CITATION: Children and Family Services v. G.S., 2011 ONSC 1732

COURT FILE NO.: DC-09-00079-00

DATE: 20110429

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J.R.R. JENNINGS, D.K. GRAY and J.A. RAMSAY J.J.

BETWEEN:

CHILDREN AND FAMILY SERVICES FOR YORK REGION

Applicant

(Respondent in Appeal)

– and –

G.S.

Respondent

(Respondent in Appeal)

• and –

A.S.

Respondent

(Appellant in Appeal)

Gary S. Joseph and Julie Ralhan, counsel for the Appellant, A.S.

Jeffery Wilson and Rui J.M. Alves, counsel for the Respondent, G.S.

Billie Locke, counsel for the Respondent, Children and Family Services for York Region

Katherine Kavassalis and Deborah Herriot-Howes, counsel for the Office of the Children’s Lawyer

HEARD: March 11, 2011

REASONS FOR JUDGMENT

GRAY J.

[1] This is an appeal from a decision of McGee J., transferring custody of the children of the marriage from the appellant, A.S., to the respondent G.S., together with other relief. She delivered oral reasons on September 8, 2009, after a 20 day trial, and delivered lengthy reasons, through a written Endorsement, on November 12, 2009.

[2] At the argument of the appeal, we granted leave to both Mr. and A.S. to file new evidence. We also granted leave to appeal the trial judge’s costs order. We invited written costs submissions on the appeal.

[3] The Court dismissed the appeal at the conclusion of Mr. Joseph’s able argument on the date the appeal was argued without calling on counsel for the respondents, for reasons to be delivered in writing. These are those reasons.

Background

[4] This case began as a child protection case. At the end of the trial, McGee J. transferred custody from the appellant, A.S., to G.S., primarily on the basis that A.S. had engaged in a lengthy, focused and determined course of conduct to alienate the young children from their father. Having abruptly changed custody, McGee J. was clearly concerned about what to do about access to the children by A.S. having regard to her course of conduct. Effectively, she severely restricted access to the children except for the purpose of allowing A.S. to engage in a course of counselling and assessment by Dr. Sol Goldstein, which was ordered by McGee J. for the purpose of assisting her in a review of the access terms.

[5] This is clearly a tragic case. Since the trial judge has given comprehensive reasons, including a full review of the factual background, what follows is an abbreviated outline of the background sufficient to permit an understanding of the grounds of appeal forcefully advanced by Mr. Joseph.

[6] The parties were married on June 13, 2002, separated on November 13, 2004, and divorced on July 17, 2009. They have two children, E.S., born April […], 2003, and S.S., born April […], 2005. The parties are well educated and gainfully employed.

[7] The case has been one of high conflict. A.S. has initiated four complaints to the police, two of which resulted in criminal charges against G.S.. Those charges were withdrawn. A.S. initiated four Children's Aid Society investigations, three of which were closed, and the fourth of which was the subject of McGee J.’s order, now the subject of this appeal.

[8] The application that ultimately came before McGee J. was issued on September 13, 2007 by Children and Family Services for York Region (the “Society”). The Society sought a finding that E.S. and S.S. were in need of protection as a result of physical and emotional harm. The Society sought an order that the children be placed with A.S., subject to the supervision of the Society for six months, and with access to the father to be supervised in the Society’s discretion.

[9] In April 2009, the Society amended its application to strike out the grounds of physical harm, and restricted the application to the ground of emotional harm. The Society sought placement of the children in the care of the Society for two months, followed by placement with their father, subject to the supervision of the Society for six months. In the alternative, the Society sought an order under s. 57.1 of the Child and Family Services Act (“CFSA”) placing the children in the custody of G.S.. In final argument, the Society sought placement of the boys into their father’s sole custody, with a period of three months supervision and terms of access by the mother. G.S. had, from the outset, sought custody.

[10] McGee J. noted that much time at trial was spent on allegations made by A.S. that G.S. was abusive to her and the children, and that G.S. continued to pose a risk to the children. McGee J. found that the allegations made by A.S. and her resulting actions had at all relevant times been anchored to a belief system as false as it had been rigid. Further, she noted that any independent observer to the trial would have been in a state of shock as to the extent to which A.S. had reframed, distinguished or simply disregarded information that is contrary to her belief system.

[11] McGee J. found that, whether intended or not, from the children’s perspective they had been significantly harmed by their mother’s conduct.

[12] McGee J. found that the Society was able to establish, on a basis approaching certainty, that it was A.S.’s distorted beliefs and resulting relentless conduct that had placed the children into a situation best described as a war zone.

[13] On November 14, 2004, it was decided that the marriage would end. The next day, A.S. attended on the police and advised that an assault had occurred the previous day. The next day, G.S. was arrested at his workplace and released on a recognizance that prohibited him from attending at his former residence or having any communication with his infant son (only one child was born by then) without a court order. Ultimately, the charges were withdrawn by the Crown.

[14] For some considerable time, G.S. did not see his young son, E.S.. A.S.’s position was that 20 month old E.S. ought not to have any contact with his father until he was verbal, so that he could advise if he was being hurt while visiting his father.

[15] At that time, G.S. did not know that there was another child on the way. He did not know about the second child until he observed his former wife at family court, heavily pregnant.

[16] On April 7, 2005, A.S. made a fresh allegation that she was being followed by G.S.. The police investigated, and found the allegation was without merit.

[17] An order for temporary access to E.S. was made on April 21, 2005, but G.S. did not see him until September 24, 2005. A.S. absolutely refused requests for access to S.S..

[18] On January 26, 2006, it was ordered that G.S. see E.S. on two days each week. A.S. did not comply with that order. Ultimately, in May, 2006, some access commenced.

[19] A.S. made considerable attempts over the fall of 2006 to further restrict G.S.’s time with the children.

[20] In late 2006 and early 2007, A.S. began reporting that E.S. had told her that his father hits, slaps, and pulls his hair, and pokes him with a needle. The Society determined that Emanuel’s claims of physical harm by his father were not credible. The focus of the Society began to shift to a concern of emotional harm due to A.S.’s exposure to the children of adult conflict.

[21] In January, 2007, the parties entered into an agreement to arbitrate. Within that proceeding, A.S. took the position that access should be terminated, or in the alternative, strictly limited. An employee of an organization retained to supervise access noted two escalating trends: a significant number of adults in the mother’s home at the time of pickup by the father, and more rigid assertions by E.S. that he did not want to go with his father. It was noted that one trend seemed to reinforce the other. The adults present would attempt to comfort the children and assure them that they would be home again soon. However, once the boys had transitioned from their mother’s home to their father’s car, the crying stopped and a positive visit followed.

[22] During the early part of 2007, A.S. continued to take the children to various doctors to have alleged abuse documented. Those attempts were unsuccessful.

[23] The arbitration progressed. An arbitration award was issued dated March 15, 2007. The arbitrator declined to make a temporary custody order to the mother and dismissed her motion to terminate access.

[24] The period following the arbitrator’s award was one of remarkable escalation. The totality of the evidence, according to McGee J., spoke to a redoubling of A.S.’s efforts to terminate access.

[25] On March 17, 2007, two days after the arbitrator’s decision to permit unsupervised access, A.S. hired a woman on contract at a Catholic elementary school, Ms. Sheila DeShane. Ms. DeShane became an active partner in taking all steps necessary to terminate access to G.S..

[26] Whenever the boys were to visit with their father, neighbours and relatives would gather at their mother’s home to assure and comfort them. Were the boys to have fun while with father, the mother and her supporters would be suspicious. E.S. understood this. He refused to give a Mother’s Day card to his mother because he had made it at his father’s place, and his mother would not like it because his father helped him make it. If instead, he said something bad about his father, the mother and her supporters enveloped him with support and understanding.

[27] Over time, the boys’ behaviour and statements, particularly that of E.S., became closely aligned to A.S.’s belief system and the efforts of her allies. McGee J. summarized the evidence in this respect over two pages of her Reasons.

[28] From September to December 2007, the Society supervised access visits, but few went ahead. When the visits did occur, the children were resistant to visiting their father.

[29] As 2007 came to a close, A.S. sought to have her file transferred to Toronto. It was. As noted by McGee J., this had a dramatic effect. From January 2008 forward, there was a painful and public regression in the relationship between father and sons. Visits were sporadic at best.

[30] When visits did proceed, workers would record pleasant, affectionate relations between father and sons. On one occasion, S.S. was recorded as not wanting to sit on his father’s lap in case “mommy sees”.

[31] A.S. enrolled E.S. in a program called “Here to Help”, which is a mother’s–and–children–only “evidence-based program to assist children who have experienced abuse.” E.S. was taught that as a survivor of abuse he could protect himself and self-advocate. At para. 94 of her Reasons, McGee J. rhetorically asked “When a five year old child is taken to a community program for two, ten week sessions and taught how to self-advocate as a victim of his father’s abuse, how is he to resist the belief that his father has harmed him?”

[32] In October, 2008, Dr. Horowitz, an assessor jointly retained by the parents, released an extensive and comprehensive report. Dr. Horowitz concluded that the mother was the sole impediment to the children’s relationship with their father. Among other things, he stated “A.S. is not an angry woman, she is a woman in a state of rage. It is not only Greg whom she seeks to remove from her life and the life of her children. Anyone, or any organization, that challenges her, that refuses to conform to her, that refuses to see it her way, has to be removed.” He also stated: “E.S. and S.S. feel their mother’s rage. It emanates from within her in a manner that poisons the environment of her home and leaves her children desperate to do anything not to fuel her anger. Intuitively they emotionally understand that Dad is the enemy and if they are not in Mom’s army then they are the enemy.”

[33] The trial judge concluded that the children had suffered emotional harm as contemplated in s. 37(2)(f) of the Children and Family Services Act, and there was a risk that they would continue to suffer emotional harm while in the care of their mother. She held that the evidence clearly showed that both boys had suffered emotional harm, particularly E.S.. At para. 127, she stated:

Over time, the boys have become her agents in a manner designed to relieve her from the obligation to ensure that they have a healthy relationship with their father. In my view such an abrogation of a parent’s role is a form of emotional abuse – not the stuff of cuts and bruises – but of self-hatred and loss of identity. No child should be required to repudiate a parent in order to alleviate the other parent’s distress. No child should be required to bear false witness against a parent in order to vindicate the other parent’s fears.

[34] An expert witness called by G.S. was Dr. Sol Goldstein. He was qualified as an expert in child development; assisting children in high conflict parenting disputes; recovery for parental estranged children; child and adult personality disorders; attachment and bonding of children and their separation from a primary parent; and childhood trauma.

[35] Dr. Goldstein described the recovery process as staged developments. The child is encouraged to establish a relationship with both parents, without fear of disappointment or distressing the other parent. At the same time, both parents are to be involved in parallel counselling.

[36] Dr. Goldstein described the ultimate goal as the children having a loving comfortable relationship with both parents, provided that both parents are capable of supporting a relationship between the children and the other parent.

[37] Having found that the children were in need of protection, the trial judge made a comprehensive order, the terms of which are reproduced as Appendix ‘A’ to these Reasons. I will discuss the salient features of the order as they relate to this appeal.

[38] McGee J. granted G.S. sole custody of the children pursuant to s. 57.1 of the Child and Family Services Act. She ordered the apprehension and delivery of the children forthwith and within four hours of the pronouncement of the order. She ordered the Sheriff and the police to assist in enforcement of the order.

[39] The trial judge ordered that A.S. have no access to the children save and except for the purpose of counselling and assessment, as provided in para. 12 of her order, which was to occur so that a report to the trial judge could be prepared for the purpose of a review of the access arrangements by the trial judge. Since they are the subject of specific attacks by A.S. on appeal, I will reproduce the following parts of the order here:

12. The Respondent A.S. shall, as a condition and term incidental to her exercise of access pursuant to sections 57.1(2) and 58(1) of the Child and Family Services Act, engage the services of Dr. Sol Goldstein as Dr. Goldstein, in his sole discretion, reasonably directs. Prior to the review of this Order by this Court, as referred to below, Dr. Goldstein shall provide and deliver a report to the parties and this Court responsive to the following issues concerning the mother’s capacity to:

13. Support the children’s relationship with their father,

14. Respect the children’s current placement in their father’s sole custody and authority,

15. Respect the children’s entitlement to have a meaningful relationship with both parents,

16. Separate her needs from those of the children,

17. Visit or be with the children or parent them without introducing or promoting conflict for the children.

18. The mother shall be solely responsible for the costs of Dr. Goldstein concerning this counselling and Dr. Goldstein’s necessary report. Dr. Goldstein shall not provide his services for the purpose the counselling and the assessment report without payment for his services and a proper retainer as he may require to be received in advance from the mother. Any grievance that the Respondent mother, A.S., may have about Dr. Goldstein’s fees or retainer may be dealt with on review but such grievance may not enable the mother to withdraw her participation in such counselling and assessment process as Dr. Sol Goldstein directs.

19. This matter shall be reviewed for the purpose of determining what access between the children and the mother is appropriate and in the children’s best interests. The review shall be on thirty days notice by either parent and shall not proceed without the report of Dr. Goldstein per in subparagraph (12) above. The earliest that the review may proceed shall be six months from the date of this Order and shall be returnable before McGee J.

[40] The trial judge considered the matter of costs, and issued an endorsement dated February 26, 2010. By that endorsement, McGee J. ordered that A.S. pay $160,000 in costs to G.S..

[41] The trial judge recognized that ordering costs in a child protection proceeding is ordinarily not done. However, she held that in the particular circumstances of this case, a costs order in favour of G.S. was appropriate.

[42] The trial judge considered the issue of costs in connection with two periods: first, from the issuance of the protection application in September, 2007, to its amendment in April, 2009; and the second, from May 1, 2009 to the end of trial and completion of G.S.’s bill of costs.

[43] The trial judge noted that modern costs rules reflect a variety of purposes, including indemnifying a party from the cost of litigation; controlling conduct by discouraging frivolous suits or unmeritorious defences; and prompting and encouraging settlement. She stated that A.S.’s conduct during the first period invites an award of costs on all three analyses.

[44] McGee J. noted that the father was put to extreme costs in his efforts not only to maintain a relationship with the children, but also to respond to the mother’s aggressive claims within the protection proceedings. She held that A.S.’s conduct must be considered as falling into the realm of bad faith. In the final analysis, she decided that costs for the first period ought to be paid to G.S. in the amount of $80,000.

[45] With respect to the second period, the trial judge found that it was unreasonable for A.S. to continue to resist unsupervised access. Expert opinion at the trial was consistent with the proposition that G.S. should, at the very least, have unsupervised access. The trial judge found that A.S.’s position at trial was unreasonable. She awarded G.S. $80,000 for the second period, for a total award of $160,000.

[46] It should be noted that G.S. had claimed costs in the amount of $375,393.59.

[47] In terms of the review ordered by the trial judge, it is important to note that McGee J. had seized herself of the review. At para. 155 of her Endorsement, she stated as follows:

[155] Dr. Goldstein has reported and testified that he plans to work with the whole family, with a focus on the mother, as soon as she is willing. How can this be best achieved? It would be naïve to think it might occur without incident. I have significant concerns that the mother will prefer the forum of the court and the affidavit, to that of the therapist and the recovered relationship. Given such a potential, and the need for consistency, compliance and follow-up to orders of the court in such matters, I am seizing myself of this matter.

[48] Under para. 18 of her Order dated September 8, 2009, McGee J. required that the matter be reviewed for the purpose of determining what access between the children and the mother is appropriate and in the children’s best interests. The review was to be on 30 days notice by either parent, and could not proceed without the report of Dr. Goldstein. The earliest that the review could proceed was to be six months from the date of the Order, and was to be returnable before McGee J.

[49] Accordingly, the review was contemplated to occur on or after March 9, 2010. It did not actually occur until December 13, 2010, nine months later. Various motions were brought, and a motion to stay the review itself was heard by Edwards J., and dismissed. A comprehensive brief was filed by G.S. before McGee J., which included an extensive report dated September 13, 2010 from Dr. Goldstein.

[50] A.S. filed no materials for the review on December 13, 2010, and sought an adjournment, which was denied by McGee J.

[51] McGee J. noted, in her Endorsement following the review, dated January 7, 2011, that it was clear from Dr. Goldstein’s report, and other material before her, that the boys were thriving in their father’s care. They were doing well in school, sporting and community activities, were happy and well adjusted. G.S. was encouraging a relationship with their mother, keeps her photograph in their room, and speaks positively of her role in their lives.

[52] Dr. Goldstein’s first contact from A.S. was in November, 2009. McGee J. notes that “The report subsequently describes what I will summarize as a course of events in which the mother’s preferred preoccupation was with the litigation issues, rather than the parenting issues.” The entire process with Dr. Goldstein broke down in August, 2010. Dr. Goldstein concluded that the mother continued to be unable to support the father’s relationship with the children, and that she could not separate her needs from those of the children.

[53] McGee J. noted that in considering the report of Dr. Goldstein, she was mindful of A.S.’s allegation that Dr. Goldstein was biased, that his report was not sworn (her order did not require it), and that he had not been subject to cross-examination.

[54] McGee J. also noted that G.S. continued to promote the boys’ relationship with their mother and sought an order for supervised access. Ultimately, A.S. consented to an order that she have two hours of supervised midweek access and two hours of supervised weekend access. At para. 19 of her Endorsement of January 7, 2011, McGee J. stated:

[19] Counsel for the mother agreed with these proposed terms and confirmed that the mother would be content with such an arrangement. Having thus received submissions from all four parties, the outcome of this review is on consent and I accept that consent. I find that the terms of the consent accord with the objectives of the Child and Family Services Act and are appropriate given the materials filed before me in the course of this review. Order to go accordingly.

Submissions

[55] Mr. Joseph advances six arguments against the decision and orders of McGee J. I have altered the order from that in which Mr. Joseph made his submissions so that they accord with the order in which I will deal with them. They are:

(a) the trial judge erred in the creation of a highly stringent and unreasonable review clause;

(b) the trial judge impermissibly delegated the Court’s power to Dr. Goldstein to determine the children’s access with A.S.;

(c) the trial judge erred in requiring A.S. to engage in counselling services with Dr. Goldstein, an expert witness for G.S. at trial, despite Dr. Goldstein’s apparent or real conflict of interest;

(d) the trial judge placed undue reliance on the conclusions and/or assessments of Dr. Goldstein, which were one-sided and biased, and which were based on weak methodology, given that he had never met with A.S. or the children in formulating his opinion;

(e) the trial judge erred in permitting the Society to make an abrupt change in its legal position at the close of trial, in violation of the principles of due process and fundamental justice; and

(f) the trial judge erred in making a prohibitive costs award of $160,000 against A.S. in the context of a child protection proceeding.

[56] In connection with the first ground of appeal, Mr. Joseph notes that an order made pursuant to s. 57.1 of the CFSA is deemed to be a custody order under s. 28 of the Children’s Law Reform Act. Under the Family Law Rules, a party can bring a motion to change an order made under s. 57.1 of the CFSA, and the legal standard on such a motion would encompass whether there has been a material change in circumstances.

[57] Mr. Joseph submits that the CFSA is a complete code. Under that Act, a party can bring a status review of an order made under s. 57(1), or a party can bring a motion to vary an order made under s. 57.1. Mr. Joseph submits that, pursuant to para. 18 of her Order, McGee J. created a new option that is inconsistent with the Act. Further, the review clause appears to eliminate A.S.’s right to bring a motion to vary. In the circumstances, if the Court has the ability to create a review clause, it was improper of McGee J. to remain seized, since her strong findings against A.S. would inevitably give rise to a reasonable apprehension of bias in any further proceedings.

[58] In terms of the second ground of appeal, Mr. Joseph submits that it is impermissible to delegate the trial judge’s power to determine the children’s access to Dr. Goldstein. The effect of the trial judge’s order is to do exactly that. Under the Order, A.S. is not to have any contact with the children save and except as directed by Dr. Goldstein pursuant to para. 12 of the Order. Paragraph 12 of the Order itself provides that A.S. is to engage the services of Dr. Goldstein as he in his sole discretion directs. Mr. Joseph submits that delegation of this sort is improper and contrary to cases that have held that judges are not to delegate the determination of access to a third party. Mr. Joseph relies on Strobridge v. Strobridge (1994), 1994 875 (ON CA), 18 O.R. (3d) 753 (C.A.); Dunnett v. Punit (2006), 2006 ONCJ 442, 32 R.F.L. (6th) 446 (Ont. C.J.); M.(C.A.) v. M.(D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181 (C.A.); Children’s Aid Society of Toronto v. D.P., [2005] O.J. No. 930 (S.C.J.); and Bozin v. Bozin, 2010 ONSC 1010.

[59] Moving to the third ground of appeal, Mr. Joseph notes that Dr. Goldstein was a witness called by G.S. at the trial. Dr. Goldstein testified on behalf of G.S. with respect to the topic of parental alienation. Mr. Joseph submits that, in these circumstances, it was improper for McGee J. to order A.S. into a therapeutic relationship with a professional who had testified against her at trial, and who had received remuneration to do so from her former spouse. It is submitted that any therapeutic relationship must be based on trust between the patient and therapist. It is not unreasonable that A.S. would not be able to trust and engage in therapeutic services with someone who testified against her at trial. Paragraph 12 of McGee J.’s order forces A.S. to do just that.

[60] As to the fourth ground of appeal, Mr. Joseph notes that Dr. Goldstein had never met with A.S. or either of the children before formulating his opinion. In the result, Dr. Goldstein’s report was one sided and unilateral. It is doubtful that McGee J. met the requirement of being a gatekeeper with respect to the admissibility of expert evidence. Dr. Goldstein did not fulfil the role of a neutral expert; rather, he was an advocate for the position of G.S., and it was improper for McGee J. to rely on his evidence. Mr. Joseph relies on Sordi v. Sordi (2009), 82 R.F.L. (6th) 286 (Ont. S.C.J.); and Imamura v. Remus (2004), 2004 52812 (ON SC), 12 R.F.L. (6th) 346 (Ont. S.C.J.).

[61] In connection with the penultimate ground of appeal, Mr. Joseph submits that it was improper for the Society, at the conclusion of a 20 day trial, to suddenly change its position to support G.S.’s claim for a permanent order for custody pursuant to s. 57.1 of the CFSA. He submits that it is incumbent on the Society to deal with cases fairly, and this includes ensuring that the procedure is fair to all parties. If the Society had filed an amended claim, A.S. would have had an opportunity to file an amended answer and request an adjournment. Instead, she was faced with a much different claim by the Society at the last moment. Mr. Joseph relies on Children's Aid Society of London and Middlesex v. E.V.F.S., 2004 34346 (ON SC), [2004] O.J. No. 1216 (S.C.J.).

[62] Finally, Mr. Joseph submits that the trial judge erred in making a costs award of $160,000 against A.S., given that in child protection proceedings parents are generally to be shielded from costs claims. Mr. Joseph submits that the trial judge’s findings that A.S. behaved unreasonably does not meet the high threshold for a costs order in these circumstances. Mr. Joseph relies on Re S.(D.) (2003), 2003 88994 (ON SCDC), 39 R.F.L. (5th) 209 (Ont. Div. Ct.); Children's Aid Society of London and Middlesex v. J.B. (2000), 2000 22432 (ON SC), 11 R.F.L. (5th) 43 (Ont. S.C.J.); and Children's Aid Society of Simcoe County v. C.S., 2006 6688 (ON SC), [2006] O.J. No. 871 (S.C.J.).

[63] Mr. Joseph submits that the amount of the costs award, $160,000, is excessive and disproportionate to the issues before the Court.

Analysis

[64] This appeal comes before this Court pursuant to s. 21.9.1 of the Courts of Justice Act.

[65] Before addressing the specific grounds of appeal advanced by A.S., I will set out the relevant statutory provisions.

[66] The relevant provisions of the Child and Family Services Act are as follows:

Child in need of protection

37 (2) A child is in need of protection where,

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and that the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm;

Best interests of child

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child’s physical, mental and emotional level of development.

3. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.

4. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.

5. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

6. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

7. The degree of risk, if any, that justified the finding that the child is in need of protection.

Child protection hearing

47.(1)Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

Custody order

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

Deemed to be order under Children’s Law Reform Act

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children’s Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act.

Appeal under s. 69

(5) Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under section 69.

Access order

58. (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

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

Access after custody order under s. 57.1

59 (1.1) If a custody order is made under section 57.1 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.

Review of access order made concurrently with custody order

59.1 No order for access under section 58 is subject to review under this Act if it is made at the same time as a custody order under section 57.1, but it may be the subject of an application under section 21 of the Children’s Law Reform Act and the provisions of that Act apply as if the order had been made under that Act.

Appeal

69. (1) An appeal from a court’s order under this Part may be made to the Superior Court of Justice by,

(b) any parent of the child;

Further evidence

(6) The court may receive further evidence relating to events after the appealed decision.

[67] The relevant provisions of the Children’s Law Reform Act are as follows:

Application for custody or access

21. (1) A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

Powers of court

28. (1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Exception

(2) If an application is made under section 21 with respect to a child who is the subject of an order made under section 57.1 of the Child and Family Services Act, the court shall treat the application as if it were an application to vary an order made under this section.

Same

(3) If an order for access to a child was made under Part III of the Child and Family Services Act at the same time as an order for custody of the child was made under section 57.1 of that Act, the court shall treat an application under section 21 relating to access to the child as if it were an application to vary an order made under this section.

(a) The Review Clause

[68] As noted, Mr. Joseph attacks the review clause on two grounds. He asserts that the Court has no power to impose a review clause. Further, he attacks the specific review clause imposed by McGee J.

[69] There is nothing in the CFSA that specifically authorizes a review clause. Neither is there anything that specifically prohibits a review clause. Mr. Joseph argues that the CFSA is a complete code, and the provisions of the Act, either directly or through incorporation under the Children’s Law Reform Act that authorize a variation of an order, impliedly prohibit a review clause.

[70] No cases were drawn to our attention that specifically deal with the issue of whether a review clause can be ordered in a proceeding under the CFSA. However, the issue has been considered under the Divorce Act, section 17 of which permits the variation of an order where there is a material change in circumstances.

[71] In cases that have considered the issue, it has been made clear that review orders are not to be routinely made.

[72] In Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, the Supreme Court accepted that a trial judge could order a review of his or her order without requiring a moving party to move to vary the order. The Court does not appear to have considered the specific issue of whether the Court had jurisdiction to make such an order, but made it clear that review orders are to be limited. At para. 36 of his Reasons, Binnie J., for the Court, stated that “Review orders under s. 15.2 have a useful but very limited role”, and at para. 39, he stated: “Insofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change under s. 17 on proof of a change of circumstances. If the s. 15.2 court considers it essential (as here) to identify an issue for further review, the issue should be tightly delimited in the s.15.2 order.”

[73] This approach was re-emphasized in the Court of Appeal’s decision in Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241 (C.A.). At para. 70 of her Reasons, Lang J.A. stated:

70 Review orders in effect turn an initial order into a long-term interim order made after trial. Accordingly, they should be the exception, not the norm. They are appropriate when a specified uncertainty about a party’s circumstances at the time of trial will become certain within an identifiable time frame. When one is granted, it should include specifics regarding the issue about which there is uncertainty and when and how the trial judge anticipates that uncertainty will be resolved.

[74] In Fisher, the issue was spousal support. Different considerations may arise where, as here, the issue relates to the custody of and access to children. The overriding concern in such a case is the best interests of the children. However, there can be no quarrel with the general proposition that review orders, where made, should be narrowly focused, and carefully tailored to the specific considerations that justify the order in the first place.

[75] There is a useful discussion about review orders in the context of custody and access cases in: Marie L. Gordon, Q.C., The Review Provision in Custody and Access Orders (2008), 27 C.F.L.Q. 319.

[76] There are two decisions from the Maritimes in which review orders in the context of custody and access cases were considered. They are the decision of the New Brunswick Court of Appeal in Sappier v. Francis (2004), 10 R.F.L. (6th) 458 (N.B.C.A.); and the decision of the Newfoundland and Labrador Court of Appeal in M.(J.M.) v. M. (K.A.A.) (2005), 2005 NLCA 64, 21 R.F.L. (6th) 102 (N.L.C.A.). In the latter case, the Court considered the jurisdictional argument made by Mr. Joseph here, albeit in the context of a custody and access order made under s. 16 of the Divorce Act. In its judgment, the Newfoundland and Labrador Court of Appeal referred with approval to the New Brunswick Court of Appeal decision in Sappier.

[77] In Sappier, a hearing had been held pursuant to the Family Services Act of New Brunswick to determine the issue of the custody of the children. Joint custody was ordered by Rideout J., and the parties were to adhere to an access schedule. Rideout J. also ordered that the matter be reviewed in six months.

[78] A review was held as contemplated in the order, but it was held before a different judge. The reviewing judge refused to make any change to the original decision since he was not satisfied there had been any change in circumstances.

[79] Larlee J.A., for the Court, held that the reviewing judge had made a number of errors. First, the reviewing judge erred in holding that there was an onus to prove a change in circumstances. At para. 9, Larlee J.A. stated “There was no onus on either party to prove the change in circumstances as a threshold to having the decision reviewed.”

[80] Secondly, she held there was no onus on any party to adduce evidence. Thirdly, she held that in deciding any question with respect to custody, the analytical framework to be used is the enumerated criteria concerning the best interests of the child.

[81] Importantly, from the perspective of the case before this Court, Larlee J.A. held that it was important that the review be conducted by the judge who made the original order.

[82] At para. 10, Larlee J.A. stated “In my opinion, and in the circumstances of the case, the matter should have been reviewed by Justice Rideout.” At para. 13, she stated:

It seems to me that if a review of a custody order is to be done in a summary fashion, that is, based on affidavit evidence only, then it should be conducted by the same judge who made the original order. If for some reason the original judge is not available to conduct the review, then by necessity the reviewing judge has to conduct a full hearing which assesses the best interests of the children. In brief, if the original judge retains jurisdiction of the matter, he or she shall hear the matter further on review unless circumstances prevent him or her from acting in that capacity.

[83] At para. 14, Larlee J.A. added “In the absence of any compelling and extenuating circumstances, Justice Rideout, who made the original order requiring the review, should have conducted the subsequent review hearing. Since no such circumstances existed, the reviewing judge erred in undertaking the review.”

[84] In M.(J.M.) v. M.(K.A.A.), supra, the trial judge had ordered that the mother should be the sole custodial parent, and in exercising access, the father had to stop seeking to alienate the child from the mother. In his decision, the trial judge set out an extensive order dealing with custody and access, child support and costs. In the order as to custody and access, the trial judge included the following paragraph:

20 In the event that the father fails to fully comply with this order and/or Alexander displays continued and worsening signs of alienation from the mother, the mother has leave to apply for directions or, possibly a change in the access schedule to the father based upon Alexander’s best interests without having to establish a material change in circumstances.

[85] On appeal, it was argued that the trial judge had no jurisdiction to make an order for review, without having to establish a material change in circumstances as required under s. 17(5) of the Divorce Act. The Court of Appeal rejected that argument. The Court held that the power to make a review order flows from s. 16(6) of the Divorce Act, which provides as follows:

16(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

[emphasis added]

[86] At para. 25 of his Reasons, Rowe J.A., for the Court, referred with approval to the decision of the New Brunswick Court of Appeal in Sappier. At para. 27, Rowe J.A. stated:

It is clear from Sappier that the doctrines of res judicata and functus officio constitute no bar to a trial judge remaining seized with custody and access issues for the purposes of a review. It is equally clear that if paragraph 20 is otherwise valid, these doctrines would constitute no bar to the trial judge remaining seized of custody and access for the purpose of such an application by the mother.

[87] At paras. 29 and following, Rowe J.A. considered the issue of whether a review order is compatible with the requirements of s. 17 of the Divorce Act, which requires the showing of a material change in circumstances before a variation can be made. He held that there is no reason why a review order cannot be made provided it does not bar the operation of s. 17(5) of the Divorce Act. At para. 32, he stated:

When I read paragraph 20, I do not see how it could bar the operation of section 17(5). Paragraph 20 does not prevent the father or the mother from applying for a variation under section 17(5). What paragraph 20 does is add a ‘fast track’ procedure for the mother to have custody and access considered again if the father once more seeks to alienate the child from the mother.

[88] At para. 35, Rowe J.A. stated “In other words, what the trial judge did in paragraph 20 is craft a special arrangement to promote and protect the best interests of the child, given the circumstances of the case.”, and at para. 36 he stated “In summary, while paragraph 20 does not conform to the procedure for seeking a variation under section 17, it need not do so.”

[89] In the case before this Court, the order of McGee J. was not made under the Divorce Act, rather, it was made under the CFSA. However, I see no material difference. Section 58(1) of the CFSA, under which the specific access order here was made, provides that the Court may, in the child’s best interests, “make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the Court considers appropriate”. [emphasis added] In my view, just as the words “and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just”, found in s. 16(6) of the Divorce Act, were held to authorize the review order in M.(J.M.) v. M.(K.A.A.), the words I have just quoted from s. 58 of the CFSA authorize the review order here.

[90] Were it necessary to do so, I would have no hesitation in relying on the inherent jurisdiction of the Court as authority for retaining jurisdiction to review the order under the terms of the original order, rather than requiring the commencement of a new proceeding to vary the order. In the context of a constitutional case, the Supreme Court of Canada in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, held that a Superior Court, in the exercise of its inherent status as a Superior Court, having made a finding of a constitutional violation, has the power, in appropriate circumstances, to remain seized of the issue in order to ensure that the violation is corrected.

[91] The purpose of a remedial order is to vindicate substantive rights. In this case, the substantive rights are those of the children – to have their best interests protected. The trial judge had made findings that the best interests of the children were being adversely impacted by the actions of their mother. The trial judge made an Order that she no longer have custody of them, but the trial judge was not in a position to make a final access order. The difficulty that confronted the trial judge was to craft an order that would allow her to deal with the unfolding drama and complete her task of making an order that would ensure, to the degree possible, the children’s best interests.

[92] A remedial order in a situation like this is not like an order for damages in a motor vehicle accident. The situation continues to unfold in real time, and the Court must have the ability to make an order to complete its task in a sensible way. Having abruptly changed the custodial arrangements for the children, it would have made no sense to lock the parties and the children into an access arrangement with the mother before the trial judge was in any position to assess what the appropriate access arrangements should be. This is particularly so because of the trial judge’s concern that a repetition of the mother’s conduct during access, which she found had been harmful to the children, could well continue to harm them.

[93] In my view, the Court must have the ability to craft a sensible remedial order that responds to the particular violation of substantive rights that has occurred, and that allows the Court to rectify the matter in a reasonable way. As a court of inherent jurisdiction, the Court has the power to make remedial orders to vindicate substantive rights. In this case, the remedial order was required to respond to the trial judge’s finding that it was the mother’s conduct that adversely impacted on the children’s best interests. In addition to changing custody, McGee J. had to determine what access, if any, A.S. would have, both in the short term and long term. She was simply in no position to determine access terms immediately. The review order allowed her to do so within a reasonable time. While other ways of doing so may have been selected, I am simply not prepared to say she was wrong in selecting the method she did.

[94] With respect to the issue of whether it was proper for McGee J. herself to remain seized of the review, I see nothing in the circumstances of this case that would justify a conclusion that McGee J. should be precluded from conducting the review. I need not decide whether I agree with Larlee J.A. in Sappier that, in general, it is preferable that the judge who made the original order conduct the review. It is sufficient to say that in the particular circumstances of this case, in view of the extensive evidence called over 20 days of trial, and McGee J.’s obvious familiarity with the issues, not to mention the specific reasons she had for making the order in the first place, it would make little sense for any other judge to conduct the review.

[95] I reject the suggestion that McGee J. should be precluded from conducting the review on the ground of any apprehension of bias. It is true that she made some harsh findings against A.S.. However, she has made it clear that she would like nothing better than to see A.S. have a positive relationship with her children. Having made findings, however, that A.S.’s conduct has been harmful to her children, McGee J. was rightly concerned that any access to the children by A.S. should not simply perpetuate the harm. Her retention of jurisdiction is simply to ensure that the best interests of the children will prevail. As every judge of this Court has done, McGee J. has taken an oath of office. There is no reason to believe that she would not fulfil that oath and act judicially in conducting the review.

[96] In the final analysis, subject to the remaining arguments advanced by Mr. Joseph, with which I will deal in a moment, the attack on the review order fails. As contemplated in Leskun and Fisher, the issue reserved in the order is specific and tightly delimited. It spells out how and when the uncertainty regarding access is to be resolved. The reasons for requiring a review are clear. There is no jurisdictional impediment to a review order, and in the circumstances it is appropriate that McGee J. herself conduct the review.

(b) Did the trial judge impermissibly delegate the Court’s power to determine access?

[97] There is no doubt that, in general, the Court ought not to delegate to a third party the right to determine access arrangements. However, that is not what the trial judge did in this case.

[98] It must not be forgotten that the purpose of the review order was not to set out what the access arrangements would be, but rather, to provide input to the trial judge so that she could determine what the access arrangements would be. As noted earlier, the effect of the order made by the trial judge was to abruptly change the custodial arrangements for the children, and the trial judge was in no position to make a long-term, or even short-term, determination of what access A.S. should have. A short trial period, during which A.S. could demonstrate that access could be exercised without engaging in the conduct that harmed the children, seemed sensible. This could only be done, realistically, with the assistance of a third party who could ultimately provide input to the trial judge.

[99] In these limited and narrow circumstances, there was nothing impermissible in the trial judge using the services of a third party as a means of conducting a test drive, so to speak, for access with A.S., and providing input to the trial judge so that she could craft an appropriate access order. It is true that for a limited time and for a limited purpose, Dr. Goldstein was to decide what access A.S. would have. In the circumstances, this does not amount to delegation of the Court’s power to determine access. Rather, it is simply a device to assist the trial judge in determining what access there should be.

[100] For these reasons, this ground of appeal must fail.

(c) Did the trial judge err in using Dr. Goldstein as the third party to assist the trial judge in determining access arrangements?

[101] In a perfect world, it would have been preferable for the trial judge to have used someone other than Dr. Goldstein to engage in the counselling and assessment process for the purpose of providing input to her. Dr. Goldstein had been retained by G.S. to provide an expert opinion, and he was called as a witness by G.S.’s counsel at trial. The optics of using Dr. Goldstein as the third party to assist the trial judge in formulating ongoing access terms were less than ideal.

[102] However, in the specific circumstances of this case, McGee J. cannot be faulted for using Dr. Goldstein in this way. She had made an immediate order reversing the custodial arrangements, because of conduct by A.S. that the trial judge found was harmful to the children. It was important that the trial judge put in place something that would, relatively quickly, allow her to determine what the access arrangements would be.

[103] The alternative would have been to invite the parties to make recommendations as to an appropriate assessor, receive submissions, and decide on an appropriate assessor. Such a process would have taken considerable time, and would hardly have been to the advantage of A.S., who would have had no access in the meantime.

[104] While not ideal, the trial judge evidently thought it important to put in place a mechanism that would potentially provide some immediate access for A.S., while at the same time provide input to the trial judge.

[105] Dr. Goldstein is a well-known and reputable expert in his field. The trial judge had had an opportunity to assess the qualifications and objectivity of Dr. Goldstein, and was clearly convinced that he would be able to meaningfully assist her in providing input to her task. Any counselling function performed by Dr. Goldstein was subsidiary to the exercise of providing input to the trial judge. Dr. Goldstein’s overall approach, as noted by the trial judge in her Endorsement, is to encourage a positive relationship between the children and both parents. Thus, there would be little reason to believe that Dr. Goldstein would not adopt this approach in this instance.

[106] As it happened, the trial judge’s fear that A.S. would be more focused on the litigation than she would be on setting up beneficial access arrangements, proved to be well founded. Having regard to A.S.’s mindset throughout the litigation, it is not surprising that she continued to focus on her interest, rather than those of the children. Ultimately, this produced a breakdown in the relationship with Dr. Goldstein, and his involvement ceased effective August, 2010.

[107] The issue is now moot, as Dr. Goldstein is no longer involved.

[108] In the result, I am not prepared to say, in the particular circumstances of this case, that utilizing Dr. Goldstein’s services as the trial judge did was wrong.

[109] For these reasons, this ground of appeal fails.

(d) Did the trial judge place undue reliance at trial on the conclusions and/or assessments of Dr. Goldstein?

[110] The evidence given by Dr. Goldstein was reviewed by the trial judge in her Endorsement. As noted, Dr. Goldstein’s overall approach is to encourage a positive relationship between the children and both parents. It is simply not accurate to say that his opinions were one-sided and biased. While Dr. Goldstein’s approach obviously did not accord with that of A.S., who wanted to exclude G.S.’s involvement with the children as much as possible, it can hardly be said that Dr. Goldstein’s views are one-sided.

[111] As far as Dr. Goldstein’s methodology is concerned, he was retained as an expert witness. As an expert, he is entitled to render an opinion based on whatever material he has at hand. If there is a source of information that is not available to an expert, the expert’s opinion may be weakened as a result.

[112] In this case, it is hardly surprising that Dr. Goldstein did not have access to A.S. or the children before he gave his opinion at trial. It is highly unlikely that A.S. would have consented to meeting with Dr. Goldstein. Furthermore, there is no doubt that A.S. would have continued to express her strong opposition to G.S. having anything to do with the children, if she had actually met with Dr. Goldstein.

[113] For these reasons, I am not persuaded that this ground of appeal has merit.

(e) Did the trial judge err in permitting the Society to change its position at the close of trial?

[114] As noted earlier, G.S. had, at all times, taken the position that custody of the children should be awarded to him rather than A.S.. Accordingly, this issue was on the table from the outset, and A.S. was required to address it. Whether or not the Society changed its position, A.S. would still have had to address it.

[115] Thus, in my view, there was no unfairness to A.S. in the Society’s change of position. This ground of appeal fails.

(f) Did the trial judge err in making her costs order?

[116] As acknowledged by the trial judge, the making of a costs order in child protection proceedings is rare. However, that does not mean a costs order cannot be made in proper circumstances.

[117] The trial judge made strong findings about A.S.’s conduct. According to the trial judge, A.S.’s actions had at all relevant times been anchored to a belief system as false as it had been rigid. She found that A.S.’s conduct had been harmful to the children over a considerable period of time.

[118] The trial, conducted over 20 days, was hard-fought and bitter. The trial judge found that A.S.’s conduct approached bad faith.

[119] In the circumstances, I do not disagree with McGee J. that this was an appropriate case in which costs should be ordered against the unsuccessful party.

[120] As far as the quantum is concerned, the trial judge awarded less than one-half of the amount claimed by G.S.. A judge fixing costs has considerable discretion in settling on an appropriate amount. I am not convinced that the trial judge committed any error in principle or otherwise exercised her discretion improperly.

[121] Thus, this ground of appeal fails.

Disposition

[122] For all of the foregoing reasons, the appeal was dismissed in its entirety.

[123] Subsequent to the argument of the appeal, we received written costs submissions.

[124] Pursuant to an order of Gilmore J., A.S. paid into court the sum of $35,000 as security for costs of the appeal.

[125] The respondent was entirely successful in resisting this appeal. He seeks an order for costs in the amount of $58,000, all-inclusive.

[126] We order that costs of the appeal be paid by A.S. to G.S. in the amount of $35,000, all-inclusive. We order that that amount be paid out of court to G.S., and that upon payment out of court, A.S.’s liability for costs of the appeal will be satisfied.

[127] We are aware of an offer to settle that might, in other circumstances, affect our costs order. Under the circumstances, however, and particularly considering the very substantial award of trial costs, we have decided that the order of costs we have made is appropriate.

GRAY J.

JENNINGS J.

RAMSAY J.

Released: April 29, 2011

THE COURT ORDERS THAT:

1. The court finds that:

a) the child, E.S., was born on April […], 2003;

b) the child, S.S., was born on April […], 2005;

c) the religion of both children is Roman Catholic;

d) the children are not Native or Indian persons;

e) both children are children “in need of protection” pursuant to ss. 37(2)(f) and (g) of the Child and Family Services Act, R.S.O. 1990, c. C.11.

2. The Respondent, the children’s father, G.S., (referred to as “the father”) is granted sole custody of the children pursuant to section 57.1 of the Child and Family Services Act.

3. The Applicant Children and Family Services for York Region, on their consent, and if required and pursuant to sections 141 and 144 of the Courts of Justice Act, R.S.O. 1990, c. C.43, will assist the police as set out in this order.

4. The apprehension and delivery of the children shall occur forthwith and within four hours of the pronouncement of this Order. At the time of the apprehension of the children and delivery into their father’s care, the mother and her mother and all members of her family, friends, neighbours, or agents shall not be present.

5. a) The Sheriff of this Court’s jurisdiction, the York Regional Police, the Ontario Provincial Police and all enforcement officials to whose attention this order is brought, shall assist in enforcing the provisions of this Order, and shall specifically take all such action as is required to locate, apprehend and deliver the children to the Respondent father, including the power of search and entry at any time.

b) Pursuant to section 36(2) of the Children’s Law Reform Act, the York Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police and any police service having jurisdiction where the child(ren) may be found, are directed to forthwith locate, apprehend and deliver the child(ren) to the Respondent father.

c) Pursuant to section 36(4) of the Children’s Law Reform Act, the York Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police and any police service having jurisdiction where the child(ren) may be found shall do all things reasonably able to be done to locate, apprehend and deliver the child(ren) in accordance with this order.

d) Pursuant to section 36(5) of the Children’s Law Reform Act, for the purpose of locating and apprehending the child(ren) in accordance with this order, any member of the York Regional Police, the Ontario Provincial Police, the Royal Canadian Mounted Police and any police service having jurisdiction where the child(ren) may be, may enter and search any place where he or she has reasonable and probably grounds for believing that the child(ren) may be, with such assistance and such force as are reasonable in the circumstances. Such entry may be made at any time of the day or night.

e) This order expires fourteen days following the date of this order.

6. The Respondent mother, A.S. (referred to as “the mother”) shall have no access to the children save and except for the purpose of counselling and assessment, as referred to below in sub-paragraph (12) below. “No access” is to mean no direct or indirect contact with the children via any form of communication, no access to information from any school or other service provider to the children, and no contact or attendance by the mother at the children’s schools, places of their extracurricular activities, doctors, dentists or other service providers to the children, or any other place where the children are or where they may be, save and except as is directed by Dr. Goldstein pursuant to the counselling and assessment referred to below in sub-paragraph (12).

7. As an incident of the father’s custody pursuant to section 20 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, the children are also to have no contact direct or any indirect to any member of the maternal family or any agent, friend or neighbour of the mother, and this prohibition against contact between the children and any member of their maternal family, or friends or neighbour or agent of the mother access includes any and all forms of communication by mail, e-mail or other electronic device, telephone, etc.

8. Pursuant to section 57.1(3) of the Child and Family Services Act, the Respondent mother A.S. is restrained from having any contact with the children, save and except as directed by Dr. Goldstein pursuant to the counselling and assessment referred to below in sub-paragraph 12) and shall not attend within 300 metres of the children, their schools or places of extracurricular activities or wherever they are or may be. The mother is further restrained from having any contact with the father save and except as directed by Dr. Goldstein pursuant to the counselling and assessment referred to below in sub-paragraph (12) and shall not attend with 300 metres of his place of work or wherever he is or may be.

9. The Respondent G.S. shall have possession and sole control of the children’s birth certificates, OHIP cards, and sole authority in respect of all matters pertaining to the children’s passports. The Court shall release the documents to the father forthwith.

10. The children’s clothes, toys, books, medications and personal effects are to be packed up forthwith by the mother and delivered within seven days to the York Region Children's Aid Society office on Eagle Street in Newmarket for delivery to the father.

11. The Respondent G.S. may utilize the services of Dr. Sol Goldstein to provide counselling for the children if and as required by G.S. in his discretion but in consultation with Dr. Goldstein, and the Respondent G.S. shall be responsible for costs of this counselling for the children.

12. The Respondent A.S. shall, as a condition and term incidental to her exercise of access pursuant to sections 57.1(2) and 58(1) of the Child and Family Services Act, engage the services of Dr. Sol Goldstein as Dr. Goldstein, in his sole discretion, reasonably directs. Prior to the review of this Order by this Court, as referred to below, Dr. Goldstein shall provide and deliver a report to the parties of this Court responsive to the following issues concerning the mother’s capacity to:

13. Support the children’s relationship with their father,

14. Respect the children’s current placement in their father’s sole custody and authority,

15. Respect the children’s entitlement to have a meaningful relationship with both parents,

16. Separate her needs from those of the children,

17. Visit or be with the children or parent them without introducing or promoting conflict for the children.

18. The mother shall be solely responsible for the costs of Dr. Goldstein concerning this counselling and Dr. Goldstein’s necessary report. Dr. Goldstein shall not provide his services for the purpose of the counselling and the assessment report without payment for his services and a proper retainer as he may require to be received in advance from the mother. Any grievance that the Respondent mother, A.S., may have about Dr. Goldstein’s fees or retainer may be dealt with on review but such grievance may not enable the mother to withdraw her participation in such counselling and assessment process as Dr. Sol Goldstein directs.

19. In the event that Dr. Goldstein is unwilling or unable to continue his involvement in this case, either parent may apply to the court returnable before McGee J to designate another professional in his place.

20. The Respondent parents shall fully cooperate with Dr. Goldstein. The Respondent father G.S. shall cause the children to attend for the purpose of Dr. Goldstein’s assessment/counselling with the mother, A.S. as Dr. Goldstein, in his discretion so directs.

21. The children shall not receive counselling or therapy or any form of mental health treatment other than as is set out above except with the prior written consent of the Respondent G.S.. Nothing herein abrogates from the capacity and sole authority of the Respondent father G.S. to secure such medical or other health assistance as is required for the children from time to time.

22. On their consent, and pursuant to section 34(2) of the Children’s Law Reform Act, the Applicant Children and Family Services for York Region shall act as a supervisor to the children for a period of three months from the date of the pronouncement of this Order, and for this purpose the Respondent parents shall fully co-operate with the Applicant, sign all required consents for exchange of information and enable the Applicant to conduct its supervision in accordance with its standards.

23. This matter shall be reviewed for the purpose of determining what access between the children and the mother is appropriate and in the children’s best interests. The review shall be on thirty days notice by either parent and shall not proceed without the report of Dr. Goldstein per in subparagraph (12) above. The earliest that the review may proceed shall be six months from the date of this Order and shall be returnable before McGee J.

24. The costs of this proceeding to date are to be determined upon receipt of written submissions by the parties in accordance with a schedule as directed by the Court.

CITATION: Children and Family Services v. G.S., 2011 ONSC 1732

COURT FILE NO.: DC-09-00079-00

DATE: 20110429

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J.R.R. JENNINGS, D.K. GRAY and J.A. RAMSAY J.J.

BETWEEN:

CHILDREN AND FAMILY SERVICES FOR YORK REGION

Applicant

(Respondent in Appeal)

– and –

G.S.

Respondent

(Respondent in Appeal)

• and –

A.S.

Respondent

(Appellant in Appeal)

REASONS FOR JUDGMENT

J.R.R. JENNINGS, D.K. GRAY and J.A. RAMSAY J.J.

Released: April 29, 2011