NEWMARKET COURT FILE NO.: FC-18-56752-00

DATE: 2019-09-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jewish Family and Child Service of Greater Toronto, Applicant

AND:

D.M.G., Respondent

AND:

M.E., Respondent

BEFORE: The Honourable Mr. Justice R.T. Bennett

COUNSEL: L. Glass, Counsel for the Applicant

Respondent D.M.G. – Self-represented

Respondent M.E. – Self-represented

OCL – W. Kitchen

HEARD: September 19, 2019

WARNING

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

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

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

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

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

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

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

ENDORSEMENT

Society Motion to Withdraw

[1] The Jewish Family and Child Service of Greater Toronto (the “Society”) brings a motion dated August 28, 2019 seeking an Order granting them leave to withdraw the protection application dated August 1, 2018 and terminating the temporary Orders made by this court October 19, 2018 and August 9, 2019.

[2] The Society’s motion is supported by M.E. (the “respondent father”) and the OCL and is opposed by D.M.G. (the “respondent mother”).

[3] This motion was originally scheduled by the Society for September 12, 2019. However, given that the court had in excess of 30 matters on its list that day the court was unable to deal with the motion and hence it was adjourned to September 19, 2019.

[4] In child protection applications, the applicant is not entitled to withdraw its application without leave of the court.

Background

[5] The child who is the subject of this protection action is J.S.C.E-G born […], 2008.

[6] The application indicated that the basis for seeking a finding that the child was in need of protection was due to the child having suffered emotional harm contrary to section 74(2) (f) of the Child Youth and Family Services Act, 2017, SO 2017, c 14 Sch 1. In addition, the application claimed that there was a risk that the child is likely to suffer emotional harm pursuant to section 74(2)(h).

[7] The application sought an Order placing the child in the care of the respondent mother subject to Society supervision for a period of six months.

[8] A temporary care and custody motion was first before this court August 7, 2018. At that time the court granted the respondent father’s request for an adjournment so that he could retain counsel. That motion was adjourned to October 9, 2018. On that date the court heard the Society’s motion and at that time the respondent father was represented by counsel.

[9] The court issued a 26 page endorsement October 19, 2018 which included a 21 paragraph order.

[10] The court will not repeat all of the findings made in that October 19, 2018 ruling but will reference certain findings that this court believes are relevant to the determination of this motion.

[11] The parties separated when the child was five months old and all parties would agree that this has been a high conflict separation.

[12] The parties were scheduled to begin a family law trial in June 2011 but at the commencement of the trial entered into a consent Order. This provided for primary residence of the child with the respondent mother and decision making to be with the respondent mother with an obligation to give the respondent father 90 days’ notice of any such decisions.

Society Involvement

[13] The Society first became involved with this family on November 9, 2008 (when the child was five months of age) as a result of conflict between the parents. The respondent father had left the home, leaving J.S.C.E-G with the respondent mother and her older child.

[14] The Society next became involved February 24, 2009 based on an allegation that the respondent mother would not release the child to the respondent father.

[15] Six months later on August 11, 2009 the Society was once again involved as a result of the respondent father allegedly accidentally locking the child in his car.

[16] A further six months later the Society was once again involved as the respondent mother had contacted the police February 22, 2010 alleging that the father had been 20 minutes late returning the child.

[17] Less than two months after that the respondent father contacted the Society on April 18, 2011 alleging physical and dental neglect by the mother.

[18] The Society was contacted after a further six months by the child’s then daycare as a result of an allegation that the respondent father had insisted that the child write with his left hand and was having difficulty doing so.

[19] Approximately nine months later on […], 2012 the Society became involved as a result of a call to the police by the respondent mother alleging that the respondent father was refusing to return the child the next day for his birthday. In addition to calling the police, the respondent mother had contacted the Society alleging parental alienation by the respondent father.

[20] Two months later on August 22, 2012 the Society was contacted by the respondent mother’s therapist who had been previously working with both parties during the marriage. The therapist reported that the respondent father had allegedly made negative comments about the respondent mother in the presence of the child.

[21] Three months following that in November 2012 the Society was contacted by the child’s daycare supervisor reporting concerns about allegations being made by the respondent father of physical harm to the child by the daycare staff. The daycare offered him an opportunity to view surveillance footage which he declined but allegedly became quite verbally aggressive with the staff.

[22] Ten months later on September 28, 2013 the police contacted the Society to report a domestic incident in which the respondent father alleged that the respondent mother was trespassing on his property while attending to pick up the child at the conclusion of the respondent father’s time with the child.

[23] Less than two months later, on November 14, 2013 the respondent father contacted the Society to report visible spots on the child’s body following access with the mother. He alleged that a doctor had confirmed that this was from bedbug bites. The pediatrician however confirmed to the Society that he had never said that and attributed spots to a rash. The Society noted that the child voluntarily lifted his shirt exposing his chest explaining “I got these” presumably referencing marks which the Society did not observe. Other allegations made by the respondent father at that time were not corroborated by the interview between the Society and the child even though it was the child who allegedly had told the respondent father about these allegations.

[24] Three months later, at a family group conference, the respondent father disclosed to the Society that he had sought out another medical opinion regarding the “bedbug bites.” The Society concluded that the respondent father at that time had continued to seek out professionals until he received an answer with which he agreed.

[25] Approximately two weeks after that family group conference, on February 18, 2014 the Society closed its file cautioning the parents about potential emotional harm should conflict continue and provided the parents with recommendations for services in the community.

[26] Less than two months later, on April 14, 2015 the respondent father alleged that the child had disclosed that his mother had “choked him.” When the Society investigated, the respondent mother indicated that she was not surprised by the allegation as the child had made the same (unfounded as claimed by her) allegation to her that morning.

[27] Seven months later, on January 19, 2016 the afterschool program contacted the Society as a result of the child complaining of and them observing three small bruises on the child’s neck which appeared to be fingerprints. This was observed after the child had spent the three previous days with the father. The child professed however that this injury occurred at a soccer game.

[28] Some two months later, on March 26, 2016 the Society received a letter from the then parenting assessor Linda Pearl who reported allegations of severe emotional harm by the parents and who opined that the child was “virtually a candidate for residential treatment” and “there is no doubt in my mind that he is a child in need of protection.” Investigation and interviews by the Society with the school found that they disagreed with that assessment.

Referral to Society by Justice Wilson

[29] The court notes that Justice Wilson who had been dealing with this family in Family Court matters had, at a Case Conference on July 28, 2017 on her own initiative contacted the Society to advise that she was making an Order that the Society open a file on this family (the actual protection file was initiated August 1, 2018).

[30] Dr. Raymond Morris, a very experienced custody access assessor who had been acting as a parenting coordinator and was present in the courtroom, reported to Justice Wilson that he found the respondent mother had been making efforts to follow recommendations but at that time the respondent father had not been following the parenting coordinator’s recommendations and had refused to continue working with Dr. Morris.

[31] Justice Wilson indicated that she found the child was not at imminent risk at that point in time but, it was possible that the child would have to be taken into Society care in the future. Justice Wilson described the parties as “uncontrollable” in court and at that time both parties consented to the Society becoming involved.

[32] Following that referral through the protection worker Amanda Greene, the Society became involved and received multiple emails from the respondent mother complaining about the influence that the respondent father had on the child and his disrespectful attitude towards her.

[33] The Society learned that the respondent father had discussed with the child a possible school transfer despite the fact that Dr. Morris in a summary arbitration had concluded that the child would not be moving schools at least until the 2017/18 school year. This caused significant anxiety to the child.

[34] The protection worker’s conclusion at that time was that the respondent father focused heavily on his conflict with the respondent mother claiming that she was the initiator of the conflict. The worker also noted that the respondent father seemed unable to understand why the judge worried about the child’s well-being. He claimed not to have recalled sharing information with the child about the school and agreed to refrain from doing so in the future.

[35] The court notes that in an August 18, 2017 meeting between the Society and Dr. Morris, Dr. Morris described the respondent father as “dishonest and manipulative as well as obsessed with gaining custody of the child.” Dr. Morris also noted that while the respondent mother was intelligent and analytical she was also perseverating.

[36] Justice Wilson had ordered counselling for the child preferably with Dr. Helen Radovanovic.

[37] The Society continued to work with the parents and noted that Dr. Radovanovic found that the child was “one of the most distressed kids that she had seen in quite some time.”

[38] Dr. Radovanovic also found that the child clearly had too much knowledge about “adult issues.”

[39] At that time issues involved, among others, conflict about soccer, Hebrew school, cell phone and a proposed change in schools (as referenced earlier).

[40] At that time Dr. Radovanovic concluded that the child “appeared to be quite aligned with his father” and that “there is a clear indication that the child feels caught in the middle.”

[41] On January 24, 2018 a group planning session was held including the parents and Dr. Radovanovic which included recommendations to use a parenting coordinator.

[42] Two days later, on January 26, 2018 the respondent father reported the child had disclosed that the respondent mother had “choked him.” This allegation was denied by the child.

[43] A further issue had arisen whereby the respondent father had unilaterally signed the child up for Hebrew school without the respondent mother’s consent. The child was aware of this as well as the issue between his parents regarding soccer.

[44] The child also disclosed to a Society worker in February 2018 that he thought he would do better at a nearby public school even though he did not wish to leave his current school. The court notes that this was an issue that was being pursued by the respondent father at the time. Dr. Radovanovic was of the firm opinion that the child should not be moving schools at that time.

[45] On April 10, 2018 at a Case Conference before Justice Wilson in the family matter that the court changed into a motion Her Honour made an Order that,

(a) that the child attend Pine Grove School for the 2018/19 academic year;

(b) that the Society worker would explain that placement to the child and neither parent would initiate any discussions about school placement with the child;

(c) that future school placement does not need to be addressed unless so advised by the child’s therapist teacher or Society;

(d) that the parties agree to have a parenting arbitrator make decisions; and

(e) that the child’s soccer placement be such that he remain with his current team unless otherwise directed by the parenting arbitrator.

[46] Notwithstanding these clear directives by the court the respondent father acknowledged to the Society that he continued to question the child regarding soccer, Hebrew school, and time spent with his mother and that he wanted to raise again the issue of school placement even though the Society made it clear it was not open for discussion.

[47] It was in that Order that Justice Wilson recommended that the Society may have no alternative but to intervene and have the child declared in need of protection and removed from the parents’ care.

This Court’s Temporary Care and Custody Order of October 19, 2018

[48] The court found that the child should be placed in the care and custody of the respondent mother subject to Society supervision.

[49] The court further found that in accordance with the Society’s amended Notice of Motion that the child would be with each parent on an alternating 2-2-3-3-schedule. In addition,

(a) neither parent was to initiate discussions about school placement with the child;

(b) the child would continue to attend with Dr. Radovanovic;

(c) in accordance with Justice Wilson’s Order with respect to parenting arbitration and the parenting arbitrator’s award, the child was to attend at Ahavat Yisroel Hebrew School;

(d) neither parent was to expose the child to negative or derogatory comments about the other;

(e) neither parent was to discuss the court process with the child;

(f) both parents were to ensure that the child attended soccer practice and games;

(g) the court addressed the issue of phone calls between the child and the other parent; and

(h) in an effort to control the process and the negative behaviour of the parents, the court ordered that all further motions and conferences with the exception of Settlement Conferences were to come before this court.

[50] The matter next came before this court November 13, 2018 whereby there was a consent on terms to adjourn the matter to January 17, 2019.

[51] On January 17, 2019 the court conducted a lengthy Case Conference.

[52] The matter was once again before the court May 2, 2019 for a further Case Conference. At that time the parties consented to timelines on a Statement of Agreed Facts and the incorporation of various provisions of the parties’ divorce Order into an endorsement in this action.

[53] The matter was next before the court June 27, 2019 for a further conference. Once again, the court spent a considerable amount of time with the parties and attempted to achieve a consensus as to a methodology for dealing with the Statement of Agreed Facts and the inclusion of certain paragraphs of the family court Orders into the protection Order.

[54] On that date the court once again conferenced the issue of the child resuming counselling with Dr. Radovanovic which the child had been refusing to attend.

[55] Having received submissions with respect to the issue of the paragraphs from the family court Orders to be included in the protection Order, and achieving the parties the court issued a 36 paragraph endorsement on August 9, 2019 setting out its ruling on that issue.

[56] The court in its August 9, 2019 endorsement indicated that the remaining issue as agreed by the parties on May 2, 2019 and subsequently again on June 27, 2019 related to the Statement of Agreed Facts and the court asked the parties to proceed in accordance with that endorsement.

[57] The first indication that this court had that the Society intended to bring a motion seeking leave to withdraw from this protection application was when the court read the motion materials in the Continuing Record after they had been filed.

[58] There was no indication given to the court by the Society in any of the previous conferences that withdrawal by the Society was being contemplated. Had that issue been raised, the court would have conferenced that issue.

Affidavit of Roman Vassilyev

[59] In support of the Society’s motion is the affidavit of the current child protection worker sworn August 28, 2019.

[60] The protection worker has been involved with this file since April 2019 and recounts the Society’s position with respect to what has transpired since October 19, 2018.

[61] The court notes, in particular, the following:

(a) the Society’s then worker was advised on March 18, 2019 by Dr. Radovanovic that she would no longer be seeing the child as a result of the child refusing to meet with her. In the affidavit, the worker indicates that the previous worker had indicated that the therapist noted “that the child was presenting as “distressed, angry and oppositional” (emphasis added);

(b) further that “(the child was) expressing anger at his mother and showing increasing alignment with his father’s point of view.” She further noted that “the child’s resistance had increased since the court process was initiated and was more recently triggered after the OCL’s conversation with him about Hebrew school. “The child appeared to be making efforts to involve himself in the parental conflict and to control what was happening” (emphasis added);

(c) the worker notes that this court had made recommendations on May 2, 2019 to the OCL asking that the OCL take steps to encourage the child’s return to counselling with Dr. Radovanovic. As will be noted subsequently, that counselling has only recommenced within the last week or so;

(d) the worker notes that the OCL had instigated a meeting on June 3, 2019 further to this court’s recommendation on May 2, 2019, which involved the child, the OCL, both parents and the family services worker. It was in that setting that the OCL communicated to the child that he needed to attend counselling with Dr. Radovanovic. It was noted by the worker that the message was provided to the child that his parents supported his return to counselling as per the judge’s recommendation and that the child said he was okay with that;

(e) of particular note to this court is that the child expressed his happiness with the fact that both of his parents agreed that he should see Dr. Radovanovic (emphasis added);

This court has absolutely no doubt that this united front would never have happened had this protection application not been opened and had this court not conferenced and implored the parties to convey a united message to the child. In fact, as is noted in a previous endorsement, the child was thrilled that it was either the first or one of the few times that he had heard his parents in agreement. This court finds that an extremely sad commentary for an 11 year old child.

(f) the worker in her affidavit notes that she had a conversation with the respondent mother’s psychologist who had been working with her for the past 10 years;

(g) the worker also notes that Dr. Radovanovic advised the worker that she felt that family therapy would be more appropriate than individual counselling for the child;

(h) the worker notes that as recently as June 2019 there were issues between the parents involving the Raptor’s parade;

(i) the worker’s affidavit references conversations in early July with the respondent mother advising her that the ultimate goal was to bring the family to a point where services were no longer necessary and that the respondent mother expressed a view that she wished the society to remain involved and that the Society should only be withdrawing if it has confidence that both parents will abide by conditions that the court orders. In early July, the respondent father conveyed to the Society worker that he had concerns about the respondent mother making arrangements for access through the child instead of Our Family Wizard. He expressed other concerns as well at that time;

(j) on July 24, 2019 the respondent father expressed concerns again to the Society worker with respect to the issue of phone calls and the mother allegedly being heard in the background while the child was talking to the father;

(k) when the Society broached the respondent father about withdrawing from this matter according to the worker “respondent father continued to insist that the JFCS is biased in favour of the mother and that the Society Counsel had lied to the court.” He further indicated “Julian should never have been placed in the mother’s temporary care and control custody and he alleged that the respondent mother “is a control freak that she has symptoms of historic personality disorder” (emphasis added);

(l) as recently as August 21, 2019 the respondent father expressed concerns to the Society that the mother had made appointments for the child regarding dental work without informing him;

(m) the worker notes that in conversations with his supervisor that they considered that both parents persist in their complaints about the other’s conduct, mental health and non-compliance with terms of court Orders and negative influence on the child. The Society notes that the child has been consistent in reporting that he has not recently being exposed to parental conflict; and

(n) the worker and his supervisor came to the conclusion “that the protection concerns that led to the commencement of the protection application were not of a severity that continued court intervention is warranted.”

[62] The court notes in the respondent mother’s affidavit that she includes an email from Dr. Radovanovic dated September 3, 2019 to both parents which indicates “respondent mother has informed me that the JFCS is asking the court to withdraw their services. I am troubled by this as I believe it is premature given the fact that there is currently still no family intervention (family counselling for each parent with the child with the same professional). I had not met with the child for over five months now during my previous contacts. I expressed concerns over the child’s presentation and the impact of the parental acrimony and disagreements on him.”

The Law

[63] In a child protection application, pursuant to section 90 of the CYFSA, the applicant Society cannot simply file a Notice of Withdrawal but requires leave of the court in order to withdraw.

[64] The wording of that section requires that the court shall hold a hearing to determine the issue as to whether or not the child is in need of protection.

[65] There is ample case law (including a Court of Appeal decision) to support the proposition that “a hearing” may be in the form of a motion on affidavit evidence (Children’s Aid Society of Ottawa v. A.V., 2016 ONCA 361).

[66] In the case of Catholic Children’s Aid Society of Toronto v. DB, 2002 O.J. No. 2318, Justice Jones set out at paragraph 11 the following factors to be considered relevant with respect to whether a withdrawal would be an appropriate disposition namely,

11. In considering…

(a) whether any continuing protection concerns exist;

(b) whether all parties consent to the withdrawal;

(c) the reasons for the withdrawal; and

(d) how the withdrawal would affect the fairness of any other pending custody litigation.

[67] In the case of the Children’s Aid Society of Algoma v. AS, 2011 ONCJ 393, Justice Kukurin added the following factors to be considered with respect to a court’s determination of whether or not to grant leave for the Society to withdraw namely:

(a) what is the real battle in the case about and what are the possible outcomes?;

(b) at what stage is the litigation, what are the timelines expectations and what demands on judicial resources?;

(c) if the withdrawal is opposed what is the reason for the opposition and what is the evidence to support the reason?; and

(d) is there an alternative venue for resolving the issues?

[68] In that case Justice Kukurin ultimately found that the Society could withdraw its application based on the Society’s risk assessment that the protection concerns no longer existed.

[69] Justice Kukurin noted that the fact that it was the applicant submitting that there were no continuing protection concerns was considerably more persuasive than if the respondent was making the same submission. The court found that it was the Society that started the proceeding and “that the Society’s evidence set out the factual events that may have taken place that have resulted in the change of its position” emphasis added.

[70] In Jewish Family and Child Services of Greater Toronto v. W.K., 2017 ONSC 915 Justice Kaufman of this court allowed the Society to withdraw. In that case the Society had become involved due to children’s exposure to intense conflict between their separated parents. The family had participated in therapy and the court found that while the conflict remained, the children were progressing well at school and in other pursuits the younger son’s relationship with his mother which had been the primary source of concern had improved, albeit not to the mother’s satisfaction. Finally, the children did not seem to be receiving any real benefit from the services available from the Society (emphasis added).

Society’s Position

[71] The Society takes the position that the child is currently not showing any serious issues.

[72] The Society further submits that these parents have been in conflict since the separation and that notwithstanding services offered to them and the intervention of parenting professionals; the Superior Court of Justice in Toronto in the family law matter, the Society and this court, the parents have continued to have conflict and have not demonstrated any inclination to stop.

[73] The Society further takes the position that the mother who is opposing the Society’s withdrawal is doing so because she has concerns that without the Society’s involvement the respondent father will not abide by court Orders. The Society submits (quite correctly) that it is not the Society’s function or mandate to enforce court Orders and that if there are enforcement issues, it is the court that needs to enforce Orders and not the Society.

[74] The Society takes the position that the issues between the parents are issues that need to be addressed by a parenting coordinator or a parenting professional and not the Society. Cited as examples of the issues that result in conflict between the parents are; where the child will go to school, which Hebrew school the child will be enrolled in and issues of which sports the child will be enrolled in as well as for which sports teams the child will play.

[75] The Society further points out that at a conference in May and based on subsequent submissions, the parties consented to the inclusion of paragraphs of their divorce Order into an Order in this protection matter.

[76] The Society therefore submits that if the Society’s motion was granted and the protection application withdrawn and the temporary Orders made by this court terminated, the result would be that the same divorce Order that has been in place since 2011 of which remains in place.

[77] On that point, the respondent mother points out that in the family law action there was an Order made by Justice Wilson subsequent to the Divorce Order that results in a situation whereby in the family law action there is no Order with respect to custody whereas in the protection action, this court did make a temporary Order in accordance with the motion brought by the Society which this court heard in October 2019.

[78] The Society submits that by taking the position she is, that the respondent mother is really saying that either the child should be brought into care by the Society, or that the child should be primarily residing with the respondent father. The Society submits that by taking the position that she is, that the respondent mother is essentially arguing that the child should not remain in the current status quo parenting arrangement.

[79] The Society submits that the court should not place any significant weight on the comments made by Dr. Radovanovic in late August 2019, as those were made at a time when she had not seen the child for about five months whereas she has now seen the child on at least one occasion since that time.

[80] The Society submits that the real test for this court in determining whether or not the Society may withdraw is whether or not the child remains at risk.

[81] The OCL supports the position taken by the Society in that the child is currently reporting that he is not seeing conflict between the parents at the present time as there is little contact between them, that he likes the schedule and likes the activities that he is involved in and that he is not seeking any changes at the present time.

Analysis

[82] As the court pointed out in the background section of this decision, there have been two courts that have attempted to case manage this family.

[83] Justice Wilson of the Superior Court in Toronto had, as previously referenced, directed that the JFCS investigate this family and determine if the child was in need of protection.

[84] As a result of that investigation an application was commenced August 1, 2018 by the Society.

[85] The application states that the applicant Society asks the court to make a finding under Part V of the CYFSA that the child is in need of protection because:

(a) the child has suffered emotional harm demonstrated by serious anxiety, depression, withdrawal, self-destruction or aggressive behaviour or 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 (clause 74 (2)(f)); and

(b) there is a risk that the child is likely to suffer emotional harm demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent will or the person having charge of the child (clause 74 (2)(h)).

[86] Based on the submissions of the Society, and the evidence of which this court is aware, the real issue is whether or not the child has suffered emotional harm demonstrated by serious anxiety or in the case of clause 74(2)(h), that there is a risk that the child is likely to suffer emotional harm demonstrated by serious anxiety.

[87] Based on the evidence that this court has heard, the court concurs and finds that currently, the child is not suffering emotional harm demonstrated by serious anxiety.

[88] The real question for this court is if the protection application is withdrawn and the current Orders put in place by this court are terminated as requested by the Society, is there a risk that the child is likely to suffer emotional harm demonstrated by serious anxiety resulting from the actions or failure to act on the part of the child’s parent or parents?

[89] This court has invested a great deal of time in October 2018 and in January, May and June 2019 dealing with this family.

[90] The Society takes the position that the child is now not at risk of emotional harm or serious anxiety whereas in August 2018, the child was either suffering from that serious anxiety or at risk of suffering from that serious anxiety.

[91] What has changed between August 2018 and September 2019?

[92] Based on all of the evidence before this court, there is little if any evidence that either parent has “got the message” and that they have somehow learned to resolve conflict between themselves in a manner which is child-focused and reduces rather than increases the anxiety for the child.

[93] The OCL and the Society pointed out that the child is currently not reporting exposure to conflict between the parents. The court finds that currently that is the case.

[94] However, the question is why is that the case now and if the Society withdraws and the temporary Orders are terminated, is the child at risk to exposure to emotional harm by serious anxiety?

[95] Since this court has been involved and since this application has been commenced, the court has received credible evidence that the respondent father was within the last year not abiding by court Orders.

[96] The Society submits, supported by the OCL that it is not the Society’s function nor mandate to ensure compliance with court Orders.

[97] While this court accepts that to be the case, the Society does have a mandate to protect children from risk of serious harm as a result of the actions of parents which actions could include failure to abide by court Orders.

[98] The respondent mother submits that the Society needs to remain involved because the child is at risk of future emotional harm if the Society is allowed to withdraw.

[99] She has taken the position from the outset of the recent Society involvement that the respondent husband engages in parental alienation.

[100] The court finds that there is evidence to support this allegation. During the time that this court has been involved, the respondent father’s actions with respect to the child’s enrolment and lack of enrolment on a soccer team, his enrolment and participation in a Hebrew school (notwithstanding an arbitrator’s award with respect to the same) and his actions in taking the child to a Raptor’s celebration parade when the mother and her older son had plans to do so and it was on “her time” are clear indicia of alienating behaviours.

[101] There are other issues which will arise in the near future that are likely to cause conflict between the parties and serious anxiety for the child such as the arranging of his Bar Mitzvah within the next year.

[102] This court has written extensively on the issue of parental alienation and there is no doubt that parental alienation contributes to emotional harm to a child who is victimized by it.

[103] Given that the most recent indicia of this was only a few months ago, the court finds that the child is still at risk of future emotional harm if the Society were allowed to withdraw.

[104] While the court finds that to be the case, it does so for reasons in addition to the behaviour of the respondent father.

[105] Multiple times in each court attendance, the court has been required to reprimand and remind the respondent mother that she cannot simply interrupt the court counsel or the other party and that she needs to follow procedural rules and make her submissions at the appropriate times.

[106] It is obvious to this court that the respondent mother is oblivious to her role in the conflict. In fact, the court finds that she is oblivious to how her actions even in the court contribute to the conflict between the parties.

[107] The court finds that there remains a risk at this time that the child is likely to suffer emotional harm demonstrated by serious anxiety if the court were to permit the Society to withdraw and were to terminate the temporary Orders made by it.

Consideration of Rule 2 of The Family Law Rules

[108] The court is mandated to treat cases justly and to take into consideration not only the demands made by a particular case but the demands made by cases collectively that come before the court.

[109] The court has invested considerable time on three days in January, May and June 2019 conferencing this case, the culmination of which resulted in a consent temporary Order that was made in August 2019 after further written submissions were received.

[110] Counsel for the Society in his submissions acknowledges that given the history of this family (which with the Society dates back to the time the child was five months old some 11 years ago) that if the court were to grant the Society’s motion at this time that it is possible (the court would find likely) that a further Society file would be opened at some point in time in the future.

[111] The court finds that it is not coincidental that the child is not currently at risk and that a protection application was initiated approximately a year ago and the court has spent a number of hours with the parties and counsel to come to a temporary agreement.

[112] To have that all go for naught at this point in time and to have what this court finds would be a likelihood that a protection application would be commenced at some point in the future, this court finds is contrary to Rule 2 of the Family Law Rules.

[113] Having said that, the court concurs with the position taken by the Society that neither the Society nor the court should be utilized by the parties in high conflict as a substitute for a parenting coordinator, parenting arbitrator or mediator/arbitrator.

[114] Although the court has limited evidence as to the parties’ financial means, based on the limited evidence available to the court, it would appear that the parties could retain counsel if they so chose and could privately retain a parenting professional in a mediation/arbitration role to assist them in dealing with conflict.

[115] In addition, the court notes that Dr. Radovanovic who has been seeing the child has on more than one occasion and as recently as August 2019 once again recommended to the parties that they need family therapy (which the parents could engage and retain).

[116] Nothing could be more obvious to this court than that conclusion.

[117] The respondent father supported the Society’s motion to withdraw and to terminate the temporary Orders. The court has not lost sight of the fact that particularly in October 2018, the respondent father was taking the position that the Society was biased in favour of the respondent mother a position that he more recently repeated to the worker.

[118] Is the respondent father supporting the Society’s position in this motion because he believes that the child is no longer in need of protection or is he doing so so that he will not have the Society nor this court monitoring his behaviour such that he will have a freer rein to engage in alienating behaviour?

[119] This court of course has no way of knowing the respondent father’s motivation but it would be naïve to think that it is inconceivable that this is his motivation.

[120] Even though the court has made a finding that is consistent with that requested by the respondent mother (i.e. that the court not grant the Society’s motion to withdraw their application), the respondent mother should in no way consider this a “victory.”

[121] In fact, both parents should consider it a failure on their part that the court finds the Society needs to remain involved in order to protect the child that each of them professes to love.

[122] As well, in taking into account Rule 2 of the Family Law Rules, and taking into account the fact that the parents need to step up and take responsibility for their own actions and take the initiative to find ways to resolve conflict, this court is not simply going to dismiss the Society’s motion.

[123] Although the court is perplexed by the timing of the Society’s motion, the court well understands the rationale for bringing such a motion.

[124] This case and this motion highlights the dichotomy that Children’s Aid Societies and family law courts generally face on a daily basis.

[125] Resources and time are scarce both within child protection societies and in family law courts.

[126] It is extremely frustrating to deal with individuals, particularly those who have the intellectual and financial capabilities to either self reflect or to obtain private assistance in self reflection in order to assist themselves and to protect their children from actions by themselves that are detrimental to those children.

[127] This court finds that Dr. Radovanovic has it “right” in that this family clearly needs family therapy.

[128] This court has an expression that people cannot be objective about themselves and that people largely are incapable of totally seeing themselves the way the rest of the world sees them.

[129] This is obvious in this particular case.

[130] The Society has repeatedly recommended, as has this court that each of the parents retain counsel.

[131] While the court has no evidence as to why the parties have decided not to retain counsel, one possible explanation could be that neither party is willing to hear what counsel may advise and recommend.

[132] As well, there appears to be little motivation for either party to engage in family therapy the results of which may be that a therapist recommends that the party needs to change for the benefit of reducing conflict with the other party and for the benefit of the child.

[133] The reality in this case is that public resources through the Society, the OCL and the court are being utilized by individuals who have the intellectual and it would appear financial ability to help themselves through private resources but choose not to.

[134] The further reality is that is taking those resources away from individuals who lack the intellectual capability or the financial ability to seek help for themselves.

[135] A child does not get to choose his parents and children need to be protected which is provided for in the legislation. Therefore, notwithstanding parents’ capabilities to help themselves, where they do not the Society and the courts need to protect children.

[136] This court has found that this child is still at risk.

[137] The parents however need to understand that the Society and that the court cannot continue indefinitely to act as their parenting coordinator.

[138] The ultimate result is that either the parents will get help for themselves and for their child through family therapy, or the situation will escalate to the point where the Society and the court finds that the only way to protect this child is to remove the child from the parents, or the court subsequently determines that the Society should be permitted to withdraw in which case if no change has come about in parental behaviour, it would appear inevitable that the Society will once again become involved in this child’s life.

[139] The court has no doubt that each of these parents loves this child. However, as part of that the parents need to understand that love for a child includes allowing that child to have a loving relationship with the other parent and to create an environment where the child is protected from conflict between the parents or better still, the parents learn to resolve their conflict in a healthy manner.

[140] The court finds that the Society’s motion should be adjourned for a period of four to six months to allow the Society to assist the parents in directing them to family therapy and resources available for mediation/arbitration of family disputes.

[141] It would appear that the respondents have sufficient resources available to them that they can pay for these services.

[142] The respondent parents need to understand that if they do not take the initiative to accept responsibility and reduce their conflict which is harmful to their child or at least agree on a mechanism outside of the child protection realm that will assist them in doing so then at some point in time, the situation may be such that the only option available to the Society or to the court is to have the child taken to a place of safety where the child can be protected from that conflict.

[143] Neither parent wants to see that happen nor does the court or the Society but the reality is that the child protection action will not be available to them indefinitely to provide the assistance that they should be obtaining privately.

[144] The Society’s motion is adjourned to a date to be fixed by the trial coordinator in consultation with the parties which date is to be no earlier than four months from this date and no later than six months from this date.

Justice R.T. Bennett

DATE: September 23, 2019