationship. J.B. recounted that the mother would attempt to drive wedges between the father and his adult children and described the mother as very argumentative.

[147] J.B. described that on one occasion, a couple of months after the separation, she and her own daughter encountered the mother and the child at a mall in Sault Ste. Marie. She testified that the mother pointed at them and said “your dad’s a dead man”. She believes she reported this to police. J.B. was also witness to the mother’s social media activity. On many occasions she has observed the mother to post inappropriate content about the father and the child. The posts would sometimes include specifics of the sexual abuse allegations and would sometimes target extended family members, such as J.B. herself. In fact, she identified a Facebook post made by the mother the very morning of her testimony (May 29, 2024), implying a comparison between the father and an infamous serial killer.

[148] While J.B.’s relationship with the mother is certainly fraught, J.B. did not strike me as a witness motivated by any animus. She was calm and collected in her testimony. She focused on her recollection and took no opportunities to editorialize or denigrate the mother. Her evidence, which I accept, was consistent with that of the other witnesses, including the father, Ms. Meawasige, and Band Representative Diane Corbiere.

Darlene Corbiere, Band Representative, BFN

[149] Ms. Corbiere explained the role of a band representative and emphasized the importance of a child remaining involved with their culture, and the risks that have historically presented when that does not occur. Her involvement with this family began in 2020. She maintained contact with the father on a weekly basis throughout. With respect to the mother, Ms. Corbiere had some direct involvement early in the matter, during the society’s investigation and during some home visits prior to the child’s removal. Since that time, however, the mother has been clear she did not want BFN involvement at her home.

[150] Ms. Corbiere testified that the child has never made any disclosures to her with respect to the father abusing her. She corroborated the father’s evidence with respect to the meeting with the OPP that did not proceed. She too, never received an explanation as to why the police did not attend.

Dr. Paul Valliant, Psychologist

[151] Dr. Paul Valliant was retained by the society to undertake an assessment of the father. He was qualified as an expert in the field of psychology, and specifically to provide an opinion as to the father’s custodial capacity and whether there were any risk factors given the allegations of sexual abuse.

[152] I will address Dr. Valliant’s evidence in this section. I am cognizant of s. 93(2) of the CYFSA, which stipulates that evidence relating only to the disposition of the matter shall not be considered in determining if the child is in need of protection. Dr. Valliant’s evidence certainly bears on the question of disposition. However, in my view it also bears somewhat on the issues relating to the risk of emotional harm, and provides some context to evaluating the mother’s conduct.

[153] Dr. Valliant’s methodology, including the battery of evaluations undertaken and his interview subjects, was outlined in detail in his testimony and report, which was made an exhibit. I do not propose to summarize that evidence here. Dr. Valliant’s opinion was that there was no truth to the accusations of sexual abuse. None of the tests applied during the evaluation “bore any kind of resemblance that this man was a sexual predator in terms of high-risk features.” The assessment demonstrates that the father is at low risk for sexual improprieties and shows no orientation towards sexual predation.

[154] I accept Dr. Valliant’s evidence insofar as it supports the unlikelihood of the father’s having sexually abused the child or being at risk for such conduct in the future. His evidence satisfied the court that he was following standardized procedures in his determinations, and the court has no reason to doubt the conclusion he drew from his methodology as to risk. To the extent, however, that Dr. Valliant expressed a conclusory opinion that there is no truth to the allegations, I do not rely on that opinion. With respect, while the evidence before the court established a cogent basis for the court to consider risk, and for the court to consider the parents’ conduct in the context of the evidence as a whole, I do not believe that Dr. Valliant had a sound basis to reject the possibility of any abuse occurring with certainty. I echo the comments of my colleague, Justice Peterson, in her endorsement of February 1, 2023, that no psychological report could ever be so determinative of these issues.

David Paquin, Supervised Access Programme Coordinator

[155] Mr. David Paquin was the coordinator of the supervised access programme at Algoma Family Services. He was called primarily to authenticate several electronic documents and other correspondence relating to the mother. I will deal with them from earliest in time to latest, rather than in the order they were addressed during the trial.

[156] The first of those documents was an email exchange embedded in a society case note dated September 5, 2021. The email exchange begins with an email from the mother to the generic Supervised Access Program email, which Mr. Paquin administered, dated August 31, 2021. In the email she raises concerns she has with respect to the child’s access visits. She indicates she has expressed concerns over the father handling the child “during potty times and changing her". She alleges this scares the child and re-exposes her to “the trauma she has already been through.” She alleges her daughter told her that “dad touched her there again” and that “he made her poop on his face, his eyes, and nose.”

[157] The second document was an email chain between Mr. Paquin and the mother spanning November 4-9, 2021. It begins with an email dated November 4, 2021, from the generic Supervised Access Program email to the mother attaching a letter. The letter was not tendered, but the email advises that the letter outlines the program’s concern about her violation of the terms and conditions service. It is framed as a final warning. The mother replied on November 5, 2021, repeating her concerns, though without reference to specific sexual touching, and questioning the basis for her being issued a “final notice.” Mr. Paquin responded on November 9, 2021. In response to her inquiry about the final notice, he wrote the following:

…it is in regard to your ill remarks about [the father] to my staff at drop-off and in front of your daughter. These comments are not considered in the best interest of a child and not allowed as a condition to use our program which was documented and explained to you in your intake and subsequent conversations we had. It is important that these comments don’t happen in front of a child and staff are well aware of your allegations and maintain 100% supervision of [the father] and your daughter when they are together.

[158] The third document was a letter Mr. Paquin authored and sent to the mother dated November 21, 2021. In this letter he indicates as follows:

Upon review of the observation note for the parenting time at our Centre on Saturday, October 30, 2021, I noticed staff observed you at the drop-off of your daughter at 3:25pm engage in derogatory remarks about [the father] in front of your daughter. This is a direct violation of …the Agreement for Service.

[159] The letter goes on to say that the staff at the centre were “very aware of the allegations of abuse by [the father] towards your daughter, which have not been verified by child welfare,” and cautions the mother not to “make any more ill comments about [the father] to my staff or in the presence of your daughter”. The letter concludes by noting that further inappropriate behaviour will result in the immediate suspension of services.

[160] The court was concerned that the witness, Mr. Paquin did not make the observations himself, and, alive to the hearsay concern, sought clarification from the society as to the purpose the evidence was tendered for. The society confirmed that the evidence was not tendered for the truth of its contents. It was tendered for the non-hearsay purpose proving that the mother was cautioned about such behaviour. That caution is relevant to her later conduct. This limitation also applied to the email exchange from early November. I have limited my consideration of this evidence to that purpose.

[161] The final document was a letter Mr. Paquin sent to the father, dated January 6, 2022. In that letter he advises the father that he received a call from the mother that day to advise she would not be bringing the child for access on Saturdays going forward. She had told Mr. Paquin that she had involved other agencies—he mentions “Ombudsman and Human Rights”—who were investigating alleged child abuse by the father. Mr. Paquin advises the father that “[u]ntil this matter is addressed by Family Court, I will be unable to offer the services…”.

[162] On the witness stand, Mr. Paquin did not have a clear recollection of the phone call, but confirmed it was his letter, his signature, and that if he indicated that he had received that information directly from the mother, then he would have. I accept that this phone call did occur, that Mr. Paquin did receive that information from the mother, and that he saw fit to advise the other involved parties (the letter was copied to counsel for both parents).

[163] While the witness did not have an independent recollection of the details of these exchanges, he recalled the issues generally, recognized the email addresses and his own writing style, and confirmed he was the author of the emails and letter attributed to him. The email address attributed to the mother matches one of those she has used throughout this litigation. Examining these emails and letters in the context of the evidence as a whole, I find that they are what they are purported to be.

[164] Under cross-examination from the father’s counsel, Mr. Paquin was asked whether he had any concerns whatsoever regarding the father’s visits with the child. He responded that without reviewing the notes from that time, he could not say that there are no issues. He did not, however, have any recall of the father being suspended at any point, which in his view would indicate there was nothing of serious concern.

[165] I found Mr. Paquin to be a credible and reliable witness. He was straightforward. He was forthcoming about the limitations of his memory. He gave his evidence in a detached, impartial manner, as demonstrated by his unwillingness to say with certainty that there were no issues with respect to the father. His evidence was largely documentary, and therefore insulated from the limitations of his own memory.

Dr. Corbeil, medical doctor

[166] Dr. Chantal Corbeil is a medical doctor employed at Health Sciences North and involved in the Violence Intervention Prevention Program. She was primarily called to authenticate a ‘Pediatric Abuse Referral and Evaluation Consultation Note’ (the “PARE Note”) dated April 3, 2023. She testified that the PARE Note is composed by two individuals, a nurse examiner and herself, though she reviews and approves the document in its entirety before signing it. This PARE Note related to the child. The note indicates that the mother accompanied the child for the assessment on March 5, 2023. The mother reported that the child disclosed that her father had put paper in her vagina. The mother also reported that the child had complained of burning and pain to her vagina and lower abdomen, and that she noticed the child’s vagina was “red with some white stuff”. The last contact with the father was February 26, 2023, just over one week earlier. The examination on March 5, 2023 included the sedation of the child, and an examination of her genitals and anal region. All observations were within normal limits.

[167] The child returned to the clinic for an assessment. Also present were her mother, a society worker, and a Band Representative. Dr. Corbeil’s evidence is that her physical and genital exams were normal, though the “absence of physical findings on genital examination does not detract in any way from the possibility that this child has experienced sexual abuse.”

[168] I place very little weight on Dr. Corbeil’s evidence insofar as it concerns the question of whether a sexual assault occurred. As she indicates in her PARE Note, lack of evidence of abuse is not evidence of no abuse. Her evidence is helpful to the court in this sense: it demonstrates the invasive processes the child would experience as a result of the continued pursuit of the mother’s allegations.

Cst. Hope, Blind River OPP

[169] The court also heard from Cst. Hope of the Blind River OPP. She became involved in this matter in January of this year when the child was reported as a missing person. She testified that she was aware of the order of Justice Klein dated January 15, 2024, placing the child in the care of the father. She was aware that the mother was to turn over the child following the court appearance of the same date, and that she had not done so. Cst. Hope testified that as a result, the OPP pursued an investigation, and the child was later located by the Dryden OPP on January 20, 2024. The child was brought into the custody of the society, and the mother was arrested. Cst. Hope was not involved in the arrest but did swear a criminal information charging the mother for abduction. The mother was incarcerated for a period before being released on a release order dated March 6, 2024.

[170] I find Cst. Hope to be a credible and reliable witness. She kept contemporaneous notes of her involvement, and was candid about the limits of her involvement. That said, her evidence is of limited value to the court. While she was a point-person for the investigation as a whole, there is no evidence of any direct interaction with the mother or child. Her awareness of Justice Klein’s order is not particularly probative, and her information with respect to the disobeying of that order and the arrest is second-hand. She essentially acted as a conduit only for the swearing of the information.

Desiree Mitchell, School Social Worker

[171] The court also heard from Ms. Desire Mitchell, who is employed as a social worker at the child’s current school. She does not have the child on her caseload and is unfamiliar with the mother. She did, however, receive an email from the mother, which was the sole reason she was asked to testify. The email was sent on April 22, 2024, just over a month before the trial. It bears including in its entirety:

Good day

I am writing you, knowing you are the guidance councillor for the [name of school] and I need to inform you of the situation at hand with a student in grade one, [child’s name and date of birth]. She has disclosed sexual abuse from her father and her grandfather. Police reports were done, and the overseeing agency NOG. Know that they cannot get a conviction as she is too young to put on the stand. So No charges. This has been going on for years with her father, sexual/child abuse. Lately she has been telling me her jaw hursts .. and you will notice that she grinds it and cannot stop moving it. Be aware that her father has drugged us in the past, and her. We survived and left the domestic/sexual abuse situation. She has also stated that he has choked her on top of the sexual abuse with sticking cloths down her throat and other objects in her mouth to stop her from screaming while he abuses her. She has also stated he mostly hurts her anus. I am very concerned for her safety and her wellbeing as the agency NOG now again allows him unsupervised and custody access. Could you please do a wellness check up on her regularly as she was recently taken from her primary home and community. And New trauma has occurred. She has also gained a lot of weight in a small amount of time. Her voice is not being heard. I am concerned he maybe drugging her yet again as he has done this in the past. Sleepers of some sort, I do not know because i could not know but I did get tested myself when we left the situation. Her jaw grinding is indicative of something in her system. It is very unnatural the way her jaw moves/grinds and she has complained that it hurts. I Know her father will not take her to the doctors about this and know that the agency NOG is in complete denial of [the child’s] allegations about her father. Speak with her privately, she had a professional child therapist named […] in Sudbury regularly every week to help with her sexual/child abuse. Where she also reported to her therapist the sexual abuse that her father had did to her, whereas Nog also ignored this disclosure as well. I am advising you because you can check in on her and speak with her and pay close attention to her while she is at school. I am deeply concerned for her safety and wellbeing because it is just her and him now alone, and I fear the sexual abuse runs within her paternal family structure. Where they make them all stay silent about the sexual/child abuse that has taken place within their family. I am advising you of her past and what has taken place throughout her life, so to better understand the situation at hand. For her physical, mental, emotional and spiritual wellbeing and mostly for her safety as a little 6 year old innocent girl who needs to be heard, listened too and seen.

[172] On the instructions of her supervisor, Ms. Mitchell immediately forwarded the email to the society. The email signature references the mother’s and child’s names and is sent from one of the email addresses that the mother has used throughout this litigation. Ms. Mitchell was clear and calm in her testimony, became involved through professional happenstance as a disinterested party, and was quick to acknowledge the limits of her memory when asked what class the child was in. I accept her evidence and find that the mother did in fact send this email on April 22, 2024.

[173] The tenor of the allegations including in the email is not new. But the recency of this correspondence is of great import. The email is unequivocal evidence that the mother has not retreated at all with respect to her position, despite cautions from the Supervised Access Centre, and more importantly despite the series of previous orders of this court. Her campaign is ongoing. She remains willing to communicate her longstanding allegations to any service provider connected to the child, in order that she might disrupt the father’s access and relationship with the child.

Conclusion re: risk of emotional harm

[174] In sum, the evidence that I accept demonstrates the mother has engaged in the following behaviours:

(i) The mother has posted sexually explicit and other defamatory content on social media concerning the father, his business, and his family.

(ii) The mother has discussed her allegations that the father has sexually abused the child in front of the child on many occasions in many settings, despite repeated warnings.

(iii) The mother has frustrated the society’s attempts to meet with her and the child to monitor and investigate the circumstances.

(iv) The mother has subjected to the child to repeated and invasive examinations.

(v) The mother has made threatening comments towards a member of the father’s family and has raised bizarre and paranoid allegations with respect to the father.

(vi) The mother has withheld the child from the father, initially prior to the child’s apprehension, and subsequently throughout these proceedings. In withholding the child, she intentionally breached multiple orders of this court. This behaviour culminated in her absconding with the child and her ultimate arrest.

(vii) The mother continues, as recently as April 2024, to share her allegations with third party service providers.

[175] I am satisfied that, viewed cumulatively, this conduct presents clear risk of emotional harm in the forms contemplated by s. 74(2)(f) and (h). Like Catholic Children’s Aid Society of Hamilton v. V.A. and Children’s Aid Society of Toronto v. L.R., this case is one where expert evidence is unnecessary to arrive at that conclusion.

[176] On the issue of the protection finding, I make one final observation: the determination that the mother’s conduct places the child at risk of harm does not depend on whether she herself believes in her allegations, or in fact whether the allegations are ultimately true. I am skeptical that the mother believes the allegations, given her overall pattern of conduct. And, as discussed below with respect to disposition, I find that no sexual abuse occurred. But I echo the sentiments of Justice Condon in his decision with respect to contempt. Whether or not the mother views herself to be acting to protect the child, she has brought her concerns to the attention of the society, the police, and the court. She disagrees with the outcome of those investigations and the court’s determinations. She is entitled to disagree. She is not entitled to practice vigilantism.

5.2 Is a court order necessary to protect the child in the future?

[177] Subsection 101(1) of the CYFSA provides that where a court finds that a child is in need of protection it must consider whether intervention through a court order is necessary to protect the child in the future. Subsection 101(8) provides that where a court order is not necessary to protect the child in the future the child shall remain with or be returned to the person who had charge of the child immediately before intervention under the Act.

[178] As discussed above, the mother’s behaviours animating the protection finding have continued right up to and during the trial. The persistence and recency of these behaviours illustrate the mother’s complete lack of insight into the damage she has caused and may continue to cause. Multiple past court orders have failed to curb her conduct, and police intervention has been required. That a court order is necessary to protect the child in the future is abundantly clear.

5.3 What order should be made under ss. 101 or 102 of the Act?

5.3.1 Applicable legal framework

[179] Having determined that a court order is necessary, the court is required to make one of the available disposition orders under s. 101 or s. 102 of the Act that is in the best interests of the child. Those options comprise a supervision order placing the child with a parent or other person subject to society supervision, an order for interim society care, an order for extended society care, consecutive orders of interim society care and supervision, or an order granting custody of the child to one or more persons with their consent. It is this latter option, a custody order in favour of the father, which is sought by the society, the father, and BFN.

[180] In determining which order is in the child’s best interests, the court must consider the specific factors set out in s. 74(3) of the CYFSA and have regard to the paramount purpose of the Act as found in s. 1(1) and the additional purposes of the Act as found in s.1(2).

[181] Where, as here, the child is Indigenous, the court must also have regard to ss. 9, 10, 16, and 17 of the Act respecting First Nations, Inuit and Métis Children, Youth and Families, S.C. 2019, c. 24 (the Federal Act). Those provisions direct the court to apply the principles of cultural continuity and substantive equality. Section 10(3) of the Federal Act contains a non-exhaustive list of best interests factors that apply to an Indigenous child. The list is similar, but not identical to the best interests factors under the CYFSA. It has been described as an “augmented best interests test”: see Children’s Aid Society of the Niagara Region v. S.S. and T.F., at para. 71; CAS v. K.C. and Constance Lake First Nation, 2020 ONSC 5513, at para. 41.

[182] Several additional principles govern the court’s determination. First, s. 97(1)(c) of the CYFSA requires that the court states the plans of care proposed to the court, and the plan the court is applying in its decision. Second, s. 101(2) mandates that the court inquire as to what efforts the society or others have made to assist the child before intervention under this part. Third, pursuant to s. 97(1)(d)(ii), when the court’s determination has the effect of removing a child from the care of the person who had charge of the child immediately before intervention, the court must explain why the child cannot be adequately protected in that person’s care.

[183] This last requirement functions in tandem with s. 101(4) of the CYFSA, which stipulates that the court shall not make an order removing the child from the person having care prior to intervention unless it is satisfied that alternatives less disruptive to the child would be inadequate. And, if the court does determine that it is necessary to remove that child from such person’s care, the court must consider placement with a relative, neighbour or other community or extended family member before making an order for interim or extended society care. Section 16(1) of the Federal Act complements this approach but stipulates a more specific hierarchy of priority; parents, family members, members of the same Indigenous group, and members of other Indigenous groups must be considered in that order.

5.3.2 Additional evidence with respect to disposition

[184] I will not re-canvass the evidence with respect to finding, though it informs the court’s analysis on disposition. The following additional evidence is germane.

[185] Ms. Meawasige was asked about her experience attending home visits with the father, once the child was placed with him in January 2024. She testified that the father was very cooperative. He re-registered the child in school. In Ms. Meawasige’s private observations with the child in his care, the child appeared very happy and would say that she “loved it” there. During private interviews in February and March of 2024, the child conveyed no concerns. Ms. Meawasige was able to confirm that the father has been making arrangements for all of the child’s medical needs. She also details, in her most recent affidavit, the child’s developing relationships with her father’s side of the family.

[186] Dr. Valliant concluded from his assessment of the father that the father had the ability to care for the child and see to her needs.

[187] The society also called, and filed an affidavit sworn by, Avery Litke, the Child Welfare Worker currently assigned to this matter. She had been in that role for approximately three months. In her role she visits with the child in her current placement with her father a minimum of once a month, though she sees them more frequently as she is currently supervising the mother’s virtual access.

[188] Ms. Litke was asked about her observations of the father’s home. Her report was very positive. It was clean. The child has her own playroom. The backyard is child-appropriate, with a pool and playset.

[189] Ms. Litke reported no concerns with the child’s school attendance. She confirmed that the child was enrolled shortly after she was placed in the father’s care. In private interviews the child has reported enjoying school and making friends.

[190] Ms. Litke was asked about her observations of the child’s interactions with her father. She testified that the child is very attached to him and will not leave his side. The child is always asking her father for things and appeared very happy. She was often laughing, smiling, and running around. She would show Ms. Litke things of her own creation around the house, including drawings and crafts. Ms. Litke reported no concerns with the father’s care. The child confided that she feels safe there.

[191] I note that Ms. Corbiere, the band representative for BFN, has also been present at the society worker’s recent visits to the home. Her evidence as to these visits is consistent with Ms. Litke’s.

[192] Ms. Litke was also asked about her impression of the mother during her supervised virtual access. She reported that the access was going well, and that the mother is respectful during the calls. She did have to redirect the mother on one occasion. Ms. Litke also stated, in her affidavit, that the mother has emailed her as recently as April 18, 2024, alleging that the child had complained about a sore jaw. Ms. Niganobe suggested she believed the father was drugging the child.

[193] I found Ms. Litke to be a credible and reliable witness. She was fair to the mother when pressed on possible inappropriate conduct during access. She struck me as approaching her role in a clinical and impartial way. I accept her evidence.

[194] The father also provided evidence with respect to his and the child’s current circumstances. He described that things are going well. He has purchased a three-bedroom home where the child has her own bedroom and playroom, and they have a fully fenced backyard the child enjoys. He too expressed that at times the child is quite emotional and does not want him to leave her side. He described picking her up and bringing her to school each day, and that she often does not want him to leave. Despite that, the child was doing well in school. She was set to graduate from kindergarten in June 2024.

[195] Health-wise, the father reported that the child is also doing well and is up to date on her vaccinations and dentist appointments. He described some pain she was complaining about in her jaw as her molars are coming in. She is growing and getting stronger, he says. He is encouraging her to become involved in extra-curricular activities.

[196] The father was asked about his work hours. He owns his own business, a smoke shop, and it was clear he has employees he may rely on such that his own hours are quite flexible, and he is available to see to the child’s needs. My impression from his testimony was that the child is his focus and first priority.

[197] The father was also asked about his indigenous heritage, and that of the child. He confirmed that his band, BFN, consisted of three separate reserves. He grew up on that known as Rankin. He confirmed that BFN is Anishinaabe, also referred to as an Ojibwe First Nation, and that the mother’s First Nation, MFN, is also an Ojibwe First Nation. When asked about the child’s opportunities to connect with her Indigenous culture, the father explained that the two of them go fishing together, and that they lay their tobacco down. He has expressed to her that she can engage in other cultural practices at the house, like smudging, but she has not really asked to do that. Ms. Corbiere testified that she is working with the father to arrange a reunification ceremony for this coming summer.

[198] The father also described how his extended family, including his adult daughter, J.B., have been able to spend time with the child. Many of them live nearby, and the child regularly visits and plays with her nieces (who are also children). This evidence was corroborated by J.B. and Ms. Corbiere.

[199] J.B. also provided evidence relevant to disposition. Of note was her description of her father’s commitment to the child even during periods where he could exercise only supervised access. For example, there was a period in the fall of 2022 when the child resided with J.B. Of this period, J.B. testified that the father would arrive every morning before the child caught the bus to school. He would make the child breakfast, and help get her clothes picked out and help with her hair. He would be back at J.B.’s house in the afternoon when the child would get off the school bus and he would spend time with the child until bedtime.

[200] J.B. was asked about what role she might play in ensuring the child is connected with her indigenous culture. She testified that her own daughter attends many traditional cultural activities at the band’s healing lodge, and expressed that she would be willing facilitate those opportunities for the child as well.

[201] J.B. was asked about the father’s present disposition towards the mother, and specifically whether he will speak ill of her in front of the child. J.B.’s evidence was that she has never seen him do so.

[202] In addition to the evidence, I have reviewed the various plans of care filed in this matter.

5.3.3 Determination with respect to disposition

[203] The child was removed from the mother’s care, and I must first consider whether the child can be returned to her, in accordance with her plan of care. As discussed above, there is a risk the child is likely to suffer emotional harm as a result of the mother’s longstanding and continuing efforts to alienate the child from her father. Placement with the mother, even with the imposition of strict conditions, would not adequately protect the child. The mother has demonstrated, in the clearest manner, that she will not be governed by conditions imposed by the court. Placing the child in her care would be to effectively sever the child’s relationship with her father. It would be surrender to the emotional harm, rather than protection against it.

[204] In making this determination, I am mindful of the steps that have been taken to assist the child. The society has not ignored the mother’s allegations. Those allegations caused the society not to place the child with the father when the child was removed to a place of safety in March 2022. When permitted to do so, society employees interviewed the child privately, to facilitate any disclosures she child might make. The society made appropriate police referrals, and employees accompanied the child for various medical appointments. The society commissioned a psycho-sexual assessment of the father, and adopted positions within this litigation that facilitated the gradual reintegration of the child with her father—or would have, had the court’s orders been followed. Society employees, as well as those of the Supervised Access Centre, cautioned the mother about the inappropriateness of discussing the allegations in the child’s presence. The court itself has taken a measured and gradual approach to the mother’s conduct, as demonstrated by Justice Condon’s restraint in response to the father’s contempt motion. Ultimately all these efforts failed to mitigate the concerns, which have only grown.

[205] Having concluded that the child cannot be placed with the mother, the court must next consider placement with the child’s other parent, the father. None of the participating parties articulate any concern with his ability to care for the child. While the mother did not make submissions, the court can infer she would advance that the father poses a risk of sexual abuse.

[206] I reject that position. I am not persuaded that the father has touched the child inappropriately or poses such a risk in the future. While not determinative, the medical and psychological evidence provides no corroboration for such a theory. More importantly, the evidence as a whole demonstrates that the vague disclosures made by the child from time to time were regurgitations of information that the mother fed to the child. I accept that the mother was coaching the child, as one defamatory strategy among others to disrupt the child’s relationship with her father.

[207] Moreover, when I consider the various factors in the augmented best interests test, as well as the principles of substantive equality and cultural continuity, I find that placing the child in her father’s custody is in her best interests. By all accounts she is now being raised in a safe, stable, and loving environment. She is residing among her father’s Indigenous community and is provided opportunities to maintain connections to her culture. She is living an active life, and her educational and medical needs are being met. She has a vibrant relationship with the members of her extended family. While her relationship with her mother will be constrained in the circumstances, the evidence demonstrates that her father, with the support of extended family and the BFN, will facilitate the child having relationships with members of the mother’s family and engagement with MFN, which, while sharing some commonalities with BFN, is a distinct First Nation with its own culture and history.

[208] I am mindful that a s. 102 order, in contrast to a supervision order, would mean and end to the society’s formal involvement in this matter. The court cannot, within a s. 102 order, require the society to supervise access without society consent, or order a review of that supervision. Any subsequent variation would need to be pursued via the Children’s Law Reform Act, R.S.O. 1990, c. C.12: see The Children’s Aid Society of The Regional Municipality of Waterloo v. C.F., 2022 ONSC 614, at paras. 20-23. As the mother’s access will need to be supervised—discussed below—a question arises as to whether a supervision order may be more appropriate.

[209] When this issue was put to the parties, the society and BFN proposed that a s. 102 order issue, and that the mother’s access be supervised by the society, a representative of BFN, or a third party designated by either. The society committed to supervision in the near term but could not promise allocation of those resources on a permanent basis.

[210] There are disadvantages to both a s. 102 order and a supervision order. While a supervision order would maintain the society’s involvement, it would also precipitate a status review under s. 113 of the CYFSA. Given the lengthy and protracted history of this matter, I am not persuaded that would be in the child’s best interests. At some point the parties may need to revisit the nature of the mother’s access, but the CLRA provides an avenue to do so at the appropriate juncture, rather than on a fixed timeline. In the meantime, the society’s and BFN’s proposal is a workable solution.

[211] For these reasons, there will be an order pursuant to s. 102 of the CYFSA granting custody of the child to the father, in accordance with his plan of care.

5.4 What provisions should be made with respect to access?

[212] Section 104 of the CYFSA authorizes this court to make orders granting access. Section 105(2) of the CYFSA provides as follows:

ACCESS AFTER CUSTODY ORDER UNDER S. 102

(2) If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child’s best interests.

[213] While the overarching principle is the best interests of the child, restrictions on a parent’s contact or access to a child must be proportionate to the risk. Conditions should be child- and harm-specific and be supported on the evidence: see Children’s Aid Society of Brant v. A.C., 2020 ONCJ 505.

[214] I must also be mindful that access exists for the benefit of the child. The comments of Justice Kukurin in Children’s Aid Society of Algoma v. S.P., 2011 ONCJ 93, at para. 19, are apt:

…From the child’s point of view, the impact of being separated from his or her parent is very personal. The child does not appreciate the reasons, sometimes even the necessity, that underlie the separation through which he or she is going. What the child knows is that he or she was in contact with his or her primary caregiver 24/7 in an environment that was familiar to the child and, all of a sudden, that world changed almost completely.

[215] In my view, some degree of access by the mother is in the child’s best interests. Despite the fraught circumstances, the mother has been the primary caregiver for most of the child’s life. It is clear she cares deeply for the child. And, despite the risks the mother poses today, she may in future seek support, gain insight, and overcome those behaviours. There is benefit to the child in maintaining a connection with her mother. There is benefit as well, in maintaining that connection to the MFN.

[216] What might that access resemble? Currently, per the order of Justice Peterson dated March 28, 2024, the mother’s access is limited to virtual, supervised formats. Ms. Litke, the current Child Welfare Worker, reports that she currently supervises these visits on a weekly basis. The child will participate with the assistance of a culture worker from the Rankin Culture House. This arrangement was made to accommodate the mother’s request, as she expressed a desire to have a cultural component to the access. Ms. Litke reports that during the virtual access, the child is very engaged and the mother is respectful.

[217] Despite the positive report of Ms. Litke, I conclude that it would not be appropriate to change the parameters of access at this time. The mother does not follow court orders. She has recently absconded with the child rather than return her to the father’s care. She has not demonstrated insight into her behaviour and the court remains concerned that, if unsupervised, she will persist in discussing her allegations with the child.

[218] Further, given the events of January 2024, in-person access places the child at too great a risk of abduction and possible physical harm. While the presence of a third party might dissuade the mother from such conduct, it would not eliminate such a risk. It would also place the supervisor in an unfair and vulnerable position. These conditions are restrictive, but they are also the least restrictive consistent with the child’s best interests at this juncture.

5.5 What ancillary orders, if any, may be appropriate?

[219] When making an order for custody and access under s. 102 or 104 of the CYFSA, the court may order any of the incidents of custody or access set out in ss. 28 and 34 of the CLRA: see CYFSA s. 102(2)(a)-(b). The court may also, without a separate application, make a restraining order under s. 35 of the CLRA.

[220] The list of incidents custody and access—or in the CLRA’s terms, decision-making responsibility, parenting time, and contact—is non-exhaustive. The court may make additional orders it “considers necessary and proper in the circumstances”: see CLRA s. 28(1)(c). For example, in Windsor-Essex Children’s Aid Society v. E.W., 2014 ONCJ 562, the court made orders dispensing with a parent’s consent to travel with the children outside of Canada and to obtain government documentation. See also CCAS of Hamilton v. V.A.N.E. and M.E., 2022 ONSC 4684, at paras. 250-251.

[221] Certain ancillary or incidental conditions are merited in this case and are included in the order terms set out below. The justification for those incidental terms is manifest in my reasons with respect to disposition and access, though further comment is appropriate in respect of one.

[222] The court has determined that the mother should be precluded from contacting or receiving information from any of the child’s service providers, including health and educational professionals. As noted above, in the month leading up to trial the mother shared her allegations with a social worker at the child’s school, seeking that social worker’s intervention. I am concerned that any communication between the mother and a third-party service provider—be they a teacher, nurse, counselor, etc.—is an opportunity for the mother to raise her allegations anew; and an opportunity she is likely to pursue. The mother is also resourceful. Information, even in documentary form, is information the mother may use to attempt contact.

[223] The social worker, Ms. Mitchell, carefully forwarded the mother’s email to the society, who was familiar with the context. The child was thereby insulated. A future service provider, however, ignorant of the parties’ history, might intervene directly with the child, or through an equally oblivious police officer, and could further expose the child to emotional harm. In the ordinary course, access to information about the child’s health and education would be beneficial, but as the mother continues to lack insight, and cannot be trusted to follow court orders, this restriction against communication is necessary.

Part Six: The Order

[224] There shall be a final order as follows:

(1) Pursuant to s. 90(2) of the CYFSA, the statutory findings regarding the child are made as set out in the affidavit of Leann Meawasige dated September 27, 2023 (Volume 1, Tab 4 of the Continuing Record).

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

(3) The father is granted custody / sole decision-making responsibility for the child pursuant to s. 102 of the CYFSA.

(4) The mother shall have supervised virtual access / parenting time with the child minimum of once per week, subject to the following terms and conditions:

(a) Given their express consent, the access shall be facilitated and supervised by the society, the BFN or a third party designated by either. Any designated third party must be advised of this proceeding and be provided a copy of these reasons and the court’s order.

(b) The mother shall be prohibited from initiating conversation with the child about sexual abuse allegations involving the father or a member of his family.

(c) The mother shall be prohibited from speaking negatively about the father or his family to the child or around the child.

(5) The mother shall not contact the child outside of her court-ordered access, except in writing on special occasions. The conditions in clause 4(b) and (c) apply to any such communication.

(6) The mother’s consent shall not be required in order for the father to travel outside of Canada with the child and shall not be required for the father to obtain any government documents on the child’s behalf.

(7) The mother shall not communicate with the father except through legal counsel, or a mutually agreed-upon third party, which may include a society employee or a band representative.

(8) The mother shall not contact any of the child’s service providers, including health and educational professionals. The mother shall not be entitled to receive information from such service providers.

(9) Any motion to change this order pursuant to the CLRA must be served on the society.

[225] The mother’s approval as to the form and content of the order is dispensed with.

[226] The court thanks all counsel for their professionalism and patience during this trial.

Released: August 2, 2024

Signed: Justice G. Jenner

[^1]: At the time the court made these comments, the mother had absented herself from the trial. See section 2.6 of these reasons.

[^2]: The mother was several hours travel from the courthouse, so same-day in person participation was not a practical option.

[^3]: While it may have been open the court, based on the trial management endorsement to decline to hear viva voce evidence from the mother had she not filed an affidavit, that is not what occurred. Had she done so, I expect I would have nonetheless allowed her evidence. The society has, after all, called witnesses who did not swear affidavits in advance.

[^4]: For clarity, the court does not rely on these previous medical results, which are not contained in the trial record, for the truth of their contents. The fact that the results were known and conveyed to the mother is relevant in assessing her later conduct.

[^5]: I am not relying on the report examined by Ms. Meawasige or the statement of the officer for the truth of their contents, but to demonstrate what steps Ms. Meawasige took in response to the child’s disclosures, and what information was conveyed to her.

[^6]: I place no weight on the opinion of Ms. Meawasige, who was not qualified as an expert, on the issue of coaching. I rely on this evidence only to give context for the steps and positions taken by the society in response to the information they received.