NEWMARKET COURT FILE NO.: FC-17-55032-00

DATE: 20190207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children and Family Services for York Region, Applicant

AND:

LL, Respondent

AND:

JG, Respondent

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

COUNSEL: A. Moonsie-Mohan, Counsel for the Applicant

M. Shaw, Counsel for the Respondent LL

H. Hanson, Counsel for the Respondent JG

HEARD: January 31, 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.

ruling on motion

Motion before the Court

[1] The motion currently before the court arises from a motion brought by the applicant Society requesting the following Orders:

(a) an Order placing the child AG, date of birth […], 2005 in the care of the Society with access to the parents at the discretion of the Society;

(b) an Order that independent legal counsel be appointed to represent the child; and

(c) an Order that pursuant to section 98 of the Child, Youth and Family Services Act 2017 (“the CYFSA”) requiring the respondent father to submit to a sexual behaviours assessment to include phallometric testing if deemed advisable by the Society, such assessment to be conducted by Dr. Alina Iosif.

[2] That motion was brought in accordance with paragraph 7 of an Order made by Justice MacPherson January 16, 2018 and was originally heard by Justice MacPherson October 10, 2018. In a decision released October 18, 2018 Justice MacPherson, for reasons set out in his decision, dismissed the applicant’s motion for the relief sought with respect to the appointment of independent legal counsel for the child and for the request seeking an Order that the father submit to sexual behaviours assessment testing.

[3] The relief sought with respect to the placement of the child was adjourned on consent to December 3, 2018 as the Society was completing assessments with respect to the kin placement of the child. Justice MacPherson indicated that the motion on its return would be heard by him. The date of December 3, 2018 was adjourned to December 17, 2018 as Justice MacPherson was not available on December 3, 2018. The motion was further adjourned on December 17, 2018 as Justice MacPherson was not available on that date either. Although it was intended that Justice MacPherson hear the return of this motion, given that he will not be available to do so at the earliest for another three months, it was agreed that this court would hear the motion.

[4] The applicant now seeks an Order (pursuant to a Notice of Motion dated November 27, 2018 and filed at volume 7 tab 1) to have the child placed with the paternal uncle and his partner, being Dr. CG and Ms. CG.

[5] The applicant seeks an Order for parental access as follows:

(a) by the respondent mother at the discretion of the Society for a minimum of twice per week supervised by the Society;

(b) by the respondent father Dr. JG in a therapeutic setting, the frequency and duration of which to be determined by the Society in consultation with the therapist or other appropriate professional. The respondent father’s access is to be reviewed after several visits with a view to moving the access to being unsupervised, the frequency and duration of which to be determined by the Society; and

(c) sibling access to occur liberally.

[6] The Society further seeks an Order allowing Dr. CG and Ms. CG to travel with the child AG to Orlando Florida from February 14, 2019 to February 20, 2019 with the parents providing the required travel documentation including the child’s Passport to the care-givers.

[7] The respondent father supports the relief requested by the Society.

[8] The respondent mother’s position is that the motion should be dismissed and the child should remain in her primary care. An alternative secondary position is that if the child is to be taken from her care, the child should be placed with her babysitter MC.

History of Current Protection Application

[9] The current protection application commenced December 6, 2017 as a result of a referral from Dr. Kadar at the SCAN program at the Hospital for Sick Children. He reported that the child AG had been brought to the hospital by his mother expressing concern that he had been sexually abused by the respondent father. Although it is subsequently referenced, the specificity of the allegations changed over time, the initial allegations appear to have been that he reported feeling uncomfortable because the respondent father would come behind him closely (while both were fully clothed) and that AG would feel his father’s penis (not reported whether erect or flaccid) in the area of his buttocks.

[10] Although the police were contacted as a result of these disclosures, no criminal charges were laid against the respondent father.

[11] The Society subsequently learned the following, all of which are in the opinion of this court relevant to this motion namely:

(a) the “disclosure” by AG was not spontaneous but was in response to a question to him from the respondent mother inquiring as to whether or not his father had ever done anything sexually inappropriate;

(b) the “disclosure” by AG is virtually contemporaneous in time with the respondent father delivering an Answer to a Family Court application pursuant to which the mother was seeking to move with the children to Arizona and the respondent father was not consenting to that move;

(c) the parties had a three week trial before Justice Fryer of this court in November 2015 which resulted in a decision released May 2016 upon which this court will comment subsequently. Among other findings of Justice Fryer, was that the respondent father gave credible evidence and the court had some concerns with the “disconnects” in the evidence of the respondent mother; and

(d) evidence with respect to alleged “sexual addiction” by the respondent father was heard during the family law trial and referenced in the trial decision.

Temporary Motion Heard January 11, 2018

[12] Justice MacPherson heard a motion January 11, 2018 which actually comprised three motions. A summary of the relief sought, so far as it relates to this motion is as follows:

(a) at that time, the Society was seeking a temporary Order placing the two children AG and MG (the older child MG will be 16 years of age March 27, 2019 and hence the Society is not pursuing relief with respect to him at this time) in the temporary care and custody of the respondent mother subject to among other relief, that:

i. neither parent discuss the issues relating to this proceeding with the children;

ii. the mother ensure that the children continue to attend therapy sessions;

iii. that Howard Hurwitz be permitted to interview the children in the presence of a CAS worker to assess the impact of recent events on their emotional well-being; and

iv. that the respondent father have access to the two children at the discretion and supervised at the discretion of the Society;

(b) the respondent mother brought a motion seeking interim care and control of the two children; and

i. an Order that any access by the father be supervised;

ii. an Order that Howard Hurwitz not be permitted to interview the children;

iii. an Order that the parties ensure the children are not exposed to any negative or derogatory comments;

iv. an Order that the respondent mother have sole discretion with respect to any therapeutic treatment for the children;

v. an Order that the OCL the appointed to represent the children; and

vi. an Order that the father’s contempt motion (relating to the family law matter) be stayed pending the Society investigation.

(c) the respondent father brought a motion seeking:

i. the dismissal of the relief claimed by the Society;

ii. an Order that his access to the children be implemented immediately in accordance with the trial decision of Justice Fryer dated May 6, 2016; and

iii. an Order that Howard Hurwitz be permitted to interview the children in the CAS worker’s presence.

[13] Justice MacPherson made an Order at that time that the children be placed in the temporary care and custody of the respondent mother subject to Society supervision and so far as it relates to this motion subject to:

(a) neither parent discussing the issues related to this proceeding with the children and to ensure that the children are not exposed to any negative or derogatory comments about the other party;

(b) that the respondent mother shall ensure the children attend therapy sessions;

(c) that access between the respondent father and the children shall recommence immediately and shall be facilitated by a therapist trained in reunification therapy; and

(d) in the event access does not occur, or in the event that any of these conditions are not followed, the matter shall return before me for a consideration of an alternate care and custody arrangement. (emphasis added)

Legal Considerations on a Variation of a Temporary Care and Custody Order

[14] Justice MacPherson made a temporary placement Order in January 2018. The Society seeks to vary that Order which is provided for under section 94(9) of the Child, Youth and Family Services Act.

[15] Counsel collectively indicated that the test for me to apply with respect to a variation of a temporary placement Order is that of a "material change in circumstances."

[16] That may be the practical test in this particular case and for reasons set out below, I find that if a material change in circumstances is required, that threshold has been met.

[17] However, I find guidance in the case of Children's Aid Society of Toronto and C.G. and A.G, the case of the Ontario Court of Justice 2018 ONCJ 212 decided by Justice A. Finlayson who found that, as found by Justice Sherr of the Ontario Court of Justice in the case of Catholic Children's Aid Society of Toronto v. R.M. 2017 ONCJ 784, 2017 O.J. No. 6004, the test to vary a temporary placement was different from the test to vary temporary access.

[18] They found that in child protection cases, the evidence required to vary a temporary placement does not rise to the level of compelling evidence, nor to the standard of material change in a domestic case for the court to intervene.

[19] They found that the test is therefore that there has been a "sufficient change." They further found that "major changes" will require a very material change in circumstances.

[20] They found that where there had found to be a sufficient change in circumstances, the court must then conduct a contextual analysis to decide if it is in the child's best interest to change the current Order. As well, of course they found that the court is governed by the purposes of section 1 of the Act.

[21] This court concurs with that analysis and finds that in this particular case, there has been a material change in circumstances and that as governed by the paramount purpose of the Act, being to promote the best interests, protection and well-being of children, it is incumbent upon this court to make an Order varying that previously made by Justice MacPherson.

Legal Considerations on Temporary Care and Custody Motion

[22] The legal test for me to apply on this motion is set out in subsections 94(2), (4) and (5) of the Child, Youth and Family Services Act (the Act) that read as follows:

94(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

Criteria

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

Placement with relative, etc.

(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

[23] The court has also taken into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity pursuant to subsection 94(11) of the Act.

[24] At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision Order. See: Children's Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test that the Society has to meet.

[25] A court must choose the Order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.

[26] The degree of intrusiveness of the Society's intervention and the interim protection ordered by the court should be proportional to the degree of risk: CCAS of Toronto v. J.O.1, 2012 ONCJ 269.

[27] Subsection 94(10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence: Family and Children's Service v. R.O., [2006] O.J. No. 969 (OCJ).

[28] In assessing risk, the court should consider the criminal history of parents, including evidence of violent conduct and the potential exposure of the children to violence: Children's Aid Society of Algoma v. B.W. and R.M., 2002 CarswellOnt 5500 (OCJ).

[29] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children: Children's Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ).

[30] The Act gives priority to the person who had charge of the children prior to Society intervention under Part III of the Act (subsection 51 (2) of the Act). There can be more than one person in charge of the children. See: Children's Aid Society of Toronto v. A.(S.) and R. (M.) 2008 ONCJ 348 (OCJ).

[31] The Divisional Court has held that a Society seeking an Order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention: L.D. v. Durham Children’s Aid Society and R.L. and M.L., 2005 CanLII 63827, 21 R.F.L. (6th) 252, [2005] O.J. No. 5050 (Ont. Div. Ct.). The burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care: CCAS of Toronto v. M.L.R. 2011 ONCJ 652.

[32] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a young mother, provided that the standard used is not contrary to the child’s best interests: Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.

Temporary Access

[33] Subsection 94(8) of the Act provides that where an Order is made under clause (c) or (d) of subsection 94(2), the court may order access on any terms that it considers appropriate. In determining what Order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74(3) of the Act: JFCS v. H.B.S. [2012], O.J. No. 5055 (OCJ).

Background

[34] The parties married one another April 3, 2000 and separated February 22, 2010.

[35] The parties are the biological parents of MG born […], 2003 and AG born […], 2005. Only AG is the subject of this motion as MG will turn 16 in less than two months.

[36] The respondent mother has three other children from a previous marriage.

[37] A number of years ago, the respondent mother remarried. The evidence is that her husband BL has and continues to reside in Arizona.

[38] To say that this has been a high conflict separation is an understatement.

[39] In November 2015, the parties had a three week trial before Justice Fryer. That decision was released in May 2016.

[40] Prior to the trial, the respondent father had not been having any meaningful access to the two children who were then 10 and 12 years of age. Following the trial, he did not have any access to the children until Justice Fryer’s decision was released in May 2016.

[41] Justice Fryer’s Order is 55 paragraphs long and for purposes of this decision, the court will summarize the relevant paragraphs of that Order namely:

(a) the parties would have joint custody;

(b) a parenting coordinator was to be immediately engaged whose mandate was to implement and monitor the Order. Her Honour indicated that if the parenting coordinator found that the parties were not strictly adhering to the Order, the matter may be brought back before that court;

(c) the respondent father was granted unsupervised access alternate weekends and Wednesday overnight as well as additional holiday access;

(d) the parties were to jointly select a therapist for the children and not to engage the children in any other therapy;

(e) each of the parents and the mother’s husband were to be involved in individual and joint therapy as recommended by the parenting coordinator;

(f) Her Honour wrote a letter to the children which was to be delivered to them;

(g) Her Honour further provided that she would remain seized of the matter for the period of a minimum of one year or the completion of the review that was contemplated within her Order, whichever period was longer; and

(h) the review portion of the Order indicated that neither party was to bring a Motion to Change with respect to parenting prior to the date of review which was not to be initiated earlier than October 1, 2016.

[42] In that trial, the mother sought to move to Arizona which request was denied by the court.

[43] This court also notes that at trial, evidence was heard from Dr. Raymond Morris, an experienced custody access assessor, who had released his section 30 report September 13, 2013, which report dealt with, among other things, the mother’s request to move to Arizona. It is noted that at that time, the father was only having day visits with the children and that Dr. Morris recommended alternate weekend visits for the father.

[44] Dr. Morris contemplated a review after one year.

[45] The mother sought that review immediately upon the expiration of the one year, in September 2014.

[46] Justice Fryer, during the trial, also heard evidence from Dr. Barbara Jo Fidler, an experienced assessor, who also had expertise in the areas of parental alienation and justified rejection/estrangement.

[47] As noted at the time of trial, notwithstanding the recommendations of Dr. Morris for alternate weekend access two years previously, the father was having minimal access.

[48] Also of note, the mother had sought an adjournment of the trial, which request was denied.

[49] At trial, Justice Fryer stated “I found the father on the whole credible.”

[50] Justice Fryer also noted “the mother’s evidence contained significant disconnects.”

[51] Justice Fryer found that although the mother said that she felt it was important for the children to have a good relationship with their father, the court found that “her real” position was that it was not in the best interest of the children to spend time with the father.

[52] Justice Fryer also heard from Diane Moody, a registered social worker who had been retained to provide individual therapy for the children and to assist with the relationship with their father.

Situation between May 2016 and October 2017

[53] The respondent father was having no meaningful access to the children prior to the trial in November 2015 and, following the trial until the release of Justice Fryer’s decision in May 2016.

[54] Following the release of the decision in May 2016, presumably as a result of that decision and as a result of the retaining of Howard Hurwitz as a parenting coordinator, the respondent father began having regular access between then and October 2017.

[55] The court notes that pursuant to Justice Fryer’s decision, no review could be brought prior to October 2017.

[56] As was the case with the custody access assessment of Dr. Morris which provided for a review after a one year period, the respondent mother again wasted no time in bringing a further review.

[57] As permitted by Justice Fryer’s decision, the respondent mother immediately upon being permitted by the Order, in October 2017, commenced an application seeking once again to move to Arizona.

[58] The respondent father’s evidence is that between May 2016 and October 2017, he had the best access and best time with his children that he has ever had.

[59] The respondent mother claims that even during this time, the children expressed to her some dissatisfaction with having access with their father.

[60] As identified above, the parties had, at that time, been separated seven years and it appears that this may well have been one of the few, if not only, periods of time when he in fact did enjoy meaningful access to the children.

[61] All of that changed again in November 2017.

[62] In early November 2017, the father served his Answer in response to the mother’s application to move.

[63] Virtually immediately thereafter, the respondent mother asks the child AG if he has ever been sexually inappropriately touched by his father. The evidence is that initially he may have shaken his head “no” but then raised the allegation that the respondent father had contacted him while both were fully clothed such that the child reported that he could feel the father’s penis in the area of his bum.

[64] The mother then (based on what she says was legal advice) takes the child to the SCAN unit of the Hospital for Sick Children.

[65] Quite understandably, the Society commences an investigation and this protection application was commenced.

[66] The mother alleges that the father has sexual addiction issues.

[67] The court finds it relevant to review previous Society involvement with this family.

Previous Society Involvement

2000

[68] The Society was first involved with this family in the year 2000. At that time, the respondent mother’s ex-husband MB, the father of her three older children, reported that one of his children, who was then a teenager, had reported that the respondent father had said “I’m going to shoot those kids.”

[69] At that time, the respondent father and respondent mother were recently married. Both of them denied the respondent father saying that and when the Society investigated, the child indicated he could not recall it being said either.

[70] That file was quickly closed.

2008

[71] The Society became involved once again in September 2008. This involvement was as a result of a report from a counsellor at Bellwood’s where the parties were having couples’ therapy. The counsellor was concerned about ongoing adult conflict between the respondent father and respondent mother. Although there was some counselling as well by the respondent father for sexual addiction, none of the children disclosed any allegations of sexual abuse at that time.

2010

[72] In February 2010, the Society once again became involved. This was as a result of the respondent mother having called the police relating to an argument. The respondent mother had called a male member of a sexual addiction support group to which he belonged and an argument ensued between she and the respondent father. As a result of the struggle over a cell phone, she was struck with the phone, possibly by accident.

[73] Apparently a similar incident had occurred a month earlier in which she was struck with a stack of envelopes by the respondent father. The respondent father had been charged with assault as a result of the earlier incident related to the envelopes.

[74] The parties attended an intensive sexual addiction therapy in Scottsdale Arizona for five days in March 2010. The respondent mother apparently left that therapy session early.

[75] In addition to that therapy, the respondent father apparently had been having ongoing therapy the previous year with a certified sex addiction therapist candidate. The Society, with respect to the current investigation, had spoken to this therapist who opined that he had no concerns with the respondent father’s parenting and stated that the respondent mother had never stayed for any complete sessions with him.

[76] It was at that time that the respondent father left the home, which could have at least in part, been related to the criminal charges involving the envelopes.

[77] The Society closed its file in April 2010.

2011

[78] The Society file was reopened in November 2011 and remained open for three and a half years thereafter (the family law trial commenced shortly after the expiration of this time). In November 2011 the respondent mother had called the police over an altercation between she and the respondent father during an access exchange. At that time, the matter was actively before the Family Court with the next appearance to have been January 2012.

[79] The mother’s allegation was that the respondent father had grabbed her cell phone and blocked her car during an access exchange. She apparently advised the police that she had recanted her earlier allegations with respect to the assault relating to the envelopes as she was worried that the respondent father may lose his medical licence. The court notes that from an economic standpoint, the loss of his medical licence would not be a beneficial result for the respondent mother or the children.

[80] In January 2012, the respondent mother provided the Society intake worker with photocopies of the respondent father’s journals that he had apparently created some six years previously in relation to the treatment he was receiving at Pine Grove or Bellwood’s at that time.

[81] The court notes that according to the Society evidence, the respondent mother had been in possession of copies of these journals for five or six years (according to the trial decision, it appears that Justice Fryer found that the respondent mother had located the journals in the locked trunk of the respondent father’s car). The journals allegedly contained entries relating to the respondent father’s sexual fantasies which involved adolescent girls, including apparently the respondent mother’s nieces who would have been teenagers at the time the journals were written.

[82] Given this information, the Society quite understandably investigated further. They attended a police interview with the respondent mother. During this time, the respondent mother admitted that she had no specific allegations that the respondent father had sexually assaulted anyone.

[83] There is some confusion in the Society’s evidence as to whether or not the nieces were nieces of the respondent mother or the respondent father.

[84] In any event, police spoke to the nieces who disclosed that nothing inappropriate had happened despite the fact that the respondent mother had told other family members that it had.

[85] One of the nieces advised the police that they had a positive relationship with the respondent father and that the only reason for her avoiding the family was because of the way she was treated by the respondent mother.

[86] Another of the nieces interviewed by the police denied that she had any concerns with respect to the respondent father. She said she had been shown copies of these journals by the respondent mother and felt that the respondent mother was trying to turn the family against the respondent father.

[87] The respondent mother in April 2012 apparently also reported “concerns” for a 14 year old female babysitter that the respondent father had hired to babysit during access with the boys. The babysitter did not wish to be drawn into this matter. The Society concluded that while the journal entries were concerning, there was no evidence of any child victims.

2012

[88] Ongoing adult conflict kept the file open. Between January and August 2012 the respondent father was having access Tuesdays, Thursdays and Sundays, but not overnight.

[89] During this period of time the respondent mother, in the family law action sought permission to move to Arizona to be with her then fiancée BL. It was at this time that Dr. Raymond Morris became involved. In July 2012 the Family Court was not prepared to expand the respondent father’s access until Dr. Morris had completed his assessment.

[90] During this period of time, the children were expressing fear of their father’s anger. The respondent mother was claiming that she was positively encouraging the children to have access with him. At the same time the children were speaking positively of their wish to move with the mother to Arizona.

2013

[91] Apparently access had slightly improved. In May 2013 at AG’s first Communion, each parent accused the other of making a scene during the church service (the court notes the irony of the venue of these allegations). As a result of the respondent father allegedly approaching the respondent mother’s car during an access exchange, she contacted the police.

[92] The Society’s evidence is that following the release of Dr. Morris’ report in September 2013 and his recommendation that the respondent mother not be allowed to move to Arizona with the children, she became upset and retained new counsel. The court notes that as of this current motion before the court, the evidence is that the respondent mother has had seven counsel.

[93] Apparently the situation somewhat improved between the parents and the file was once again closed in May 2014.

2014

[94] As appears to have been the pattern, virtually immediately upon the file being closed a further “allegation” was made by the respondent mother/children. The allegation was that the respondent father had yelled at MG and called him a “dufus.” AG reported that his father also yelled at him and said mean things to him. MG apparently also had mentioned suicide. This resulted in the respondent mother taking AG and MG to the emergency department.

[95] When MG was interviewed, the allegation by him was that his father had called him a “doof.”

[96] The boys also apparently disclosed at that time to the Society worker that their mother had told them that if they wanted to move to Arizona they would have to write it down, give it to their mother’s lawyer and then they would be allowed to move. Also of note, MG did not disclose any suicidal concerns to the Society worker but did disclose that he wanted to move to Arizona. Neither child disclosed any protection concerns about their father.

[97] The respondent mother apparently was upset that the Society was revealing to the respondent father concerns reported by the children.

[98] When confronted about encouraging the children to tell the Society worker about wanting to move to Arizona the respondent mother stated that the children might hear “snippets” of conversations that they should not hear but she denied telling the children to say they wanted to move.

[99] The respondent mother claimed that it was during a regular checkup with the doctor that MG had started “disclosing” to the doctor.

[100] The Society decided not to reopen the file as a result of those new events.

2015

[101] The Society’s evidence is that even though there had been a request for its file to be produced for the 2015 family law trial, it could not be produced because the mother had failed to provide her consent to allow the Society to do so.

[102] Contemporaneously with a call to the Society from a lawyer with respect to the family law trial, the Society received a referral from a therapist who insisted on anonymity.

[103] The therapist alleged that the children had disclosed that they did not want to see their father as “he was mean and yelled at them” and because they had “seen him abuse their mother.” The anonymous therapist also claimed that the children had disclosed that their father would “Google girls and make sexual comments about them” while the children were visiting their father. MG had apparently disclosed as well that several months previously, the respondent father had allegedly taken a knife and held it to MG’s face. The “anonymous therapist” also alleged that MG had said he would kill himself if he had to go (visit his father). The “anonymous therapist” also alleged that Dr. Fidler had told the children that she had the authority to make the children reside with their father if they did not cooperate with access visits. A further allegation was that AG had allegedly said that his father squeezed his neck after an incident when he soiled himself. All of this resulted in the Society opening a further investigation.

[104] When questioned by Society workers, MG confirmed the allegations of what he claimed had allegedly been said by Dr. Fidler and said that he would only harm himself if he was made to visit or live with his father for an extended period of time but not for a short period of time.

[105] As a result of a further call from the respondent mother in December 2015, at a time when she was in Arizona, it was alleged that the respondent father had locked AG in a room and called the police as MG was trying to leave the home. A Society investigation of the respondent father’s home revealed that there were no doors in the home that could be locked from the outside but that for no apparent reason during the visit, MG had become upset, began to yell and bang on the walls and the respondent father in order to protect AG, had stayed with AG in his room while attempting to calm MG. The police had attended to attempt to assist in calming MG. Following the calming, they all went to play soccer and the visit continued for an additional couple of days. The respondent father denied ever putting a knife to MG as alleged.

[106] Following the return to their mother’s home, AG had alleged that his father tried to “poison him at bedtime with a spicy drink and had dragged [sic] him.” MG alleged that his father had “punched him several times in the stomach.” MG then changed his story and said that his father had “shoved him and slammed the door on his hand.” He further claimed that during the summer (some six or more months earlier) the respondent father had waved a butcher’s knife at him.

2016

[107] In June 2016 the respondent mother contacted the police while the children were at their father’s. The allegation was that MG became upset with his father for being asked to do his homework. MG had alleged that his father had tried to take his cell phone away because he was not doing his homework which resulted in a physical struggle during which MG may have been struck in the eye with his phone. Both children reported that they did not want to have access with their father. AG however denied any physical abuse.

[108] A week later when the children were interviewed at the father’s home (at that time pursuant to the Order of Justice Fryer they were spending alternate two week periods with the father and mother during the summer); the children appeared fine.

Analysis

[109] The issue for this court is whether or not pursuant to section 94(2) of the CYFSA the court is satisfied that there is a risk that the child is likely to suffer harm and that the child cannot be adequately protected by leaving the child in the care of the respondent mother with or without supervision.

[110] The allegation by the Society is that if AG remains in his mother’s care that he will suffer emotional harm as a result of the allegations of alienation from the respondent father.

[111] For reasons set out below, this court is satisfied that AG will suffer that emotional harm if he remains in his mother’s care.

[112] This court is also satisfied that a supervision Order pursuant to section 94(2) (b) is insufficient to protect him from that emotional harm.

[113] Justice MacPherson made an Order in January 2018. Pursuant to that Order, the children remained in their mother’s care subject to Society supervision. The children were to have had reunification therapy with the respondent father.

[114] Both parents were precluded from discussing issues with the children and were to ensure that the children were not exposed to any negative or derogatory comments about the other party.

[115] The respondent mother was to ensure that both children attended therapy sessions.

[116] Paragraph 7 of Justice MacPherson’s Order is very telling “in the event access does not occur, or in the event that any of these conditions are not followed, the matter shall return before me for a consideration of an alternate care and custody arrangement.”

[117] The only reasonable interpretation of that paragraph is that Justice MacPherson was telegraphing a clear message to the respondent mother that if the Order was not complied with, a different care and custody arrangement for the children would be contemplated.

[118] All counsel have submitted that in order for this court to make an Order which varies the Order of Justice MacPherson, this court must find that there has been a material change in circumstances. This court has earlier analyzed the test to be considered in the variation of a temporary placement Order.

[119] The Order of Justice MacPherson contemplated a variation as set out in subparagraph (e) of that Order.

[120] Even though the test may not be as stringent as a material change in circumstances, given that it was a temporary Order and given that Justice MacPherson clearly contemplated a change in the event that the respondent mother did not cooperate, this court is satisfied that there has in fact been a material change in circumstances since the Order of Justice MacPherson in January 2018.

[121] The overwhelming evidence is that following Justice MacPherson’s January 2018 Order, the children were not regularly attending reunification therapy until the Society brought this motion. At that time, the respondent mother, faced with the prospect of a court making an Order removing the children from her, then began to “cooperate” with the reunification therapy.

[122] The case law clearly indicates that in protection proceedings, the court should take into account credible and trustworthy evidence that is weighed in its entirety. In doing so, the court takes into account the child’s views and preferences, the paramount principle of the Act as set out in section 1 and with respect to the placement of the child, the best interests of the child taking particularly into account the factors set out in section 74(3) of the Act.

[123] The court has taken the time to detail the Society involvement with this family since 2000.

[124] There is unquestionably in this court’s opinion a pattern. The pattern appears to be that multiple complaints have been made by the respondent mother. The timing of those complaints appears to be less then coincidental. It appears that each time the respondent father is having meaningful access with the children, a complaint of some sort is made by the respondent mother allegedly as a result of information relayed to her by the children.

[125] This court finds it very telling that there is another pattern.

[126] Dr. Morris, in his custody access assessment, did not recommend that it was in the children’s best interest to move with the respondent mother to Arizona. He imposed a timeline for a review of that. Immediately following the expiration of that timeline, the respondent mother recommenced her application to move to Arizona.

[127] In November 2015, at the time of the three week family law trial, the respondent father had not been having meaningful access with the children. That did not change following the trial but did change following the release of Justice Fryer’s decision some six months later.

[128] Justice Fryer did not allow the respondent mother to move to Arizona as she had requested during the trial. Justice Fryer imposed a timeline as well.

[129] Immediately upon the expiration of that timeline, the respondent mother seeks to once again move to Arizona.

[130] It is virtually immediately following the respondent father’s Answer in which he indicates he is not consenting to that move that these recent allegations are made.

[131] The allegations are a “somewhat moving target.” What is not denied however is that the allegations by AG were not spontaneous. They were in response to a question from the respondent mother to asking him if anything sexually inappropriate had happened with his father.

[132] The respondent mother alleges that the respondent father has had anger and sexual addiction issues all along.

[133] Those “issues” were extensively addressed by Justice Fryer in the family law trial who had heard evidence not only from the parties on those issues. As referenced in her decision, Justice Fryer heard evidence from Dr. Raymond Morris who conducted the custody access assessment and who, in that assessment also extensively addressed the issues of the respondent father’s sexual fantasies.

[134] This court therefore does not see the respondent mother’s references to historic allegations of the respondent father’s alleged sexual addition or anger issues as probative with respect to the motion before me.

[135] The court finds it interesting that these recent allegations with respect to AG are the first that these children have alleged any sexual impropriety by the respondent father.

[136] The recent allegations, save and except one allegation that something happened while AG was having a shower, which allegation was apparently subsequently recanted by him, are that while the respondent father and AG are fully clothed, the respondent father causes the front of his body to come in contact with the back of AG’s body. The number of times that this occurs seems to be in some cases alleged to have been five times, sometimes seven times and perhaps as many as eight times.

[137] There is not even an allegation that the respondent father’s penis is erect at the time of these alleged contacts.

[138] Typically, at a temporary care and custody motion with affidavit evidence only and not having had the benefit of viva voce evidence and cross-examination, a court would be loath to make any credibility findings.

[139] However, in this case the court takes into context the “entirety of the evidence.”

[140] This entirety includes the fact that in the family law proceedings there was a three week trial in which Justice Fryer had the benefit not only of hearing evidence from the parties and cross-examination of them but also evidence from Dr. Raymond Morris and Dr. Barbara Jo Fidler, both very experienced custody access assessors and in the case of Dr. Barbara Jo Fidler, a found expert in the field of parental alienation and justifiable estrangement.

[141] This court notes that Justice Fryer found the respondent father to be credible and found that there were a number of “disconnects” in the evidence of the respondent mother.

[142] The respondent mother denies that she is speaking with the children about this case. She denies trying to influence the children in any way and denies that she is doing anything but encouraging the children to have a relationship with the respondent father.

[143] The totality of evidence before this court points to a logical conclusion that this is not the case.

[144] As detailed in this decision, there have been a plethora of allegations made by the respondent mother dating back to essentially the time of the separation.

[145] This court finds that AG is likely to suffer emotional harm if he remains in the care of his mother and that such harm cannot be adequately protected by a supervision Order.

[146] As a result, this court finds that AG should not remain in the care and custody of the respondent mother.

Placement with a Relative or Member of the Child’s Extended Family or Community

[147] Having made that determination that pursuant to sections 94(2) (a) and (b) the child is to be removed from the care of the respondent mother. The court must then examine if there is a relative, member of the extended family or member of the child’s community with whom the child can be placed in order to ensure that the child is protected.

[148] The Society investigated a number of kinship placements.

Maternal Aunt

[149] The Society ruled out placement with the maternal aunt (being the respondent mother’s sister). The basis for this was principally because the maternal aunt had contacted the Society, essentially advocating on behalf of the respondent mother.

[150] The Society found that the maternal aunt would not be in a position to protect the children from any further alienation by the respondent mother.

[151] This court agrees with that conclusion and therefore does not find the maternal aunt to be an appropriate relative with whom AG could be placed.

[152] The court notes that at the motion, not even the respondent mother was advocating that AG should be placed with her sister.

MC

[153] The respondent mother proposes the child’s babysitter as a person with whom AG could be placed in temporary care and custody.

[154] The respondent mother’s proposal is that the babysitter move into her home and that AG, his brother MG and the babysitter live in the home while the respondent mother moves out of the home.

[155] Her rationale is this would be the least disruptive for AG as AG would be able to continue to have an ongoing relationship with his brother, remain in the familiar surroundings of his home, and attend his school which is nearby.

[156] The Society did not do a kinship assessment with respect to MC. They state that they did not do so for the following reasons. Firstly, they take the position that MC is not an appropriate “kin” placement because she would be an “employee” of the respondent mother and would therefore be under her control. Further, the Society takes the position that AG needs a “fresh start” in a new home and a new environment. In addition, the Society expresses concern over whether or not MC would be willing or able to control any contact and influence by the respondent mother if such an arrangement were put in place. Lastly, there is the concern expressed by the Society of the influence that MG would continue to exercise over his younger brother.

[157] The respondent mother claims that MC would not be her “employee” as MC is willing to take on this role without payment.

[158] The court concurs with all of the Society’s concerns about MC. The court therefore finds that MC is not an appropriate person pursuant to section 94(2) (c) of the CYFSA.

Dr. CG

[159] The Society, supported by the respondent father, seeks an Order placing AG in the temporary care and custody of his paternal uncle Dr. CG and his partner Ms. CG.

[160] The respondent mother objects to this placement claiming that there is historical adult conflict.

[161] The court does note however, in one of her affidavits, the respondent mother refers to Dr. CG’s partner as “a saint.”

[162] The Society’s evidence is that they have conducted a thorough investigation of Dr. CG and his partner and they are satisfied that this is an appropriate placement for AG.

[163] There is no trustworthy and credible evidence before this court to indicate that Dr. CG or his partner will not abide by the terms of the consent that they have signed and by the terms of this court’s Order.

[164] As a result, there is no reason to believe that they will not abide by a court Order and ensure that any access between AG and the respondent father will occur as directed with commencing with access through reunification therapy.

[165] The court further notes that even if there were validity to AG’s allegations, the placement of AG with Dr. CG and Ms. CG results in AG having no contact with the respondent father, save and except through reunification therapy (at least initially), which affords total safety to AG.

[166] The Society has filed a consent signed by Dr. CG and Ms. CG consenting to the placement of AG with them in a temporary care and custody arrangement subject to Society supervision and the terms set out in that consent. The consent should be filed in the Continuing Record.

AG’s School

[167] The evidence is that AG is enrolled in grade 8 at his current school in Markham and that he has been at that school possibly since grade 6 (according to the trial decision) and that he wishes to remain in the school.

[168] Typically, this court would not consider changing a child’s school while the child was in the middle of grade 8 in a school in which he had been enrolled and wished to graduate.

[169] However, there are factors that this court considers which dictate the court should consider a change in schools.

[170] The evidence is that AG has not been doing well recently at school and that his attendance at school has not been stellar. There is further evidence that there have been problems between he and other students in the recent past.

[171] In addition, and of significant concern to this court, is that there is evidence that the respondent mother has recently attended at the school and met with the principal, Ms. P. The uncontradicted evidence is that the respondent mother has requested that she become a volunteer at the school so that she would be able to have regular, if not daily contact with AG in the event that AG is removed from her care. In addition, the court has evidence that her home is in close proximity to AG’s school.

[172] Therefore, if AG were to remain in that school, the likelihood is that he would, notwithstanding any court Order, be having regular contact with his mother.

[173] The court further takes into account that there is evidence from Ms. P, through the Society affidavit, that Ms. P herself is recommending a “fresh start” and a change of schools for AG.

[174] The evidence is that the respondent mother and the respondent father both live in Markham (and that his current school is in Markham). The paternal uncle with whom the child is going to be placed, lives in Newmarket. There is therefore a “commuting issue” as well for the child to be commuting from Newmarket to Markham each day.

[175] For all of these reasons, this court finds that it is appropriate for AG to be enrolled in a school in close proximity to the paternal uncle’s home.

Trip to Orlando Florida

[176] The paternal uncle and his partner wish to take AG with them on a planned trip to Orlando Florida between February 14 and February 22, 2019.

[177] This court finds that even though AG has missed some school already and is not doing particularly well at school, that a trip with his paternal uncle and partner would be of extreme benefit to AG in commencing this “fresh start.”

[178] This court finds therefore, that it is in AG’s best interest that he be permitted to travel with the paternal uncle and his partner and their family to Orlando for this trip.

[179] The court assumes that the respondent mother has in her possession AG’s Passport. This shall be delivered forthwith to the Society by her for delivery to the paternal uncle and his partner.

[180] Further, the respondent mother and respondent father shall sign a travel consent allowing for this travel, which consent shall be prepared either by the paternal uncle or by the Society.

[181] AG’s Passport shall be delivered to the Society by the respondent mother by Friday February 8, 2019 at 4:00 p.m. The travel consent shall be signed by the respondent mother and returned by her to the Society by Friday February 8, 2019 at 4:00 p.m., failing which her consent to travel for AG for this period of time is hereby dispensed with and the travel shall be permitted without her consent.

Child’s Views and Preferences

[182] Pursuant to section 94(5) of the CYFSA, the court is to take into consideration the views and preferences of the child which shall be given due weight.

[183] Typically, these views and preferences would be communicated to the court through the children’s lawyer.

[184] Justice MacPherson made an Order that there would not be a children’s lawyer appointed in this case.

[185] The main rationale for not ordering an OCL was that the children were already “empowered” and that the purpose of having an OCL with respect to children of the age of AG, was to put forward their views and preferences.

[186] Justice MacPherson found, and this court concurs that there is ample evidence as to AG’s views and preferences. He wants to remain with his mother and wants minimal, if any, contact with his father.

[187] The court has given those views and preferences “due weight.” The court finds that the views and preferences are not independent and are essentially the “parroting” of the views and preferences of the respondent mother.

[188] As earlier referenced, on a number of occasions, the children have indicated a certain view and preference, and, then when they are able to spend time with the respondent father, they report that they actually enjoy that time.

[189] This court is extremely hopeful that once some time has passed after the child has been removed from the care of the respondent mother, and after meaningful reunification therapy has taken place, that the child will willingly wish to spend time with the respondent father. Only time will tell if that will come to pass.

MG

[190] The parties’ older child MG will turn 16 in less than two months. The Society is not pursuing an Order with respect to MG.

[191] The court however finds that this is a tragic result of what has occurred to date. MG, along with AG, was having meaningful access with his father between May 2016 and October 2017.

[192] All of that changed with the events of November 2017 as referenced in this Ruling. The evidence however of the Society is that the situation with MG from November 2017 until the present has not been positive. In fact, it has been very negative. Not only has MG had issues at school, he has had altercations with others and has had involvement with the police.

[193] That is, in this court’s view, a tragic result of the situation that has occurred since his parents’ separation.

[194] As alluded to by the Society, these children have, from a very early age, been embroiled in the high conflict between their parents. In addition to witnessing the conflict between their parents, they have been interviewed countless times by Society workers, social workers, psychologists, police, and others involved in not only the child protection files but also the family law matter.

[195] These children have known nothing but conflict between their parents virtually for their entire lives.

[196] While the respondent mother may feel she has “won” with respect to MG since, because of his age the Society has decided not to pursue an Order for temporary care and custody of MG, this court sees the situation with respect to MG as a total “loss.”

[197] Justice MacPherson ordered that the respondent mother should ensure that the children attend therapy sessions.

[198] This court finds it is more important than even ever that this therapy occur.

[199] AG will be in a new setting, with a paternal uncle and aunt with whom he has not had a recent close relationship. Therapy for him to adjust to this and to process being away from his mother and sibling (and half-siblings) is essential.

[200] MG is clearly having struggles and will have to adjust to the reality of his brother not living with him. Therapy for him is essential as well. This court is not prepared to “give up on him” simply because he will be turning 16.

[201] This court can only hope that with the removal of AG from her care and control, the respondent mother will see this situation in a different light and it will encourage MG to get the counselling that he obviously so desperately needs in order to process all of this and to hopefully willingly participate in reunification therapy so that he may enjoy a relationship with each parent.

Access by Respondent Mother

[202] The Society proposes supervised access by the respondent mother twice weekly with AG.

[203] This court has concerns about the possible negative impact on AG of that access even though it will be supervised.

[204] The court has found that AG is at risk of emotional harm due to the actions of his mother. This court is hopeful that the respondent mother will see this as a turning point and will realize that if the court receives any evidence that she is in any way attempting to undermine this court’s Order or attempting to disparage the relationship that AG may be building with the respondent father or with the paternal uncle and his partner and perhaps other members of the respondent father’s family, that this could well result in a further restriction or termination of any access by her to AG.

Therapy for Respondent Mother

[205] The entirety of the trustworthy and credible evidence before this court is that the respondent mother is not, nor has she been since the separation, supportive of a positive relationship to the children and the respondent father.

[206] This court finds that the respondent mother could benefit from therapy to understand that a positive relationship with the respondent father (a father whom she chose for these children) imperfect as he may be, is beneficial to the children.

[207] The court is not going to impose an Order requiring the respondent mother to engage in therapy at this time, but is hopeful that as part of the reunification process she will participate in the same.

Therapy for Respondent Father

[208] The court appreciates that the respondent father will be participating in reunification therapy.

[209] The respondent father needs to understand that even if his belief that AG and MG have been influenced by the respondent mother to believe that they do not want to, nor should they have a relationship with him, this is their current “reality.”

[210] This court is not going to impose an Order requiring the respondent father to engage in individual counselling at this time, but will leave that to the reunification counsellor to recommend if appropriate.

Cell Phone and Social Media Contact

[211] The Society is seeking and this court is ordering that access between the respondent mother and AG be supervised.

[212] The purpose of that supervision is to guard the emotional well-being of the child.

[213] It would be quite simple for the respondent mother to undermine the intended purpose of this supervised access by engaging in contact with AG through either texting, telephone calls, or social media.

[214] That type of contact would defeat the purpose of the temporary care and custody Order and defeat the purpose of the supervision of access Order.

[215] For that reason, this court orders that there be no cell phone, landline, texting, or other social media contact between AG and the respondent mother or between AG and his sibling MG or his half-siblings.

[216] This court understands that for so many members of society, particularly adolescents, their view of the world is that a cell phone and social media contact on a continual basis is a necessity of life. For this reason this court has not ordered that AG’s cell phone and social media contact be removed. However, this court hopes that the respondent mother, AG and MG appreciate that if the court’s Order is breached, that could be a manner of enforcing the Order.

Order to Go

1. The child AG, born […], 2005 shall be in the temporary care of Dr. CG and Ms. CG subject to the supervision of the applicant.

2. Dr. CG and Ms. CG shall support and facilitate AG’s access with each parent and with MG as directed by the Society.

3. Dr. CG and Ms. CG shall comply with all recommended services for AG and shall make best efforts to ensure that he attends for counselling and any other recommended services.

4. Dr. CG and Ms. CG shall ensure that AG’s educational and medical needs are met. This shall include enrolling AG in the school in the catchment area of their home.

5. Dr. CG and Ms. CG shall be permitted to travel with AG to Orlando Florida from February 14, 2019 to February 22, 2019 and the parents shall provide the required travel documentation, including the child’s Passport to the care-givers.

6. AG’s Passport shall be delivered to the Society by the respondent mother by Friday February 8, 2019 at 4:00 p.m. The travel consent shall be signed by the respondent mother and returned by her to the Society by Friday February 8, 2019 at 4:00 p.m., failing which her consent to travel for AG for this period of time is hereby dispensed with and the travel shall be permitted without her consent.

7. Access to AG shall be:

(a) the respondent mother’s access to AG shall be at the discretion of the Society and supervised by the Society or its designate at its discretion and this access shall take place at a minimum of twice per week except for the week of February 14, 2019 to February 22, 2019;

(b) the respondent father’s access to AG shall continue to be supported in a therapeutic setting, the frequency and duration to be determined by the Society in consultation with the therapist or another appropriate professional;

(c) the respondent father’s access shall be reviewed after several visits with a view to moving the access to being unsupervised, the frequency and duration to be determined by the Society; and

(d) sibling access shall occur liberally and shall be supported by Dr. CG and Ms. CG and shall be subject to Society be supervised.

8. The respondent mother shall ensure that MG attends therapy as set out in the Order of MacPherson J. January 16, 2018.

9. The respondent mother shall not initiate contact with AG through phone contact, texting, email or social media, save and except as supervised by the Society.

10. AG shall have no contact with the respondent mother, MG or his half-siblings through phone contact, texting, email or social media, save and except as supervised by the Society.

11. Any subsequent motions for temporary relief shall come before Justice MacPherson in accordance with his previous order (if he is available) or before this court.

Justice R.T. Bennett

Date: February 7, 2019