WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: FC-18-CP42 DATE: 2019/03/01

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF D.S., born XX, 2008, O.S., born XX, 2011, and X.S., born XX, 2013

BETWEEN:

Children’s Aid Society of Ottawa-Kanata Applicant – and – B.S. (Mother) Respondent D.S. (Father) Respondent

Counsel: Mark Hecht, for the Applicant Self-represented, for the Respondent Mother Giulianna Ferri, for the Respondent Father

HEARD: February 26, 2019 (at Ottawa)

Ruling on motion and cross motion FOR SUMMARY JUDGMENT

LINHARES DE SOUSA J.

FACTUAL BACKGROUND

[1] This matter concerns a protection application brought by the Children’s Aid Society of Ottawa-Kanata (the “Society”) dealing with three children, D.S. (DOB: […], 2008), O.S. (DOB: […], 2011) and X.S. (DOB: 20 […], 2013). The mother of the children is B.S., who is representing herself in this matter. The father is D.S. and was represented by counsel, Ms. G. Ferri in these proceedings.

[2] The Society first became involved with this family as a result of community and school reports about problematic behavior of the children. After becoming involved with the family, other child protection concerns were also revealed, namely high parental conflict and questions relating to the mental health of B. S. The parents of the children are now separated.

[3] Once the Society became involved with this family, D.S. cooperated with the Society, school and medical professional to ensure that his children received the professional help they needed to deal with their lack of academic progress and their serious behavioural issues.

[4] B. S. has refused to engage and to work cooperatively with the school officials and with the Society. Interactions between the parents continued to be conflictual. A number of professional and family sources, school officials, the Ottawa police service, B.S.’s brother, D.S. and Society workers have raised concerns relating to the mother’s mental health which she refused to acknowledge.

INTERIM ORDERS

[5] As a result, on May 14, 2018, Blishen J. granted an interim without prejudice supervision order, placing the children in the care of the father with specified terms and conditions, including a term that the mother’s access to the children be pre-approved by the Society.

[6] After the order of Blishen J., B.S. refused to leave the matrimonial home, necessitating the father leaving the matrimonial home with the children to reside elsewhere until Engelking J., almost one month later, on June 14, 2018, granted the father an order for exclusive possession of the matrimonial home so that he and the children could return to the home.

[7] In July of 2018, a fully contested care and custody motion was heard by Doyle J. The reasons for her endorsement are found in the Endorsement section of the Continuing Record. Among other reasons, Doyle J. found that the children were at risk of emotional harm and that the Society should continue to be involved with the family.

[8] There was evidence before the court that all three children continued to demonstrate very problematic behavior at school, negatively affecting their academic behavior.

[9] Justice Doyle also found, at page 3 of her endorsement, that on the evidence:

…The mother has shown lack of cooperation throughout the investigation. She has been confrontational and she did not want to meet with the Society even after interim order. She continues to question the validity of their intervention. She failed to obey court orders including attending the matrimonial home despite the order for exclusive possession.

[10] At pages 4 and 5 of the endorsement, Justice Doyle refers to the mother attending one access visit supervised by the Society and refusing to have any further visits, the insufficiency of the evidence regarding the determination of the mother’s mental health issues and the mother’s minimization of the effect of the parental conflict on the children, to the detriment of the children.

[11] Justice Doyle concluded that the risk of emotional harm to the children could be addressed by an order placing all three children with their father on the terms and conditions stipulated in the order.

[12] Justice Doyle ordered that access to B. S. be at the discretion of the Society.

CURRENT MOTIONS BEFORE THE COURT

[13] In December of 2018, B. S. brought a motion before this court seeking the following relief:

(a) lift the temporary care and custody order to the father made by Justice Blishen with immediacy;

(b) dismiss the Child Protection Application;

(c) dismiss the interim supervision order to be signed by Justice Doyle;

(d) have the Society cease and desist all proceedings against her;

(e) grant that all three children be returned to my (i.e. the mother’s) full care and custody, with access to the father on alternate weeks or for an equal time period that will be scheduled and agreed to;

(f) have the father attend information/counselling sessions on the topics of drug addiction and domestic abuse; and

(g) lift the interim exclusive possession of the matrimonial home and its contents order to the father made by Justice Engelking.

[14] The Society, by way of cross-motion in February, 2019, brought a motion for summary judgment in this matter pursuant to Rule 16 of the Family Law Rules.

[15] A number of items of relief sought by B.S. in her motion are unnecessary, improperly brought, or beyond the jurisdiction of the court in these proceedings. For instance, the temporary order of Justice Blishen is superseded by the order of Justice Doyle. The Court in this motion has no jurisdiction to order the Society to cease and desist all proceedings against her. Nonetheless, I have considered the items of relief sought by B.S. and have treated B.S.’s motion material as her reply, in substance, to the Society’s summary judgment motion. She did not specifically reply to the Society’s summary judgment motion.

[16] The Society seeks a finding by this court that the three children in this matter are in need of protection pursuant to sections 74(2)(f) and 74(2)(h) of the Child, Youth and Family Services Act (“the Act”) and that they be placed in the custody of their father, D.S., pursuant to section 102 of the Act with access to the mother, its frequency, duration and location to be determined by the father.

[17] The jurisprudence relating to when the court is to grant summary judgment is not contested and correctly stated in the Facta of both the Society and D.S.

[18] If the court is convinced on all of the evidence before it that there is “no genuine issue requiring a trial”, the court ought to make a final order accordingly. The powers and expanded powers relating to the treatment of the evidence under Rule 16 are clear. Blanket denials and assertions by B.S. are insufficient and she must specifically address what evidence before the court would necessitate a trial of an issue.

[19] With respect to the evidence before the court, since this matter has been before the courts, B.S. has continued to refuse to cooperate with the Society. She has refused any access visits under the supervision of the Society and preferred to not have such visits at all. As part of her oral submission, B.S. submitted that visits with her children under the supervision of the Society were unacceptable to her.

[20] There is evidence to indicate that despite not working with the Society in effecting meaningful access with her children, contrary to the existing order, B.S. has continually attempted to have unauthorized visits with the children at their home, school and activities. A number of these unilateral decisions, on her part, to visit with her children whenever she wanted, have resulted in the police being called by the children’s father. One of these occurred on Christmas day of 2018 to the upset of the children. As can also be seen from the evidence before the court, B.S. continues to improperly communicate with the children, speaking of the court proceedings and what she anticipated to be the results of those proceedings.

[21] It was clear from B.S.’s oral submissions that she is still fully convinced that she should have free and open access to her children in the family home and any other place she chooses. From the evidence presented by D.S., B.S. persistently continues to impress this point of view forcefully on him. It appears to be part of the conflictual dynamics in their relationship.

[22] With respect to the evidence of how the children are doing at home and at school, since the involvement of the Society with this family, since being in the exclusive care of their father, it is the Society’s view that the children have made gains, although problems remain. Based on their observations of D.S. in caring for the children and in their interactions with him, he has appropriately taken on the role of primary caregiver of the children. He has cooperated with the children’s school and the Society in ensuring that the children receive the extra help they need to progress academically and to deal with their problematic behavior. D.S. has enrolled the children in counselling and has pursued school programs for his children which need to be followed through on and D.S. is doing this and is willing to continue to do this.

[23] In her submissions on D.S.’s parenting abilities, B.S. expressed surprise that he has done so well as a parent to the children and she acknowledged his good parenting. Nonetheless, she submitted that it would still be in the best interests of the children to be in the equal care of her and D.S. with B.S. having final decision-making authority for her children.

[24] B.S. submitted that she did not see her past and ongoing conflict with D.S., whom she referred to as an abuser, as problematic because it was beneficial for the children to observe their parents arguing as a model for conflict resolution. Unfortunately, as the evidence shows substantial conflict went on between the parents without much conflict resolution. It is the evidence of D.S. that B.S. becomes hostile to him when she does not get her own way. Furthermore, B.S., in her interactions with the children, does not hesitate to undermine D.S.’s parenting decisions.

[25] With respect to the concerns for B.S.’s mental health, raised from numerous different and objective sources, the Society has sought of B.S. that she obtain a proper diagnosis and treatment plan. D.S. submits that he has witnessed the deterioration of B.S.’s mental health.

[26] It was the position of B.S. that she did request of Dr. Clersaint of the Westend Family Care Clinic FHT a referral for a formal “psychological evaluation”. However, she has now changed her mind and finds herself stronger than ever, in the course of these proceedings.

[27] I conclude from this that B.S. does not intend to do anything further with respect to this concern raised by the Society, by her spouse and family and by the evidence. As a result this court now, as at the time of the order of Justice Doyle in July of 2018, continues to not have sufficient evidence before it to determine the mother’s mental health issues but which clearly continue to linger and appear to be problematic.

[28] Much of B.S.’s evidence speaks to her parenting capacity and her ability to care and engage her children in various activities. No one can take issue with this, nor can any one question the love B.S. has for her children. However, in response to the protection concerns raised in these proceedings, B.S. has not provided any substantial evidence addressing the specific concerns raised by the evidence. In this regard, B.S.’s evidence is blanket denials and assertions and allegations of wrongful processes. She submits that the Society’s evidence is embellished, biased, based on wrongful assumptions, false and erroneous information and exceeding the Society’s mandate. None of these declarations in any way speak to the specifics of the child protection evidence before the court.

[29] As Justice Doyle found in July of 2018, B.S. continues to not acknowledge her contribution to the crisis of her family that led to the involvement of the Society. B.S. submitted that the Society may have a role to play in other families but not in hers. B.S. has shown herself again and again to not respect court orders; she does what she wants in opposition to the father’s parenting which inevitably results in upsetting incidents for the children. D.S.’s material is peppered with examples of these unfortunate events.

DISPOSITION

[30] Based on the above, I am persuaded that the Society has met the onus on the summary judgment motion and has persuaded the court of the two issues in this matter, namely, whether the children are in need of protection and what disposition is in their best interests. On these two questions there is no genuine issue requiring a trial.

[31] The evidence clearly establishes that co-parenting is impossible on the facts of this case and as a result of B.S.’s behaviour. Unless unequivocal parenting authority is established and the children’s contact with their mother is carefully managed, the children suffer emotional harm and will continue to be at risk of emotional harm. A finding that the children are in need of protection is made.

[32] D.S. has shown himself to be a capable and able parent, prepared to protect these children from the harmful conduct of their mother and the matrimonial conflict and prepared to work with all of the professional services these children need to heal and thrive. It is therefore ordered that the three children are to be placed in the sole custody of their father, pursuant to section 102 of the Act.

[33] D.S. has also asked for the following orders, which in my view, are justified by the evidence and so are also ordered:

(a) an order that the mother, B.S., shall immediately deliver the children’s passports, medical files, and immunization records to the father;

(b) an order that the father shall maintain possession of the children’s health cards;

(c) an order that the father shall be entitled to apply for the children’s passports and travel with the children, inside or outside of Canada, without the need or requirement to have written permission from the mother;

(d) an order that the father shall be entitled to relocate outside of Ottawa with the children, without the need or requirement to have written permission from the mother, provided the father gives the mother notice of 60 days of the relocation;

(e) an order that the children shall have supervised access with their mother, in accordance with the following:

(i) the mother’s access shall at all times be supervised by either a supervised access centre, or a third party, at the discretion of the father;

(ii) the mother’s access shall occur at either a supervised access centre, the home of the third-party supervisor, or in a public place; and

(iii) the frequency and duration of the mother’s access shall be at the father’s discretion;

(a) an order that the mother’s access, including the level of supervision required, will be reviewed by the parents and the Society if and when the mother completes a mental health assessment, and once she demonstrates that she has followed through with the recommendations of the mental health professionals involved; and

(b) an order restraining the mother, B.S., from attending within 500 metres of the matrimonial home (located at 109 Canter Boulevard, Ottawa, ON), the father’s place of work, the children’s school, or any location the mother knows, ought to know, or otherwise comes to know that the father or the children may be, except in accordance with any court order regarding access.

[34] The last issue to be decided is costs. All parties shall have two weeks from the date of this order to serve and file their written submissions on costs.

Madam Justice Maria Linhares de Sousa

Released: March 1, 2019

Court File and Parties (Summary)

COURT FILE NO.: FC-18-CP42 DATE: 2019/03/01

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF A.R, born XX, 2010

BETWEEN:

Children’s Aid Society of Ottawa-Kanata Applicant – and – B.S. (Mother) Respondent D.S. (Father) Respondent

Ruling on motion and cross motion for summary judgment Linhares de Sousa J.

Released: March 1, 2019