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.

Ontario Court of Justice

DATE: 2024 11 26 COURT FILE No.: Sudbury FO-17-00000071-0001

BETWEEN:

The Children’s Aid Society of the Districts of Sudbury and Manitoulin Applicant,

— AND —

M.S. and C.W. Respondents

Before: Justice G. Jenner

Heard on: October 31, 2024 Reasons for Judgment released on: November 26, 2024

Counsel: Patricia Marcuccio......................................................... counsel for the applicant society Lance Talbot................................................................... counsel for the respondent M.S. C.W. appearing on his own behalf James Weppler counsel for the Office of the Children’s Lawyer, legal representative for the children

JENNER J.:

Part One: Introduction

[1] The applicant society is seeking leave to withdraw its child protection application in respect of the respondent mother and father, who are separated, and their son (age 12) and daughter (age 5).

[2] The application was commenced in 2022 in the wake of allegations that the mother used excessive physical discipline on the son. Thereafter, similar allegations arose with respect to both parents and the daughter. The society has made extensive efforts to investigate and address the issues, and presently harbours no concerns with respect to the safety of the children in either parent’s care.

[3] The most recent temporary order places the daughter in the parents’ care on a week-about basis, and places the son in the father’s care, with access for the mother. The son, however, is refusing to attend parenting time with his mother. The father supports the son’s refusal and steadfastly believes the mother poses a risk to the children.

[4] The society says that outstanding issues with respect to parenting time and decision-making responsibility should be addressed through proceedings under the Children’s Law Reform Act (CLRA), without society involvement. It represents that it has mitigated the concerns, that the remaining issue is one of parental conflict, and that it has exhausted its efforts to assist this family. The mother supports the society’s request.

[5] The Office of the Children’s Lawyer (OCL), on behalf of both children, opposes the society’s request. The OCL says there are live protection concerns which ought to be adjudicated to determine the appropriate path forward. The father agrees.

Part Two: The Issue and Applicable Law

[6] Section 90(1) of the Child, Youth and Family Services Act (CYFSA) mandates that when a child protection application is brought, the court shall hold a hearing to determine whether the child is in need of protection. A society motion to withdraw has been recognized as one manner in which the court may discharge its obligation to hold a hearing: Catholic Children’s Aid Society of Toronto v. D.B. and J.K., 2002 ONCJ 2318, [2002] O.J. No. 2318, at para. 10 (Ont. C.J.); Children’s Aid Society of Algoma v. A.-M.S., 2011 ONCJ 393, at paras. 29 and 44.

[7] Courts have identified many overlapping factors for consideration on a society motion to withdraw: see Simcoe Muskoka Child Youth and Family Services v. J.K., 2021 ONSC 1855, at para. 18; Children’s Aid Society of the Districts of Sudbury and Manitoulin v. C.R., 2021 ONCJ 41; Children’s Aid Society of Algoma v. A.S., 2011 ONCJ 393; Catholic Children’s Aid Society of Toronto v. B.(D.), 2002 CarswellOnt. 1868 (Ont. C.J.). CAS of Toronto v. A.J., 2021 ONCJ 411 at para 81-82, 84, 85.

[8] Not every factor will apply to every circumstance, and no one factor is determinative. For example, the unanimous consent of the parties, while persuasive, is not dispositive. Moreover, the court may permit withdrawal even where there remain grounds for a protection finding: Simcoe Muskoka Child Youth and Family Services v. J.K., 2021 ONSC 1855, at para. 18. Ultimately, withdrawal applications are context-driven.

[9] In the context of this motion, I have organized my analysis around the following three factors:

(1) the history of the proceedings; (2) whether any continuing child protection concerns exist; and (3) whether there is an alternative forum for resolving the issues.

Part Three: Analysis

3.1 History of the proceedings

[10] As early as 2016, before the parents separated, the society was involved with the family with respect to adult conflict.

[11] Following separation, in early 2021, the mother commenced an application under the CLRA with respect to parenting issues and support. The society again became involved when the father pressed his concerns that the mother was physically assaulting the son. The society referred the matter to police, and the mother was cautioned about appropriate disciplinary measures. She and the son engaged in counseling services.

[12] In January 2022, the father relayed to the society that the son had disclosed to him an incident of excessive physical discipline by the mother. The society commenced this child protection application. By order dated February 1, 2022, the children were placed in the father’s care, subject to society supervision, with the mother having access at the society’s discretion. The mother agreed to access counseling services. By operation of s. 103 of the CYFSA, the CLRA proceeding between the parents was stayed, as was the active temporary order under the CLRA providing the parents with week-about shared parenting for both children.

[13] The society reports that throughout the child protection proceedings, the father was challenging. He was critical of the society’s safety planning, refused to sign consents for the society to communicate with third party service providers, and at one point left 20 voicemail messages over the course of four days.

[14] The litigation featured several variations to the temporary custody and access provisions for the children:

• On July 6, 2022, following a contested temporary care and custody hearing, the court placed the daughter in the parents’ care and the son in the father’s care, both subject to society supervision. The order provided that the father shall ensure the son attend counselling services and shall sign consents to share information with the society. The court recognized that the son expressed a wish not to see his mother but reinstated supervised access.
• The son had one visit with his mother on July 20, 2022, which the society observed to be positive and beneficial for the child. Following the visit, however, the father refused to send the son for future access and revoked his consent to share information with the society. Throughout the summer of 2022, the society continued to receive complaints from the father about the mother’s parenting time.
• On January 10, 2023, the daughter was removed from her father’s care after she alleged that she was struck by the father. The court made a temporary without prejudice order placing the daughter in the care of the mother. The son was to remain in the father’s care and have access with his mother.
• On January 31, 2023, the court made a further temporary without prejudice order placing the daughter in the care of her mother, subject to society supervision. The order was silent with respect to the son. The father’s access to the daughter resumed on February 8, 2023.
• On February 21, 2023, the court ordered that the son be placed in the father’s care, subject to society supervision. Terms of supervision included that the father shall demonstrate support toward the son’s parenting time with the mother and ensure that the son attends specific counselling services for children affected by separation. The mother’s access was ordered to be at the discretion of the society but a minimum of twice weekly for two hours but increasing on a graduating schedule.
• On March 8, 2023, the court ordered that the daughter be placed in the care of the parents on a week-about basis.
• On September 1, 2023, the mother’s access was put on hold to permit the society and the police to jointly investigate an allegation of physical abuse towards the daughter. On November 5, 2023, the joint investigation concluded, and the allegations were deemed not verified. The police determined no further action was required.

[15] Ultimately, in May 2024 the mother brought a motion seeking unsupervised access with the son in her home. In written reasons released April 6, 2024, Justice Lefebvre expressed concern at the number of times temporary parenting measures had been addressed before the court. The graduated parenting time schedule ordered in February 2023 was followed only until July 2023. The court observed that the termination of access appeared to coincide with the society’s request to shift to unsupervised overnight visits. The court observed as follows:

[The society worker] presented a very detailed account of the access visits and interaction with both [parents]. Based on the information before the court, there was a barrage of complaints made by [the father] to the Society the week leading up to the July 9, 2023 visit. [The father] was asking the society to suspend all access visits.

[The mother] concedes that the court cannot, based on affidavit material alone, fully assess credibility. She submits the court will see at trial that [the son] is being influenced by the [the father]. I agree, at trial the [parents] would be subjected to cross examination. Although I have serious concerns at this stage that the [the father] is influencing either directly or indirectly [the son’s] behaviour and alienating the child from the [the mother], it is difficult to fully assess in this forum. What I can conclude from the affidavit evidence before me is that [the father] is unwilling to work cooperatively with any society worker, and it appears [the son] mimics his father’s behaviour.

[16] The court refused to revisit the issue of temporary parenting time and emphasized the need for a trial to properly determine the veracity of the allegations of harm to the children and the questions of parental alienation. The court instructed the society to either schedule a motion for leave to withdraw its application or to set a date for trial.

[17] The society proceeded with the former, which was argued before me on October 31, 2024. Though I reserved my decision on the motion, I did take certain steps which, though future-oriented, might yet impact my current analysis. I was mindful that (i) a potential outcome of this motion would see the protection application withdrawn; (ii) that that such an outcome would see the dated and possibly inappropriate CLRA order revived; and (iii) that withdrawal of the protection application might leave the children without the benefit of OCL involvement.

[18] To address these concerns, I exercised my authority under s. 103 of the CYFSA, and made an order lifting the stay on the CLRA matter but restricting activity within that litigation as follows: the parties were permitted to prepare, serve, and file motion materials with respect to temporary orders for decision-making responsibility and parenting time, but were not permitted to schedule that motion, or seek any further relief within that proceeding without leave of the court. I also made an order requesting the involvement of the OCL in the CLRA matter and particularized the request to suggest the continued involvement of the same OCL counsel.

3.2 Status of protection concerns

[19] The OCL complains that this litigation has been ongoing for 33 months, without a hearing held to assess the protection concerns. The son has expressed fear of his mother because she has hurt him physically in the past. He expressed she would push him into his room and scratch him with her fingernails when she is angry. He described an incident where she stood behind him and choked him with her arm. The daughter has expressed, both to her brother and to her counselor, that the mother has slapped her, including to the face.

[20] The society stresses that they have conducted eight investigations in respect of this matter; seven because of concerns identified by the father about the mother, and one because of concerns identified by the mother about the father. The society has undergone extensive efforts to enlist the parties in counseling and other services, without success. The society believes it has exhausted efforts. The society is also concerned that the son’s position towards his mother may be influenced by a fear of facing repercussions with his father.

[21] While the society asserts it has deemed the protection concerns resolved, the court must approach the question independently. I share Justice Lefebvre’s views that the veracity of the physical abuse allegations and the questions of parental alienation are difficult to assess on a written motion record. I agree that a trial, complete with cross-examinations, is required, ideally without further delay.

[22] The crux of the issue is whether a child protection trial is most appropriate, or whether, as the society suggests, the CLRA provides a better alternative forum.

3.3 Alternative forum

[23] Litigation involving these parents and children will proceed in one form or another. In simplest terms, there are three main pathways the dispute might follow:

(1) If the protection application continues, a protection trial will be scheduled. If a child is found to be in need of protection, and if the court finds that a court order is required to protect them in the future, the court will need to determine what order under ss. 101 or 102 of the CYFSA is appropriate. While that analysis would require to the court to decide what role, if any, the society might play going forward, it would also require the court to determine incidents of custody and access (decision-making responsibility and parenting time), either on an interim or final basis. (2) If the protection application continues, the trial is held, and a child is not found to be in need of protection, or the court determines that a court order is not required to protect the child in the future, s. 101(8) of the CYFSA would require the court to order that the child remain with or be returned to the person who had charge of the child immediately before intervention. In this case, that would mean return to a shared parenting arrangement. It would also mean an end to the protection application, and a lifting of the stay in respect of the CLRA matter. (3) If the protection application is withdrawn, then like the second pathway, the parents will pursue parenting issues in the form of a hearing under the CLRA.

[24] One major concern with respect to proceeding to a child protection trial is that the outcome may leave a central aspect of the conflict—whether the mother will have parenting time with the son—unresolved. This would be the case, for example, if the court did not make a finding that the children are in need of protection. The children have been prejudiced by the protracted history of this litigation, and finality is a worthy goal.

[25] This concern can, however, be mitigated. Section 103 of the CFYSA permits CLRA matters to proceed despite an active child protection application with leave of the court. The court has the discretion to order that a trial on the CLRA application be heard together with the trial of the child protection application. A combined trial would position the court to address parenting issues under the CLRA even absent a finding that a child is in need of protection (or in the case where the trial judge does not make a disposition order under ss. 101 or 102 of the CYFSA).

[26] Proceeding in this fashion also ensures that there is no gap in the children’s representation. As noted above, the OCL is only currently participating in the CYFSA matter. The children would be disadvantaged if deprived of representation at a CLRA trial. While my endorsement dated October 31, 2024 requests that the OCL take up the CLRA matter as well, the court cannot be assured of OCL involvement in a pure CLRA trial. Waiting on that question might also contribute to further delay.

[27] More critically, proceeding under the CLRA alone leaves the court with less options, and without the participation of a central player in the relevant events. It would deprive the court of the opportunity to order the continued involvement of the society to assist the parents and children. The society’s resources, though finite, are considerable, as is its expertise. The society’s potential contribution to the challenges facing the parents and children, both through its participation at trial and its role under any subsequent order, should not be lightly dismissed.

[28] I appreciate that the society has expended considerable resources trying to address the protection concerns, and specifically to help the parties navigate the fraught impasse concerning the mother’s relationship with the son. I accept that the society has taken these issues very seriously and it appears the society has acted in good faith throughout. However, unsuccessful as their efforts have been, I am not prepared to rule out the benefit of society involvement under a s. 101 CYFSA order. I cannot anticipate the trial judge’s findings as to the root causes of the son’s stance towards the mother, and I do not wish to limit the trial judge’s toolset in addressing them.

[29] I have considered the evidence of the OCL’s clinical investigator, who made the following statements in her affidavit of June 20, 2024:

It is clear that the efforts by the Society to influence or direct [the son] to have access to his mother have been unsuccessful to the point that [the son] is very distrustful of the Society and does not see their workers of being any benefit to him. In fact, much of the pressure on [the son] is as a result of the Society workers attempting to enforce the access/parenting order with his mother and have proven unsuccessful in creating any improvement in the relationship of the mother and son.

The withdrawal of the Society of their Application would relieve the constant pressure over the past several years upon [the son] as a result of the Society trying to enforce the terms of access/parenting order.

[30] This evidence may well cause the trial judge to conclude that continued society involvement would be counterproductive. But moving to a child protection trial will not bind the court to rely on such involvement. It merely preserves it as an available option.

[31] I must be mindful of the paramount purpose of the CYFSA, to promote the best interests, protection and well-being of children: s. 1(2). This is a challenging case. Almost three years have passed since the application was initiated. The children’s best interests require outstanding determinations to be made on a full factual record, and in a timely manner. When I weigh the history of the case, the nature of the factual disputes, and the available forums, I find the children’s interests are best served by staying the course of this protection application, with a renewed focus on completing it, and with the participation of all involved parties. I find that the children’s interests are also best served by permitting the CLRA application to proceed to trial contemporaneously, so as to ensure that the core issues are fully addressed at trial, and not left to future proceedings.

Part Four: Conclusion

[32] The motion for leave to withdraw is dismissed.

[33] The stay of the CLRA proceeding is lifted.

[34] The CFYSA and CLRA applications shall proceed to a combined trial.

[35] The CLRA proceeding has been dormant since 2022. There may be a need for the pleadings to be updated. This must occur with minimal delay. The mother shall have until December 16, 2024 to serve and file an amended application within the CLRA proceeding. The father shall have until January 10, 2025 to serve and file and amended answer.

[36] The parties are instructed to contact the trial coordinator by email to secure dates for a trial management conference and trial. If an earlier date is not offered and agreed to, the date currently reserved for the return of this motion, January 23, 2025 at 10:00 a.m., shall serve as the trial management conference date.

Released: November 26, 2024 Signed: Justice G. Jenner