Court File and Parties

COURT FILE NO.: FC-17-00000054-000 DATE: 2020-04-09

WARNING

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

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

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

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

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHILDREN’S AID SOCIETY OF HALDIMAND AND NORFOLK, Applicant

AND:

J.H., Respondent M.H., Respondent

BEFORE: Madam Justice J.D. Walters

COUNSEL: D. Clarke, Counsel for the Applicant Society C. Hibberd, Counsel for the Respondent Mother E. Kiernan, Counsel for the Respondent Father K. Morris, Counsel for the Office of the Children’s Lawyer

HEARD: March 27, 2020, April 8, 2020

ENDORSEMENT -- COVID 19 PROTOCOL

[1] AS A RESULT OF COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession [1] dated March 15 and March 24, 2020, this urgent matter was heard by teleconference.

[2] Electronic materials were filed through the Courthouse email address: Simcoe.Superior.Court@ontario.ca.

[3] The Respondent mother, J.H., brought a motion on March 20, 2020. Justice McLeod ordered that the matter was urgent and returned the matter before me to set timelines. There is an ongoing trial in this matter for which the evidence has not concluded, and this motion is brought during the adjournment of the trial due to COVID-19.

[4] Filing deadlines for the parties were set out through the Simcoe trial coordinator and the motion was made returnable before the court on March 27, 2020, to be heard by teleconference. It is also important to note that before the decision could be released following the March 27, 2020 teleconference the Society brought a motion to adduce fresh evidence on April 2, 2020. The Respondent father filed a response to the Society’s motion, as he was the only party opposed to that motion. A further teleconference was convened with all of the parties on April 8, 2020 to make submissions on the motion for fresh evidence.

[5] Responding materials were filed electronically with the court by the Respondent father “M.H.”, the Children’s Aid Society of Haldimand and Norfolk (“the Society”) and the Office of the Children’s Lawyer (“OCL”), in accordance with the COVID-19 protocol.

[6] All counsel and parties noted above participated in the teleconference. Ms. Veino attended on the teleconference call as the representative from the Society.

[7] Submissions were made by counsel from 10:38 a.m. until 12:10 p.m. The Court recessed for 30 minutes to allow parties to consult with their counsel and the teleconference resumed from 12:45 until 2:50 p.m. Ms. Hibberd, Mr. Clarke, Ms. Morris and Mr. Kiernan provided submissions on the teleconference in that order and Ms. Hibberd provided reply submissions.

[8] The court reserved its decision following the teleconference.

[9] The following affidavits were filed in support of the motion:

Affidavit 1 - Affidavit of J.H. sworn March 20, 2020 Affidavit 2 - Affidavit of M.H. sworn March 24, 2020 Affidavit 3 - Affidavit of Alison Young sworn March 24, 2020 Affidavit 4 - Affidavit of Dawn Veino sworn March 27, 2020 Affidavit 5 - Affidavit of M.H. sworn March 25, 2020 Affidavit 6 - Reply Affidavit of Dawn Veino sworn March 27, 2020 Affidavit 7 - Reply Affidavit of J.H. sworn March 27, 2020

[10] Three Affidavits (Affidavits 4, 6 and 7) were filed unsworn in advance of the teleconference. At the commencement of the teleconference, the court asked Ms. Veino if she swore the contents of her two affidavits (one affidavit dated March 25, 2020, and one reply affidavit which was undated) filed, to be true. Ms. Veino replied yes.

[11] The court also asked J.H. if she swore the contents of her second affidavit filed (dated March 26, 2020) in reply to the motion materials filed to be true. J.H. replied yes.

[12] Upon the resumption of court operations, counsel shall file all materials in the physical record at the courthouse.

[13] I have received and viewed J.H.’s Notice of Motion dated March 20, 2020, and the affidavit material set out in paragraph 9 above.

Introduction

[14] The Respondent mother has brought a motion to change the Order dated September 19, 2018, that gave temporary care and custody of the two children (V and C) to the mother, supervised by the Society. The mother seeks to enforce the Order regarding the children’s primary residence, to add a police enforcement clause and to vary the father’s access such that it will be supervised by the Society or suspended during the COVID-19 pandemic.

[15] The Society takes the position that the children are safe in the care of either parent. The Society is beginning to have concerns with the father’s ability to parent, however, those concerns are not yet to the point where the Society would need to intervene. The Society asks that the court consider adding terms to ensure that both parents follow the Order.

[16] OCL counsel for the children asks the court to consider the children’s views and preferences. The OCL indicates that the children have both “voted with their feet” by refusing to return to their mother’s care and their views and preferences should be given weight by the court.

[17] The Respondent father agrees with the OCL. The father is asking the Court to give weight to the children’s views and preferences and permit them to remain in the father’s primary care. The father is not opposed to the children seeing their mother, but he does not want to force the children to live with her. The father requests that the Order be varied such that the children shall reside primarily with him while having alternate weekend access with their mother.

[18] The father did not file a cross-motion. The father’s position was put forward in his responding affidavits and through submissions made by counsel in the teleconference.

Brief Background

[19] The mother and the father are the parents of the children who are the subject of this protection application. The children are 12 and 10 years old.

[20] The parents have a history with the Society dating back to 2008.

[21] The Society has been more intensively involved with the parents since May 2017, when the Society brought a protection application.

[22] Some of the Society’s concerns have included risk of sexual harm, adult conflict, domestic violence and the children being exposed to inappropriate adult issues, such as the litigation, custody and access issues. The Society, in its evidence at trial, has described this file as a high conflict file.

[23] The Society’s Application has been amended three times. The current application before the court is the amended application dated November 19, 2018, where the Society seeks a finding that the two children, V and C, are in need of protection due to a risk of sexual harm and a risk of emotional harm. In the application before the court, the Society seeks a 6-month supervision order placing the children in the care of the mother with access to the father.

[24] The existing Order is that of Justice Gregson dated September 18, 2018, which provides that the two children be placed in the care of the mother subject to the supervision of the Society. Both the mother and the father are subject to terms of supervision set out in that Order at paragraph 1(a)-(t). The father’s access is set out at paragraph 2 of the Order. Specifically, the father’s access (which includes telephone access) is at the discretion of the Society but shall occur, at a minimum, on alternate weekends from Friday at 3:20 p.m. (6:00 p.m. if there is no school on Friday) to Sunday at 6:00 p.m., and every Wednesday at 3:20 pm to Thursday morning. The father shall ensure that the children arrive at school or return them to the care of the mother on or before 11:00 a.m. on Thursdays if there is no school that day. All access is to be facilitated by a third party for pick up and drop off except where the children are being picked up and dropped off at school.

[25] On October 21, 2019, the matter was before Justice Harper. Justice Harper ordered that the motion for the Society to withdraw its protection application was dismissed. Justice Harper concluded on the evidence before him that the continued involvement of these children in conflict is emotionally harmful to them. Some of the findings with respect to the continued conflict are relating to, for example, the medical treatment, medical treatment plan, and the disagreement with respect to the medical treatment that is required of the child and whether or not the parties will agree on the proper continuation and implementation of this medical treatment plan.

[26] Justice Harper found that this matter could not be resolved by summary judgment.

[27] Justice Harper ordered that there be no change in the interim parenting arrangements that were already ordered.

[28] Justice Harper ordered that neither party shall directly or indirectly involve the children in this litigation and in any discussions of adult issues. Furthermore, neither parent shall remove the children from the jurisdiction.

[29] Justice Harper ordered that pending further order of the court or agreement of the parties, and pending the trial of this action, the Society shall provide a counsellor for the children. Access to a counsellor was ordered to give the children an opportunity to express their feelings and any emotional conflict they are experiencing pending the trial. Neither parent is to talk to the children about their participation with the counsellor, either before, during or after the children have met with the counsellor. The Order also required that both mother and father shall participate in such counselling as is directed or requested by the counsellor.

[30] Finally, Justice Harper ordered that the divorce application is to follow the hearing of the child protection application and costs of the motion shall be reserved to the trial judge.

Subsequent Developments

[31] On January 9, 2020, V did not to return to her mother’s home following access. She has remained in her father’s care since that date.

[32] V has not had regular access with her mother except for one visit that occurred on March 17, 2020.

[33] C has been living primarily with her mother and attending regular access with her father up until March 18, 2020, when she did not to return to her mother’s home.

[34] The trial of this matter commenced on January 28, 2020, before me. Approximately 15 days of evidence has been led. Four Society workers have given their evidence. The Society is still presenting its case.

[35] The OCL, the mother, and the father have not yet begun to lead their evidence in the trial.

[36] The matter was to return for a further 15 days of trial on April 6, 2020. As a result of the COVID-19 pandemic, and the suspension of the Superior Court of Justice, this matter is adjourned to June 3, 2020, at 10:00 a.m. to set further trial dates.

[37] In its submissions at the opening of trial, the Society submitted that it seeks an Order that these children are in need of protection. The Society takes no position on disposition. The Society states that the children are safe in the care of either parent. The Society submits that it is primarily the conflict between the two parents and its impact on the children that causes the Society concern.

[38] The mother’s position in the trial is that the children are in need of protection and she will consent to a protection finding as set out in the Society’s application. The mother also submits that the children should be placed in her custody pursuant to s. 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). The mother submits that there should be an Order for access to the father pursuant to s. 104 of the CYFSA.

[39] The OCL takes the position that the court should give weight to the children’s views and preferences since they are 10 and 12 years old. The OCL supports the children being placed in the father’s custody, with access to their mother, as that is consistent with the children’s views and preferences.

[40] The father’s position at the outset of trial was that the children should be placed in the care of both parents pursuant to a 50/50 schedule. Both children have decided to live with the father since the restrictions have been put into place by public health due to the COVID-19 pandemic. In the motion, the father now seeks an order for the children to be placed in his custody with access to the mother which is consistent with the children’s views and preferences.

OCL Representation

[41] At the commencement of the trial on January 28, 2020, the OCL brought a motion seeking an Order setting aside the original Order of May 31, 2017, appointing the OCL to act for V. Ms. Morris in her submissions advised the court that V had refused to return to her mother’s home following an access visit with her father. V had fired Ms. Morris as her lawyer and refused to give her instructions. As a result of the breakdown in their relationship, Ms. Morris was seeking an Order setting aside the Order appointing the OCL to act for V.

[42] After hearing submissions from all counsel, the motion brought by the OCL was dismissed.

[43] It was agreed by the parties during Ms. Morris’ motion that counsel should be appointed for V. The Society and the mother were concerned that the trial would be delayed if new counsel was to be appointed for V. The father submitted that V should have the opportunity to retain new counsel.

[44] The court asked Ms. Morris if she would be in conflict representing both C and V by remaining on the record for V. Ms. Morris submitted there was no conflict.

[45] Given the length of time this matter was outstanding (over 700 days when the matter was before Justice Harper in October 2019), the fact that the matter has now been called to trial and the child V’s age (12 years old), the court dismissed the OCL’s motion to set aside the Order appointing the OCL for V.

[46] Ms. Morris continues as counsel for both V and C.

Judicial Interview of V

[47] On consent, Society counsel made an oral motion for the trial judge to interview V in order to ascertain her views and preferences. All parties consented to the motion for the judicial interview of V.

[48] Initially, the court agreed to interview V. New counsel, Kathryn Junger was appointed by the OCL for V, to prepare V to be interviewed by the trial judge.

[49] Following the court’s agreement to interview V, documents from V’s diary were filed on consent of the parties as an Exhibit in the trial. A letter to the judge was also filed as an Exhibit. The letter was purported to be written by V to the judge and set out V’s views and preferences.

[50] As a result of these documents being filed, as well as the fact that the mother and father had not yet testified, the court reconsidered its decision to interview V.

[51] Kathryn Junger attended court during the trial. Ms. Junger confirmed that she had been appointed to meet with V to discuss the issue of a judicial interview with her. Ms. Junger confirmed that she would also advise V that the court had received V’s letter and that the court would no longer be interviewing her.

[52] Ms. Junger explained to the Court that she had met with V and was hopeful that she could assist with repairing the relationship between V and Ms. Morris. Ms. Junger also advised that her involvement would be limited, and she would not be attending the trial.

[53] Finally, Ms. Junger advised that she would seek advice from the OCL on whether or not they would appoint a clinician to assist Ms. Morris on the file.

[54] During the trial, the court was advised by Ms. Morris that a clinician was assigned to this file.

[55] Ms. Alison Young, a clinician with the OCL, was assigned to the file on February 5, 2020. Ms. Morris remains the lawyer assigned to the file for both children.

[56] Ms. Young has met with both children twice. They met for the first time on February 6, 2020, and a second time on March 18, 2020. Ms. Young filed an affidavit in support of this motion setting out her involvement in the file and the children’s views and preferences.

The Current Urgent Issue

[57] On March 19, 2020, C advised the mother that she would not be returning to her home. She has decided to remain at the father’s home with V.

[58] The existing Order provides that both children shall reside primarily with the mother and have access with the father. There is no police enforcement clause in the current Order. Although the Society worker has attended the father’s home and has met with the children, given their ages (10 and 12 years old), the Society is not prepared to force the children to return to their mother’s home.

[59] The father has indicated that he will not force the children to return to their mother’s home.

[60] The mother wants the children returned to her and to reside with her in accordance with the Order of Justice Gregson, dated September 19, 2018.

[61] On March 20, 2020, counsel for the Respondent mother brought a motion requesting that the matter be heard on an urgent basis. The mother sought the following relief in her motion:

(a) an Order that this motion be heard as an urgent motion in writing or by teleconference or by any other method as determined by this Honourable court; (b) an Order validating the filing of the materials by email; (c) an Order, if necessary, dispensing with the commissioning of any affidavit submitted on the motion; (d) an Order that the service of the within Notice of Motion and Affidavit and any Order made by the court on this motion be made by email; (e) an Order that the children, namely V and C, be returned to the custody and care of the Respondent mother, forthwith; (f) an Order that the Ontario Provincial Police shall enforce this Order and the Police are hereby empowered to enforce the Order of their own volition as to the exigencies of their duties shall or may permit; (g) an Order that the respondent father’s access to the children, namely V and C, pursuant to the Order of Justice Gregson, shall be and is hereby suspended until further Order of this Court; (h) in the alternative, an Order that the Respondent father’s access with the children shall be supervised by the Society; (i) an Order for such further and other relief as counsel may request and this Honourable Court may deem fit to grant; and (j) an Order that the Respondent father shall pay to the Respondent mother her costs of this Motion.

The Parties’ Positions

[62] The mother has brought a motion requesting that the court enforce the existing Order. The mother requests an order that the existing Order also be varied to include a police enforcement clause to empower the police to remove the children from the father’s home to be returned to the mother’s home. The mother requests that the existing order be varied such that the father’s access be supervised or alternatively suspended until the Society is able to supervise the father’s access.

[63] The mother submits that the father has been in breach of the current Order since the beginning of January 2020. The father has not taken positive steps to ensure that the children have a relationship with their mother. V has been residing with her father since January 9, 2020 and has only seen her mother once in three months.

[64] While residing with the father, V has missed school and she has not attended regular access with her mother.

[65] C has made the same decision to reside on a full-time basis with her father.

[66] In paragraph 12 of the mother’s affidavit dated March 20, 2020, she states that on March 14, 2020, while C was on a telephone call with V, she heard V tell C that if she came to her father’s house that she would never have to leave. C told V that the mother was with her in the room and the call ended. C was upset for about 15 minutes after that call.

[67] In paragraph 13 of the mother’s affidavit dated March 20, 2020, she states that two police officers attended her home in response to C’s call with V. The police officers advised that they were attending the home as a result of a call that reported a child crying inconsolably. While at the mother’s home they saw C happy and calm and spoke with her. The officers advised that they would cancel the ambulance that was also called, and they left.

[68] The mother submits that the children’s views and preferences should not be given any weight as the father has been involving the children in the litigation. It is the mother’s position that the father has actively coached and empowered the children by not acting to force their return to their mother.

[69] The mother submits that it is in the children’s best interest to be returned to her primary care and that that is what the current court order provides.

[70] The Society’s position is that although they are beginning to have some concerns regarding the father’s ability to parent the children, its concerns have not reached the point where they would seek to remove the children from the father’s care. The Society submitted that the existing order should be varied to include stricter terms in order to ensure that the children have a relationship with both parents. The Society could not provide specifics around what those stricter terms should be.

[71] Ms. Morris, on behalf of the OCL, submitted that the children’s views and preferences should be given weight. The children are 10 and 12 years of age and they have “voted with their feet” to stay with their father. Ms. Morris went on to state that the children have given their views and preferences in their own words, stating why they have decided to remain with their father and not return to their mother. Ms. Morris further submitted that they have been consistent in their views and preferences for some time.

[72] The father is opposed to the mother’s motion. He says he will not force the children to go anywhere they do not want to go. He states that he would agree to the order being flipped to provide access to the mother on alternate weekends and every Wednesday evening to Thursday. He asked the court to consider the children’s views and preferences and make an Order that the children reside primarily with him.

[73] The father did not file a cross-motion to the mother’s motion.

[74] In reply, the mother submitted that the children’s views and preferences should not be considered by the court. There is evidence before the court, in the affidavit evidence filed in support of the motion, that the children have been coached. Given their young ages and the high conflict relationship between the parties, their views and preferences should not be considered at all.

[75] The mother also submitted that the father should not be permitted to disregard a court order. The mother submitted that it is in the children’s best interests to be returned to her. The children have previously indicated that they did not want to return to their mother, but when they were returned to their mother’s care everything returned to normal for them, such that they resumed a loving relationship with their mother. On March 17, 2020, the mother had a visit with V; the first visit since V went to reside with the father in January 2020. The visit was originally scheduled for three hours and once V arrived at the mother’s home, she asked to extend the visit to the entire day instead of half a day.

[76] The father submits that the children are 10 and 12 years of age. They are “agents of their own body” and they can decide where they want to live. He will not force them to do anything they do not want to do.

[77] The father submits that he was unable to problem-solve issues regarding school attendance. Since V went to live with him in January 2020, there have been periods of time (weeks) where V has not attended school.

[78] The father has allowed the mother of his son (A.O.) to reside overnight at his home without the prior approval of the Society. Although the father acknowledges that this is contrary to the current court order, he submits that the Society has allowed him to supervise A’s access with his son.

[79] In paragraph 4 of the father’s affidavit dated March 24, 2020, the father states that he received a call from C. He said when she came on the phone she was sobbing and sounding panicked. He asked C if she was safe and then handed the phone to V. The father described hearing V tell C to “be good until Wednesday”.

[80] After the cell phone call between C and V had ended, the father, in paragraph 7 of his March 24, 2020 affidavit, states that V called the police. He states, “V didn’t ask me about calling the police, she just phoned police on my phone.”

[81] In paragraph 8 of the father’s affidavit of March 24, 2020, he states that the OPP came to his home. The officer who attended the father’s home indicated that he was there to investigate the safety of the father’s son, L. In paragraph 12 of the father’s affidavit he states, “I began to argue with the officer. I told him he had been allowed into the home because he seemed to be here about the call regarding C. I said that had I known he was there investigating something else entirely I would not have let him in.”

[82] In paragraph 13 of the father’s March 24, 2020 affidavit, the father advises that the police contacted the Society’s afterhours service before they left.

[83] In the father’s affidavit he sets out that the children have spent 85% of their time with the mother and it is time that they spend time with him. He goes on to state that it has been getting harder for him to convince C to go back to her mother’s home after visits ever since V has come to live with him.

[84] The father’s evidence is that he did not withhold V from the mother, but V took matters into her own hands. The father is refusing to use physical force or punish V for her decision. He wants the children to get a living arrangement that is in accordance with their wishes. He states that it was their choice to come live with him.

[85] The father acknowledges that he is in breach of the court orders. He explains that the reason for his breach is as a result of the children’s own actions, and he asserts that they should be able to decide where they want to live.

Undisputed Facts

[86] From my review of the materials there is no dispute from the parties regarding the following facts:

(a) During an access visit, on January 9, 2020, V refused to return to her mother’s home. (b) V did not have any access with her mother from January 9 until March 17, 2020. (c) On March 17, 2020, V had an access visit with her mother. This was the first visit V and her mother had since V began living with the father in January 2020. The access visit with the mother and V was to be for half a day. While at the access visit, V voluntarily agreed to extend her access visit to the full day in the mother’s home. The visit went well between the mother and V. (d) C continued to live primarily with the mother and attend for her access visits with her father as set out in the Order of Justice Gregson, until March 19, 2020. (e) On March 19, 2020, C refused to return home to live with her mother (f) The father states that he will not force the children to return to live with their mother. The father has told the children it is their “choice.” (g) The Society has not removed the children from their father’s home to return to their mother’s home. (h) Both children have indicated to Ms. Morris and the clinician, Ms. Young, that they wish to remain living at their father’s home and visit their mother’s home.

Society’s Motion for Fresh Evidence

[87] The Society filed a Motion for Fresh Evidence on April 2, 2020. The materials were forwarded to me on April 3, 2020.

[88] I was advised by email from the Trial Coordinator that the mother and the OCL consented to the Society’s motion.

[89] On April 7, 2020, I was advised by the Trial Coordinator by email from the father’s counsel, that the father is opposed to the motion brought by the Society. Father’s counsel suggested that the father be able to make submissions, either in writing or by teleconference, on the Society’s Motion.

[90] On April 7, 2020, I was advised by email by the Trial Coordinator that counsel for the mother opposed the father being able to make written submissions. The reason for her opposition was the amount of time that the father took to advise of his position from when the motion was served. The fact that the children remain in the father’s care and that a decision has not yet been received on the urgent matter that was heard on March 27, 2020. Mother’s counsel advised that she would make herself available by teleconference to deal with the issue on April 7, 2020.

[91] The court granted the father’s request to make written submissions to the Society’s motion. The father was given 24 hours to file his submissions (April 8, 2020, at 12:00 noon) and his response was limited to a five-page written affidavit.

[92] All parties were given an opportunity to make oral submissions on the Society’s motion in a teleconference on April 8, 2020. The teleconference occurred from 2:18 pm until 3:40 p.m.

[93] The Society’s motion for fresh evidence is brought pursuant to Rule 14 of the Family Law Rules and included an affidavit dated April 2, 2020, from the current worker assigned to the file, Brenda Velazquez. Ms. Velazquez was unable to swear her affidavit due to the Society’s offices being closed as a result of COVID-19 precautions.

[94] At the outset of the Society’s submissions in the teleconference, Ms. Velazquez swore the contents of her affidavit dated April 2, 2020 filed in support of the Society’s motion as true.

[95] In the Society’s affidavit, Ms. Velazquez provided information that she obtained from A.O.. A.O. has been having supervised access with her son at the father’s home while V and C have been there. A.O. indicated that she was concerned for V and C after certain events that took place March 27-29, 2020. A.O. reported that the father has been having discussions with V and C about the court matter.

[96] As a result of A.O.’s concern for the girls, she recorded conversations between them and the father in the father’s residence. Three recorded telephone calls were provided to the Society and were attached to Ms. Velazquez’s affidavit as Exhibits.

[97] It is Ms. Velazquez’s evidence that when she listened to the audio files, they were as A.O. had described them to her.

[98] The Society submitted that this evidence was not available when the motion was heard on March 27, 2020. The material is relevant to the proceeding and the recordings are credible.

[99] The Society submitted that they are concerned for the children remaining in the care of the father and now take the position that the children should be returned to the mother. The Society also submitted that the father’s access should now be supervised until the trial of this matter is completed.

[100] The mother echoed the Society’s submissions.

[101] The OCL also supported the Society’s position that the fresh evidence should be allowed.

[102] Upon review of the father’s materials, no objection was made regarding the authenticity of the materials filed by the Society. This was confirmed in the teleconference. The father admitted that the voices on the audio files were as described by the Society in its materials.

[103] The father’s objections to the Society’s motion included that accepting surreptitious recordings of children should be discouraged. It is not good policy to secretly record conversations with children and then allow it into evidence.

[104] The father further submitted that it is not appropriate to admit the evidence as credible and reliable. A.O. may have had an ulterior motive for taping the conversation as she is currently engaged in her own child protection proceeding regarding the father’s youngest child, L.

[105] During the teleconference on March 27, 2020, the court asked the Society if it was taking a position on the mother’s motion. The parties took a recess during the teleconference in order for the Society to determine its position. The Society advised following the recess that it was not taking a position.

[106] The filing of the Society’s motion for fresh evidence on April 2, 2020 therefore reflects a change in the Society’s position. Based on the fresh evidence, the Society now supports the mother’s motion to enforce the existing order for the return of the children to the mother’s primary care.

[107] Permitting this fresh evidence to be admitted poses a number of problems. I am not persuaded that the evidence should be admitted but, in any event, it would not have altered my decision.

Admitting Fresh Evidence: Legal Considerations

[108] As stated above, there is no dispute that the audio recordings are authentic. I do have some apprehension regarding their admissibility as they were recorded surreptitiously. I am further concerned that the Society affidavit for this motion contains a significant amount of hearsay evidence. While I canvass these concerns below, I am convinced that the evidence should not be admitted in any event, as the evidence does not meet the test to reopen a case and admit fresh evidence.

[109] Secretly recorded conversations are discouraged in family proceedings: Sordi v. Sordi, 2011 ONCA 665, 283 O.A.C. 287, at para. 12. It was held in Fattali v. Fattali (1996), 1996 ONSC 7272, 22 R.F.L. (4th) 159 (Ont. C.J.), that secretly recorded audio should not be admitted on the basis that “[p]roceedings involving the best interests of children should not be decided on evidence the product of calculated subterfuge.”

[110] Other courts have concluded that such evidence may be accepted where the probative value of the surreptitiously recorded evidence outweighs the prejudice that might otherwise result from its admission: G. (M.A.) v. M. (P.L.), 2014 BCSC 126, [2014] W.D.F.L. 2213, at para. 18.

[111] I am also mindful of the general principles regarding the admission of evidence in family disputes. In Nyari v. Velasco, 2008 ONCJ 272, at para. 12, Sherr J. noted that courts need to be sensitive to the fact that family law cases are not static and important evidence unfolds throughout the case. Furthermore, in Winton v. Lofranco (2004), 2004 ONSC 7043, 7 R.F.L. (6th) 444 (Ont. S.C.), at para. 21, it was held that “[w]here the interests of children are involved, the court should take an expansive rather than a technical approach to the admission of evidence so long as the evidence is relevant, necessary and probative to matters in issue.” This principle was specifically adopted in the child protection context “where courts are tasked with ensuring the safety, protection and best interests of children.”: Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784, 1 R.F.L. (8th) 472, at para. 27.

[112] I have serious concerns about admitting this evidence. However, I find it unnecessary to make any definitive conclusion in this regard as the evidence does not meet the test for admission under the test for admitting fresh evidence.

[113] The two-part test for reopening a case and permitting fresh evidence was set out in the decision of Scott v. Cook, 1970 ONSC 331, [1970] 2 O.R. 769 (Ont. H.C.): First, would the evidence, if presented at trial, probably have changed the result? Second, could the evidence have been obtained before trial by the exercise of reasonable diligence? This formulation was approved by the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983.

[114] Both Scott and Sagaz dealt with requests to reopen the trial and admit fresh evidence where the reasons for judgement had been released, but before formal judgement was entered. I have yet to release my reasons; at the time this motion was brought the decision was on reserve. Brasseur v. York, 2019 ONSC 4043, provides a more analogous comparison and explicitly discusses how the test should be altered where the case is still undecided: at para. 44.

[115] In Brasseur, the court held that when a case is still undecided the threshold question from Sagaz is loosened and “[…] the balance may tilt more towards fairness and truth-seeking rather than finality.”: at para. 44.

[116] While I appreciate that a more relaxed test may be applied in determining whether the court should receive this fresh evidence, I am not convinced that it is in the interests of justice to do so in this case. The evidence, if admitted, would have very little impact on the disposition of this case. Conversely, the prejudice to the father would be substantial.

[117] The evidence was gathered surreptitiously, by an interested party involved in a separate child protection case with the father. The circumstances surrounding the recordings are concerning. In all of the circumstances, the evidence should not be admitted.

Legal Analysis

[118] The father in this child protection proceeding has failed to comply with two prior orders.

[119] The mother’s motion seeks both enforcement and variation of the temporary orders.

[120] The court’s power to enforce an existing order is realized through a variety of methods, but especially through Rule 1(8) of the Family Law Rules, O.Reg. 114/99, and the more serious option of contempt.

[121] The mother in her motion did not plead contempt. This is essential, as the particulars of the contempt must be pleaded, and the alleged contemnor must know the case to meet: Jackson v. Jackson, 2016 ONSC 3466, [2016] W.D.F.L. 3948, at para. 54. The courts have repeatedly held that a finding of contempt is a remedy of last resort in family law proceedings: Hefkey v. Hefkey, 2013 ONCA 44, 30 R.F.L. (7th) 65, at para. 3. I find that the issue of contempt is not properly before the court and therefore I will not be addressing it.

[122] The mother has asked that the court enforce and vary the existing court order. In her material she has established that the father is disobeying the prior temporary orders of Gregson J. and Harper J.

[123] Rule 1(8) of the Family Law Rules empowers a court to make additional orders against any party who fails to obey a prior order in a case.

[124] In Levely v. Levely, 2013 ONSC 1026, [2013] W.D.F.L. 2846, Chappel J. discussed the importance of a court’s ability to respond to disobedience of court orders in family proceedings. At para. 13, the court held:

Judicial response to a party’s failure to respect the court process and court orders should be strong and decisive. The judge should be as creative as necessary in crafting remedies so as to ensure that the noncompliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.

[125] The onus rests on the non-compliant party to show, on a balance of probabilities, that Rule 1(8) is inapplicable. A three-step test for assessing non-compliance was enumerated by Spence J. in Ferguson v. Charlton, 2008 ONCJ 1, [2008] W.D.F.L. 1904, at para. 64:

First, the court must ask whether there is a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-compliance with a court order “in the case or a related case”.

Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favor of the non-complying party by not sanctioning that party under subrule 1(8), or by ordering that subrule 14(23) does not apply. My review of the foregoing case law suggests that this discretion will only be granted in exceptional circumstances. In my view, the court’s decision whether or not to exercise its discretion in favor of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.

Third, in the event that the court determines that it will not exercise its discretion in favor of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).

[126] The list of remedies enumerated at rule 1(8) is not exhaustive. The court has inherent jurisdiction to make any order it considers appropriate to fully address a party’s failure to comply with a court order.

[127] Child protection matters are among the most serious cases in family law. Orders made in these types of proceedings are made to ensure the protection and well-being of children. If the Orders are not enforced, children may be at risk or experience actual harm.

[128] In this motion, the father has acknowledged that he is in breach of the existing orders. He states it is because the children have “voted with their feet” and as “agents of their own bodies” he will not force them to do something that they do not want to do.

[129] There is no doubt that the father is in a difficult position as is often the case in parenting children. He is the parent, which often involves making difficult decisions for the benefit of children. Children do not know what is in their best interests. Parents must make tough decisions in the best interests of their children, especially when the children are 10 and 12 years of age.

[130] The father’s inaction to enforce the court Order teaches the children that court orders need not be followed. That is not in the children’s best interests.

[131] I have considered Rule 1(8) of the Family Law Rules and the test set out in the case law and I find that the father’s non-compliance with the existing court orders must be addressed by adding additional enforcement measures. Since the father is not prepared to teach the children that Orders must be followed, I will include a police clause in the Order to ensure its enforcement.

Interim Orders made during CYFSA Applications

[132] Section 94(2) of the CYFSA states that 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.

[133] The court must make the least disruptive order consistent with the best interests of the children, in keeping with the paramount purpose of the CYFSA, set out in ss. 1(1) and 1(2).

[134] Section 94(9) of the CYFSA serves as the statutory vehicle through which temporary orders made in child protection proceedings may be varied. It states that the court may at any time vary or terminate an order made under subsection (2).

[135] In Catholic Children’s Aid Society of Toronto v. R.M., Sherr J. canvassed the existing caselaw regarding motions to vary temporary placement and access orders. There the court found that there are two distinct legal tests to apply when changing a temporary placement order or changing a temporary access order, during the adjournment of a protection application: at paras. 84-85. These two tests are included below.

[136] The mother brought this motion asking the court to enforce the existing Orders as both children are now residing primarily with the father, contrary to the current court orders. The mother submits that the court Orders are clear, and the father is not helping to enforce them.

[137] The father argues that given the children’s ages, they are agents of their own bodies and he is not going to force them to return to their mother’s home if they choose not to do so. The father further submits that both the police and the Society can currently enforce the existing order and they are choosing not to do so.

[138] The OCL submits that the children are voting with their feet and their views and preferences are in line with what they have chosen to do. The OCL asks the court to consider the children’s views and preferences.

[139] On January 28, 2020, the trial of this matter commenced before me. The trial is not yet finished. There is no indication given the current COVID-19 pandemic when the matter could possibly be rescheduled in order to complete the trial.

[140] Given that this matter is currently in trial, I will not be relying upon any factual determinations based on the partial evidence I have heard thus far from the four Society witnesses.

The Father’s Request to Vary Placement

[141] The test to change a temporary placement order, set out in Catholic Children’s Aid Society of Toronto v. R.M., at para. 84, is as follows:

(a) The moving party has the onus of first establishing a material change in circumstances since the making of the last order; (b) The court should take a flexible approach in determining what constitutes a sufficiently material change in circumstances. What is sufficiently material will depend on the circumstances of the case. (c) Once a material change in circumstance is established, a contextual analysis should be conducted by the court to determine if the placement order should be changed. The purposes in section 1 of the Act should always be at the forefront of the analysis. The suggested non-exhaustive list of factors set out in paragraph 69 above should be considered, where relevant.

[142] In this case, the mother’s motion simply seeks to enforce the existing order. The mother is not seeking to change the placement.

[143] The father did not bring a cross-motion to change the placement. The father simply made submissions in response to the mother’s motion to enforce the existing order that the placement should be changed.

[144] At best, the father’s submissions could be considered an oral motion seeking to vary the placement. It is agreed by all parties in their material that the children are residing at the father’s home, refusing to return to their mother’s home. Therefore, I find that the father has established the first part of the test to change a temporary placement.

[145] Once the material change in circumstance has been established, it is then incumbent on the court to determine whether a change in placement should occur.

[146] The father submits that the relationship between the children and their mother is a complicated one. He submits that up until recently the children have enjoyed 85% of their time with their mother, and now they are asking to remain with him. He is not prepared to force the children to do something they do not want to do even if there is a court order in place.

[147] There are two court orders that set out in whose primary care the children should be placed and when the father shall have access. The Order made by Harper J. on October 21, 2019, sets out that there shall be no interim change to the parenting arrangements.

[148] This matter is currently in trial. Since the trial began, the custody arrangements of both children have shifted. The shift has occurred in part because the father has refused to enforce the court Order. A party should not benefit from his/her disregard of court orders.

[149] Until the trial is completed, and based on the motion material before me, I am not willing to vary the children’s placement from that which is set out in the Order of Gregson J. The father has not met the test set out herein to vary the placement. Changing the children’s placement is not in their best interests.

[150] Both children have been exposed to increased Society and police involvement since the trial of this matter began. Since V went to live with the father, she has had increased visits from the Society worker, as well as two visits with a clinician from the OCL’s office.

[151] In the father’s affidavit, he outlined that V is completely comfortable telephoning the police for assistance herself in order to solve a problem, and he states that he was unable to stop her from doing so. By the father’s inaction, he supported V in her actions.

[152] The court is very concerned for these two children and their role in this matter. They have been told by their father, if not directly then by his inaction, that they can decide for themselves where they want to live. V and C’s actions show no regard for court orders.

[153] The father, in his own material, states that he has handed the telephone to V to involve her in discussions he was having with C about the mother’s home. The police then were engaged by V while she had the father’s phone. His response to V calling the police was that he did not believe the police would do anything, but he could not stop V as she had already called them.

[154] Discussion in the father’s affidavit about the police involvement further adds to the conflict on this file. It is completely commonplace for the police to be called by the father or the child to assist with managing conflict in the home. While the police have attended at the mother’s home, it is not as a result of the mother or any child in her care calling them.

[155] It is completely inappropriate for a parent to use the police to resolve disputes among the parties in this manner. The father writes at paragraph 8 of his affidavit sworn March 24, 2020, “[t]he next things that happened that Saturday evening was that a Norfolk OPP officer came to my home. This was around 10 p.m. I do not remember the officer’s name. V went out to see the Officer and I heard her say “I’m the one who called’”.

[156] The father appears to have delegated all authority to the child, V, to take matters into her own hands. This is not parenting in a child’s best interests. The job of a parent is to parent, not to stand back and permit children to make parenting decisions.

[157] These are young children who have demonstrated in their actions that they have no respect for the police or the court orders. I can only determine that they have been placed in the middle of this litigation while in the care of the father. Until the trial of this matter has been concluded I am not prepared to change the children’s placement.

The Mother’s Request to Vary the Father’s Access with the Children

[158] The test to change a temporary access order during an adjournment of a protection application, set out in Catholic Children’s Aid Society of Toronto v. R.M., at para. 85, is as follows:

(a) The moving party has the onus of establishing that a sufficient change in circumstances has taken place since the making of the last court order. Whether the change is sufficient to change the order will depend on the circumstances of the case. (b) The court should conduct a contextual analysis when exercising its discretion as to whether it is in a child’s best interests to change the access order, and if so, what terms and conditions are appropriate. The purposes in section 1 of the Act should always be at the forefront of the analysis. The suggested non-exhaustive list of factors set out in paragraph 83 above should be considered, where relevant.

[159] The mother’s motion has established that there has been a sufficient change in circumstances. The children are no longer residing with her. V has not exercised access with the mother while she has been residing with her father for the past three months with the exception of one visit that occurred on March 17, 2020. There is no evidence that V intends to have regular access with her mother in the future.

[160] Since March 19, 2020, C has remained in her father’s care. There is no information before me that she has any intention of having regular access with her mother.

[161] The father’s evidence is that he will not force the children to do something they don’t want to do. He is willing to be in breach of a court order to allow the children to do as they wish.

[162] In deciding this case the court must consider the children’s views and preferences.

The Children’s views and Preferences

[163] Section 74(3)(a) of the CYFSA requires that the court take the child’s views and preferences into account when determining the best interests of that child. A child’s wishes do not bind the court, but the significance attached to their wishes increases as they grow older – especially into their teenage years: O’Connell v. McIndoe (1998), 1998 BCCA 5835, 166 D.L.R. (4th) 653 (B.C.C.A.).

[164] While the children’s views and preferences are given greater weight as they approach their teenage years, their wishes cannot be determinative. Indeed, there are circumstances where the court must discount their views and preferences entirely as a result of parental alienation or coaching. In such instances, their views are not treated as independent views which can be relied on by a court in determining their best interests. In L. (A.G.) v. D. (K.B.) (2009), 2009 ONSC 943, 93 O.R. (3d) 409 (S.C.), McWatt J. assigned no weight to the views and preferences of children where parental alienation was present.

[165] The children’s wishes cannot be considered in a vacuum. Where one parent has undermined the relationship between the child and the other parent, the court will consider how that impacts the views and preferences of the child: L. (A.G.) v. D. (K.B.), at paras. 143-144; Pettenuzzo-Deschene v. Deschene (2007), 2007 ONSC 31787, 40 R.F.L. (6th) 381 (Ont. S.C.), at para. 55. A finding that the relationship has been undermined must impact the weight assigned to a child’s wishes.

[166] In L. (A.G.) v. D. (K.B.), at paras. 147-149, McWatt J. stated:

It is clear, on all the evidence before me, that D and J have not formed their views and preferences from their own experiences. J’s views and preferences changed dramatically from wanting contact with their father to not wanting to visit overnight in a matter of one month – and for no apparent reason.

I find that they have formed their views and preferences solely from the unrelenting influences and behavior of K.D. Neither of these children, as well as K. have ever disclosed a reason why they did not want access with A.L.

As a result, I give little to no weight to D. and J.’s views and preferences. I give some weight to K.’s views and preferences. [2]

[167] In this case, the trial evidence is not complete. Neither the mother nor the father has yet had an opportunity to testify. The court does not have the complete evidence upon which to base its decision, but it has been asked to make a decision in the best interests of the children based on the evidence before it thus far, including the affidavit evidence of the parents.

[168] Based on the evidence before me, I find that the children have not been encouraged by their father to continue to follow the existing order. I find that the children have been empowered by the father to do as they wish.

[169] It is a parent’s obligation to make hard decisions, sometimes show tough love but all the while acting in the children’s best interests and encouraging a relationship between the children and both parents.

[170] The father has not done that. He has thrown up his hands and given the children permission to make the decisions in his home. His behavior has increased the involvement of the police and the Society in the lives of the children.

[171] As stated by Chappel J. in Jackson, at para. 63:

A party cannot simply leave the questions of custody and access up to the child. To do so amounts to an abdication of parental responsibility generally and a breach of the party's positive obligations under the order […]

While it may become more difficult to compel a child to comply with a custody and access order as the child gets older, the obligation of a parent to actively promote compliance does not wane based on the child's age. (Citations omitted)

[172] These are young children who are not yet teenagers. It is incumbent on both parents to act in a way that protects the children from any risk of harm. This includes keeping them out of the parental conflict and not allowing them to be caught in the middle of the conflict.

[173] For all of these reasons, I give very little weight to the children’s views and preferences to live with their father and vary the existing court order.

Conclusions

[174] Having considered the facts of this case, the submissions of counsel and the relevant legal principles, I conclude that: 1) the Society’s motion for fresh evidence shall be dismissed; 2) the children must be returned to the care of their mother; 3) access to the father must be varied; and 4) a police enforcement clause must be added to ensure compliance with the existing order.

[175] I am prepared to vary the existing Order to include a police enforcement clause. Police involvement with this family, at least in the father’s home, is common place. Based on the evidence before me the only way the two children will be able to return to the mother’s home is through the assistance of a police enforcement clause. It is my hope, however, that the parties will be able to arrange for the return of the children to the mother’s care without the involvement of the police, given the court’s decision.

[176] I am also prepared to vary the father’s access to the children. Based on the evidence before me and in the father’s own admission, he is unable to parent these children effectively. In order to protect these children from being caught in the middle of the conflict and being exposed to a risk of emotional harm, I find that the father’s access must be supervised.

[177] While V has been in his care for the past three months, she has decided where she is going to live, who she is going to meet with (including access with her mother) and whether or not the police should become involved in the dispute.

[178] Children should not be making calls to the police to help settle their family dispute unless there is a real risk of physical or emotional harm to them. V’s actions on March 14, 2020 highlight the conflict that characterizes the interactions in this family unit and gives the court great concern for the involvement of the children in the litigation while in their father’s care.

[179] Until the father provides the court with evidence that he will act in the children’s best interests and not place them in the middle of the litigation, the court cannot allow the children to remain in his care. The events of these past three months support that the father is not able to put the best interests of the children ahead of his own. He has disregarded the current court order and he has empowered these two young girls into thinking they can decide where they will live.

[180] Although the mother has continued to abide by the court order, the court does not agree that continued access with the father as set out in the current order is in the children’s best interests. The father’s access with the children must be supervised until this matter is resolved.

[181] Based on the evidence available on this motion, and without making any predeterminations of the trial issues, I am not prepared to change the children’s placement from that set out in the Order of Gregson J.

[182] While in the care of the father, V has missed school for weeks at a time (when V first went to live with him in January 2020, she did not attend school), and he has not encouraged V to follow the court order. V only had one access visit with her mother while living with her father these past three months.

[183] While at their mother’s home there is no evidence that they are involved in the litigation or that the police are involved during conflict. The evidence before me indicates that they have a warm and loving relationship with their mother. This is further evidenced by the Society’s affidavit wherein they state that they supervised the visit that occurred on March 17, 2020, between V and the mother and they did not need to continue supervising when the visit was extended.

[184] While the children’s views and preferences are to reside primarily with their father, I have assigned little weight to their views and preferences. It is not unusual for children who are 10 and 12 years old to wish to reside together. It is not unusual for children to prefer to live in the home where they can do whatever they wish without consequence.

[185] Based on the evidence before me, I find it is not in the children’s best interests to remain in the care of the father.

[186] The safety and well-being of these two young children, who are the subjects of this proceeding, must be the court’s paramount concern.

[187] I wish to emphasize that this is a temporary order, being made in the middle of a very complex child protection trial. This is not meant to be a final determination of the issues and it in no way signifies a pre-judgment of the matter. This endorsement enforces a pre-existing order while varying the terms in the children’s best interest, during the period of adjournment. The aim is to bring stability to a volatile situation, at a time when the nation faces an unprecedented health crisis.

[188] After reviewing the material filed and hearing submissions of the parties the court orders as follows:

1. The Society’s motion to adduce fresh evidence is dismissed.
2. The children V and C shall be returned to the custody and care of their mother forthwith.
3. The Ontario Provincial Police shall enforce this Order and the Police are hereby empowered to enforce the Order of their own volition as to the exigencies of their duties shall or may permit.
4. The father’s access to the children, V and C shall be supervised by the Society. Such supervision while the COVID-19 pandemic continues requiring the reduction to the Society’s usual supervised access program shall include telephone access only. The Society worker shall organize teleconferences for the telephone access between the children, the father and the worker forthwith. Upon the resumption of the society’s supervised access program following the COVID-19 pandemic the father’s access shall include face to face access at the Society’s offices.
5. The trial originally scheduled for April 6, 2020 shall be adjourned to be spoken to on June 3, 2020 at 10:00 a.m, for the purpose of scheduling the continuation of the trial.
6. Upon the resumption of court operations, counsel shall file all materials relied upon for these two motions in the physical record at the courthouse.

Walters, J. DATE: April 9, 2020

[1] See the Notice to the Profession dated March 15, 2020 and March 24, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

[2] In this case, the mother’s name was abbreviated to “K.D.” while the father’s name was abbreviated to “A.L.”.