Children's Aid Society of the Region of Waterloo v. C.P., C.T.W. and C.L., 2021 ONSC 537

Court File No.: FC-15-FO-000818-02 Date: 2021-03-31 Ontario Superior Court of Justice

Between:

Children’s Aid Society of the Region of Waterloo, Applicant

– and –

C. P., Respondent

– and –

C. T. W., Respondent

– and –

C. L., Respondent

Counsel: Aisha Ghafoor, Counsel for the Applicant Patrick Brohman, Counsel for the Respondent, C. P. Self-Represented, C. T. W. Self-Represented, C. L.

Heard: January 25-29, February 1 and 2, 2021

Before: The Honourable Mr. Justice R. J. Harper

Reasons for Judgment

Issues

[1] At issue in this case is whether the child, C.C.W., born [...], 2011, is in need of protection pursuant to the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA). Sections 74(2)(b)(ii) and 74(2)(h) of the CYFSA, respectively, provide that a child is in need of protection where

a) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by that person’s pattern of neglect in the care for, providing for, supervising or protecting the child; and

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

[2] If the child is found to be in need of protection, the Children’s Aid Society of the Region of Waterloo (the “Society”) seeks an order that the child be placed in the care of the child’s father, C.T.W., and his partner, C. L., for a period of 6 months, on certain terms and conditions that will be elaborated on later in these reasons.

[3] The Society also seeks an order that access to the mother, C.M.P., shall be supervised at the discretion of the Society, as deemed necessary by the Society.

Family Constellation

[4] The mother of the child is C.M.P., born [...], 1984 (aged 36).

[5] The mother’s husband is C.G.

[6] The father of the child is C.T.W., born [...], 1988 (aged 32).

[7] The father’s partner is C.L., born [...], 1975 (aged 45).

[8] The mother was married previously to M.R.N. They have two children from their union: H.N., born [...], 2005, and S.N., born [...], 2006. H.N. and S.N. are presently 15 and 14 respectively.

Historical Background of the Society’s Involvement

2007

[9] In 2007, the Society became involved with the mother, C.M.P., regarding her children, H.N. and S.N. In April 2007, the mother was charged with assaulting her then husband, M.N. The Society’s concerns were with respect to the mother having certain mental health issues and with her parenting skills.

[10] The Society recommended, at that time, that the mother attend for a mental health assessment and an anger management program. She did not do either.

[11] The father, M. N., obtained a final sole custody order of the children and the Society closed its file.

2011–2012

[12] On May 3, 2011, the Society received a report that the home of C.M.P. and her new husband, C.T.W., was in poor condition. They had a newborn child, C.C.W, who is now the subject of these proceedings.

[13] The Society closed their file on January 30, 2012, after their concerns were addressed.

2013–2015

[14] In 2013, the Society became involved, once again, with the family. They had concerns regarding C.T.W.’s anger, C.M.P’s mental health, and both parents’ use of marijuana while in a child caring role.

[15] The parents separated, and both engaged in parenting and assisting the child with developmental issues.

[16] In 2015, C.C.W. was diagnosed by Dr. Olaf, a pediatrician at McMaster University Hospital, with global developmental delay. During this period, C.M.P. exhibited volatile behaviour and the Society was concerned with her ability manage her aggression and her mental health issues.

[17] At some point in 2015, C.L. and the father, C.T.W, started to live together. The Society did not have any concerns with either of them in a parenting role.

Apprehension of the Child

[18] On November 26, 2015, the child, C.C.W., was apprehended by the Society and placed in the care of his father and C.L. The concerns of the Society were the increased volatile conduct and aggression on the part of the mother, C.M.P., and her growing unwillingness to work with the Society in a cooperative manner in order to make the changes she needed to make to ensure the safety of the child.

The Summary Judgment of Hardman J.

[19] In his summary judgment, the transcript of which was filed as an exhibit in these proceedings, Justice Hardman related multiple incidents of the mother’s extreme anger that did not subside over time. One of the more concerning incidences is set out in para. 97 of his judgment:

[97] On September 18, 2014, a worker from Anselma House met with the mother. The mother, a number of times, said that she would “kick” the father’s teeth in and that people know “not to fuck” with her. When the worker tried to safety plan with the mother she refused to listen saying that she was “not one of those stupid battered bitches” that the shelter worked with but she “kicks the father’s ass and not the other way around”. As she escalated, she said that she had scratched his face so badly that he was unrecognizable and had broken things like kitchen cupboards as that is the only thing to stop herself from kicking the father’s teeth in when the child was around. She began to swear and rant and told the worker “not to talk to her like she was fucking stupid”, raising her voice and clenching her fists.

[98] The worker was so concerned about the mother’s explosive temper with little to no warning and the safety of the child in her care that she contacted the after-hours worker at the society as well as leaving an email for the worker.

[99] As a result of her behaviour at the meeting, the mother was placed on a “do not admit (DNA) list: she was not allowed in the shelter or to have meetings with the staff due to concerns about staff and resident safety.

[20] The Society also put an alert in the mother’s file. This alert was to notify anyone working with the mother that she was aggressive and that care needed to be taken because of her levels of aggression. The mother testified that this was an example of the Society discriminating against someone with mental health issues.

[21] A further example of the mother’s aggression and volatile behaviour was set out para. 109 of Hardman J.’s reasons, when describing the mother’s attendance at an appointment for C.C.W. at the Kids Ability Early Years Assessment:

[109] On December 10, 2013, the mother made threats against the staff stating that “this fucking bitch is going to get hers” referring to the worker who said that she had to contact the society.

[22] In his conclusions, Hardman J. stated the following at paras. 171 and 173:

[171] The mother clearly suffers from undiagnosed and untreated mental health issues that prevent her from moving forward to address her behaviour and its impact on the child. She is convinced that there is nothing wrong. In her submissions, she seemed to suggest that changing her drug prescription was going to address all of the concerns. Given the fact that these issues have been around for years, and she has had changes in drug regime during that time, the court is not prepared to accept that a different drug is all that is needed to address the protection concerns…

[173] Returning the child to her care is not a sage option…

[23] Justice Hardman found that there was no genuine issue that required a trial. He granted summary judgment and found the child in need of protection. He placed the child with his father and granted access to the mother at the discretion of the Society.

The Society’s involvement with C.M.P. after the Summary Judgment

[24] From March 15, 2017, the Society had “grave concerns” about the mother’s inability to interact with the Society’s workers and other professionals. The mother, C.M.P., continued her have major challenges in her ability to control her anger. On one occasion, after a court appearance, she slapped a Society worker following the court attendance. On another occasion, she grabbed the arm of another worker during an access visit with the child.

[25] C.M.P. had engaged in counselling with Interfaith Counselling Centre (ICC) for a lengthy period of time. Despite that counselling, she was not able to make sustained gains with her anger management.

The Joint Custody Order September 7, 2018

[26] In addition to the Society and other professionals supporting the mother, the child’s father, C.T.W., and his partner, C.L., were supportive of the mother’s access with the child. The father, C.T.W., gave evidence that the child had developmental delays and he could often be somewhat of a challenge in his behaviours. According to the father, the child needed routines and found it very difficult when his routine changed.

[27] The child had an Independent Education Plan (IEP) at school and the school provided other support workers for him from time to time. He was given cues so that he was aware of what was going to happen next. If his routine changed, he would cry as if someone had personally hurt his feelings. He would often say that things were not fair, and his body language was like he was surrendering in defeat.

[28] All of the adults who had significant contact with the child expressed a concern that the child had a significant problem with setting boundaries with strangers. He would approach a stranger and want to hug them. He was always trying to please everyone.

[29] The father insisted that he knew that the child’s mother loved the child and that the child loved his mother very much. C.T.W. stated that he did not want the same thing to happen to the mother that happened with her two other children. He wanted supervised access to continue and to be consistent. The father stated that he hoped that the mother could make the gains needed to allow for increased and unsupervised access.

[30] The father and C.L supported the mother and often made efforts to attempt to include her and help her. On multiple occasions, when the child’s behaviour became too much for the mother, she would call the father and tell him that she could not handle the child. The father would come to the mother’s house and return the child to his home on these occasions.

[31] C.T.W. and C.L even invited the mother to their home and tried to include her in events, such as Halloween. C.T.W., C.L. and the mother, C.M.P., all stated that, for a period of time, they communicated well for the benefit of the child. They even set up a Facebook group page so that they could have open discussions with and about the child.

[32] On September 7, 2018, the parties entered into a consent agreement and Order pursuant to s. 102 of the CYFSA for joint custody of the child and specified access, which included alternating weekends and one overnight week during the week on an alternating basis. The Society withdrew from their involvement with the family at this point.

[33] This arrangement did not last long. On December 10, 2018, the principal of the child’s school reported to the Society that the mother had duct taped the child’s mouth and put the child in a time out in the dark for four hours.

[34] The principal of the school testified that C.C.W. was the most beautiful child she ever had the joy to meet. He was brought to her attention for loving people too much. As he grew older it became more apparent that he would hug strangers and tell people too readily that he loved them. This is one of the challenges the school sought to work on. She described the child as having a delayed development by approximately 2 years. He needed structure and he had extreme difficulty in dealing with changes to any routines. The child was also very talkative. According to the principal, if something happened outside of school everyone knew about it.

[35] The principal stated that, at the beginning of December 2018, the child was sharing with other children that his mother duct taped his mouth. The child was brought to the principal and he told her the same thing. She reported it to the Society. She stated that the father also called her to report the duct taping incident, as the child told him about it.

[36] The principal stated that she never had any concerns about the interaction of the father and the stepmother. However, she did have difficulty with many of the interactions with the mother. The principal stated that the mother would often call her and became very emotional, and related complaints to her regarding how her son was not being cared for in the father’s home.

[37] The principal described many of these discussions with the mother as being one-sided narratives of that of the mother. The principal stated that the conversations with the mother became a recitation of a myriad of concerns that were in a lengthy one-sided monologue. She also sent the principal multiple emails that complained about the inappropriate manner that the school handled the allegations of her child being bullied. The mother complained to the school board about her discontent with the way that the school dealt with this situation.

[38] When access to the child became inconsistent on the part of the mother, this had a significant impact on the child. He would cry in front of teachers and other students. The principal stated that it was not good for anyone – especially for the child’s dignity – to have his emotional baggage open for all to see. Access had to be adjusted in order that the transfers no longer occurred at the school.

[39] The Society continued to attempt to work with the family. According to the Society worker, Lauren Buckley, the mother contacted her counsellor in order to get help with her increased level of anxiety and her being overwhelmed in her dealing with the child.

[40] In addition, C.M.P. met with a psychologist, Dr. McLeod. C.M.P. stated that she also read a book called Parenting Your Spirited Child by Mary Sheedy Kurcinka.

Reports of Physical Abuse by C.L.

[41] In March of 2019, the mother brought a motion to change the custody of C.C.W. to her custody with access to the father. According to the father, as soon as the mother was served with their response to her motion, the allegations on the part of the mother of physical abuse started and escalated.

[42] The first allegation by the mother was that the child told her that C.L. had spanked him. An investigation was opened by the society. The child was interviewed by Society worker, Ms. Lauren Buckley, and Detective Heath.

[43] Ms. Buckley stated that the child talked about being spanked by C.L. “a long long time ago.” He also stated that it happened both over his clothes and on his bare bum.

[44] Detective Heath was with the child abuse unit, which did joint investigations of allegations of child abuse. He had special training in both child abuse and interviewing children.

[45] Detective Heath stated that, in his experience, he has found that children sometimes say things that appear not to come from them, but that are put into their minds by adults. He found that an example of this occurred when the child said that she spanked me on the bum and that “she can’t do that to me”. He testified that the child said the spank was over his clothes and with her hand. The child was not upset when telling his story. Detective Heath did not feel that there were any grounds to lay criminal charges.

[46] Detective Heath stated that the child seemed very happy by the end of the interview. At the end of the interview, the child was asked if there was anything else he wanted to say and the child asked him and the Society worker if they loved him. Detective Heath stated that, in his many years as a police officer, he had never been asked that question by a child and that was very worrisome to him. The officer felt that for a child to say that there must be something going on inside that little head.

[47] Detective Heath stated that the name of a friend of the mother’s, James Astley, was passed on to him to interview. Mr. Astley told Detective Heath that he did not see any spanking, but was in the home and heard spanking taking place while he was in the kitchen when. The father stated that Mr. Astley was never in his home. Mr. Astley did not testify. If Mr. Astley had evidence that corroborated a spanking incident, he could have and should have testified. I draw an adverse inference that he did not testify.

[48] Detective Heath stated that he interviewed the father, who told him that C.L. did spank the child over his clothes a long time ago. However, the Society spoke to him and C.L, and they claimed that they never did that again. C.L. stated that this event happened in 2016. She said that it was only a light spank on his bum over his clothes. She denied that she ever spanked the child on his bare bum.

[49] Detective Heath stated that the father was a very caring father and he wanted the mother to visit the child. The father only expressed the concern to the detective and Ms. Buckley that the mother could not handle the child’s behaviours.

[50] Detective Heath interviewed the mother and her husband, C.G. C.G. stated that the mother does struggle with the child’s behaviour, at times, and when that happens, she calls the father to come and get the child. However, when C.G. testified, he stated that, when the child does not behave, they send him back to his father’s as a punishment.

[51] C.G. told Detective Heath that he did not hear anything about a spanking and did not give Detective Heath any concerns about the child being with the father and stepmother.

[52] Detective Heath stated that the mother became upset with him for not allowing her to review all of the history and for concentrating solely on the allegations at hand. She told him “once again, the police do nothing” and stated that she would file a “complaint against him in order that she gets a real detective”.

[53] According to Detective Heath, the mother was yelling and screaming, and he had to tell her that there were other children in the area and that she needed to calm down. At that time, she was out in the parking lot yelling and screaming that “the police did not know what they are doing”.

[54] Detective Heath stated that he was very concerned about the mother’s behaviour. He told her that there was no criminal offence in this case, and he stated that the mother was all over the place and would not listen to him.

[55] The mother did put in a complaint against him. The complaint went right up to the Chief of Police. There were no disciplinary actions taken by the police against Detective Heath.

Allegation # 2

[56] On June 10, 2019, the Society got a call from the principal of the school, who reported that the child, C.C.W, stated that he had been backhanded by his stepmother, C.L.

[57] The Society assigned a worker, Magda Piasecki. A joint interview took place with Ms. Piasecki and Detective Cooper of the Waterloo Regional Police Services. Neither of the interviewers had any previous knowledge of any details of the allegations. The mother, C.M.P., had apparently called the police to make a report of this allegation.

[58] According to the evidence of Detective Cooper, the child did disclose that he had been “backhanded and spanked” by C.L. However, the child could give no details about either incident.

[59] The child only stated it happened a long, long time ago.

[60] The Society and police then attended at the mother’s home. Ms. Piasecki described the mother as being scattered in her thoughts and unable to stay on topic. She was angry at the Society for what she stated to be their inaction with respect to the spanking allegations. The worker testified that she was concerned about what she felt to be the child using the word “backhanded.” She did not feel that was a word that would be within a child of his age’s vocabulary. She was concerned that he may have been coached.

[61] The joint team also interviewed the father and the stepmother. They were very cooperative and appropriate. C.L. denied that she had backhanded the child. She did state that sometimes she would raise her hand in that fashion and ask the child if he wanted one of these? She stated that she was raised old school and that this was a type of expression used all the time. She never followed through on it, though, and she stated that she would never do that again.

[62] Detective Cooper testified that he was the one who conducted most he the child’s interview at the school. He had been with the police department since 2005 and with the Youth Protection unit since January 2019.

[63] He stated that the only thing he knew about the allegations were that the child alleged that his stepmother had backhanded him in the mouth. He observed that there were no marks on the child. Detective Cooper observed that the child was bright and cooperative. He did not feel that the child was limited in his ability to understand and he was comfortable. According to the Detective, the child understood the concept of truth and lies, and he promised to tell the truth.

[64] Detective Cooper stated that the child could not give any details. Detective Cooper was also concerned that the child seemed to be mimicking phrases by using adult language. He stated the child said: “C.L. backhanded me in the mouth and she has no right to lay her hands on me”.

[65] Detective Cooper asked what happened in the father’s home if he broke any of the rules, and the child only stated he would get time outs or the “3 strike rule”.

[66] Detective Cooper testified that he was advised by the principal of the child’s school that it is very possible that the mother may not return the child to the father’s home as she was suppose to and that the father may be getting a “police assist order” if the child was not returned to him. The detective forewarned the police station to have a uniformed officer available in order to keep the peace.

Allegation # 3

[67] The mother, C.M.P., contacted the police in the afternoon of June 22, 2019. She alleged that the child had a mark on his face and that her child described being hit by C.L.

[68] Samantha Brandon was an emergency service worker on June 22, 2019. She had been with the Society since 1998. She is presently a supervisor with Indigenous Services.

[69] Ms. Brandon interviewed the child with Detective Rhab of the Waterloo Regional Police Services. Because of her lengthy employment with the Society, Ms. Brandon was familiar with the mother and the child. Prior to the interview, she was aware that there had been two previous investigations around allegations of physical abuse and neither was confirmed.

[70] Ms. Brandon noted that the child was struggling in the interview to remain engaged: he was constantly standing and getting on and off the couch. He would often deflect in answering a question by such actions.

[71] Ms. Brandon felt it necessary to ask more direct questions. Ms. Brandon did not observe any mark on the child’s face, especially over his eye, as the mother had originally alleged.

[72] Ms. Brandon asked the child directly if C.L. ever hit him. The child said “no”. She then asked the child who told you that C.L. hit you, and the child said “mom”.

[73] The child was not prepared to engage the interviewers any further.

[74] The joint team then interviewed the mother. She stated that the mother was initially calm in the meeting. However, she soon became increasingly escalated after the worker advised the mother that the child made no disclosures and she did not observe any marks on the child.

[75] The mother told Ms. Brandon that she was “very, very frustrated with the CAS”. She alleged that no one ever returns her calls. She also stated that the Service Director of the Society told her not to attend the agency anymore.

[76] Ms. Brandon stated that the interview was very challenging and eventually the mother stated to her that the child did not disclose to her that C.L. hit her. The mother admitted that she had assumed C.L. hit him based on the mark she saw on the child. The mother then stated that she concluded C.L. hit him with a backhand and that her knuckle hit his eye.

[77] Ms. Brandon stated that it was a spirited interview and that, near the end, the mother leaned in toward the interviewers and was actually spitting on them while she was shouting at them.

The Police Assist Order

[78] Detective Heath was advised, after he had conducted the interview of the child, as related earlier in these reasons, that the mother was not going to return the child from school and would simply keep him.

[79] The next thing that happened is that he was summoned to court. He stated that he sat in the back row of the court with the school principal and heard the mother tell the judge that she would not return the child. The mother became very aggressive and loud toward the judge. The judge asked Detective Heath to assist in removing the mother from the courtroom and he did assist with her removal.

[80] When the mother testified, she agreed that she told the judge that she would not return the child. However, the mother stated that the “judge laughed at me hysterically”. She also stated that “if she was going to be disrespectful of me, I was going to give it right back to her.” There was no transcript or recording of that court hearing that was entered into evidence. This was a very serious allegation that the mother made against a judge.

[81] I find that, given the mother’s extensive and chronic history of taking on any professional who disagreed with her, the mother demonstrated her disagreement and her anger when the judge told her that she was issuing an order for her to return the child to the father with police assistance.

[82] It is simply not believable that the judge would have hysterically laughed at her. The mother’s counsel never asked either the principal of the school nor Detective Heath if they observed such conduct on the part of the judge. Both testified that they were in court that day. In fact, neither testified to any laughing in that court appearance. The only testimony was about the aggressive behaviour on the part of the mother. The aggression was elevated to such a degree that the judge made a report to the Society regarding reasonable grounds to suspect child abuse.

[83] Some of the examples of the mother’s chronic lashing out and taking on professionals in the evidence include the following :

a) she complained to the school board about the principal of her child’s school for not protecting her child from bullying;

b) she filed a complaint that went all the way up to the chief of police about Detective Heath when he advised her that there were no grounds for criminal charges or protection concerns;

c) she sought to bring a review against the director of the Society;

d) she wrote and published a book that seeks to relate her story of how she has been treated by the Society. The book is entitled: “Child Protection or Child Corruption”;

e) the mother is in the process of writing a second edition of her book and plans to make this a series;

f) she has a blog on social media that chronicles alleged corruption on the part of the Society; and

g) she published a video of her telling her child about her attempts to protect her child. In that video, she can be heard telling her child in a very tearful voice how she had tried so hard to protect him, but the judge was sending him back to his father where he is physically abused.

The Video

[84] The video referred to above was made an exhibit and played in court. I find that the conduct of the mother, captured in this video, is an example of a parent infusing a child with distortions of reality that are intended to introduce and reinforce fear in the child. At the outset of the video, the mother is the only one crying. She reaches out to the child and told him that she tried and tried to protect him, but the court did not believe her and that they were sending him home. The child seemed uncertain as to what was happening and only cried as the mother was crying over a lengthy period of time and holding him tight.

[85] The mother’s conduct was egregious. However, it became even more egregious when she admitted that, in addition to writing and publishing a book about how the Society is corrupt, she also posted a blog about her experiences with the Society, which included the video for all to see.

[86] The mother testified that she knew that she was disobeying the law on nonpublication of anything that would tend to identify a child who was the subject of a child protection hearing. She said that she did it knowingly and willingly. She felt that it was more important to expose the Society than to obey the law.

[87] I find that this conduct, on the part of the mother, demonstrates her complete inability to have any insight into her own challenges with mental health and emotional mood swings that result in her uncontrolled rages. She is presently in a mindset that prevents her from disregarding her obsession with the Society and her cause célèbre to take them on and expose them as a corrupt “organization”.

[88] The mother has no regard for the potential negative impact on a child by exposing that child to the public as a child who is the subject of a protection application. In the book that she published, she also exposed the names and child identifying information of other families whose children were the subject of protection applications.

[89] The mother needs to demonstrate to the court that she has control over her severe mood swings and rages. She needs to get herself in a position that will allow her to see that there are professionals who can and have the legal mandate to help her.

[90] I find that the father was a credible witness who has demonstrated a patience and understanding of his child’s need to have a loving relationship with his mother, and will continue to do so.

[91] I find that the stepmother, C.L, was a credible witness who admitted to using inappropriate disciplining in the past, but has adjusted her approach after listening to the professionals who have given her guidance. I find that C.L. is also supportive of the mother having a positive relationship with the child. My concern is that if the mother continues to launch false allegations, C.L. may withdraw from the necessary supportive and loving relationship that the child needs of her. She testified that, given all of these false allegations, she has purposely tried to back off interactions with the child in order avoid further false allegations. She is trying her best to put that aside and re-establish the close relationship she had with the child. I have confidence that, with the support of the father, she will accomplish that goal.

Position of the mother

[92] The mother seeks an order under s. 102 of the CYFSA to have joint custody with primary residence with her and an access scheme that allows the father to have alternating weekends some time during the week and holiday time.

Position of the father and stepmother

[93] The father wants an order for custody of the child pursuant to s. 102 of the CYFSA with an access scheme that expands the mother’s access. He wants that access to be in his discretion so that he does not have to come back to court. In the alternative, the father seeks joint custody with primary residence to him.

Position of the Society

[94] The Society supports the father’s position. They do not feel that they can contribute anymore than they have. They do not feel that the child is in need of protection while in the father’s care. They feel that he is in a position that allows him to give access in his discretion. That is supposed to be a safeguard for the child. As an alternative, the Society would support access to the mother, if it must be supervised, at an access centre or with an agreeable access supervisor.

The Law and Analysis

[95] Subsections 74(2)(b)(i), (b)(ii) and (h) of the CYFSA read as follows:

Child in need of protection

(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child; [or]

(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child[.]

[96] I find that the child is presently at risk of both physical and emotional harm when he is with his mother. The child has special needs and by everyone’s account can be more than a handful with his behaviours at times. The mother acknowledges this. Her acknowledgment is further corroborated by her present husband, who stated that when he does get difficult to handle, they send him back to his father. I am not comforted by this, as the mother’s husband sees that as a way of punishing the child as opposed to seeking relief for the mother.

[97] The mother has now put herself in a position whereby other adults and professionals are hesitant to assist her in fear that they will be next in line as a target for her obsessive ire. This makes assisting the mother with her challenges of severe mood and emotion swings and ability to control her anger almost – if not completely – impossible.

[98] The mother articulates that she is now able to recognize when she cannot cope with the child’s behaviours. I do not agree that she is able to. The mother’s conduct that she demonstrated on that video was emotionally abusive to her child. She transferred the sadness and anger that she felt to the child. The child adopted the sadness and felt fear of having been forced, by the court, to return to the mother’s view of an abusive father’s home. This conduct is illustrative of a real and present risk of emotional harm to the child.

[99] I also find that the mother has not put herself in a position to be able to control the onset of her rages. She has sought counselling, however, the counsellor testified that her sessions were almost completely occupied by her own lashing out of a narrative of her perceived grievances, rather than any real attempt to gain insight into her own difficulties. In my view, the mother poses a real and present threat to descend into a rage that will have physical abuse implications for the child.

[100] Until the mother can demonstrate that she is able to work with professionals and make the gains she needs to, in order to ameliorate the risks of harm to her child, the child is in need of protection and the Society must continue to supervise the mother.

[101] I do not feel that an order pursuant to s. 102 of the CYFSA is appropriate. The Society is the only entity charged with the statutory authority and obligation to investigate allegations of abuse and to provide services to families in order to deal with parental challenges that are the cause of that abuse.

[102] The Society does not have the option to take the position that a parent is too difficult to deal with. If the court determines that supervision by the Society is in the best interest of the child, the Society must establish a plan that will represent their best efforts to protect the child and assist the family.

[103] If a parent does not afford themselves of the assistance provided by the Society, the parent is the problem, not the Society. In this case, unfortunately, the mother became the problem. She has now devoted herself to exposing the Society instead of devoting herself to doing whatever is necessary to be in a position to be a caregiver to her child.

[104] The mother will be given that opportunity. However, she must demonstrate that she is developing insight to her severe emotional swings that result in rages that place the child at risk of harm.

[105] If the mother does not show such gains, then she runs the risk of not being able to have the relationship that this child wants and needs: a mother and a father who loves them and puts their needs above all else.

[106] I find that the father has provided the child with a caring, loving and nurturing environment. He has attended to meeting the needs of the child and I have every confidence that he will continue to do so. The Society has never expressed any parenting or welfare concerns with respect to the father. They support the child being cared for by the father.

[107] In my view, at present, the only way to meet the needs of the child that is in this child’s best interest is to have the child continued to be placed with the father, under supervision of the Society.

Access to the mother

Access in the discretion of a party

[108] I am of the view that the court does not have the jurisdiction to order access in the discretion of the either the Society or to a party. I referred the parties to my ruling in C.A.S. v. K.D.D., 2020 ONSC 511. They were given the opportunity to make submissions on this issue.

[109] In the above noted case, after a lengthy review of the law commencing at para. 34, the following was referred to at para. 44:

[44] Justice Lauwers of the Ontario Court of Appeal, sitting In Chambers in the case of G. (D.) v. F. (A.), 2014 ONCA 436 (Ont. C.A.) commented on a court’s consideration of: the best interest of children commencing at Para 34

[34] The best interest of very young children are usually best served by stable custody and access arrangements, and the formation of strong relationships with both parents. The problem of uncertainty in custody and access arrangements was discussed in Van de Perre v. Edwards, at para 13, repeated here for convenience:

First, finality is not merely a social interest: rather, it is particularly important for the parties and the children involved in custody disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge's decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of he unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interest of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. (my emphasis added)

[45] I am of the view that a court cannot and should not delegate its exercise of discretion when ordering access. It is the court that must balance and evaluate the evidence within the consideration of the factors set out in the statute. Expediency cannot override such considerations.

[46] I am also of the view that in certain circumstances, after the court has made the determination that access is appropriate it may be necessary to set out certain parameters and guidelines to a party who may be placed in a position of having to facilitate that access given the unique circumstances of each case that is presented a court.

[110] In this case, access to the mother is in the best interest of the child. The Society, the father and the stepmother all agree that the child needs to see his mother. They both love each other. The father wants the access to the child to increase and to move toward unsupervised. I agree with the father. However, this is not possible, at this time. Given my findings with respect to the risk of harm to the child, the mother needs to demonstrate that she has made real gains with respect to her anger and emotion control. Until that can be demonstrated access must be supervised by the Society in order to protect the child from the risk of the harms I have found to exist. Access will be as set out in the order below.

[111] Given all of the evidence and having regard to my analysis, I make the following order.

1. The child is in need of protection pursuant to s.74(2)(b)(i), (b)(ii) and (h) of the CYFSA.

2. The child shall be placed with the father for a period of 6 months on the following terms:

i. the father shall allow the Society to attend upon his residence in order to assess the home and the parenting at any time;

ii. the father shall obtain the services of a counsellor in order to deal with his reaction to the mother’s conduct and the child’s behaviour from time to time;

iii. C.L. shall obtain the services of a counsellor in order to deal with her reaction to the mother and to assist in regaining her ability to interact with the child;

iv. the mother shall allow the Society to attend upon her residence at their discretion, in order to assess her home environment and her parenting ability from time to time;

v. the mother shall follow the recommendations of the Society with respect to engaging any counselling or completing any programs that the Society recommends; and

vi. the mother shall be prohibited from publishing any information that might identify the child who is the subject of this child protection proceeding.

3. The mother shall have access to the child as follows:

i. alternating weekends from after school on Fridays until 7 p.m. on Sundays;

ii. one evening during the week from after school until 7 p.m. The evening shall be determined by the Society in consultation with the mother and the father; and

iii. the mother shall allow the Society to attend her residence during any access period unannounced for the purposes of supervising the access.

R. J. Harper, J.

Released: March 31, 2021