HSCAS v. A.N and L.D. 2019 ONSC 6473

COURT FILE NO.: FC-19-00000188-0000

DATE: November 7, 2019

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Highland Shores Children’s Aid Society, Applicant

AND

A.N., Respondent

AND

L.D., Respondent

BEFORE: Madam Justice W. Malcolm

COUNSEL: Cynthia Law, for the Applicant

Heather Smith-McGurk and Alexander McGurk, for the Respondent A.N.

Jeff Van de Kleut, for the Respondent L.D.

Betty Ann Predinchuk, for the Office of the Children’s Lawyer

HEARD: September 19, 2019

Decision on summary judgment motion

MALCOLM, J.

Relief requested

[1] The Highland Shores Children’s Aid Society (“Society”) has brought a Motion for Summary Judgment pursuant to Rule 16 of the Family Law Rules (O. Reg. 114/99, as am.) seeking a finding that the child, L.K.D., born […], 2012 is in need of protection.

Position of the Society

[2] The Society asks that the child be found in need of protection pursuant to section 74(2)(b)ii of the Child Youth and Family Services Act (S.O. 2017, Chapter 14, Schedule 1) (“CYFSA or the Act”) in that there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by that person’s failure to care for, provide for, supervise or protect the child adequately and a pattern of neglect in caring for, providing for, supervising or protecting the child.

[3] Further, the Society asks that the child be found in need of protection as the child requires treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent, or the person having charge of the child, does not provide the treatment, or access to the treatment, or where the child is incapable of consenting to the treatment under the Healthcare Consent Act, 1996 S.O. 1996, Chapter 2, Schedule A. and the parent is a substitute decision-maker for the children, the parent refuses or is unavailable or unable to consent to the treatment on the child’s behalf. Section 74(2)(f).

[4] The Society also asks that the child be found in need of protection as the child has suffered emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development and the child’s parent or the person having charge of the child does not provide treatment or access to treatment or where the child is incapable of consenting to treatment under the Healthcare Consent Act, refuses or is unavailable or unable to consent to the treatment to remedy or alleviate the harm. Section 74(2)(g).

Position of the mother

[5] The mother asks this court to dismiss the motion and set the case to a full trial on oral evidence. She submits that there is insufficient evidence to find that her child is in need of protection. She submits that there are triable issues and the evidence on which the Society relies is based on hearsay evidence, distorted facts, confirmation bias and stigma as to mental health issues. She asks that the court not consider any hearsay from the society witnesses or consider their documents filed. However, she asks that I consider as evidence, hearsay statements, letters, articles, and other material in her affidavits and attached as exhibits to her affidavit.

The Law

[6] Pursuant to Rule 16 the onus is on the Society to show there is no genuine issue requiring a trial in this matter. It must do so in consideration of the primary purpose of the CYFSA (the Act) which is to promote the best interests, protection the well-being of children.

[7] The court must ensure that the evidence before it is trial worthy and although hearsay evidence can be considered pursuant to Rule 16(5), if a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

[8] The court under subsection (6.1) shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence;

2. Evaluating the credibility of a deponent; and

3. Drawing any reasonable inference from the evidence.

[9] Further, a responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.

[10] The court must also consider Rule 2(2) and (3) of the Family Law Rules to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and the cases dealt with in ways that are appropriate to its importance and complexity in giving appropriate court resources to the case by taking into consideration the need to give resources to other cases.

[11] The Ontario Court of Appeal in Kawartha-Haliburton Children’s Aid Society v. M.W, 2019 ONCA 316 gave direction as follows:

Conclusion: The proper approach to summary judgment in child protection proceedings

[80] To summarize and clarify the approach that the courts should take to summary judgment in child protection proceedings, I set out the following:

1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

2. The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.

3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.

[12] Justice Sherr comments in Children’s Aid Society of Toronto v. B.B., 2012 ONCJ 646, at para. 25 are adopted in Kawartha-Haliburton.

My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions. The consequences of the orders sought at summary judgment motions on families in child protection cases are profound. These important decisions should not be made based on flawed evidence. The summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make determination.

[13] Further at para. 76 of Kawartha-Haliburton summarizes as follows:

Hryniak emphasizes that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment: at para. 49. As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society.

Background

[14] At the time this application was commenced in December 2018, the mother was in the state of Alabama, USA living in a shelter. Her son had been apprehended by Alabama Human Resources and placed in a foster home around October 23, 2019. The father was living in England and had been since approximately December 2014 when the parties separated.

[15] Prior to leaving Canada on or about July 28, 2018, the mother had been employed as a contract lecturer for the two universities in the GTA. The mother had been employed previously as a police officer in British Columbia. The mother has a B.A. and M.A. in psychology and has been working for over a decade on her PhD. The mother and child lived in a home in owned by the mother. When the mother worked at the university , she had neighbours care for her son. In June 2018 the child was in kindergarten but had not attended school for about one month before the end of the school year.

[16] The school had indicated some concerns about the child’s development and behaviour to the mother.

[17] The father works as a self-employed joiner or builder in England. He lives with his partner who is a retired school teacher.

[18] The parents signed a separation agreement in which the mother had custody. The father had no specified access but called or Skyped his son approximately every other month until February 2018 when the access ended. His last contact with the mother was around February 2018 when he advised the respondent mother that his mother had died. The grandmother had maintained more frequent phone or skype access with her grandson.

[19] On July 28, 2018 the mother had planned to be at the home of her friend, Ms. J.S. for a birthday party. She never attended. Ms. J.S. was contacted on August 3, 2018 by the mother asking for money to return home to Canada but had no contact after that time. Ms. J.S. was very concerned for reasons I will outline later. By August 20, 2018 the local police considered the mother and child to be missing people. Around the same time a bailiff came to the home to repossess the mother’s Audi and the house was subject to foreclosure. The mother also owed $ 75,000.00 in back taxes.

[20] On July 29, 2018 the mother contacted her neighbours, the D[…] asking that they feed her 5 cats, of whom she was very fond, while she was “away for a couple of days”. The neighbours could not enter the home because the mother had changed the locks and they had to enter the home through a window to rescue the cats who were in a very hot home. A few days ended up being one year. The neighbours cared for the cats until October 2018 when they started looking for homes for them. During this time the mother asked for and occasionally received financial assistance from her friends Ms. J.S. and Ms. B.J..

USA involvement

[21] Without the knowledge of her friends, the mother had entered the USA on or about July 28, 2018 with her child. She travelled to several States, the most important being Kentucky, Indiana and Alabama.

[22] L.K.D. and his mother were in hospital or emergency clinics twice in Kentucky. On August 7, 2018 the mother was found at a car dealership confused and taken to the hospital where she complained of headaches and told the case worker, she had been seen by a doctor in Ontario a month earlier on July 18, 2018 for similar symptoms and advised not to drive.

[23] On August 11, 2018 L.K.D. was seen in the same hospital complaining of vomiting for several days while in the car. Both mother and child complained of diarrhea and upset stomachs for the past few weeks too. The mother said the child was having outbursts such as extreme screaming but said his behaviour is usually controlled by diet and he was on a strict diet for cognitive functions. The mother also told the social worker that she was taking a road trip to find relief from financial stressors and the loss of her pets and likelihood of losing her home. She gave the name of two friends and said she was planning to return to Ontario.

[24] The mother also had a minor accident in which she damaged a parked car in Kentucky on August 16 or 17, 2018. She later told an officer that she may have blacked out.

[25] L.K.D. came first into the care of the Indiana Child Protection Services while his mother was in hospital for medical and psychiatric assessment on August 18, 2018. There was a report of erratic driving on the highway and the police intervened twice and then took her, at her request, by ambulance to the hospital. The admitting doctor recommended a psychiatric evaluation for “paranoid features”. The mother strongly denies any mental health issues but for reasons that will become clear later it was not surprising the police and health care providers were concerned. The child was in care for almost two weeks but returned to the mother on September 4, 2018. A court proceeding was commenced in Indiana. The police and some of the court records from Indiana were filed.

[26] On August 27, 2018 there was a conference with the Highland Shores Children’s Aid Society worker Melanie Regan (on telephone) and various child protection workers and the mother in Indiana. The mother agreed to return to Ontario. The Indiana Superior Court petition was dismissed on September 2, 2018. The child was in care for over two weeks. The mother did not return to Canada. The mother traveled in Indiana for several days eventually entering Alabama.

[27] The mother told her friend, Ms. B.J., and later Alabama child protection workers that she didn’t return to Canada because she believed her estranged spouse (who has lived in England since 2014) had sexually abused her son while he was in foster care in Indiana. She claimed it was not safe to return. Several other concerns were indicated by the mother as reasons it was not safe to return to Canada.

[28] In Alabama the mother received help from various organizations. She had run out of money at this point and she was sleeping with her son in the parking lot of the University or banks and spending the days in the libraries or parks. She and her son ate at shelters or received food from them often. The mother received direction from a child protection worker to attend at a shelter and when she did not, an alert (BOLO) was sent to police. She was found asleep at the side of the road on or about October 23, 2018 and taken to the police station where the child was taken into care. A “shelter care hearing”, which was the first hearing after the child was taken into care, perhaps similar to a temporary care and custody hearing, was held in Alabama. The court there ordered the child to remain in care.

[29] I note that I had no expert evidence as to the child welfare , protection or dependency law in Indiana or Alabama and cannot take judicial notice as to the standard of proof, procedure or interpretation of their statues.

Legal proceedings in Ontario

[30] When the application was first returnable on December 19, 2018. I made an order that the documents in the file could be shared with the family court in Alabama and this court would consider interjurisdictional judicial communication. Further the matter was adjourned to serve the parents and allow the child’s guardian ad litem from Alabama to participate in telephone if they wished.

[31] There was no request for interjurisdictional judicial contact from Alabama nor did the Guardian ad litem ask to participate in the Ontario proceedings. The HSCAS had asked that the child be returned in coordination with the Alabama Court but was content to await the decision of the court as to whether the child could be returned to the mother.

[32] The next court date on January 10, 2019 was adjourned as the Alabama case had a placement hearing scheduled for January 15, 2019. I ordered that the parties were not required to respond to these proceedings until the Alabama court had decided whether to place L.K.D. with the Highland Shores Children’s Aid Society, the mother, the father or to retain the child in Alabama foster care. The mother indicated that she expected that the child would be returned to her care.

[33] In the interim, Calderdale Children and Young People Service in England was preparing a kin assessment of the father at the direction of the Society to determine whether the child could safely be placed in his care. The report was completed and provided to both the Alabama Court and this court. It was later discovered that the Alabama Court does not place children outside its jurisdiction under a supervision order.

[34] This protection application was adjourned on February 19, 2019, March 25, 2019, April 5, 2019 and April 25, 2019 because the hearing in Alabama had not occurred.

[35] The mother and father were represented and actively participating in those Alabama proceedings, and the child had counsel. The parents were assessed by psychologists as was the child and those reports were filed in that court.

[36] The decision was made on May 7, 2019 by Judge Powell in the Alabama Court and he found the child to be a dependent and ordered him to remain in the care of the Alabama Department of Human Resources, Family Services (ADHR) but directed that the child should be returned to Canada with the coordination of the ADHR and HSCAS.

[37] On May 16, 2019 the Ontario matter was adjourned to May 28, 2019 for a motion to bring L.K.D. back to Canada as directed by the Alabama court. Unfortunately, there were no directions on filing deadlines so on May 28, 2019 the respondent mother asked for and was granted an adjournment.

[38] The matter was adjourned to June 13, 2019 for a long motion on the issue of repatriation to Canada of the child. I made an endorsement as follows:

This is a motion by the society to return the child L.K.D. to Ontario. On May 7, 2019 Judge Powell made an order in the juvenile Court of Lauderdale County, Alabama that L.K.D. is dependent pursuant to 12-15 102 (8) Alabama Code 1975 because of the mother’s inability to provide shelter, food and other resources including his medical needs and the father is not present in the country.

Further, the judge directed the Guardian ad litem and Department of Human Resources to take all reasonable steps necessary to facilitate a return of the child to Canada.

The foster care and resource supervisor, Jennifer Berry has contacted the Highland Shores Children’s Aid Society worker Ms. Legge and said “I am attempting to get some answers to your questions regarding L.K.D. and how we can make arrangements for you to be able to come and get him and us transfer his case to you. this is definitely our goal”

The Highland Shores Children’s Aid Society and Mr. L.D. support L.K.D. being returned to Ontario and placed with the previous caregiver who has been approved as a kin placement. Further there would be a place of safety hearing five days after L.K.D. coming to Ontario and a temporary care hearing scheduled within 30 days.

L.K.D. is a Canadian citizen and he attended school in Prince Edward County. Ms. A.N. owns a home in Prince Edward County (“P.E.C”) and is a Canadian citizen. When Ms. A.N. left P.E.C. in the summer of 2018, she left five cats in her home to be cared for by neighbours. She had no previous connection to Alabama.

L.K.D. is ordinarily a resident in Ontario and this court has jurisdiction.

Ms. A.N. is concerned that L.K.D. will suffer trauma if removed from his present foster home in Alabama.

She is seeking an appeal of the decision of Justice Powell but she is out of time. She asked for delay of this court’s decision until her appeal is heard. She hopes her son would be returned to her care, in the alternative L.K.D. to be and her care and return to Ontario.

L.K.D. has been in foster care for eight months. The Highland Shores Children’s Aid Society is able to supervise the placement with M.D. and J.D., they have provided care for L.K.D. in the past. L.K.D. has been told of the plan and he apparently supports the plan.

Pursuant to section 70(3)(a) a child’s views and wishes are to be given due weight in accordance with the chide child’s age and maturity.

To delay this decision until an appeal may or may not be heard in Alabama is not in L.K.D.’s best interests. I consider section 74(3)(c) and find the plan of the Highland Shores Children’s Aid Society is in L.K.D.’s best interests an order shall be granted as requested by the Highland Shores Children’s Aid Society. In addition there shall be a place of safety hearing within five days of L.K.D. being in the care of the Highland Shores Children’s Aid Society.

[39] The mother’s position is that her child was taken from her because she was poor and didn’t have immigration status so she couldn’t work or afford housing. She says she was “help-seeking”. The society claims the mother’s poor decisions and judgment put the child at risk of harm.

[40] The child came back into Canada on July 8, 2019 just 20 days short of a year when he first was removed from Canada by his mother.

[41] On July 11, 2019 the matter was adjourned to September 17, 2019 to review the mother’s Answer and Plan of Care and L.K.D. was placed in the temporary care of the Society and in the home of foster parents, his previous caregivers, Mr. and Mrs. D[…]. There was an order of disclosure of the clinical notes and records of Dr. Colby and the CAS file was to be given to the child’s therapist.

[42] On July 23,2019 the case was adjourned to August 23, 2019 for a Summary Judgment Motion on the finding of whether L.K.D. is in need of protection and a temporary care hearing if the OCL lawyer for the child, who had recently been appointed, was ready to take a position. The temporary care hearing was not argued until October 11 and 12, 2019. A written decision was given October 18, 2019 with a short addendum on October 23, 2019.

[43] On August 23, 2019 the Summary Judgment Motion was adjourned again to September 19, 2019 to allow for oral questioning of the extensive affidavit material filed.

[44] On September 19, 2019 the Motion for Summary Judgment was argued. The decision was reserved.

Evidence considered on the Summary Judgment Motion

[45] The materials consist of the Notice of Motion by the Society filed August 2, 2019 relying upon the affidavits that are served with the notice of motion. The affidavits in support at that time were:

i. The affidavit of Melanie Regan sworn August 2, 2019, the affidavit of Jennifer Legge sworn August 2, 2019;

ii. The affidavit of J.S. sworn August 2, 2019;

iii. A reply affidavit of Jennifer Legge sworn September 5, 2019;

iv. The father filed two affidavits both on August 14, 2019;

v. The mother filed an affidavit on August 15, 2019;

vi. Because the first motion was adjourned the Society filed an additional affidavit of B.J. on August 19, 2019. This addressed the hearsay evidence attributed to Ms. B.J. in earlier affidavits.

[46] None of the exhibits are tabbed in the affidavits and there is no separate Summary Judgment Motion record. All affidavits are in the voluminous continuing record consisting of four very large volumes.

[47] The Society submitted that all documents attached as exhibits have been filed pursuant to the Evidence Act but no proof was provided until September 26, 2019. The documents on which they seek to rely are: a Brownsburg Hospital ER Department report, from August 18, 2018; Pittsboro Police Department report from August 17, 2018; Quinte Healthcare Hospital records from July 17, 2018; S[…]’s School records undated; and St. Vincent’s Hospital’s hospital records from August 18 to August 20, 2019. Subsequently they sought to rely on the Indiana Superior Court documents. Pursuant to the decision of Ares and Venner 1970 CanLII 5 (SCC), [1970] S.C.R. 608 (page 626) if business documents hadn’t been served under section 35 of the Evidence Act they could still be considered if the following conditions were met, which is a higher standard than in the Evidence Act:

Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses’ notes, the nurses were present in court and available to be called as witnesses if the respondent had so wished.

[48] No affidavit was filed indicting that the reports were made in the ordinary course of business, that the notes were made soon after the events and that the parties had a duty to report. However, the society did give notice under the Evidence Act. And I accept that the writers of the report made the notes in the ordinary course of business at the time of the event or reasonably soon thereafter. Despite this, if there are statements that are not in the personal knowledge of the maker of the report the court can give less or no weight to the record.

[49] Although the Society’s notice of motion does not itemize the affidavits on which the Society relies, the affidavits that are referred to in the factum of the society are:

i. the affidavit of Melanie Regan dated August 2, 2019,

ii. affidavit of J.S. dated July 30, 2019,

iii. affidavit of Kimberly Bowser dated June 10, 2019; and

iv. Jennifer Legge, filed August 2,2019.

[50] The Society also asked to rely on the following affidavits that are not referenced in its factum: affidavit of B.J. filed August 19, 2019; affidavit of Jennifer Legge, filed September 5, 2019; and affidavit of Winnifred Alexander filed September 16, 2019.

[51] Also filed was a 338-page transcript on the oral questioning of the respondent mother together with an 83-page transcript of a hearing on June 13, 2019 during which the mother made numerous statements which she subsequently adopted during her oral questioning and is considered sworn testimony. No roadmap or Factum was provided referencing the newest affidavits, exhibits or transcripts. Counsel submitted that the transcripts should be read in its entirety.

[52] The father filed an affidavit on August 14, 2019 and a supplementary affidavit the same date.

[53] The affidavit with numerous exhibits of the respondent mother was filed August 15, 2019.

[54] The respondent mother filed her factum on the day the motion for summary judgment was heard, September 19, 2019 as the mother had been unable to attend at the lawyer’s office. The mother had moved to another city. No party had time to respond to it nor did they wish to have an adjournment. Counsel indicated it was extremely urgent for the matter to proceed.

[55] The respondent mother puts the applicant society to the onus of proving its case and makes no admissions of any of the allegations. The respondent mother asks that the court does not consider any hearsay evidence including hearsay from unnamed sources that she subsequently admitted. Further the mother asks that the Court not consider: an individual education plan from L[…] County School; a psychological evaluation of L.K.D. from Dr. Rebecca Emmons; a visitation monitoring report from the North Alabama Visitation Centre and hearsay evidence contained in the affidavit of Kimberly Bowser. She claims at all times while she was in the USA she was fleeing from harm and she and her son are the victims of crime from her time in Canada and Indiana. She claims that she didn’t neglect the child’s shelter, school, food or counselling and she was always “help-seeking”.

[56] I advised counsel that I would take the entire file and review and determine the admissibility of the evidence including, the reports and hearsay that the mother objects to being considered. It was late in the day and it was evident that the parties could not agree on the admission of any of the documentary or hearsay evidence. In hindsight the motion should have been adjourned to allow the society to respond to the mother’s factum and provide better organization of its evidence. A short adjournment to file a supplementary factum likely would have reduced the time to release this decision.

[57] The Society worker’s affidavits all indicate that any hearsay is tendered for the truth of the statement not for any hearsay exception. Records are attached to the affidavits of society workers in a haphazard way often not indicating if the record had been served under the Evidence Act or common law or the purpose for which it was admitted.

[58] Further, many of the documents tendered aren’t referred to in the Society’s factum. The father and OCL filed no facta and support the position of the Society.

[59] As Justice Zisman comments in Jewish Family and Child Service v. S.K., 2015 ONCJ 246. Para 115,

a summary judgement motion is not a paper trial and that it is the obligation of all parties to analyse the facts and present the facts in an organized, succinct and compelling way to persuade the presiding judge that the facts are so persuasive and the law applied to the undisputed facts is so clear that the matter should proceed by summary judgment.

[60] In this case the evidence is not organized or succinct.

[61] Further in the Children’s Aid Society of Toronto v. C.J.W, 2017 ONCJ 212 para 26, Justice Zisman reminded counsel :

……….. The habit of simply attaching to affidavits various reports or notes is a practice that should not be encouraged by the court especially if the reports are relevant to the primary issues before the court. This may be as a result of the confusion between the disclosure obtained by counsel and then the evidentiary value and basis for the admissibility of that disclosure. Just because records are disclosed does not automatically make that disclosure admissible. Counsel should determine the basis of the admissibility of the evidence such as, if the disclosure qualifies as a business record or if it is being tendered as an expert report and then follow the procedure with respect to proper notice and be prepared to explain to the court the relevance and necessity for the evidence being admitted.

[62] The mother in her factum asks that the Court not admit into evidence numerous paragraphs or documents attached as exhibits in the affidavit of Ms. Regan, sworn August 2, 2019. I will address the mother’s objections as outlined in her factum given her very strong submission that most of the Society evidence should not be admitted or considered in my decision and not having submissions from the Society as to my authority for admitting the hearsay or records and the purpose of the admission .

Mother’s Objections to Ms. Regan’s Affidavit of August 2, 2019

[63] At paragraph 21 there is information from unnamed school staff at S[…] Catholic School, in Picton. This is not trial worthy evidence as the source of the information is not provided. However, subsequently the actual reports were obtained from the school and I accept them as Business Records. The report indicates L.K.D. was referred to an Occupational Therapy Assessment by his teacher with the support of his mother. The teacher indicated L.K.D. needed to be assessed for fine motor skills and sensory processing support. It was also indicated in the intake prepared by his teacher that he required speech therapy that his mother had arranged.

[64] The school records also indicate that L.K.D. was frequently absent and late. The mother explained in her materials that she struggled getting L.K.D. to school and the school agreed that she could keep him home. There is no evidence from the school as to this assertion. I admit the records, they are reliable and relevant. The threshold and ultimate reliability is supported by the mother’s own evidence. She accepted that the school teacher was concerned about her son and that she had problems getting him to school. She did not want her son labelled however.

[65] In paragraph 22, an IEP (Individual Education Plan) from the Child’s L[…] County School in Alabama was provided. Ms. Regan does not indicate for what purpose it is tendered. The paragraph simply indicates it is attached, as well as an assessment for occupational therapy and a psychologist report. The report should not have been entered in this fashion. However, the mother was involved in the assessments and although I am unaware as to why the society included the exhibits, I assume it is to show that L.K.D. needed support in the classroom in Alabama as he did in Canada. Although he was assessed as having strengths in some areas like math, he struggles following direction and interacting with his peers. The psychologist, Dr. Emmens indicated at page 11 summary of her report that “There is a lot of consistency across ratings which were provided by L.K.D.’s teacher, mother and guardian. The ratings indicate some concerns with emotional regulation, defiance, abilities to concentrate and be cognitive flexible”. Despite the mother’s objection to the admission of the documents the summary of the child’s struggles are relevant to the proceedings and they are reliable as the mother was involved in the process and has expressed the same concerns about her son.

[66] Paragraph 48 provides hearsay evidence of Ms. J.S.. This evidence has been remedied as Ms. J.S. has provided her own affidavit and the mother has admitted that she did not wish her child “labelled” as being autistic. The mother testified that she made an appointment with her family physician to see her son but when the physician had a medical student meet with her, she was upset. She testified that she consulted with a naturopathic doctor who helped the child with a diet for his food sensitivities and the behaviours that the school had notice were reduced. This evidence is relevant to the issue of whether the mother adequately attended to the child’s emotional and educational needs.

[67] Paragraph 49 of Ms. Regan’s affidavit refers to statements made by Holly of the Indiana Department of Child Services to confirm that L.K.D. was in foster care. The society should have included the workers full name, but the mother knew the worker’s surname. This is not contentious evidence as the mother has admitted the child was in foster care. The worker’s opinion as to why the mother was in the United States is not admitted. However subsequently the society obtained the Indiana Superior Court Verified Petition Alleging a child to be in need of services and the evidence can be admitted through those court documents. I accept that the court subsequently withdrew the petition as the mother was to return to Canada.

[68] In paragraph 50, the information that Holly provides about the mother’s concerns while she was in Ontario have been provided by the mother and there is no need to strike it from the evidence.

[69] In paragraph 51 the evidence as to what Holly thought the mother was concerned about is not evidence but the general information about a case conference being arranged is evidence going to the narrative and Melanie Regan attended at that conference.

[70] Paragraph 98 contains statements from Ryan Peschkie, the supervisor with Indiana Child Protection Services. This is hearsay; however the same information has been provided in court documents that were filed in the Indiana Court proceeding and are admitted pursuant to section 93(b) of the Act. Further I can take notice of other court orders even outside of this court. I can’t interpret the foreign law.

[71] In paragraph 99, the steps that Ms. Regan took and her motivation for not taking other steps to put an alert throughout the United States is not hearsay. These are the steps she took. This evidence is admissible.

[72] In paragraph 100, the worries Ms. Regan had about the health of the mother and her support plan were reasonable and will be considered as they are not hearsay and not opinion. Her worries were shared by many people involved with the mother and child.

[73] In paragraph 101, the discussion the worker had on the telephone with Constable Leroux is not provided for the truth of the statement but simply to show he had called. This is admitted.

[74] In paragraph 102 the evidence is not hearsay. The worker told the Constable that she was concerned about the mother’s mental health and safety of L.K.D. and he said he would pass the information on to the police in Alabama. The worker is reporting what was said not to be admitted for the truth of the statement of the officer just that the officer said it.

[75] In paragraph 103, the worker received a call from the father, L.D. It is not admitted for any purpose other than to indicate that he was concerned about his son’s well-being. It is admitted into evidence as part of the narrative.

[76] In paragraph 104 the worker provides hearsay from the father who discussed his email contact with the child. The father has now filed his own affidavit, so this does not need to be relied upon and further it goes to disposition not the protection finding so it is not admitted.

[77] The mother’s objections to paragraph 105 to 108 which provide information from L.D. about his relationship with A.N. is clearly hearsay and does not go to the issue of the protection of the child. I don’t rely on it. It is not admitted.

[78] As to paragraph 110 to 118, the worker is simply discussing with the Alabama child protection workers their plans and most of this evidence has been accepted by the mother or is contained in the Alabama court documents that are filed and admitted under section 93(b) of the Act since the mother’s action with the child in the USA primarily occurred prior to the commencement of the Ontario application. The evidence is about past parenting.

[79] As to paragraphs 131, 132 and 133 involving the notes of visitation I will address them under the documentary evidence. I accept the evidence of the mother that she had many positive visits in Alabama with her son, but I do find that there were at least three visits where the child was very upset and acting out with the mother and in obvious emotional distress. She included a text message from the foster mother indicating visits outside the centre supervised by her went well but phone calls were challenging.

[80] In paragraph 140 the worker describes the mother’s report to the FBI, once the court ordered that the child be returned to Ontario. The mother has admitted contacting the FBI and making a report. The contents of the report are before the court as a business record. This report is relevant, probative and reliable. When both the Alabama court and this court ordered the child back into Canada the mother tried to stop it by making unsupportable claims that are quite concerning. To allege and try to involve the FBI that the child would be at harm and maybe involved in a sex ring is shocking and not ultimately supportable given the evidence that I review later. accept.

[81] If in an affidavit a hearsay statement is tendered for the truth of the statement and the source or name of the person giving the stamen is not given, the statements will not be admitted. Further letters attached to affidavits are not admissible. The articles the mother attached about domestic violence evidence are not admissible. She asks the court to consider the articles to support her position that it may be possible that the father stalked her and assaulted their son. This goes to close to the heart of the mother’s argument that she and her son are victims of crime and the likely perpetrator is the father. She requires expert evidence to tender the articles. The closer to depositive the evidence the more stringent the rules for admissibility will be.

Admissibility of Documentary Evidence

[82] The documents filed in the Society’s materials are as follows:

Attached to Ms. Regan’s affidavit of August 2, 2019

Exhibit A- IEP (Individual Education Plan) of L.K.D. from his L[…] County School- 14 pages.

No notice appears to have been given as a business record or report according to the affidavit. Further there is no reference to the contents in the Factum or affidavit simply that an IEP was conducted. However, it indicates the child needs extra support in the classroom that is already admitted by the mother. I find that is relevant and reliable.

Exhibit B – Dr. Rececca Emens Confidential Psychological Evaluation of L.K.D.- 12 pages.

No notice appears to have been given as a business record or report and there is no reference to the particulars of the report in the worker’s affidavit or Factum of the society. However, the mother was consulted in the assessment and the concerns about L.K.D.’s emotional regulation, defiance and abilities to concentrate or be cognitively flexible are known to the mother and are admitted into evidence as relevant, reliable and probative.

Exhibit C - HRH- Brownsburg Hospital Emergency Dept. Primary-12 pages-

Notice was given by the Society under The Evidence Act, section 35 and 52. The document is relevant. As the mother has referred to her hospitalization the information in the documents is also reliable. However, where the doctor refers to information received by the emergency services by police or other hospital records, I cannot consider that hearsay but statements made by the mother to staff and the treatment, diagnosis and recommendations are admitted as relevant and probative. The doctor did not ultimately diagnose the mother with mental health issues but the original concern had caused the hospitalization.

Exhibit D - text conversation between Ms. B.J. a friend of the mother and the mother.

No notice is given or reason for inclusion but despite it clearly being hearsay the mother in her own material admits that she did not return to Canada because of her “concern” that her son had been sexually abused by the father in Canada and the USA. Further Ms. B.J. has filed an affidavit where she outlines her numerous concerns about the mother. The text is admitted as relevant and reliable based on the subsequent affidavit. Further the mother does not deny the statements in the texts.

Exhibit E – copy of the court order of the Alabama Circuit Court dated May 19, 2019 finding that L.K.D. was a dependent.

This is admitted as an under section 93(b) of the Child and Family Services Act and I take judicial notice of the order. I accept the test for a child being dependent may be different that a child being in need of protection. The mother continues to assert that the reason her child did not go to school, have housing, food or proper medical care was that she was “help seeking” because she and her son were not safe in Canada and she didn’t have immigration status.

Exhibit F- copy of a report of April 11, 2019 of Department of Human Resources Alabama.

This is admitted under Section 93(b) of the CYFSA since it is referred to in the decision of Judge Powell and is a report in a civil proceeding involving the parties and child. It is relevant, probative and reliable.

Exhibit G and H - Letter, affidavit and discs of North Alabama vision centre supervised access between the mother and child ( in particular, November 2018, March 2019 and May 2019).

The affidavit of Kimberly Bowser who is employed by the Alabama, Lauderdale County Department of Human Resources and has been the child’s case worker since October 2018 is admitted. Although the affidavit contains hearsay the reports of the visits between mother and child and discs of the visits are filed. The mother doesn’t deny that there were three concerning visits, but she indicates there were many visits that were very positive. I will admit the documents as relevant, probative and reliable. I accept there were likely many positive visits but these were particularly concerning and the child was hospitalized for 17 days as a result of extreme upset and out of control behaviours.

Exhibit I - copy of a HSCAS administrative assistant’s transcription of the recording of the supervised access visit.

This is not evidence but is helpful to follow the disc.

Exhibit J - is the disc containing the recordings of the supervised access

Exhibit K - is the kin assessment of the Calderdale Children and Young People’s Service as requested by the HSCAS and provided to both this court and the Alabama Circuit Court

It is admitted as a report pursuant to section 93(b). it was filed in the Alabama court and prepared at the request of that court and the society. The report found the father’s home to be positive and appropriate for the placement of the child in his care. However, since the report goes more to disposition it will not be considered in this decision other than to indicate there were no concerns noted despite the mothers claims that the father had serious mental health issues and was abusive towards her.

Exhibit L - is a transcript from a motion of this court to repatriate L.K.D. to Canada, heard on June 13, 2019

This is admitted not as an exhibit of the affidavit of Ms. Regan, who references Ms. Legge, who is at court on June 13, 2019, but because the mother in her questioning adopts the statements that she made to the court as sworn evidence.

Exhibit M – letter by the mother to this court dated May 26, 2019 in support of her request to adjourn the hearing to have L.K.D. returned to Canada or repatriated from Alabama foster care.

This document is already filed in the Continuing record and is evidence before the court.

Exhibit N - emails to Ms. Regan from A.N. after the child returned to Ontario

These are admitted as statements of A.N. against interest.

Exhibit O – report of July 22, 2019 of Franco Fragomeni on the child’s emotional disposition

There is no notice given and this evidence should have been given in an affidavit by the maker of the report. There are no credentials of the assessor, there is no consent of the parties. The report is not considered. I do take notice that the child is receiving counselling.

[83] Attached to the affidavit of the father:

Exhibit A – A report of Dr. Christine Chester setting out her plan to work with the father, his partner and L.K.D if L.K.D. is returned.

This is not considered as it goes to disposition not finding.

Exhibit B – a psychiatric report of L.D. by Dr. L. Dewayne Sneed and reviewed by Dr. Wilkerson filed in the Lauderdale County Juvenile court.

This is considered as a report pursuant to section 93(b). It is admitted as to the response to the mother’s claims that she and L.K.D. are victims of crime and the likely or possible perpetrator is the father.

Exhibit C- email from the child protection worker in England who conducted the kin assessment

This is not relevant to the finding that L.K.D. is a child in need of protection. The email contains opinion evidence and goes to disposition. It is not entered into evidence or considered.

Exhibit D - Various character letters

These letters are not proper evidence and are not considered. They are not sworn, and even if they were, they go to disposition.

Exhibit E- the father’s plan of care

This is properly before the court but cannot be considered as it goes to disposition. The protection concerns do not relate to the child’s care while in the presence of his father, L.D. The father has only had regular access after the child returned to Canada.

[84] Attached to Ms. Bilas’ affidavit, the partner of L.D. are letters of reference.

They are not admitted, they are snot sworn nor are they business or other records.

[85] Attached to A.S.’s affidavit of August 14, 2019 at tab 25

Exhibit 1 - photos of her home at eight Trumbull Road, Picton Ontario at time of L.D.’s departure on December 2014 photos of home at eight Trumbull Road after renovation 2016.

These photos are not relevant but can remain in the file but they are given little weight to the evidence.

Exhibit 2 - Child and Family Review Board submission and acceptance letter.

The exhibit shows the mother has made a complaint against the Highland Shores Children’s Aid Society and the Board has indicated the complaint can proceed. This is not relevant to the issue of whether the child is in need of protection. Further it appears that the mother also has made a complaint against the Indiana and Alabama Children’s Aid Societies.

Exhibit 3 - Ontario Superior Court affidavit filed May 2019 argument for violation of civil rights and harm to child as a result of apprehension based on hearsay, distorted facts and mental health stigma.

This document appears to be the mother’s further submissions to appeal the decision of Judge Powell made on May 7, 2019 in the Lauderdale County Court dependency hearing. The reasons for the appeal (which was never made) are not relevant to the finding that L.K.D. is in need of protection

Exhibit 4 - psychological evaluation of A.N. conducted by Dr. D Lowery.

The mother has not provided the full psychological evaluation of Dr. Lowery nor did she appear to have filed a notice of practitioner’s report under the Evidence Act. However, if she can obtain the final signing pages of the report it may be admitted at another court hearing. As the mother has included it in her material, I will reference the report as part of the narrative not for the truth of the statements.

Exhibit 5 - emails between the mother Jennifer Legge and Melanie Regan

The emails between the worker and the mother can be admitted.

Exhibit 6 – Photos of L.K.D. during 2016/2017 showing “happy, healthy, well-dressed and well cared for young boy”.

The photographs of the child prior to being taken from Ontario can be admitted but not necessarily to show he is happy, healthy, well-dressed or well cared for. I cannot make those determinations based on only photos.

Exhibit 8 – Screen short of text message from Indiana Social Worker, Holly Jezior stating that Indiana File had been closed.

The text messages from the Indiana social worker although not properly business records can be admitted. However, I will also consider the Indiana Court file where more detail is provided. The court action was dismissed because the mother was returning to Canada.

Exhibit 9 – Separation agreement between L.D. and A.N.

The separation agreement can be considered as proof that the mother had custody of the child.

Exhibit 10 – Photos of backdoor showing device on lock (May 2018).

Photos of eaves above front and side doors (showing small round ball – appears to be camera)

Photos of internet tower showing modem and antenna (unauthorized)

The exhibits are photographs of things that the mother believes are showing that someone is stalking or video or audio taping her can be admitted but they do not prove that the mother is a victim of crime as she alleges or that the things in question are surveillance devices. She never contacted the police as a result of them as she did when her son said the father had been at the child’s school.

Exhibit 12 – Letters from Safeplace showing concerted efforts at meeting goals of reunification plan.

The letter from safe place can be admitted but there is little relevance as the Alabama court ultimately did not return L.K.D. to her care.

Exhibit 13 – Individualized service plan reports from Lauderdale County DHR.

The service plan from Lauderdale County DHR can be considered as it is part of the Alabama Court proceeding under section 93(b).

Exhibit 15 – Quinte Health Discharge report from mother’s hospitalisation on July 18, 2018.

The Quinte Health discharge report can be considered as it is a medical report and was served. It provides that the mother was to see her family doctor in 7 to 14 days after her stroke like symptoms and attend the stroke prevention clinic. She was directed not to drive for 30 days unless assessed differently by her family doctor. As the mother did not stay in the hospital for the 48 hour her follow up was to be as an outpatient. The mother did not follow the advice of the doctor when she drove to the USA 14 days after the incident.

Exhibit 16 – Audi auto lights operation manual (showing complexity of system).

The audio lights operation manual can be considered. She said the police saw her lights flashing on and off because of some issue with her Audi. Notwithstanding she came to the attending of the police who were concerned.

Exhibit 17 – Screen shot from Alabama foster parent, Patricia Faulkner detailing her impressions of visits under her supervision (contrary to opinions cited by Melanie Regan).

The screen shot from the foster parent detailing her impressions of visits cannot be admitted as it is not a report and she could have provided an affidavit. However even if admitted she indicates the visits outside go well but the child doesn’t want to talk on the phone to his mother and the foster mother is concerned about the child’s behaviour but knows the mother doesn’t not like “labels”.

Exhibit 18 – Stalking information handout from Calgary Police Expert (Domestic Violence, Criminal Harassment, and Stalking offences).

The stalking information handout from Calgary police is not admissible. The purpose for which the mother seeks it to be admitted is to support her belief or concern that the alleged crimes in Ontario and Indiana could have been perpetrated by the father. This does to the mother’s submission that she was justified in not returning to Canada. This is the ultimate issue as to whether the mother’s decision to stay in the USA was reasonable in all the circumstances. The evidence would have to be entered through an expert to contact that the father living in England had likely perpetrated crimes against the mother and child while she was in Canada and Indiana.

Exhibit 20 – Toronto Star Article – Bernard Schiff

The Toronto Star article can be admitted as Ms. J.S. has already provided evidence that A.N. believed that Prof. P. or his spies could have been the cause of the stalking and poisoning of the pets in her home.

[86] Attached to affidavit of Ms. B.J. dated August 19, 2019

Exhibit A – Text messages between Ms. B.J. and A.N.

Exhibit B – Copy of email dated April 8, 2018 re: A.N.’s concern with the hole.

Exhibit C – Text dated August 25, 2018 re: A.N. explaining why she left Canada, so she could have change in her life.

Exhibit D – Texts dated October 15, 2018 to October 19, 2018 re: A.N. discussing inadequate funds for food and gas.

These exhibits are admitted as the mother has referred to her conversations with Ms. B.J in her own material.

[87] Affidavit of Winnifred Alexander dated September 16, 2019

Exhibit A – Transcript from the Order of Questioning of the mother.

The transcript is admitted. It did not need to be attached to an affidavit if the Society’s Factum had referred to it.

[88] In the reply affidavit of Ms. Legge, sworn Sept 5, 2019 are the following affidavits:

Exhibit A- an email from Ryan Peschke a family case manager supervisor from the Indiana Department of Child Services as to his observations of access and whether the day care had a basement

This email is not admitted. It is not an affidavit.

Exhibit B - a letter from Dr. Joshua Colby providing a character reference for L.D. who he has not seen since 2013

This letter clearly cannot be admitted as it is hearsay and provides an opinion on someone that Dr. Colby has not seen since 2013.

Exhibit C Ms. Legge’s feedback report from the mother’s access

This document is a business record as the worker has an obligation to take accurate, timely notes with respect to supervised access and is an answer to the mother’s claim that the worker does not give her feedback.

Exhibit D Ontario school records from S[…] Catholic School in Picton

This can be considered under section 93(2) of the Child, Youth and Family Services Act. It is reliable and relevant and confirms the mother’s own evidence that the child struggles with his behaviour and emotions in school and she had a difficult time getting him to school.

Exhibit E - a copy of the Pittsboro police report dated August 17, 2018

This report is admitted as a business record under the Evidence Act and statements made by the mother to the police are statements against interest and therefore an exception to the hearsay rules. Further the mother has admitted her involvement with them. Police have a duty to accurately record their observations.

Exhibits F and G - copy of the Indiana Court records including;

[1] the order of Judge Hendricks of the Superior Court in the County of Hendricks in which he finds:

a. that the removal of the child was authorized and necessary to protect the child. It is in the best interests of the child to be removed from the home environment and remaining in the home would be contrary to the health and welfare of the child based on the finding of probable cause, the allegations in the petition and the report of the preliminary inquiry. In particular, the mother was recommended for inpatient treatment at St. Vincent Stress Centre and hospital staff deemed mother unfit to care for her child at the time.

[2] On September 2, 2018 the motion to dismiss the petition states: that there is no mental health diagnosis of mother and no indication that she is not fit to have her son back in her care. Mother has already started overnight unsupervised parenting time with her son with the safety plan. Canada, the home of this family citizenship can better assist mother and son in the future if necessary.

These documents are clearly admissible pursuant to section 93(2) of the Act. It is reliable and relevant to the mother agreeing to return to Canada.

Summary of the admissible evidence

[87] This matter has been before the court since December 2018 in this jurisdiction but has had child protection intervention in both Indiana and Alabama since August 2018. The child had been in care for approximately one year when this motion was argued.

Risk of physical harm

[88] The mother had a stroke like episode in Ontario on July 17, 2018. She was given direction not to drive for 30 days or unless approved by her physician. Ms. J.S. was very concerned because the respondent mother did not appear well during this time, she was losing weight and was very stressed about her finances.

[89] Within two weeks she was driving into the USA, and I find this put her and her child at risk of physical harm.

[90] While in in the USA the mother was involved with the police because of her behaviour or erratic driving several times. First in Kentucky when she was found confused in a car dealership lot then on or about August 17, 2018 when she side swiped a car. She said she just left a note on the car’s windshield. She later told Officer Webber in Indiana that she may have blacked out. In Kentucky she was seen at hospital because of serious concerns of migraines or stroke like conditions. Lastly in Alabama when found sleeping on the side of a road in Indiana and yet she continued to drive.

[91] On August 17, 2018 in Indiana her erratic driving caused the police to be called and investigate resulting in her hospitalization for both physical and mental concerns.

[92] She denies the hospital admission was for mental health reasons saying it was for her physical health only. However, the Society filed the medical records which show Dr. Smitz admitted her for a psychological evaluation because of her “passing out randomly, delusional thoughts and headaches”. For her to continue driving and sleeping in her car put the child at risk.

[93] In Alabama on or about October 23, 2018 she was sleeping in her car at the side of the road with her son and she indicated that they were suffering from bad food because they had to eat processed foods that they receive from the shelters and she and her son have food sensitivities. They were extremely tired and not feeling well.

[94] The mother by continuing to drive and because of her bad driving and odd behaviour the police became involved and medical attention to be sought. The mother’s actions in continuing to drive put the child at risk of physical harm.

[95] When in the USA the mother sometimes stayed in hotels with her son, sometimes slept in her car, and she sometimes relied on food banks and shelters for nutrition.

[96] In Kentucky she told the hospital personnel that she was returning to Canada after she was unwell while driving but she did not. She put her son at risk of physical harm by continuing to drive and not having proper sleep or nutrition as they were often sleeping in the car.

[97] I find that the mother is not credible when she says the Indiana court did not direct her to return to Canada. Exhibit 8 to her affidavit is a text message on Sept 4, 2018 from the child care worker indicating that she can return to Canada. Further the petition was dismissed on the basis that she was returning to Canada. She knew she was to have returned to Canada and she admitted as such in her oral questioning. She skirts around the issue that she knew the child would be better cared for in Canada but did not return.

[98] In Canada she would have access to free health care; a family physician; the child can be enrolled in school; the mother could obtain EI so she could afford proper housing and food. The mother indicates that her son’s behaviours at school improved remarkably when he had proper nutrition, yet she subjected to him to food from shelters and restaurants, that on a few occasions made both the mother and child ill and still she didn’t return to Canada. This is actual physical harm that the child suffered.

[99] The mother when she arrives in Florence Alabama says she was “help seeking” because she had run out of money to pay for her car, her phone, hotels and food. During the time she was travelling she sometimes contacted friends who sent her money and offers of help. I find she could have accessed the support of those worried friends who would have assisted her in returning to Canada in particular Ms. B.J., and Ms. J.S. and the D[..] family. Even Dr. and Ms. Colby with whom she had dinner with days before she left Canada could have been called upon to help.

[100] The mother when she was in Alabama had not registered the child for school; had not obtained medical insurance for the child; had not maintained her telephone so she missed an important call from a social worker who was trying to help her and did not have proper housing or food for her son. It was in her power to have remedied all these protection concerns. Due to her impaired judgment or distorted theory of being justified in remaining in the USA she continued to put her child at risk of physical harm. There is a pattern of neglect. I find the child was at risk and was actually harmed when he was upset and vomiting while in the car.

Risk of emotional harm

[101] The mother took her son and their elderly dog into the United States with no real plan. At the time she had not made her car payment on her leased vehicle and was under financial pressures. The dog died in Kentucky in the car. The dog was left at the side of the road or parking lot, wrapped in a packing blanket. The child described being very upset about the death of his dog. It is difficult to understand why the mother would leave her beloved pet at the side of a parking lot. I find she was not using good judgment. The child was obviously very upset about the incident and she should have supported his emotional needs.

[102] The mother’s reasons for the trip are almost impossible to understand. At times in the transcripts or in statements made to others she said she went to the USA to grieve the death of her two dogs or her debt situation and only wanted to be gone for a short time. One friend was told she was going to North Carolina to get a new dog. Then in her affidavit she says she was fleeing Canada as it was not safe, and she and her son were victims of crime. The evidence has a shift shaping quality.

[103] The respondent mother submits that for approximately a year prior to her leaving Ontario she believed that she was being stalked and the perpetrator was likely her former husband, although at times she has says it could be Prof. P’s spies or the police or terrorists too.

[104] She gave three examples of when she thought the respondent father was present in Ontario. Once in a shopping mall, once when her son told her that he had seen his father at school and once when she said his Gmail was accessed from a local computer. Later she said there were two other occasions. Her description of the alleged stalkers is extremely detailed and somewhat bizarre as set out in her transcript of June 13, 2019.

[105] She describes strange things occurring in her home such as items being moved or going missing, holes appearing in the structure that she thought contain surveillance equipment and as a result she put a tape recorder under a bureau. When she finally listened to the tape she indicated that she could hear her door opening and closing and the dogs barking in the way they did when they were seeing someone they knew.

[106] It is interesting that she said she waited weeks to listen to the audiotape despite her being very concerned about her being stalked or surveilled. She did not report this to the local police.

[107] She said a modem was attached not by her to her TV antenna. She did not report any of these concerns to the police.

[108] As a result of her son telling her that he had seen his father at the local school she went to the police who searched for the respondent father’s passport to see if he had entered Canada and he had not. This did not satisfy the respondent mother who thought he could have gained entry in another way. Apparently, an alert was placed on the father’s passport as a result of the mother’s report.

[109] She claimed that her pets were likely poisoned she said that all (but one) were drinking from one bowl and they all became extremely thirsty and ill and her eldest dog died and the second within two weeks, with suspicious symptoms. This is despite her acknowledgement that the one dog was quite old with spinal stenosis and the other dog was ill with cancer.

[110] She indicated that her cat was having very different reactions to her and she believed that it had been poisoned from a slug that it regurgitated. She took the cat to the veterinarian but did not take the suspicious looking slug for analysis.

[111] The incidents with the pets, surveillance concerns and uninvited entry into her home were not reported to the local police and instead she did her own investigation as she had been a police officer in British Columbia. She told two of her friends about her concerns, telling one she feared it was the police following and listening to her and to the other that a professor’s spies were bugging her phone and home and tainting her and her son’s food.

[112] The mother asks to rely on a presentation given by Det. Robertson of the Calgary Police Service on Stalking. She also asks that the court read information on an internet site about stalking. I agree that stalking is a difficult crime to investigate. The mother files these documents to support that a spouse or former spouse is likely to be a suspect in cases of domestic violence and therefore it was reasonable for her to have concerns, suspicions or a belief that her estranged husband had stalked her and L.K.D. and abused L.K.D. Further that her decision to leave Ontario and not to return was not unreasonable nor did it cause harm to L.K.D. She testified in her oral question that “70, 80, 90 per cent” of cases of stalking involve a partner or former partner therefore it is reasonable to suspect the father. I cannot rely on the documents as evidence in this hearing. These documents are not trial worthy. Further she asks to have them admitted as proof that her decision to go the USA and stay there was reasonable. Harm to a child caused by an error in judgment is still harm and I find that mother did her child at risk of harm by wrongfully accusing the father and others of these “crimes”.

[113] The difficulty for the respondent mother in her position is that L.D. during all relevant times was in England. She has accused her former husband of very serious crimes that are not possible to have been committed by him. The child was aware that the mother was concerned about his father.

[114] The mother, if not delusional or paranoid, is certainly suffering from serious anxiety that has impacted her decision making to the detriment of herself and child. The immense magnitude of these unsupported allegations is considered as support to the child having been at of risk of emotional harm in his mother’s care.

[115] Ms. B.J. also had concerns about her friend. She said that the mother said police were following her and listening to her. She said that the mother said the father had been at the child’s school and was breaking into her home. She also thought her two dogs who died had been poisoned. In May 2018 the mother came to the Mississauga Police fearing that someone was trying to poison her third dog. The police called Ms. B.J. who came and retrieved the mother and took her to their home. Ms. B.J. tried to assure her that the strange things she described had logical explanations. Unfortunately, she failed.

[116] The mother says that after her child was returned to her care, on or about September 2, 2018, while still in Indiana her son told her (while he was in foster care) a story about being sexually abused. He said that he had been in a daycare with another boy and adults including his father. He said he went into the basement of that day care and was in a bathtub with a pineapple and cream and because of his “visceral traumatic response” in recounting the story and given his retching and gagging, the mother inferred that he had been sexually abused. Because her son said that his father was present the mother believed the father may have been involved in the abuse. In her factum filed on August 21, 2019 she confirmed that she believed this was a “genuine and serious” sexual assault that L.K.D. had suffered. She stated that they (the Society) refused to investigate or obtain the father’s hospital reports from before 2014 which she said would corroborate her claims of abuse. When the mother reported this alleged assault to the Alabama authorities the child was subject to a forensic interview but did not disclose this assault.

[117] The mother in her oral questioning said her child at times previously had a vivid imagination but this “assault” in Indiana she believed to be true. Further her son said that his father was present, and the mother believed it. The mother did not report this to the Indiana child services only reporting it after L.K.D. was taken into care about 4 to 6 weeks later in Alabama. It is not credible that the mother would not take the child back to the Indiana child protection authorities or police if she really believed her had been abused in foster care. Her son disclosed that another child had been with him in the bathtub, yet the mother did not report.

[118] She also indicated that L.K.D. disclosed sexual abuse by his babysitter in Canada and that was another reason she did not return to Canada. However, the abuse again was not disclosed with enough detail to assume it was abuse.

[119] The mother strongly argues that she has no mental health issues and she was justified to go to and stay in the USA. Her son was hospitalized for 17 days in Alabama for emotional issues yet she blames the court for removing him from her car instead of acknowledging the harm she did to him by staying in the USA and affecting him with her unfounded fears.

[120] The mother’s concerns reveal very distorted thinking if not paranoia. Again, a care giver can be found to have caused a child to be at risk of harm for acts, omissions and very poor judgment. She is unable to fathom that she may be in error and she holds tight to her misguided belief that she and her son are victims of various crimes.

[121] I do not find it credible that the mother did not return to Canada because of her son’s disclosure to her. The mother had friends and family who could have provided support and shelter, yet she did not return to Canada when she should have.

[122] The mother at times tries to minimize her outrageous accusations against the respondent father saying that she has suspicions or concerns, or it “could be” him. However, in reviewing the notes of the officers and social workers who have a duty to report accurately what is told to them, she indicates that she is a victim of domestic violence and stalking and that she believes the perpetrator is her former husband.

[123] Exhibit 4 to her affidavit is the psychological evaluation by Dr. Lowery of the mother. Unfortunately, she does not include the signing page or recommendations. The report of Dr. Lowery at page 7 outlines what the mother told him. He reported that the mother suspected her ex-husband had someone kill her pets or had someone else do it she said her son insinuated that his father molested him, and she said she did think something had occurred. Further the report indicates that although the psychological testing is benign with no diagnosable psychopathy, the evaluator “does have concerns about her experiencing mild paranoia that was not detected by her psychological testing that has strongly influenced her decision-making process, including her decision to remain in the U.S. rather than travel back to Canada. This evaluator has no way of researching her numerous reports of “suspicious” activity (cell phone was corrupted, modem on top of her personal property, estranged husband molested her son in Indiana, deaths of her pets and strange activity by her pets, evidence of someone trying to break into her home, etc.) that actually appear to be examples of mild paranoia.”

[124] In Exhibit 12 to her affidavit she includes a report of her child protection worker, Holly Sherrod in Indiana. She did not want the hearsay attributed to Ms. Sherrod included in the Society evidence but she asks to include the report as her evidence. The mother reports to the worker that she is still “concerned about her ex-husband/abuser including his location and what tactics he might be using in order to control her.” Despite the respondent mother’s claims that she had suspicions only it is clear that she is telling her support persons that she has been abused by the respondent father.

[125] I find the mother believes that the respondent father has abused their child and has been in Ontario or Indiana when he was not in the UK. The mother has indicated because he was previously married to someone in Belguim and lived in Spain so he could have access other passports. However at the time these were all E.U countries. This is not credible. How would the father be able to attend in Canada at different times and then find his way to Indiana and know exactly when to go to a day care where his son is having a bath in a basement day care?

[126] The mother said she made the trip an adventure for her son. I find she was telling her child that they were running from something and they were in danger. That put him at risk of emotional harm and likely because of the harm he actually suffered he was hospitalized.

[127] The child had reported to Whitney Bales and Ginifer Fowler of the Alabama Department of Human Resources that he was in danger in Canada and it was really bad. The GPS told them. He said the strange people were going to kill them. When asked who they were, he growled and screamed and threatened the worker.

[128] On October 25, 2018 L.K.D. was interviewed by supervisor Beckwith and she noted that L.K.D. explained they left Canada because “things keep dying”. He answered a number of questions with “its complicated”. He was very careful in answering his questions. When he finished, he saw his mother and said to her that he didn’t say anything but just that it was complicated. It appears he is wanting to protect his mother.

[129] On October 26, 2018 L.K.D. was interviewed by Danielle Wallace and he told her among other things that his father was mean and was “killing and killing and killing of the preschool” He also said his father got a big gun and shot him in the leg. The worker noted L.K.D. was very agitated and could not focus. He also said that “Judith” hurt him and that Judith has “cruel ears, long hair that goes up to the sky and long arms to punch with”. He also said that Judith had shot a gun. I find that the child was seriously anxious, upset and aggressive and in risk of emotional harm.

[130] When the mother spoke to the worker, Danielle Wallace and Ms. Fowler on November 2, 2018 she admitted that her son had told her of “Judith” and she knew what she looked like. When asked why she didn’t have her son seen in Canada by a child psychologist she said “and what? Put him on medication”. She didn’t want to have L.K.D. seen by someone and be medicated. I find that the mother was aware of L.K.D.’s struggles before they left Canada and did not obtain adequate support for him. By telling him that they were fleeing danger it likely increased L.K.D’s anxiety. I don’t see how being “labelled” or “medicated” would be worse than what L.K.D. has endured.

[131] In reviewing the notes of the workers in the report the mother diverts and blames others for the situation in which she was in. She questions their qualifications to assess her and doesn’t accept that her bad decisions caused her son to be apprehended from her care.

[132] Even in the report of Dr. Lowery, she argued with him about the usefulness of the diagnostic tool and frequently attempted to gain clarity about a test item and questions he was asking.

Is there a Triable Issue?

[133] I must exercise exceptional caution before proceeding on a summary basis in a child protection case. I recognize and have considered that in child protection proceedings there are Charter implications at stake for vulnerable litigants. Here I find that the mother is an extremely resourceful, intelligent litigant. She delayed the return to her child to Ontario despite her knowledge that she would not be able to obtain immigrations status and be entitled to stay in Alabama with housing and employment. Only after the decision of Justice Powell did she indicate that she would be able to resolve her immigration issues quickly.

[134] I find that it is in the interest of justice for the court to determine this case summarily. This process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. Having the extensive oral testimony of the mother has also provided a safeguard to ensure she has been heard.

[135] I find that the evidentiary record is sufficiently comprehensive on all aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a trial. Cross-examination of Society witnesses would add little, if any value to the court’s analysis.

[136] Given the length of time the child has been in society care and the length of time the application has been before the court, I find that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.

[137] I find that the society has established, on a balance of probabilities a prima facie case for summary judgment with respect to each aspect of the relief sought, and that the mother has not met her onus of establishing that there is a genuine issue required a trial on any issue. Further her submissions were essentially to deny all facts submitted by the Society case even on matters admitted by her.

Summary of the findings

Risk of physical harm

[138] I find that the child is in need of protection and likely to suffer physical harm because of the mother’s failure to care for, provide for or protect the child. The mother drove with the child to the USA when she had stroke like symptoms only 10 days earlier. She was to see her family doctor before driving but did not. In Kentucky, she was found confused in a car dealer parking lot and complained of further headaches and concerning symptoms and despite telling the treating medical staff she would return to Canada she did not. She put her child at risk when she continued to drive.

[139] L.K.D. was seen by a doctor in Kentucky complaining of vomiting for days when in the car, yet the mother continued to drive and she failed to address his needs by coming back to Canada. Instead she continued driving and living in her car. Both she and L.K.D. complained of diarrhea and stomach upset for weeks when in Kentucky, yet she did not return home.

[140] After being stopped by the police for erratic driving in Indiana and having a car accident in Kentucky, having a medical and psychiatric evaluation and having her child removed from her care and then returned to her care, she still did not return to Canada. She did not protect him and neglected his care.

[141] I find the child is in need of protection in that he required treatment to alleviate his physical suffering, namely his vomiting and upset stomach while travelling in the car yet the mother did not return him to his home where he would not be subjected to the motion sickness and food that upset him.

Risk of emotional harm

[142] A parents’ failure to ensure that their child has the appropriate education and assessment has been found to neglect the child’s educations needs and impacted their development which was a risk of emotional harm. Catholic Children’s Aid Society of Toronto v. N.N., id at paragraph 232-268.

[143] The Courts have found that where a child was demonstrating delayed development and the parent failed to act and their failure to seek or an avoidance of professional involvement to assess and address the concerns me the criteria for risk that the child would suffer emotional harm. Children’s Aid Society of the United Counties of Stormont, Dundas & Glengarry v. P.(L.I.), 2003 ONSC 4659, at para 104.

[144] A child is at risk wherein the parent makes disparaging comments about the other parent and puts the child in “a loyalty bind”. Catholic Children’s Aid Society of Toronto v. N.N. id at para. 213

[145] Where there is a finding that a claim of sexual was baseless, Justice Zuker gave the following analysis:

There is a range of circumstances that may lead a parent to make unfounded allegations of abuse in the context of parental separation. These include:

i) Allegations that are made in the honest but mistaken belief that abuse has occurred, often due to some misunderstanding or misinterpretation of events;

ii) Allegations that are made knowingly with the intent to seek revenge or manipulate the course of litigation; or

iii) Allegations that are made as a result of an emotional disturbance or mental illness of the accusing parent.

Catholic Children’s Aid Society of Toronto v. H (L.D.) 2008 ONCJ

783, at para. 231

[146] I find that the child is also found in need of protection as the child has suffered emotional harm demonstrated by his serious anxiety, aggressive behaviour and delayed development due to the mother’s not returning to Canada, continuing to sleep in the car in parking lots, feeding her son food that disagreed with him and frightening him with stories of his father and Canada being unsafe. The mother knew when she left Canada that her son had have aggressive outbursts, not wanting to go to school and needing occupational therapy and speech therapy. He was unable to receive the help he needed while living in his mother’s car. The mother says that she was a teacher for over 12 years so she was qualified to home school him but there was no independent curriculum or socialization. L.K.D. should have been in school in September and receiving occupational and speech therapy. He should also have been seeing a counsellor to address his fear of “Judith”. There is no reasonable justification for the mother’s actions.

[147] The matter is adjourned to Settlement Conference on December 17, 2019 at 2:00 p.m.

Justice W. Malcolm

Date: November 7, 2019