Court File and Parties

Court File No.: C875/11 Date: August 23, 2013 Superior Court of Justice – Ontario Family Court

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Re: Children’s Aid Society of London and Middlesex, Applicant And: D.K. and D.K., Respondents

Before: Mitrow J.

Counsel: Sandra Welch for the Society David Winninger for the Respondents

Heard: June 10, 2013

Endorsement

INTRODUCTION

[1] There are two motions in this matter. One motion is brought by the Society seeking an order as to the distribution of the parenting capacity assessment. The Society also seeks "the opinion, advice, and direction" of the court regarding the next steps with respect to increases of access to the respondent parents, whether access should be supervised or unsupervised and the extent to which the child should be reintegrated into the care of the parents at this time.

[2] The respondent parents bring their own motion requesting an expansion of access followed by returning the child to the parents' care.

[3] The applicant is the Children's Aid Society of London and Middlesex ("the Society"). The respondents D.K. ("Mr. K.") and D.K. ("Ms. K.") are, respectively, the father and mother of the child K.K., age 3 (referred to as "the child" or "K.").

[4] Although the Children's Aid Society of the District of Thunder Bay had not filed any material and was not formally participating in the motions, Mr. Jim Murray, counsel for the Thunder Bay Society, together with the social worker who is acting as the London Society's agent to implement the existing order, were both in Thunder Bay for the purpose of observing the motion proceedings via an interactive video/audio linkup given the Thunder Bay Society's role as agent for the London Society.

[5] The parents' motion to transfer the proceeding to Thunder Bay which had been adjourned on multiple occasions was not dealt with, but the order below sets out the process to deal with that motion.

[6] Mr. K. and Ms. K. (sometimes collectively referred to as "the parents") and many of their extended family members reside in Thunder Bay. As discussed in more detail below K. was apprehended while receiving medical treatment at Children's Hospital London Health Sciences Centre ("London Children's Hospital").

BACKGROUND

[7] K. was born early and required a neo-natal intensive care placement. K. had issues on and off since birth. The concerns included reflux and constipation. By approximately nine months of age there were concerns regarding K.'s ability to take oral feeding.

[8] K. had a significant history of hospitalization as is confirmed by the medical records. K. was at London Children's Hospital from near the end of December 2010 to the early part of March 2011 after which he was transferred to Hospital for Sick Children ("HSC") in Toronto where he stayed until the latter part of May 2011. The reason for attendance at HSC included an evaluation of a potential neurological disorder. After discharge from HSC, K. was briefly returned to the hospital in Thunder Bay and then discharged.

[9] K. re-admitted to the hospital in Thunder Bay soon after he returned home. The basis of the admission was a leaking feeding tube. Within several days after admission at Thunder Bay, K. returned to London Children's Hospital just prior to mid-June 2011 and thereafter K. experienced a lengthy hospital stay and was not discharged until December 2011.

[10] During the last period of hospitalization at London's Children's Hospital, K. had ongoing serious medical issues.

[11] Dr. Paul Atkison was primary treating physician at London Children's Hospital. Dr. Atkison had identified medical concerns that included: difficulty with feeding that required feeding tubes to be inserted; reflux; failure to thrive; and recurrent intravenous removals and infections.

[12] As K.'s difficulties and treatment unfolded subsequent to his admission in June 2011, three physicians began to have very serious concerns that K. was a victim of medical child abuse (or Munchausen Syndrome by Proxy as this is sometimes referred to). These concerns focused directly on Ms. K. as she had been the parent who was with K. at the hospital (with Mr. K. returning to Thunder Bay to work and attending at the hospital when he could).

[13] Dr. Atkison's medical report stated the reason for his concerns. Dr. Atkison compared K. to the many children he had seen with similar bowel problems. He stated that K. had an unusually large number of infections, in contrast to most patients. The hospital was unable to clear the infections and the hospital was unable to maintain the peripheral intravenous lines ("I.V.'s") even in the pediatric critical care unit. Dr. Atkison describes the mother as being extraordinarily resistant to advancing K.'s feeds or other intervention such as physiotherapy or assistance with oral stimulation. He described that most parents just want to get out of a hospital rather than prolong the stay. Ms. K. was described as having an excessive fascination with K.'s problems and diagnosis or lack thereof. He described Ms. K. as playing one member of the team against another. Staff were voicing concerns about Ms. K. and her interactions with K. and staff.

[14] According to Dr. Atkison, K. developed more and more unusual infections with up to three or four strains of bacteria at the same time. It was Dr. Atkison's information that on two occasions Ms. K. had advised nursing staff that she was permitted to give medication to K. when according to Dr. Atkison that was not the case.

[15] Dr. Atkison specifically reported that K.'s salt levels had dropped during a period of time when Ms. K. was apparently giving medication. After Dr. Atkison had clarified again that only nursing staff could give medications, Dr. Atkison reported that K.'s salt level again promptly corrected.

[16] Dr. Marina Salvadori was consulted by Dr. Atkison to give an opinion regarding the potential source of K.'s infections.

[17] Dr. Salvadori conducted a number of tests to identify the organisms or bacteria that were causing the infections. Dr. Salvadori referred to one particular organism, Raoultella planticola. Dr. Salvadori stated she has been working in the field of infectious diseases for 17 years and she had never seen an infection with this organism and it was an extremely rare cause of human infection.

[18] After examining the entire course of K.'s history and complex medical issues, Dr. Salvadori stated she had "a strong suspicion of factitious illness" and that it was her professional judgment that there was a greater than 95% probability that "factitious disease as well as lack of compliance with the health care team on the part of the mother are contributing to the serious, potentially life threatening, illness of this child". Dr. Salvadori discussed her concerns privately with Dr. Atkison and she also spoke to Dr. Kevin Bax. Dr. Salvadori specifically noted in her report that prior to her seeing K. that Dr. Atkison and Dr. Bax had not mentioned to her their concerns regarding factitious illness. She then learned on speaking to Dr. Atkison and Dr. Bax that they also had the same concerns.

[19] Dr. Kevin Bax provided a medical report. He had been involved in K.'s care for nearly a year. He is a pediatric gastroenterologist. Dr. Bax, as did Dr. Atkison, referred to an episode during which K. became suddenly and severely ill with "septic and shock like symptoms". K. required resuscitation but recovered within a day. Dr. Bax indicated that there was no obvious etiology for the septic shock and after investigating further, formed the opinion that K.'s hospitalization and recovery strongly suggest that K.'s mother was the source of K.'s condition over other potential causes.

[20] As a result of the various concerns expressed by K.'s physicians, and also other health care providers, the Society apprehended K. while he was in hospital. The apprehension took place in the latter part of October 2011 without any prior warning or notice to the parents and without alerting the parents to the Society's concerns.

[21] On October 28, 2011 Templeton J. made an interim without prejudice temporary care and custody order requiring K. to remain in Society care and authorizing the Society to consent to K.'s medical treatment.

[22] Templeton J. also ordered that there would be no access to K. by the parents or any family member for a period of at least three weeks pending the return of the application for argument. On December 21, 2011 Templeton J. continued the order requiring K. to remain in the temporary care and custody of the Society but Templeton J. permitted some specific supervised access over the Christmas period to the parents with the condition that Ms. K. "shall not, under any circumstances, be left alone with the child and is prohibited from feeding or changing the child or otherwise being involved in the physical care of the child". On March 22, 2012 Donohue J. made an order that the parents have reasonable access to K. to be supervised by the Society but that Ms. K. was prohibited from feeding or changing the child or otherwise being involved in the physical care of the child. The matter was then adjourned until March 30 to deal with the remaining issues.

[23] That motion came on before Templeton J. and she ordered on April 2, 2012 that K. shall remain in the temporary care and custody of the Society until such time as the "g-tube" has been removed, the site heals and a further period of time for assessment and monitoring of K.'s health has elapsed to the satisfaction of the medical team in London.

[24] That order also provided that the parents shall undergo an assessment (referred to as "CAAP assessment" or "assessment") by the Child Advocacy and Assessment Program at McMaster Children's Hospital pursuant to s. 54 Child and Family Services Act (the "Act").

[25] Medical evidence subsequent to the apprehension included information that K. made quick and significant progress in the improvement of his health including his feeding. Some of these changes were noted in the medical reports to have occurred very soon after Templeton J's. initial order on October 28, 2011 prohibiting any access by the parents or extended family.

[26] The CAAP assessment report is very detailed and consists of 58 pages. The protocol used for the CAAP assessment was a multi-disciplinary team approach. According to the assessment, the CAAP members who were involved with the assessment are Dr. Harriet MacMillan (pediatrician and psychiatrist), Dr. Anne Niec (pediatrician), Ms. Anna Marie Pietrantonio (clinical specialist) and Ms. Debra Riggs (child life specialist). The assessment is dated February 22, 2013. For reasons that are not clear, only three of the four CAAP members signed the assessment. Dr. MacMillan did not sign it. There is a fourth signatory, Sandra Spree (RN pediatric nurse) who is not identified (see page 2) as being involved in the assessment. This is somewhat concerning and may be an issue at trial. The interviews for the assessment were concluded before the end of August 2012 but Mr. K. and Ms. K. were provided feedback via a video conference call in late November 2012, at which time Mr. and Ms. K. provided the assessors with an update since their prior contact with CAAP.

[27] Templeton J's. endorsement dated April 2, 2012 stated that, upon discharge from all supervision by the medical team in London, K. is permitted to travel to Thunder Bay and be placed solely in the temporary care and control of the maternal grandmother W.C. ("Ms. C."). This occurred on June 15, 2012 when Henderson J. placed K. in Ms. C.'s care pursuant to an interim supervision order.

[28] A further order was made on December 7, 2012, dealing with supervised access, and on December 21, 2012 pursuant to my order, K. was to remain placed in the care of his maternal grandmother subject to Society supervision and numerous terms and conditions. That order also provided for reasonable supervised access to K. by the parents and the order imposed conditions relating to access. The effect of this order, as in previous orders, was that the parents could only have supervised access to K. but the supervision was done by various extended family members, including Ms. C.

[29] The response of the parents to the Society's evidence is firstly to deny that medical child abuse has occurred. Ms. K. has provided detailed affidavit evidence to give her version of events and she lists a number of concerns and provides a lengthy background aimed at absolving herself of any culpability in this matter. She presents herself as a parent, at times somewhat stressed, dealing the best she could with the difficult situation of K.'s ongoing hospitalizations and presenting symptoms.

[30] In their affidavit material, both parents take significant issue with Dr. Atkison's conclusions. The parents' affidavits display hostility toward Dr. Atkison and they blame him for coming to an inaccurate conclusion as to the existence of medical child abuse.

[31] The parents, however, remain committed to the return of K. to their care and they understand that this needs to be done in a somewhat incremental manner. The parents' affidavits indicate a feeling of betrayal towards some of the hospital staff who filed affidavits and/or provided information on behalf of the Society.

[32] It is the position of the parents that K. was in fact responding to treatment, that he was progressing, and the parents submit that the fact that K. continued to do better after he was apprehended was simply the natural course of his progress towards the path of improvement that he was already on.

The CAAP Assessment

[33] The assessment states that CAAP has significant concerns regarding K.'s health history and ongoing vulnerability given his experiences to date. The assessment states (at page 43): "In reviewing the medical information provided for this assessment, there is compelling evidence to support that K. experienced medical child abuse."

[34] The assessment confirmed that CAAP had been asked to complete a parenting capacity assessment of Mr. K. and Ms. K. due to concerns that Ms. K., in particular, had contributed to potential harmful medical care to K. or directly caused harm to K. during his hospitalization (page 41).

[35] The assessment describes this type of behaviour as a form of child maltreatment that is referred to as "medical child abuse." The assessment notes that terms such as "Munchausen Syndrome by Proxy (MSBP), Factitious Disorder by Proxy (FPP), Pediatric Condition Falsification and a more recent term, Caregiver Falsified Illness are terms that have been or are sometimes also used in similar circumstances" (page 41).

[36] The assessors state (at page 45) that in order to mitigate the impact of K.'s experience of maltreatment and adversity that this is in part accomplished by minimizing his risk for further maltreatment and trauma and ensuring a stable and consistent parenting environment.

[37] It was noted in the CAAP assessment that, although K.'s developmental functioning was not formally assessed, concerns were observed by CAAP. The assessment indicates that K. (at 27 months) had demonstrated deficits regarding expressive communication skills. Socially, K. demonstrated age-appropriate independent parallel play and, additionally, K.'s gross motor skills seemed to be age-appropriate, although his fine motor skills were observed to be delayed. Improvements were noted at the observation session two months later but although K.'s language skills were improved, they continued to be delayed, being 15 - 18 months of age level equivalent (page 43).

[38] In relation to any plan that would see care of K. transition to the parents' care, CAAP stated that if K. were to have any unusual and inexplicable presentations or health concerns, this could lead to his removal from the parents' care. It was also noted by CAAP that there would be concerns and risks regarding any other child in the parents' care as a result of the history with K. CAAP emphasized that Ms. K.'s actions would remain under the scrutiny of the healthcare team and the Children's Aid Society (see page 53).

[39] The basic finding of the CAAP report is summarized in the following paragraph found at page 53:

There is compelling evidence to support that [K.] has experienced medical child abuse while in the care of his parents. Furthermore, there is compelling evidence to support that Ms. [K.] over-reported concerns regarding [K.]'s pain and discomfort, interfered with [K.]'s treatments (IV's) and failing to give medications as directed by the medical team. Additionally, there is some evidence to support that Ms. [K.] may have fabricated and/or induced illness in [K.]. As outlined in extensive court documents, there was a high frequency of infections including a specific pathogen, Raoultella planticola, that is rare. The challenge that remains is that Ms. [K.] has never been directly observed administering inappropriate medications or tampering with [K.]'s IV. However, when restrictions were imposed and Ms. [K.]'s direct care of [K.] was limited, [K.]'s health improved.

[40] The recommendations in the CAAP assessment include the following (and this is not an exhaustive list):

1. Incremental increase in access between the parents and K. Supervised access can be facilitated in the maternal grandmother's home supervised by her. After a period of successful supervised access, then unsupervised access for brief periods initially and then longer periods can be introduced. This process must be monitored by the Society. If K.'s access with his parents is successful, then K. can be slowly transitioned into his parents' care.

2. The Society will need to be involved in the long-term. If K. presents any unusual and inexplicable presentations or health concerns, CAAP recommends removing K. from his parents' care.

3. K. should have one primary healthcare provider and that physician should have complete disclosure of the health history, including concerns regarding Ms. K.

4. K. would derive benefit from involvement in a high quality daycare setting to allow his learning needs and social and emotional function to be supported in a stimulating environment.

5. K. should have ongoing support from developmental services and the community given the concerns for K.'s speech and language development.

6. CAAP strongly supports the parents' ongoing involvement with counselling services to address "underlying communication and challenges to their relationship."

7. CAAP supports that Ms. K. attend for individual psychotherapy to develop stress management skills and coping strategies. CAAP further recommends that Ms. K. would benefit from a psychological assessment to address underlying learning deficits, emotional and personal functioning.

DISCUSSION

[41] Matters dealing with medical child abuse can be very complex, posing significant issues with no simple or easy solution - such is the present case.

[42] This is a motion, not a trial. Any findings by the court on the central issue as to whether medical child abuse has occurred cannot be made on the basis of conflicting motion material. Given the denial by the parents, such a finding, if it is made, falls within the purview of the trial judge who will have the benefit of the full evidentiary record.

[43] The temporary order to be made on the present motions is governed by s. 51. K. is required to be returned to his parents, either with, or without, Society supervision unless a more restrictive order is mandated by the criteria as set out in s. 51(3) that states as follows:

The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

[44] When making a decision pursuant to s. 51 the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances: s. 51(7) of the Act.

[45] The proper interpretation of s. 51(3) is that "… the [Society] must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if the child is returned to his parents, it is more probable than not that he will suffer harm. Further the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents": see Children's Aid Society of Ottawa - Carlton v. T., 2000 ONSC 21157, [2000] O.J. 2273 (SCJ) at paragraph 10.

[46] The sole and only focus of the court is K. - the order must promote K.'s best interests, protection, and well-being (see s. 1 of the Act).

[47] The order to be made is not about the parents or their needs or the needs, concerns and desires of K.'s extended family. Clearly this case has been traumatic and challenging for the parents and their extended families. It is important to acknowledge, which I do, the significant support received from the parents' extended families - and in particular Ms. C., who stepped forward and agreed to have K. placed with her pursuant to a temporary supervision order a little over a year ago. The parents' supportive family network is also acknowledged in the assessment as a positive factor.

[48] Although the parents and extended families are very supportive, the evidence demonstrates a palpable groundswell of impatience from the parents and their extended families who are all advocating for a quick reunification with K. and his parents.

[49] On the motions before me it is not my role to make findings with respect to the conclusions and recommendations in the assessment. That is for a trial judge. The assessment and the medical evidence, at this juncture, however, do constitute credible and trustworthy evidence.

[50] As previously indicated the parents deny medical child abuse and have put forth their own explanations. It may be that at a trial, where witnesses are subjected to the rigors of cross-examination, that a finding of medical child abuse will not be supportable on a balance of probabilities.

[51] At this stage of the proceeding, the credible and trustworthy evidence constitutes reasonable grounds to believe that if K. is returned to his parents, even with a supervision order, there is a risk that K. is likely to suffer harm.

[52] Accordingly at this time, on a temporary basis, the interim supervision order will continue together with most of the existing terms and conditions as set out in the order below.

[53] The complex factual matrix that presents itself necessitates, in my view, the full inquiry of a trial process to determine whether, or when, K. can return home permanently with his parents, and if so, under what conditions. This weighty decision is most unlikely to be made on a paper record - the court needs to hear from the parents and other witnesses.

[54] The proper approach at this interim stage encompasses the following factors and considerations:

a) The potential risk to K. is such that Ms. K. at this time should not be left alone with K. under any circumstance.

b) The court needs to have reports from the counsellors referred to in Mr. K.'s affidavit sworn April 8, 2013 - this would be in relation to the individual counselling attended by Ms. K. since November 2011, and the joint counselling attended by both Mr. K. and Ms. K. since April 2012. In relation to Ms. K., the court expects that the therapist's report would address any progress or gains made by Ms. K. The therapist's report should verify that the therapist has reviewed the CAAP assessment. It would also be the court's expectation that the therapist providing the joint counselling has also reviewed the CAAP assessment.

c) Pending trial, increases to the parents' access and any lessening of access restrictions must occur in a careful, measured and deliberate way. This means that where a set of access provisions and restrictions has been ordered on a temporary basis, that any expansion of access, or lessening of restrictions, has to be approved by the court. At that time the court should be provided with brief affidavit evidence updating the court as to relevant facts since the last order, together with updated reports from the child's pediatrician and updated reports from all therapists and or counsellors involved with the parents.

d) K. shall continue to attend at his current daycare. There is a significant benefit to K. in going to daycare and this benefit is also acknowledged by both parents (see paragraph 24 of Mr. K.'s affidavit sworn April 8, 2013).

e) The evidence on the motion is compelling that the court ordered temporary access, to date, has been beneficial to K. No issues have been identified. Ms. C.'s logbook entries from December 12, 2012 to March 2013 detailing the access visits (as required by the court order) are most helpful. That evidence supports that K. has had an excellent and meaningful relationship with his parents, that he loves his parents and misses them when they are not present. (I have read all of the aforementioned logbook entries).

f) The evidence at this time justifies an expansion of access and some lessening of access restrictions. I find that where access is supervised, the parents and their access supervisors should be able to make whatever arrangements are agreeable between themselves, subject to some limitations, primarily around overnight access, and with prior notice to the Society. K. should be able to see his parents daily. Persons who are approved to act as supervisors are named in the order below.

g) The most difficult issue is whether, and to what extent, unsupervised access should be permitted.

h) The fact that the present access supervisors all appear to believe that Ms. K. poses little or no risk to K. is, in and of itself, a risk factor. However, so far, the evidence suggests that all access supervisors have met their obligations without incident. For that reason, at this time, their role of supervising access will continue.

i) Mr. K.'s position, however, is unique. As K.'s father, Mr. K. may play a pivotal role in any plan to return K. to his parents after trial if medical child abuse is verified. Mr. K., and I say this respectfully, does himself a significant disservice by referring to "all the pain and suffering caused by Dr. Atkison" in his email dated March 5, 2013 that he forwarded to Ms. Colleen Howard, the Society child protection worker. Although in fairness to Mr. K. it appears that this email was sent before his counsel was provided with the assessment, it remains a fact, for the purpose of the motions, that concerns as to medical child abuse at the London Children's Hospital were wide ranging and emanated from a number of sources including three medical specialists and other various health care providers and/or social workers at the hospital.

j) I find for now it is appropriate to allow Mr. K. and Ms. K. together, or Mr. K. alone, to spend time with K. unsupervised. The order below describes those limited circumstances. Although no issues have been reported to date regarding the access, that would be expected as all access has been supervised. This next stage, that involves some unsupervised access, represents a critical step. At this time the evidence is that K.'s appetite and eating habits are quite healthy (as particularly described in the logbook entries). His feeding tubes have long since been removed. K. is now approximately age three and a half. The order below structures the unsupervised access with sufficient "eyes" on the situation, including pickup and drop-off, to address any potential risk to K.

k) Despite Mr. Winninger's capable and forceful submissions to the contrary, the order below is more restrictive than proposed by the parents. I find that the parents' proposal fails to address sufficiently the risk to K. Their proposal, unrealistically, has K. living his parents within a fairly brief time interval and the proposal does not permit ongoing court approval as to gradual increases in access and lessening of restrictions. The parents' proposal assume that the court can in effect return the child to the parents without a trial - an unlikely situation, as discussed above, especially given the parents denials, to date, that medical child abuse has occurred.

[55] This case requires the following steps:

a) It is necessary to deal with the outstanding motion as to whether this case is to be transferred to Thunder Bay, and the next steps, including a settlement conference and setting a trial date.

b) An issue to be addressed is whether the CAAP assessment should be updated. The parties are encouraged to discuss the viability of same and any potential timelines.

c) The parents or the Society should have an opportunity to bring further motions regarding expansion of access pending trial.

[56] The order below provides that I am seized of all further motions in this proceeding including setting dates for case management.

Distribution of the CAAP Assessment

[57] The Society seeks an order that the CAAP assessment be provided to Dr. Joel Warkentin (K.'s pediatrician), Children's Hospital London Health Sciences Centre, K.'s daycare, the Children's Centre in Thunder Bay where K. is attending and all five current access supervisors.

[58] There is some resistance by the parents as to the distribution proposed by the Society. The Society replies that perhaps the assessment could be provided but with some information being redacted.

[59] At the conclusion of argument the court permitted Mr. Murray to make brief comments. Mr. Murray requested that the assessment be provided to the Children's Centre in Thunder Bay.

[60] The Society's request, as it relates to the access supervisors, seems moot, as Mr. K.'s evidence is that those access supervisors have "all received and reviewed copies" of the assessment (see paragraph 27 of Mr. K.' affidavit sworn April 8, 2013). It would have been my preference that the access supervisor would only receive an edited copy of the assessment. If the Society needs to replace any access supervisors, then the replacement supervisor shall receive an edited copy. The order below does restrict the access supervisors' rights to circulate the assessment.

[61] It is appropriate for the CAAP report to be distributed by the Society to the child's pediatrician, and to Children's Hospital London Health Sciences Centre to be forwarded to the records section to be added to K.'s chart.

[62] Edited copies of the assessment also should be provided to K.'s daycare and to Children's Services Thunder Bay if that agency has or will be providing services to K. and/or his parents. The details of what may be provided are set out in the order below.

[63] The order below is no longer described as a without prejudice order as the parties have had an opportunity to present full argument on extensive materials filed.

ORDER

[64] My order dated December 21, 2012 is vacated in its entirety.

[65] K.K., age 3, shall continue to be placed in the care of his maternal grandmother W.C. subject to the supervision of the Children's Aid Society of London and Middlesex ("Society") or its agent, pending any further order of the court, on the following terms and conditions:

i. That the respondents, D.K. ("Ms. K.") and D.K. ("Mr. K."), participate in counselling as recommended by the Society.

ii. That the maternal grandmother, W.C. ("Ms. C."), ensure that the child is seen regularly by Dr. Joel Warkentin, at a frequency recommended by that physician and follow through with all medical treatment as recommended by that physician.

iii. That the maternal grandmother, Ms. C., shall advise the Society or its agent immediately upon any concern arising regarding K.K.'s health or development and provide detailed particulars of the concerns, no matter how minor.

iv. That the maternal grandmother, Ms. C., only take K.K. to Dr. Warkentin or one of his partners at the Thunder Bay Medical Centre or to the nearest emergency department if medical treatment is required.

v. That the maternal grandmother, Ms. C., and the parents, Mr. K. and Ms. K., will ensure that all medical records pertaining to K.K. shall be promptly made available to the Society or its agent upon request.

vi. That the maternal grandmother, Ms. C., ensure that K.K. is followed by a dietician/nurse practitioner and speech and language specialist or any professional that Dr. Warkentin recommends for as frequently or as long as deemed necessary.

vii. That the maternal grandmother, Ms. C., take K.K. to his physician or Emergency Department at any point in time where there is a medical concern.

viii. That the respondents, Ms. K. and Mr. K., participate in parenting education as recommended by the Society.

ix. That the respondents, Ms. K. and Mr. K., sign all necessary consents for the release of information to and from the Society as requested by the Society and specifically including but not limited to community professionals such as dieticians, speech and language therapists and daycare staff.

x. That the maternal grandmother, Ms. C., sign all necessary consents for release of information to and from the Society as requested by the Society.

xi. That the maternal grandmother, Ms. C., allow scheduled and unscheduled access to the home and cooperate with the Society protection worker and a Society kinship worker from the Society as requested by the Society.

xii. That the maternal grandmother, Ms. C., allow a worker from the Society to have independent access to K.K.

xiii. That the respondents, Ms. K. and Mr. K., inform the Society of any change of address and/or telephone number change prior to such change occurring.

xiv. That the maternal grandmother, Ms. C., inform the Society of any change in address and/or telephone number change prior to such change occurring.

xv. That the maternal grandmother, Ms. C., will use only alternative care givers for the child who have been approved in advance in writing by the Society.

xvi. That the maternal grandmother, Ms. C., not allow the respondents, Mr. K. and Ms. K., to have access to K.K. except as authorized and upon the terms specified in this order.

xvii. That the respondents, Ms. K. and Mr. K., follow through with any treatment recommendations set out in the parenting capacity assessment prepared by the Child Advocacy and Assessment Program through McMaster University dated February 22, 2013, but without prejudice to the rights of the respondents on motion to request an order exempting either or both of them from any treatment recommendations pending trial.

xviii. The respondent, Ms. K., shall provide forthwith to the Society copies of all learning assessments or assessments of this nature in relation to Ms. K., and Ms. K. shall also complete a learning disability assessment or learning needs assessment by an assessor approved by the Society and Ms. K. shall authorize the assessor to provide a copy of the assessment to the Society.

xix. The respondents, Ms. K. and Mr. K., shall comply with the rules and regulations of the supervised access program should the visits have to revert to the supervised access program.

xx. The respondents, Ms. K. and Mr. K., are prohibited from having any access or contact with K.K. save and accept as provided in this order.

xxi. That the maternal grandmother, Ms. C., ensures that K.K. continues to attend regularly at his current daycare, or if any change in daycare is required to meet K.'s best interests, such other daycare as approved by the Society.

[66] The respondents, Ms. K. and Mr. K., shall have supervised access to K.K. ("the child") as follows:

a) Unless otherwise permitted by this order, all access shall occur between 7:00 a.m. and 8:00 p.m. and the access may be on a daily basis and at such times as may be agreed to by the respondents and Ms. C.

b) The persons who are authorized to supervise access are Ms. C. (maternal grandmother), S.M. (the maternal step-grandfather), L.A.K. (paternal grandfather), V.K. (paternal step-grandmother), and R.K. (paternal grandmother). If any of the access supervisors are no longer able or available to continue in that role, then the Society may authorize a person to replace that access supervisor.

c) If at any time Ms. C. wishes to terminate an access visit and expresses this to the respondents, then the respondents shall immediately end the access visit and if the access visit is occurring at Ms. C.'s residence, the respondents shall immediately leave her residence.

d) Ms. C. shall keep a log of the child's activities during the access visits and the respondents and Ms. C., and also any of the other persons who are supervising the access visit, shall sign the log at the end of each visit. The log shall be provided to the Society or its agent on a weekly basis or as otherwise requested by the Society.

e) Also, regarding unsupervised access, the respondents shall keep a log of their activities and shall sign the log at the end of the visit and the log shall be provided to the Society in the same manner as the log kept by Ms. C. for supervised visits.

f) The Society or its agent shall be permitted to attend at the home of Ms. C. or any access supervisor, or the respondents, in order to observe the access at any point during any scheduled access visit.

g) The Society shall have the right to suspend the ability of any person to supervise access visits, including the right to require all access visits to be supervised by the Society or its agent in a supervised access facility, but before any such steps are taken, the Society shall advise the respondents and Ms. C. in writing as to the reasons and the Society shall bring a motion seeking the court's approval as to its actions.

[67] In relation to overnight supervised access visits, the respondents may exercise such access subject to the following terms:

a) The access shall occur either at the residence of the respondents on condition that Ms. C. also spends the entire overnight at the respondent's residence, or alternatively, the overnight access may occur at the residence of Ms. C. and Ms. C. shall be there during the duration of the overnight access.

b) This overnight access may occur up to two times per week being Friday night or Saturday night or both. An overnight access visit during the week may be substituted for one of the weekend overnights, on written consent of the Society obtained in advance.

[68] The respondents may exercise unsupervised access subject to the following conditions:

a) Each week on Saturday or Sunday or both Saturday and Sunday, for a period of up to four hours each day, between the hours of 10:00 a.m. to 6:00 p.m.

b) This access may be exercised by Mr. K. alone, or together with Ms. K.

c) For all visits, K. shall be picked up from Ms. C.'s residence and returned to Ms. C.'s residence and Ms. C. shall be present for all pickups and drop-offs.

d) On weekdays, Mr. K. alone, or together with Ms. K., may pick-up K. from Ms. C.'s residence for the purpose of transporting K. to his daycare.

e) During the periods of unsupervised access as set out above, at no time shall Ms. K. be left alone with K., under any circumstances, and Mr. K. and Ms. C. shall ensure that this provision is complied with.

[69] By Tuesday of each week it shall be the joint responsibility of the respondents and Ms. C. to provide to the Society, in writing, the schedule for the supervised and unsupervised access that is to take place for the seven days starting the Friday of that week. During any periods of time that the respondents intend to exercise unsupervised access on the Saturday or Sunday of each weekend, then the respondents should include in that summary where they intend to be with the child including the address of any private residence (other than the respondents' residence or Ms. C.'s residence). The respondents shall not be permitted to exercise any access as provided in this order unless the details of the proposed access have been provided to the Society as set out in this order.

[70] I am seized with all further motions in this case including the setting of all court dates as part of the case management process and the setting of the trial date.

[71] The issue as to whether this proceeding should be transferred to the Ontario Court of Justice in Thunder Bay, and the matters dealing with further steps in this proceeding, are adjourned before me at 9:30 a.m. September 12, 2013 to be spoken to. The position of the Children's Aid Society of the District of Thunder Bay as to the transfer of this proceeding may be provided to the court on that date via a letter from that Society's counsel. If necessary, a date for the hearing of the motion to transfer shall be set on that date.

[72] Pending trial this order is without prejudice to the right of any party to bring a further motion to expand the access, and/or to lessen the access restrictions. The material on any such motion shall include updated reports from the child's pediatrician, and from any counsellor or therapist who is treating either or both of the respondents.

[73] A copy of the parenting capacity assessment dated February 22, 2013 and prepared by the Child Advocacy and Assessment program at McMaster's Children's Hospital (CAAP assessment) shall be forwarded by the Society to each of the following:

a) Dr. Joel Warkentin (the child's pediatrician); and

b) Children's Hospital London Health Sciences Centre to be forwarded to the hospital's records section and to be placed with the chart for K.K.

[74] An edited copy of the CAAP assessment shall be provided by the Society to:

a) The child's current daycare provider or any subsequent daycare provider, and any new access supervisor;

b) Children's Services Thunder Bay if that organization has, or will be providing, services to the child and/or the respondent parents; and

c) "Edited copy" of the CAAP assessment means:

i. Pages 1-4 inclusive and that portion of page 5 above the heading "interviews with Ms. D.K., mother";

ii. Pages 41-44 inclusive and that portion of page 45 above the heading "Ms. D.K.";

iii. That portion of page 53 starting with the heading "summary" up to and including page 58 (being the rest of the report).

[75] Any person who acts as an access supervisor in accordance with this order is prohibited from copying, providing, showing or disseminating in anyway, the CAAP assessment to any other person and the Society shall forward forthwith a letter to all access supervisors (and any future access supervisors) advising them as to this order.

[76] Nothing in this order prevents Ms. K. from providing a copy of the CAAP assessment to any counsellor or therapist who is providing counselling or therapy to Ms. K. provided that Ms. K. immediately notifies the Society in writing as to the name and address of the person to whom the CAAP assessment has been provided.

[77] Nothing in this order prevents Mr. K. from providing a copy of the CAAP assessment to any counsellor or therapist who is providing counselling or therapy to Mr. K. provided that Mr. K. immediately notifies the Society in writing as to the name and address of the person to whom the CAAP assessment has been provided.

[78] The Society shall forward a copy of this order, and the endorsement to counsel for the Children's Aid Society for the District of Thunder Bay.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: August 23, 2013