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 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.

AVIS

Il s'agit d'un cas en vertu de la Loi de 2017 sur les services à l'enfance, à la jeunesse et à la famille et sous réserve des paragraphes 87(8) et 87(9) de la Loi . Ces paragraphes et le paragraphe 142(3) de la Loi de 2017 sur l'enfance, la jeunesse et les services , qui traitent des conséquences de la non-conformité, se lisent comme suit:

87 (8) Interdiction : identification d’un enfant — Nul ne doit publier, ni rendre publics des renseignements ayant pour effet d’identifier un enfant qui témoigne, qui participe à une audience ou qui fait l’objet d’une instance, ou un parent ou un parent de famille d’accueil de cet enfant ou un membre de la famille de cet enfant.

(9) Interdiction : identification d’une personne accusée — Le tribunal peut rendre une ordonnance interdisant la publication de renseignements ayant pour effet d’identifier une personne accusée d’une infraction à la présente partie.

142 (3) Infraction : publication — Quiconque contrevient au paragraphe 87(8) ou 134(11) (publication de renseignements identificatoires) ou à une ordonnance de non-publication rendue en vertu de l’alinéa 87(7) c) ou du paragraphe 87(9) et l’administrateur, le dirigeant ou l’employé d’une personne morale qui autorise ou permet cette contravention ou y participe sont coupables d’une infraction et passibles, sur déclaration de culpabilité, d’une amende d’au plus 10 000 $ et d’un emprisonnement d’au plus trois ans, ou d’une seule de ces peines.

Court File and Parties

COURT FILE NO.: FC-FO 8/19-01 DATE: 2022/01/04 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Family and Children Services of St. Thomas and Elgin, Applicant AND: B.M. and D.O., Respondents

BEFORE: T. PRICE, J.

COUNSEL: Joyce Dittrich - Counsel for the Society David Winninger - Counsel for the Respondent B.M. D.O., Self-Represented

HEARD: November 25, 2021

Endorsement

Nature of Motion

[1] The Applicant, Family and Children’s Services of St. Thomas and Elgin (“the Society”) moves, by way of summary judgment motion, for an order terminating the existing order of Justice Hebner, dated February 13, 2020, pursuant to which the child, T.R.M. (“T.”), born June X, 20XX, was placed in the care of her mother, B.M. (“B.M.”), for a period of 12 months, subject to Society supervision. T.’s father, D.O. (“D.O.”), was granted access at Society discretion because of then-pending criminal charges, with a right to bring a Status Review Application once they were resolved.

Background

[2] The order of Justice Hebner was based upon a Statement of Agreed Facts, from which the following information is taken, signed by all parties.

[3] The Society first became involved with the parents in 2012, when T. was one year of age. The Society remained involved until June 2016, when the file was closed.

[4] In August 2016, a referral was received from the local violence against women organization in Elgin County. It reported that D.O. had returned T. to the care of her mother early following an access visit because he could not manage T.’s behaviour. He acknowledged that he had physically restrained T. but denied physically disciplining her. B.M. asserted that D.O. admitted to slapping the child. The Society remained involved, with D.O. having supervised access while he completed two parenting programs. He resumed unsupervised access with T. in February 2017. The access was observed to be positive, and the Society again closed its file in June 2017.

[5] While the file was still open, on March 3, 2017 Justice D. R. Aston, on consent of the parties, made a final order in proceedings under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 , as am. (hereinafter, “CLRA”), granting the parties joint custody of T., with her primary residence to be with B.M..

[6] The order is twenty-five paragraphs in length. It addressed such matters as joint custodial decisions, a parenting schedule, T.’s medical and dental appointments and D.O.’s right to information with respect to them, communication between the parents and dispute resolution.

[7] One of the terms of that order was that T. would attend the local public school determined by her primary residence address. That term is significant to the parents’ positions in proceeding.

[8] Police were called in October 2018 when D.O. was reported to have restrained T. again while caring for her. D.O. refused to speak to police about the occurrence because of his previous involvement with them over T. As a result, the Society commenced an investigation. D.O. agreed to revert to supervised access.

[9] At the time of the Society’s reinvolvement, T. was displaying a number of serious behavioural issues which were causing suspensions at school and police involvement. The behaviour included kicking, punching, biting, running and yelling.

[10] The parties agreed that these difficulties continued to cause them “to have significant difficulties in co-parenting T.” and that there continued to be “conflict regarding appropriate parenting style, correct discipline, medication and counselling.”

[11] The Society and the parties agreed that the parents’ “conflict appears to be negatively impacting the child.”

[12] In January 2019, the Society directed D.O. not to have access with T. due to “continued concerns about the adequacy of supervision during his access.” The Society then obtained a temporary order on January 16, 2019, pursuant to which T. was placed into the care of B.M., with access to D.O. a minimum of once per week.

[13] Efforts to have T. assessed in May 2019 were unsuccessful because T. was “screaming, yelling and biting the worker.” The physician recommended a referral to CPRI.

[14] By August 2019, D.O.’s access had expanded to include unsupervised, alternating weekend visits. However, on September 29, 2019 an incident occurred during D.O.’s access when T. alleged that he had wrapped his legs around her neck, causing her to feel like she could not breathe. She left his residence and police were contacted. D.O. was charged with assaulting T., and a non-association order was put in place. D.O. denied the allegation and blamed it having been made on B.M. who, he claimed, had always opposed him having access with T. following the parties’ separation.

[15] Based on all of this, the parties agreed that T. was in need of protection pursuant to sections 74(2)(b)(i) and (ii); 74(2)(h) and 74(2)(i) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 , as am. (hereinafter, “CYFSA”). T. was placed in the care of B.M. for a period of 12 months, subject to Society supervision, with a number of terms and conditions. Those most pertinent to this motion include:

a. that the parents meet with the Society worker as requested on both an announced and unannounced basis;

b. that the parents allow the Society worker to meet privately with T., as requested, to interview and observe her, on both an announced and unannounced basis;

c. that the parents “not expose T. to adult conflict or violence, including but not limited to: argument, yelling, screaming, swearing, use of inappropriate or offensive language…;” and

d. that, when caring for T., both parents “shall dispense any medication prescribed for the child as directed by the child’s assigned physician.”

[16] Because of D.O.’s pending criminal charge, he was not allowed to have any access. As a result, he had no access with T. between September 29, 2019 and April 22, 2021, following the withdrawal of the criminal charge sometime in March 2021.

Society Evidence in Support of Termination

[17] The Society relies primarily on the evidence of two workers, Patricia Boadi and Joseph Kuriakose, in support of its request that the existing order be terminated.

Patricia Boadi

[18] According to the evidence of Ms. Boadi, the parents pursued recommended intensive family support for T. as a result of recommendations made by CPRI.

[19] Additionally, B.M. and T. received counselling from a worker at Wellkin, a child counselling facility, and through the Community Services Coordination Network.

[20] Additionally, T. was considered for an alternative school placement, said by Ms. Boadi to have been supported by both parents, although T. was not admitted to the program for the 2020/2021 school year.

[21] T. did not engage, other than “minimally,” with Ms. Boadi for over a period of one year and she refused her mother’s entreaties that she do so. Based on Ms. Boadi’s evidence, it appeared that, given those circumstances, B.M. appeared to often speak for T. when conversing with Ms. Boadi.

[22] T.’s Occupational Therapist recommended on November 18, 2020 that she would function best in a “calm, quiet and predictable environment.”

[23] Prior to the institution of access between D.O. and T., Ms. Boadie developed a document, consisting of words and pictures, setting out in child-appropriate language the rules that would govern D.O.’s access with T. once reinstated.

[24] B.M. suggested that Merrymount supervise D.O.’s access. Ms. Bodie deposed that B.M. “did not appear open to most of the suggestions” that she put forward, being “of the view that T. could not be adequately protected in the care of the father without consistent supervision.”

[25] Ms. Boadie, on the other hand, found D.O. to be flexible about the resumption of his access and open to it being supervised, although his ultimate goal was unsupervised access.

[26] In conversation with one of T.’s counsellors, Emily Palumbo, on April 8, 2021, Ms. Boadie understood that it was being recommended that T.’s access be supervised until the parents were able to develop a plan, presumably for transitioning, ultimately, to unsupervised access.

[27] However, when there was a delay in starting access, D.O. expressed the view to Ms. Boadie that the Society was “aligning with B.M. to deny him access with his daughter.”

[28] Once access began between D.O. and T., Ms. Boadie observed it to be “positive.”

[29] Based on her evidence, Ms. Boadie deposed that, given that:

a. CPRI had provided support to T.,

b. intensive family services were being provided by Wellkin,

c. T. was receiving medical attention for her various conditions, which included anxiety, Disruptive Mood Dysregulation Disorder (DMRD) and Attention Deficit Hyperactivity Disorder (ADHD),

d. T. had an Individual Education Plan, Educational Assistant and intensive behaviour intervention program at school, and

e. progress was being seen in T.’s behaviour,

the Society had done as much is it could to support the family and had concluded that there was no need for its continued involvement. As a result, Justice Hebner’s order could be terminated.

Joseph Kuriakose

[30] Mr. Kuriakose became the worker responsible for the family’s file with the Society on April 27, 2021. He remains the worker at this time.

[31] According to his evidence, the access between T. and D.O. which he supervised was almost consistently positive. T. was open with him, telling him that she enjoyed her time with her father and that she eventually wanted to stay with him overnight.

[32] While the access visits supervised by Mr. Kuriakose began in a local park, by May, 2021 they had moved to D.O.’s backyard. Eventually, the supervision of D.O.’s access with T. changed from Mr. Kuriakose to D.O.’s partner, S.C.. It was Mr. Kuriakose’s understanding that the access continued to be positive when supervised by Ms. S.C..

[33] Dark clouds began to appear on the horizon of the Society’s generally sunny portrayal of events on the file on May 27, 2021 when Mr. Kuriakose attended the home of B.M. and T. On this date, T. refused to speak with him despite her mother’s encouragement. B.M. informed Mr. Kuriakose that T. “requires an apology from her father” about, presumably, the alleged criminal assault of September 2019.

[34] B.M. further asked for the Society to slow down the progression in D.O.’s access. She expressed concern about the ability of Ms. S.C. to understand T.’s behaviours, particularly should some of her more challenging behaviours manifest themselves during access.

[35] Around the same time, D.O. asked Mr. Kuriakose to change the words and pictures document setting out the terms of his access with T.

[36] On June 2, 2021, B.M. repeated her assertion that D.O. needed to apologize to T. about the past.

[37] Despite her mother’s expressions of concern, at the end of June, 2021, as a result of a conversation with T., Mr. Kuriakose concluded that T. did not feel the need for him to supervise her access with her father. She also expressed the desire to spend overnights with her father commencing on the weekend. B.M., on the other hand, continued to express concern about T. having access with D.O. without Society involvement.

[38] By early July 2021, B.M.’s concerns had escalated to include D.O. having increased access time and overnight access. She asserted that “everything was happening too quickly and at the last minute.”

[39] Mr. Kuriakose consulted with one of T.’s counsellors and received no such negative feedback from her.

[40] On July 26, 2021, during discussions with D.O. and Ms. S.C. about T.’s medication, D.O. reported that he did not like that T. took medication but would make sure she did, in accordance with the safety plan that had been developed earlier.

[41] D.O. requested that T. have a different counsellor, one who, he believed, “would be able to see things from T.’s perspective rather than projecting what B.M. wants.”

[42] On July 30, 2021, B.M. informed Mr. Kuriakose that T. was openly stating that she did not wish to go to the alternative school in 2021/2022. This placement had been worked on by her mother and others for close to two years. B.M. reported that T. had told her that her father did not support the change in school.

[43] At this point, B.M. informed Mr. Kuriakose that she was concerned that, if the Society terminated its involvement, the order of Justice Aston would be reinstated and she would have to share decision-making responsibility with D.O., which would be extremely problematic. She cited D.O.’s resistance to T. changing schools as being but one example where his disagreements with her would pose problems for T.

[44] Following this discussion, Mr. Kuriakose reviewed the Society file concerning T.’s attendance at the alternate school program and concluded, based on the documents he reviewed, that both parents had agreed with the decision to change T.’s school.

[45] Following the review, Mr. Kuriakose and one of T.’s counsellors met with D.O. and Ms. S.C. to discuss the program. D.O. informed Mr. Kuriakose that T. had told him that she was not interested in going to the school. He took the position that the decision for such a change “did not consider [T.’s] feelings.” D.O. further expressed the view that he saw no benefit from the new school program. D.O. expressed views about the reason for the program and took the position that T. “needs to be given the chance to continue and prove herself in a regular school setting.” It was Mr. Kuriakose’s impression that D.O. had a minimal understanding of the program.

[46] According to Mr. Kuriakose, D.O. “was very argumentative throughout” the discussion and “unreceptive to any differential opinion.” Ms. S.C. attempted to calm D.O. and get him to engage civilly, and the counsellor offered D.O. assistance in connecting with the school principal to discuss the program.

[47] On August 4, 2021, in a meeting with B.M., T. and others, T. informed Mr. Kuriakose, in the presence of the others, that visits with her father were going well and that she wished to have an extended overnight visit with her father.

[48] B.M. expressed concern to Mr. Kuriakose that D.O. was not providing T. with her prescribed medication. She again raised her concern about what would occur once the Society terminated its order. For the first time, it was suggested that if a court order were made which prevented D.O. from disrupting plans for her T., the situation might calm.

[49] This suggestion was repeated during a family meeting with B.M.’s family and Mr. Kuriakose on August 5, 2021. As Mr. Kuriakose put it in his affidavit, “the family feel strongly that clear directions on decision-making power for the child could go a long way to prevent disagreements and conflicts between the parents and in the interests of T.”

[50] Concurrently, Emily Palumbo, one of T.’s counsellors at Wellkin, expressed concern to Mr. Kuriakose that there be a “thorough review of the family’s file to revisit the Society’s decision before ending involvement with the family.”

[51] On August 18, 2021, Mr. Kuriakose informed B.M. that he understood that D.O. was supporting T. attending the new school, although he did not like that it would occur.

[52] During a meeting with D.O.’s “family network” on August 19, 2021, those present expressed concern that T.’s medications were being brought by T. in containers which lacked labels or instructions. They wanted to know what medications T. was taking and their side-effects.

[53] On August 20, 2021, during a discussion about parenting strategies with D.O. and Ms. S.C., they spoke to Mr. Kuriakose about the level of stress that T. “needs” and said that “everyone has deadlines in life and work and children should learn this in order to be successful.”

[54] Following a tour of the new school facilities in August 2021, D.O. reported T. to now be looking forward to attending the alternate educational program.

[55] On August 26, 2021, during a “family network” meeting with B.M.’s family, Mr. Kuriakose was being told that there had been “a lot of regression for T. since the visits with her dad started.” Mr. Kuriakose was also told that the concerns of members of B.M.’s family “are being minimized,” that T. was not sleeping well following visits with her father, and that she was constantly looking for comfort/attachment from her mother.

[56] Mr. Kuriakose reported that he understood that T. had said that her visits with her father were going well, and she wanted to expand her Wednesday visits to overnight. B.M. speculated that T.’s interest in attending visits might be connected to getting toys and being taken to “fun places,” or being made by her father to feel guilty.

[57] The brewing discord between the parents reached a boil for T. on September 1, 2021, when S.C. was unable to supervise an access visit between D.O. and T. As a result, D.O. attended at B.M.’s residence to retrieve T. B.M. would not allow T. to go with D.O. because of the lack of supervision. An argument ensued between the parents. T. was present and observed the argument. She became distressed to such extent that she climbed a tree to get away from both of her parents.

[58] D.O. later complained to police that he was not allowed to take his daughter for an access visit.

[59] When Mr. Kuriakose next attempted to speak with T. after this incident, she refused to talk to him, walking away, into her room and slamming the door.

[60] On September 2, 2021, D.O. asked Mr. Kuriakose to inform B.M. that supervision of T.’s access was not mandatory. A discussion ensued about what the access plan had been as set out in the “words and pictures” document developed by Patricia Boadi. D.O. took the position that there was not a court order requiring supervision of his access, so he did not feel it was necessary.

[61] When Mr. Kuriakose next attempted to speak with D.O., D.O. informed him that he would prefer to have all conversations via text message so there would be no dispute between them about what was said or what they had agreed upon. According to Mr. Kuriakose, D.O. said that Mr. Kuriakose was misinterpreting the recommendations about access and “wants to hold me accountable for what I am saying.”

[62] On September 2, 2021, B.M. requested a formal review of the file by someone not involved with the case. She criticized a Society manager who, she felt, was siding with D.O., causing B.M. to conclude that the manager was not impartial as between her and D.O..

[63] B.M. further indicated that she wished all further communication with Mr. Kuriakose to occur via email because she “feels disbelieved, unheard and …her concerns are minimized [so] she no longer is comfortable having personal conversations with me.”

[64] By September 8, 2021 B.M.’s demands had extended to Mr. Kuriakose being removed as T.’s worker. She also requested that the manager be replaced.

[65] In the concluding paragraphs of his second affidavit, Mr. Kuriakose deposed that the parents “continued to struggle with trust for each other and in having meaningful engagement to enable the show of a unified front with T. The concerns around decision-making authority for T. appeared to add an additional challenge for B.M.. However, access for T. thus far and since its resumption in April 2021 has progressed well. T. has continuously enjoyed her time with D.O. through the different access times and progressions and with no reported concerns.”

[66] He further deposed that “the Society’s involvement is not beneficial for T. Both parents think I am aligned with the other party, whenever the Society worker has to make a decision, as the parents are not willing to communicate or come to an agreement regarding how to resolve the situation. Both parties are asking for written communication with the Society as they do not trust one another or the Society.”

[67] Mr. Kuriakose continued: “The Society is of the view that the Society has been involved with this family long enough. The parents have counselling for the child, and she is enrolled in a school for her specific needs. The parents may consider attending programs for themselves through Merrymount for how to parent separately. The Society will not be able to satisfy either parent with respect to custody and access issues and they will need to resolve any continued issues in Family Court.”

[68] Finally, Mr. Kuriakose deposed that the “Society is not opposed to varying the family court order to allow the mother to have decision-making authority while the child resides primarily with her.”

B.M.

[69] In her evidence, Ms. B.M. confirms that she wants D.O. to apologize to T., but he refuses to take responsibility for whatever occurred in the past. She further purports to speak for the child, indicating at one point that “it troubles T. that her father won’t take responsibility for what he did to her.”

[70] She asserts that T. regressed to sleeping with her “for comfort and support” following the resumption of her father’s access.

[71] She alleges that D.O. and Ms. S.C. caused T. to miss a full day of medication on September 11, 2021 and that T. arrived home “with a plan to be weaned off her medications”, a plan she attributes to D.O. and Ms. S.C..

[72] She rejects D.O.’s claimed that he was not aware of the plan for a change in school for T. because he participated in some of the meetings and had information about the program as well as an opportunity to ask questions.

[73] She accuses D.O. of lacking respect for women and indicates that “there has been a clear imbalance of power” between them, both prior to and following their separation.

[74] She deposed that “face-to-face meetings with D.O. are difficult because they always end in verbal attacks on my family and me.”

[75] This all causes her to “question D.O.’s ability to come to a joint decisions involving T.’s healthcare when he doesn’t like what I have to say and is uncomfortable reaching out to professionals.”

[76] She deposed that, with respect to the incident of September 1, 2021, when T. was present for the argument between her and D.O., D.O. told T. that her mother was “lying” to T. and that there was no need for a supervisor.

[77] Contrary to the views of Ms. Boadi and Mr. Kuriakose, B.M. deposes that she is of the belief “that the Society’s involvement does benefit T.” She further deposed that she is “willing to communicate with D.O. and to try to resolve issues with him” but that “there has always been an intense struggle” when her attempts “encounter his desire for power and control.”

[78] She claimed that the Society has “ignored or belittled” her concerns despite her having put her trust in it to ensure T.’s safety “time and time again.”

[79] She asserted that D.O. “did not accept T.’s mental health struggles,” and that assessments of T. by two physicians “were not completed due to parental conflict.”

[80] She specifically expressed concern about D.O. being able to revoke any consent for T.’s counselling that she gave under the authority vested in her pursuant to the order of Justice Hebner.

[81] She expressed concern about D.O.’s negative view of T.’s school and set out her position as follows: “This case is more than just about primary decision-making and parenting time; it stems from an historical pattern of abuse that spans T.’s whole life and continues.… I verily believe that it is in T.’s best interest that I have primary decision-making responsibility so I can continue to ensure that T. can continue uninterrupted with her one-on one counselling and supports through Wellkin, and access further supports through [CPRI] as she ages. I would also like to see T. stay at her new school placement, and to remain on her prescribed medications as long as she needs to.”

[82] She concluded, deposing that, “D.O. and I are not able to make joint decisions together even though I have made every attempt to do so.”

D.O.

[83] D.O. filed two affidavits. One, dated August 11, 2021, was signed by him but not commissioned. The second was commissioned on October 1, 2021. I had him swear his affidavit of August 11, 2021 during the motion.

[84] In that affidavit, D.O. asserts that B.M. speaks for T., who is capable of communicating independently with the Society workers. He deposed that T. had not had “any moments of extreme emotions while” in his care nor had she “reported any issues… in regards to the access” when with him or S.C..

[85] He claims that T. has informed him and Ms. S.C. that she wishes to stay overnight on Wednesdays and, in fact, would prefer to live with him and visit her mother on weekends.

[86] He opines that B.M. “is unfit as a primary caregiver for T.” because she “is not child-centred in her conduct.”

[87] He claims that during the 2020/2021 school year, T.’s absenteeism was “the highest it’s ever been in all of her previous school years”, claiming the “lax structure at home and [B.M.’s] inattentiveness” were the causes of T. “fall[ing] behind in her studies.”

[88] He takes the position that the reason T. is attending the alternate school program is because she “has fallen so far behind in her studies, along with her poor conduct at the school facility” that she has been “transferred out of the public schooling system and into a transition school”, the “primary goal” of which “is to help T. obtain the education she has missed out on and an attempt to catch her up to her grade level via having her working more closely with an adult who understands and better able to provide her with her needs.”

[89] He further asserts that T. has told him that she “receives little care from B.M.” and that “B.M. does not interact much with T. nor do many activities with her.”

[90] In his affidavit sworn October 1, 2021, D.O. requests that the court “have T. placed in [his] care while B.M. has access as outlined in the previous court order.”

[91] He further requests the appointment of a Children’s Lawyer to speak on T.’s behalf, claiming that he “believes B.M. is misrepresenting T. for personal benefits.”

[92] He further asserts that he is of the “belief” that the “primary concern” of B.M. “is not to be a child-centred parent to T. but to permanently remove access from D.O..”

[93] He also claims that “the decision for T. to attend the Transition school for 2021/2022 school year was decided without [his] discretion” (sic) .

[94] While he acknowledges that there had been meetings at which he was a participant about how T. would benefit from attending a transition school, he asserts that those meetings occurred during the 2019/2020 school year and events have transpired since”, including T. having aged two years, which require that the decision be reconsidered.

[95] He deposed that he is “worried about T.’s future academic opportunities and careers as this principal (sic) , from D.O.’s perspective, sets T. behind. He expressed his “concern that T. might feel ostracized from her fellow peers when they are able to enter colleges and universities years before T. is ready.” This leads him to further express concern “for T.’s mental well-being with how such actions can impact T. when the decision for T. to attend transition school was based on actions a year and half prior."

[96] He acknowledged speaking with police on September 1, 2021, although at a different location. He denied saying to T. that B.M. had lied. He makes no comment about whether or not T. climbed a tree on that occasion. He argues that saying someone” should be present” while another person is having access does not mean that another person “has” to be present.

Submissions of the Parties

Society

[97] Ms. Dittrich, Society counsel, submitted that the Society has offered all of the services and supports available to the child and the parents. She claimed that the parents “will need to manage the conflict between them without the Society.”

[98] She pointed out that, as one of the grounds for the finding that T. was in need of protection, was based on a risk of physical harm from her father, subsequent events have shown that such a risk no longer exists.

[99] She pointed out that, apart from the visit of September 1, 2021, T.’s visits with her father had gone well and had expanded.

[100] She also cited the other grounds for the finding, citing the risk to T. from her parents’ conflicts. The Society is of the view that counselling has minimized those risks for T.

[101] Ms. Dittrich reiterated that the Society does not oppose B.M. having “full decision making with the child,” because “she has been the primary caregiver.”

[102] Ms. Dittrich further submitted that the order of Justice Aston “provides [that] date-to-day decisions are to be made with the parent that the child is with at the time.”

B.M.

[103] Mr. Winninger, counsel for Ms. B.M., submitted that Justice Hebner’s order should remain in place.

[104] He cited in support of this position his client’s continuing concerns with regard to D.O.’s behaviour, including her continuing belief that, despite the withdrawal of the criminal charge, he did, in fact, assault T. in 2019.

[105] He submitted that D.O. has “control issues.”

[106] He further cited concerns about D.O.’s ability to ensure that T. received her prescribed medication and his willingness, as B.M. sees it, to be unsupervised with T. in the face of a plan to the contrary.

[107] He pointed out that D.O. “does not appear to accept T.’s mental health and emotional struggles, nor does he appear to accept that T. has special needs that cause her to struggle in the regular school system, notwithstanding having an IEP and more supports in place.”

[108] He pointed to his client’s evidence refuting D.O.’s view about why T. would be transferred to the transitions program, claiming that it would be “not for lack of intelligence or falling behind in her studies, but rather to offer her stability, understanding and support as she transitions back into the regular school system.”

[109] He noted that his client asserted a willingness to work with the Society, a willingness to continue working with Wellkin and Madame Vanier Children’s Services and a willingness to encourage T. to meet with a Society worker on a monthly basis.

[110] Ultimately, he requested that the court make a deemed decision-making order in favour of his client under s. 102 of the CYFSA if the court determines that continued supervision is not appropriate.

D.O.

[111] D.O. seeks an extension of Justice Hebner’s order for a further period of 12 months in order that the Society can “continue to monitor, with the amendment of, the placement of T.” in his care.

[112] He claimed that B.M. is “intentionally instigating conflict by fabricating false accusations with intent to sabotage [his] access” noting that none of her accusations had been proven or led to conviction.

[113] He asserted that he is “extremely cooperative” with the Society, “abides by their guidelines and principles and [attempts] cooperation with B.M. to the best of his regard.”

[114] Despite his assertion of extreme cooperation with the Society, he also admitted to “conflict” with it, which he claims stems from Mr. Kuriakose telling him that supervision was mandatory during the September 1 access visit when there is no evidence of any documents mandating supervision of his access.

[115] He submitted that B.M. “has no intention of co-parenting T.” with him.

[116] The resolution he seeks is that T. be placed in his care for a period of 12 months subject to “observation” by the Society, in addition to “full decision-making” with regards to T.

Law

[117] This is a summary judgment motion. It is governed by Rule 16 of the Family Law Rules, and certain well-established principles derived from cases decided by the Ontario Court of Appeal and the Supreme Court of Canada.

[118] The most significant provisions of Rule 16 are as follows:

Rule 16: Summary Judgment

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[119] The onus is on the Society, as the moving party, to lay out, through its evidence, a “prima facie case” that there is no genuine issue requiring a trial.

[120] The burden on the Society is quite high.

[121] In a child protection status review proceeding, there are three primary issues that need to be addressed by the court. They are:

a. whether the child continues to be in need of protection;

b. the nature of the order that ought to be made in the child’s best interests, should the child be found to be in continued need of protection; and

c. whether a contact order should be made in favour of any person.

[122] The leading case on summary judgment motions in the context of civil proceedings is Hryniak v. Mauldin, 2014 SCC 7 , [2014] 1 S.C.R. 87. In its decision, the Supreme Court made the following pertinent statements:

4 …In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50 … It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[123] More recently, summary judgment motions in the child protection context were addressed by the Ontario Court of Appeal in Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316 , [2019] O.J. No. 2029 . The Court wrote the following about the test of whether a Society had met its obligation of showing there is no genuine issue for trial:

71 The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue "for trial" or "requiring trial" analysis that incorporates these considerations. Following the release of Hryniak , the courts have taken its fairness principles and adapted them to the cautionary approach needed in child protection. As Zisman J. said in Children's Aid Society of Toronto v. C.J.W., 2017 ONCJ 212 , at paras. 66-67 :

In assessing whether or not a society has met its obligation of showing there is no genuine issue requiring a trial, courts have equated that phrase with "no chance of success""when the outcome is a foregone conclusion""plain and obvious that the action cannot succeed", and "where there is no realistic possibility of an outcome other than that sought by the applicant" . (Underlining added)

[124] As the Court of Appeal noted in Kawartha , supra, adopting a quote of Justice S. Sherr in Children's Aid Society of Toronto v. B.B., 2012 ONCJ 646 , at para. 25 , “ The summary judgment procedure is designed to winnow out cases that have no chance of success.”

[125] In her decision in Children’s Aid Society of Niagara Region v. S.J.W. et al, 2011 ONSC 5842 , Justice D. Chappel succinctly noted the key issues which need to be addressed on a motion for summary judgment, both generally, and in child protection cases. She wrote:

66 Once the moving party in a Summary Judgment Motion has made out a prima facie case, the onus then shifts to the responding party to adduce evidence of specific facts that raise a genuine issue for trial. A respondent cannot defeat the Summary Judgment Motion by relying on mere allegations, blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial. Rather, the Respondent has a positive obligation to put their best foot forward to defend the Motion with fulsome affidavit evidence. The court must assume that the information put forward by the responding party is the best they have to offer at that stage.

67 Not every disputed fact or question of credibility gives rise to a genuine issue for trial. A genuine issue for trial must relate to a material fact or facts. It must be an issue that is real and authentic, is not spurious to the case, and is substantial and sufficiently important to warrant a judicial determination. In addition, the issue must be relevant, in the sense that it must relate to material facts that are critical to the determination that the court is called upon to make. Disputed facts, the existence or non-existence of which will not affect the outcome of the case, do not raise a genuine issue for trial.

68 Speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to a Summary Judgment Motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the Motion.

69 If there is a genuine issue with respect to a material fact, then the matter must be directed to trial regardless of how weak or strong the claim or defence may appear.

70 In child protection cases, the existence of a genuine issue for trial must arise from something more than a heartfelt expression by a parent of a desire to resume care of the child. There must be an arguable point based on the parent's evidence that the parent faces some better prospects than those that existed at the time of the Society's initial involvement and has developed some new ability as a parent. The court will determine that there is no genuine issue for trial where the evidence establishes that it is plain and obvious that the moving party will be successful, or that the outcome of the case will be a foregone conclusion. (Footnotes omitted)

Discussion

[126] Section 114 of the CYFSA sets out the orders the court can make on a Status Review Application. They include variation or termination of the original order or any term thereof; directing that the original order terminate at a specified future date; making a further order, in this case, of supervision; or, making a custody order under s.102(1) of the CYFSA.

[127] The Society seeks to terminate an existing order. In order for that to occur, I must find that T. is no longer a child in need of protection.

[128] Both parents, on the other hand, claim that they want the existing order to continue. Both assert that they find the continued involvement of the Society to be of value to T., primarily because it holds the other party at bay.

[129] In fact, it is apparent that neither parent really wants the Society to remain involved. What they really want is a variation of the order made by Justice Aston such that, in the case of each of them, they would have primary decision-making responsibility, and the other parent would be reduced to a mere access parent.

[130] If I were to find that T. is no longer a child in need of protection, I would be deprived of the jurisdictional basis to make a continued order under section 101 of the CYFSA, since the child being in continued need of protection is a precursor to any order made thereunder. That is also the case with respect to section 102(1), which authorizes the court to make a custody order which would, pursuant to section 102(2), be deemed to be made under s. 28 of the CLRA.

[131] Mr. Winninger argued that if I were to find T. to no longer be a child in need of protection, I could, notwithstanding, make an order under s. 102(1) of the CYFSA. I disagree. There is already a custody order in place. It was made by Justice Aston on March 3, 2017.

[132] The submission of Mr. Winninger for a third alternative – if T. is found not to be in need of continued protection, vary the order of Justice Aston – is not available.

[133] In Children’s Aid Society of London and Middlesex v. K.D., [2006] O.J. No. 3101 , a case where the parents were engaged in a hostile custody dispute, with facts not unlike those in this case, Justice H.A. Vogelsang held that, in the absence of a finding that children continue to be in need of protection, the court can do nothing further .

[134] In that case, there had been a finding that the child was in need of protection based on a risk of physical harm from the father. When the matter reached trial, all parties, including the father, were of the view that the child was no longer in need of protection based on the risk of physical harm.

[135] The father, however, sought the continued involvement of the Children’s Aid Society because of a concern that, if the Society were to withdraw, the mother might file a new complaint against him which would bring the Society back into his life and subject him to further investigations, all in furtherance of what he saw as the mother’s effort to end his access with the children.

[136] Justice Vogelsang wrote:

23 Mr. R.L. himself admits that the Society should have no child protection concerns at this time. He testified that he has none. All counsel agree with him. Mr. R.L.'s argument comes down to his plea that the involvement of the Children's Aid Society be continued. Without Kristian Wilson's intercession and facilitating, he says there would be nothing to prevent further complaints and, eventually, the end of his access.

[137] Quoting from the decision of Justice L’Heureux-Dube in Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.) (1994) , 2 R.F.L. (4th) 313 (S.C.C.) , Justice Vogelsang wrote, at paragraph 39 in K.D.,

Finally, the only determination to be made by the court in a status review application is whether the order previously made to protect the child continues to be required for the future protection of the child.

[138] Concluding that there were no grounds for a finding that either of the children in the case before him required the continued protection of the state, Justice Vogelsang allowed the application brought by the Society and terminated the existing order.

[139] While there was no prior custodial order in place in that case, there was in Children's Aid Society of the Regional Municipality of Waterloo, v. K.A.L., 2010 ONCJ 80 , [2010] O.J. No. 4157 (Ont. C.J.) , a case heard by Justice M. A. McSorley. In that case, Justice McSorley wrote, at paragraph 21, that “ an order under the Child and Family Services Act that temporarily changes the custody and access provisions of a Superior Court order would supersede the Superior Court order while it continues in place. At the end of such an order, the parties would return to the provisions of the order of 30 January 2006 unless one or both of them has obtained an order varying it.”

[140] If the order of Justice Aston is to be changed, I find that that it can occur only two ways.

[141] The first would be if I were to find that the Society had not established that T. was no longer in need of protection. In that circumstance I would dismiss the Society’s motion, and its application would proceed to trial on all of the issues, including whether T. remained in need of protection and, if she did, what disposition would be in her best interests. At that time, it seems to me that, under s. 102(1), the trial court could make a new custody order which could, presumably include a term either terminating the custody order made by Justice Aston or, as necessary, including those of its provisions which could continue in the new order made under s. 102(1).

[142] The second way by which the order of Justice Aston could be changed would be for the parties to return before the court on a motion or motions to change the order of Justice Aston in accordance with Rule 15 and the provisions of the CLRA, if I were to grant the Society’s motion for summary judgment.

[143] It seems to me, therefore, that the fundamental issue to be examined on this motion is whether the Society has established a prima facie case that T. is no longer a child in need of protection or, if it has, whether either parent has raised enough of defence to require that the matter proceed to trial.

[144] Unlike the case before Justice Vogelsang, where it appears that the original finding was made only under the precursor to s. 74(2)(b) of the CYFSA [s.37(2)(b) of the CFSA] and the court found that the risk of physical harm no longer existed, in this case findings were also made pursuant to sections 74(2)(h) and 74(2)(i) of the CYFSA.

[145] I intend to focus on the finding made, on consent, under s. 74(2)(h) of the CYFSA.

[146] Justice J. Kukurin combined the wording from this section with that of s. 74(2)(f), which is referred to in s. 74(2)(h), to make them more “understandable”, writing in Children's Aid Society of Algoma v. H.M., [2019] O.J. No. 5718 :

37 … s . 74(2)(h) provides that a child i s in need of protection [on this ground where] there is a risk that the child is likely to suffer emotional harm of the following kind

(i) serious anxiety (ii) serious depression (iii) serious withdrawal (iv) serious self destructive or aggressive behaviour, or (v) serious 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;

[147] Justice S.E.J. Paull wrote of this section in Children's Aid Society of Oxford County v. E.M.T, [2019] O.J. No. 5445 (Ont. C.J.) as follows:

21 Clause 74(2)(h) is a ground that involves risk of emotional harm to the child. Therefore, it looks to the future. The type(s) of harm, the degree of the harm, and the causal connection of the harm to the parents' conduct, pre-requisites for a finding under (h) grounds, are all necessary for the Society to prove to the court with respect to this ground. Although no actual emotional harm symptoms are needed to be shown, the Society cannot rely only on the existence of reasonable grounds to believe that a risk exists. This ground requires the Society to show that the risk does exist, and to do it on the balance of probabilities. "Risk" has been said to mean "more likely than not"…

[148] Some of the evidentiary principles pertaining to findings on this basis were reviewed by Justice D. Piccoli in Family and Children's Services of Guelph and Wellington County v. A.M.P, [2020] O.J. No. 5804 (Ont. S.C. , Fam. Div.) , where she wrote:

101 In order to substantiate a finding of emotional harm, a clinical diagnosis is not necessary, but expert evidence is usually required: see Children's Aid Society of Ottawa v. P.Y. ; S.(D.), Re (2001) ; Catholic Children's Aid Society of Hamilton v. L.(C.) ; and N.V.C. v. Catholic Children's Aid Society of Toronto, 2017 ONSC 796 .

102 In Chukwunomso v. Ransome, 2017 ONCJ 121 , the court states the following at footnote 5:

"I am aware of the recent decision in the case of N.V.C. v. Catholic Children's Aid Society of Toronto 2017 ONSC 796 , [2017] O.J. No. 525 . In paragraphs 101 and following of that decision, Wilson, J., seems to suggest that a court is precluded from deciding that a child is at risk of emotional harm without evidence from an expert. If I correctly understand that to be the learned judge's reasoning, I must respectfully disagree. Courts will often make decisions about emotional harm -- or risk of emotional harm -- to a child based on panoply of evidence. That panoply may include an expert's report. But an expert's report is only one piece of evidence. In my view, the presence or absence of an expert's report regarding harm, or potential harm to a child, is neither conclusive nor, in many cases, even mandatory in order to permit the court to arrive at a correct conclusion. For example, in Simcoe Muskoka Child, Youth and Family Services v. L.V., 2016 ONSC 7039 , Quinlan, J. stated at paragraph 18: "Expert evidence will sometimes [my emphasis] be required to establish a risk of emotional harm, but it is not a necessary prerequisite". As well, see paragraphs 31 and 32 of the decision of Parfett, J. in Children's Aid Society of Ottawa v. P.Y. for a similar opinion. Furthermore, courts are required to consider not only the available evidence in any case -- expert or otherwise - but, as well, judges should employ intelligence and common sense in drawing logical inferences from their general understanding of life itself. This application of intelligence and common sense is often referred to as taking judicial notice. An example of this application of judicial notice in the context of satisfying a court that emotional harm has occurred, can be found in the decision of MacAdam, J. in A.B.C. v. Nova Scotia (Attorney General), 2011 NSSC 475 , where the learned judge stated in paragraph 50: "Experts are not required to establish that ABC suffered psychological and emotional harm as a result of the assaults by Lalo. The court is entitled to take judicial notice that such effects can be expected [my emphasis] albeit they may not occur in every case.""

103 In Children's Aid Society of Toronto v. S.A.P., 2020 ONCA 208 , the Ontario Court of Appeal rejected an argument that the court must have expert evidence and found there was sufficient evidence that the child would suffer emotional harm if removed from a long-time caregiver.

… 105 Sometimes, the evidence of a child's distressed reactions to parental behaviour is sufficiently clear that a finding can be made without the opinion of an expert: see Children's Aid Society of Ottawa v. P.Y. ; Catholic Children's Aid Society of Toronto v. E.S., 2016 ONCJ 279 ; and Jewish Family and Child Services from Greater Toronto v. Ki. Sl., 2017 ONCJ 447 . In Jewish Family and Child Services from Greater Toronto v. Ki. Sl. , the court found that all of the mother's lack of insight and her inability or unwillingness to acknowledge her daughter's feelings of stress, fear and anxiety, revealed to the court that there was an ongoing risk of emotional harm to the child.

[149] Justice J.A. Parfett discussed whether expert evidence was always required in cases where the finding being sought was under s. 74(2)(h) (formerly s. 37(2)(f), CFSA) in Children’s Aid Society of Ottawa v. P.Y. , [2007] O.J. No. 1639 , writing:

30 While there is no expert evidence concerning the impact that Mr. A.S.'s behaviour has had on G.S., there is nonetheless other evidence….

31 The terms withdrawal and aggression are not purely psychological terms. They also are terms that are commonly understood. The dictionary definition of withdrawal found in the Concise Oxford Dictionary, 10th ed. is 'a retreat from social contact' or 'unsociable'. Aggression is defined as 'hostile or destructive behaviour'. G.S. has made statements that her mother is 'bad' or 'stupid', that her mother was a 'liar' and was 'breaking up the family'. Her behaviour after a visit to her father is difficult, she has an 'attitude', and she does not want to listen to her mother. All of these statements and behaviour would suggest that G.S. is showing 'hostility' towards her mother. G.S.'s behaviour in being bossy, difficult and not listening to her mother also suggests that she is showing signs of being unsociable in the sense that she does not want to interact positively with her mother. As outlined above there is evidence that G.S.'s behaviour is symptomatic of some of the types of emotional harm that are outlined in subsection 37(2)(f).

[150] There is no doubt that T. has been exposed to parental conflict throughout her life. The Society concedes as much in its factum. It takes the position, however, that counselling has mitigated the risk of emotional harm that she may suffer in future from continued exposure to it to the point that T. is no longer a child in need of protection based on parental conflict.

[151] I do not agree.

[152] The evidence tendered by the Society includes Mr. Kuriakose’s statement that Emily Palumbo, one of T.’s counsellors, asked the Society to take a close look at the family history before deciding to terminate its involvement with the family. I do not have evidence from Ms. Palumbo, nor do I know her qualifications or whether she would qualify as an expert or, even if she is not, whether her evidence would be admissible as being relevant to the question of any emotional harm that might be suffered by T. were her parents to no longer be involved with the Society.

[153] However, if I allow the motion, Ms. Palumbo’s views, and the reason she was concerned that the Society closely review its file before withdrawing, will not be heard in this proceeding.

[154] There is also evidence tendered by the Society that T. is receiving counselling from more than one source. Their views may also be relevant to the question of whether T. remains at risk of emotional harm arising from her parents’ continuing conflict.

[155] What the Society proposes is to withdraw from further involvement with the family and to leave the parents to rush to Family Court in an effort to vary the order of Justice Aston, with each of them seeking primary decision-making with respect to T.

[156] The evidence is clear that B.M. and D.O. do not get along. B.M. asserts that D.O. has a long history of disrespect of females and is controlling to the extent that joint decision-making is impossible. D.O. asserts that B.M. controls T., does not allow her to speak for herself, and has an agenda which includes eliminating him from T.’s life.

[157] Both parties seek the continued involvement of the Society, despite the evidence that neither of them trusts the Society because, as little as they appear to trust the Society, they trust each other less.

[158] Additionally, both parents have not been fully compliant with Justice Hebner’s order. For example, they have exposed T. to adult conflict, including, argument. There is a dispute about whether D.O. has dispensed medication prescribed for T. as directed by her physician.

[159] It seems that the Society simply wants to close its file and move on from this family. But, if it does, what becomes of T.?

[160] I have no doubt that, if the Society were to be removed as a buffer between this couple, T. would suffer the consequences of their inability to compromise or to get along in her best interests.

[161] The best evidence of that is that, when left alone on September 1, 2021, they argued about whether D.O. needed to be supervised while caring for T. to such an extent that T. had to withdraw from the argument by climbing a tree. In doing so, she was demonstrating a serious emotional reaction to a stressful situation perpetrated by her parents. She also potentially put herself at risk of physical harm based on their behaviour, had she fallen from the tree.

[162] The Society itself appears to conclude that the continued viability of the joint decision-making responsibility upon which the parties agreed, and which is embodied in the order of Justice Aston, is suspect because, notwithstanding its desire to remove itself from continued involvement with the family, it also made the submission that the order of Justice Aston should be varied to provide B.M. with primary decision-making responsibility for T.

[163] It appears that the Society believes that, because T. resides primarily with her mother, and because decision-making on a day-to-day basis rests with the person with whom T. is residing at that time, B.M. will, by default, have the authority to make major decisions for T.

[164] That belief is incorrect. Justice Aston’s order makes clear that T.’s education is a “joint custodial decision,” and where she attends school is to be established by the school board’s boundaries and her primary residence.

[165] The evidence is clear that D.O. does not believe that T. should be attending the alternate school that she is currently attending. In fact, he appears to hold the view that T. should receive no special treatment; hence his comment about her “need[ing]” stress to succeed.

[166] Should I grant the Society its summary judgment, the order of Justice Aston would revive. Should that occur there is a strong likelihood that T. would be compelled to withdraw from her current school and return to her former school - a view held by the Society to not be in T.’s best interests, a view which is supported by B.M. and opposed by D.O..

[167] The withdrawal of the Society would, therefore, set up, at the very least, conflict between D.O. and B.M. about where T. would be attending school. T. would be in the middle of that conflict.

[168] The order of Justice Aston contains a dispute resolution clause which requires that the parents “attempt to negotiate with each other and involve appropriate parties for their input.” If they cannot reach an agreement, they have a choice of going to court or returning to mediation.

[169] I have little doubt that negotiation between the parents in this case would fail to yield a successful result. In fact, both parties made clear in their submissions that if I were to permit the Society to terminate its involvement on the summary judgment motion, there would be a rush to the courthouse door to file a Motion to Change the order of Justice Aston.

[170] Apart from the fact that such a rush would appear to ignore the terms of the order with respect to negotiation, T. would likely be displaced from her current school, at least until an order might be made reinstating her right to attend, if such an order could be obtained, and she would be exposed to her parents’ conflict over this issue, and likely others, in the interim.

[171] Justice R.T. Bennett was faced with a similar motion by a Society seeking an order granting it leave to withdraw a protection application and terminating temporary orders in Jewish Family and Child Service of Greater Toronto, Applicant, and D.M.G, 2019 ONSC 5459 .

[172] The motion was supported by the father and the OCL but was opposed by the mother. The Society had brought the Application on the basis that the child had suffered emotional harm contrary to section 74(2)(f) of the CYFSA, and that there was a risk that the child was likely to suffer emotional harm pursuant to section 74(2)(h).

[173] The court referred to the parties having been in a “high conflict separation.” The child was 11 years of age at the time of the motion, and the parties had been separated since the child was five months old. The Society first became involved with the family in 2008 because of conflict between the parents. There was nearly continuous involvement thereafter.

[174] The child had been placed in the mother’s care and custody, subject to Society supervision, under an interim order, with the child to be in the care of each parent on an alternating 2-2-3-3 schedule. A number of terms and conditions were attached to the order.

[175] After a number of conferences, and when the court was of the understanding that the case might settle with the parties signing a Statement of Agreed Facts, the Society brought a motion seeking leave to withdraw the Protection Application.

[176] In the affidavit filed by the Society, the worker deposed that he and his supervisor “considered that both parents persist in their complaints about the other’s conduct, mental health and non-compliance with the terms of court orders and negative influence on the child. The Society notes that the child has been consistent in reporting that he has not recently been exposed to parental conflict.”

[177] The worker further deposed that he and his supervisor came to the conclusion “that the protection concerns that led to the commencement of the protection application were not of the severity that continued court intervention is warranted.”

[178] The Society took the position “that the child is currently not showing any serious issues.” It further submitted “that these parents have been in conflict since the separation” and that, despite the family litigation, the court’s involvement, and the intervention of professionals “the parents have continued to have conflict and have not demonstrated any inclination to stop.”

[179] The Society submitted “that the real test for this court in determining whether or not the Society may withdraw is whether or not the child remains at risk.” Justice Bennett agreed, writing:

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

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

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

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

91 What has changed between August 2018 and September 2019?

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

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

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

101 There are other issues which will arise in the near future that are likely to cause conflict between the parties and serious anxiety for the child…

[180] After reviewing the concerns operative in that case, Justice Bennett concluded:

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

[181] Apart from the fact that the case before Justice Bennett involved a motion by the Society to withdraw a protection application, the comments of Justice Bennett are equally applicable to this case.

[182] In fact, the situation is less compelling for the Society in this case because T. has already been found to be in need of protection.

[183] For the reasons cited by Justice Bennett, I reach the same conclusion. To allow the Society to withdraw from a case where conflict between the parents will be inevitable in its absence is not a matter that should be decided by way of summary judgment.

[184] Furthermore, since the Society is unable to establish the lack of a genuine issue requiring a trial in respect of whether T. remains in need of protection, it also stands to reason that it cannot do so in respect of disposition.

[185] The issues in the case need to be tried, if only to ensure that if, following the trial, T. is the subject of an order made under the CLRA, that order ensures that her best interests are met in the face of her parents’ continuing conflicts.

Conclusion

[186] Accordingly, and for the reasons noted, I find that the Society has not established that the Respondent parents B.M. and D.O., have "no chance of success" in their effort to have the court find T. to be a child in continued need of protection.

[187] The outcome sought by the Society – termination - is not a foregone conclusion. In my view, there is a very realistic possibility of an outcome other than that sought by the Society in this case.

Order

1. The motion by the Society for an order terminating the existing order of Justice Hebner, dated February 13, 2020 is dismissed.
2. An order shall issue in the usual form requesting the involvement of the Office of the Children’s Lawyer to represent the interests of T. Counsel for the Society is directed to prepare the draft order and forward it to me, through court staff, for execution.
3. The Status Review Application is adjourned to Thursday, January 27, 2022 at 10:00 a.m. before me to be spoken to.

Justice T. Price Date: January 4, 2022