Catholic Children’s Aid Society of Hamilton v. V. A., N. E. and M. E., 2022 ONSC 4684

COURT FILE NO.: C-497-19 (Hamilton)

DATE: 2022/08/31

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

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CATHOLIC CHILDREN’S AID SOCIETY OF HAMILTON Applicant

– and –

V. A. Respondent Mother

– and –

N. E. Respondent Father

– and –

M. E. Respondent Paternal Grandmother

COUNSEL:

Mona Anis, Counsel for the Applicant

Self-Represented, Respondent Mother

Salvatore Garcea, Counsel for the Respondent Father

Carmelo Runco, Counsel for the Respondent Paternal Grandmother

HEARD: March 21-25; 2022; March 28-April 1, 2022; April 4-7, 2022; April 11-14, 2022; April 24-29, 2022 and June 13-17, 2022

THE HONOURABLE MADSEN, J.

REASONS FOR JUDGMENT

A. INTRODUCTION

Overview

[1] This is a twice-amended child protection application in which the main issue is the parenting arrangements between the mother, V. A., the father, N. E., and the paternal grandmother, M. E. The Catholic Children’s Aid Society of Hamilton [the “CCAS” or “the society”] has for over two years taken the position that there are no protection concerns with respect to the mother but has been unable to withdraw in the absence of a parenting agreement between the respondents.

[2] The case, although not complicated, has consumed copious resources of the society, medical professionals, the police, and of the court, not due to the gravity of any alleged protection concerns but due to the level of conflict and the unwarranted and unrelenting animosity of the paternal family towards the mother.

[3] At the commencement of trial, the society sought a four-month supervision order placing the almost four-year-old child in the care of the mother, with a continuation of schedule in place since February 2020 under which the paternal grandmother had the child 6 days of every 14, while the mother has had 8. At the conclusion of trial, considering the evidence heard, the society supported the mother’s claim for custody of the child and sought a reduction of parenting time to the paternal grandmother and the father, to alternate Sundays and select special occasions.

[4] At the commencement of trial, the mother sought placement of the child with her under a custody order, the child to reside with her each Monday to Friday and with the father each weekend. At the conclusion of the trial, she continued to seek a custody order, but with parenting time to the father and paternal grandmother each Sunday in addition to one evening each week. The mother says that the paternal grandmother’s time should be arranged on the father’s time. Though not pled, the mother orally sought a restraining order.

[5] The father and paternal grandmother are aligned in their positions, seeking placement of the child with them collectively, with joint decision-making as between them. Although the position before the court was that the mother have the child in her care on alternate weekends, the grandmother testified that she would prefer that the child be with her 100% of the time with the mother to have supervised access for a few hours each week.

[6] For the reasons set out below, I find that the child is in need of protection based on risk of emotional harm, and that she shall be placed in the custody of her mother under section 102 of the Child Youth and Family Services Act, S.O. 2017, Chapter 14, Schedule 1 (“CYFSA”). The child shall reside with her mother primarily and have specified parenting time with her father. The paternal grandmother’s time shall be organized as between the father and the paternal grandmother. I decline to make a restraining order.

[7] For readability, I refer to the respondents as the mother, father, and paternal grandmother respectively. I refer to the child, [name redacted], simply as the child.

Issues

[8] This court has been asked to decide the following issues:

a. whether the child is in need of protection and, if so, on what basis;

b. if the child is in need of protection,

i. what disposition is in the child’s best interests; including,

ii. what the access arrangements should be.

Background and Overview

[9] The mother is 30 years of age. She is the mother of another child, L., who is nine years old [the “brother”]. She does not currently have a partner. The mother engages in various forms of paid work, including event planning, catering, waitressing, reception services, and translation/interpretation. The mother parents the brother cooperatively with that child’s father, although there is a history of abuse in that relationship.

[10] The father is 34 years of age. He works for his mother, the paternal grandmother, who is a franchisee of several restaurants. He is also in a business partnership through which he runs additional restaurants. He does not have any other children. The father has a very close relationship with his mother. The father has a girlfriend who he says does not live with him but stays overnight at his home most nights each week. He said that his girlfriend is “another mother figure” to the child.

[11] The father is currently charged with sexual assault against an employee. A trial is expected in 2023. He was previously charged with assault against his current girlfriend. Those charges were resolved through his participation in the Partner Assault Response Program (PARS) in 2018.

[12] The paternal grandmother has a partner, R. B., and collectively I refer to them as the “paternal grandparents”. They have been together for about 13 years and live in a large home in a town outside Hamilton. The home has a pool and a beautiful room for the child. Although the grandmother owns the franchises, she testified that she is currently not working there as it has become too much for her.

[13] The parents had a brief relationship.

[14] Initially, there was a warm and positive relationship between the mother and the paternal grandparents.

[15] The parents lived together for several months but were not a couple when the child was born prematurely, at 25 weeks, in July of 2018. The child was in the hospital in the neo-natal intensive care unit (NICU) for approximately three months.

[16] Shortly before the child’s release to the mother from the hospital, a prior partner, C. S. (father of the child’s brother L.), attended at the CCAS, making allegations about the mother including drug use. This prompted CCAS involvement.

[17] In its initial investigation, society worker Ms. Brianne Williams noted that the mother suffered from depression and anxiety, had not received pre-natal care until a month before the birth, was sometimes hostile with the society, was less than forthright about her housing and employment circumstances, and refused to sign consents.

[18] Ms. Williams also noted, however, that there was no evidence of the mother using drugs or alcohol in a caregiving role, had a good understanding of the child’s medical needs as a premature baby, was regularly seen in the community by medical professionals, was living in a safe and clean environment with the maternal grandmother, and was arranging counselling.

[19] The worker observed the mother to demonstrate the caregiving skills required to care for a high medical need infant. The case was transferred to ongoing services.

[20] The child was ultimately released into the mother’s care in October 2018 under a plan, arrived at with the CCAS, that the mother would reside with the maternal grandmother. At that time, the paternal family had not expressed any concerns about the mother’s parenting ability or made allegations about drug use or other issues.

[21] Between October 2018 and January 2019, the child resided with the mother and spent time with the father and the paternal grandmother as arranged between them. Society worker Ms. Shawna Small attended the mother’s home regularly and found the home to be clean, and the mother’s interactions with the child to be gentle, loving, and appropriate. In her interactions with the mother, Ms. Small did not see indicators of mental health issues.

[22] The mother is a single parent and the sole breadwinner for her family. The father has never paid child support or assisted in any meaningful way financially.

[23] In January 2019, the mother travelled for her work as an event planner to earn income for her family. On two occasions the paternal grandmother agreed to care for the child for several days. On the second occasion the mother’s trip was extended briefly, and the paternal grandmother agreed to continue to care for the child until the mother returned.

[24] Unbeknownst to the mother, while she was away on the second work-trip, the maternal grandmother went to the paternal grandmother about “concerns” she had regarding the mother. The paternal grandmother told the worker, Ms. Small, that the maternal grandmother reported to her concerns about the mother’s poor supervision of the children, not paying rent, always being “out” with the child, and not providing adequate supplies for the child. Notably, the paternal grandmother did not say that the maternal grandmother reported concerns about drug use. The paternal grandmother said that the maternal grandmother was very worried that the mother would take the child and the brother to California.

[25] Following the meeting with the maternal grandmother, and also unbeknownst to the mother, the paternal grandmother then attended at the CCAS on January 31, 2019 and for the first time made allegations about the mother related to drug use and parenting capacity. These allegations were not consistent with what she or the father had told the society previously. In October 2018, the paternal grandmother told Ms. Williams that the mother was a “great mother” and she had never seen any issues related to drinking or drugs. On February 7, 2019, the father told society worker Ms. Small that he had no concerns about the mother using drugs, that the mother was capable, and that his mother’s main concern was the child being taken away and that she wouldn’t see her.

[26] It is unclear how the paternal grandmother’s perception shifted so markedly from October 2018 to January 31, 2019. However, the evidence would suggest that the overriding concern that led to the change in perspective was a fear that the mother would move away with the child. She swore affidavits in the proceeding setting out a fear that the mother was a “flight risk”, a fear that she repeated at trial.

[27] When the mother returned from her second trip in late January 2019, the paternal grandmother refused to return the child.

[28] The society facilitated a family meeting in early February 2019. At that meeting, the paternal grandparents repeated the concerns about drug use first raised on January 31, 2019, now stating that the mother used drugs “24/7” when she and the father were together, that the mother was seen with a “bag of pills”, and that the mother was a liar who was unable to care for the child. The society’s position at the meeting, based on observing the mother through the fall of 2018, was that there were no protection concerns sufficient to not return the child. The paternal grandmother strongly disagreed.

[29] The paternal grandmother did not return the child to the mother after the meeting. When the police attempted to assist with the return of the child, the paternal grandmother refused to open the door. She told the worker she did not want conflict in front of the child.

[30] The mother tried in February and March 2019 to enlist the support of the society to have the child returned. The society was unable to convince the paternal grandmother to return the child and told the mother that she should get a lawyer.

[31] The mother became angry and frustrated with the society and stopped cooperating with the workers. She said she would sign consents when her child was returned. The society in turn began to see the mother as somewhat uncooperative and now took the position that they needed an opportunity for further observation of her.

[32] In the spring of 2019, the society verified child protection concerns related to substance abuse based on the statements of both grandmothers, as well as the mother missing several follow-up medical appointments for the child. The mother tested positive for marijuana use in one drug test, but subsequent tests were negative.

[33] Surprisingly, when the mother had difficulty retaining a lawyer to help her have the child returned to her, the society internally characterized this as a form of “child abandonment.” In the “investigation case note” of April 1, 2019, the society verified a protection concern based on abandonment stating, in part “Deserted/Abandoned child is verified. Although the situation was complicated given the grandmother’s refusal to return the child… the mother had clear direction about what she needed to do (seek legal counsel). [The mother] had not persevered to get [the child back] by seeking legal counsel… and she declined to work with the society. As such, the plans for the child were unknown.” [emphasis added] In her testimony, worker Ms. Small acknowledged that “abandonment” was not a fair characterization.

[34] The paternal grandmother continued to withhold the child and denied any parenting time to the mother until April 2019.

[35] Meanwhile, and notwithstanding that she was withholding the child, a kinship assessment of the paternal grandparents was undertaken by the society.

[36] The mother brought an application for custody in April 2019. At the same time the society brought a child protection application now seeking a short supervision order with the paternal grandmother. Ms. Small testified that the society continued to support return to the mother but needed to bring the application to “further assess” the mother’s situation, and to have oversight over the child in the paternal grandmother’s care.

[37] The mother’s custody application was stayed. A temporary without prejudice order was made on the return of the child protection application on April 10, 2019, whereby the child would be in the care of the paternal grandmother and the mother would have supervised access. On April 23, 2019, a further order was made specifying that the mother’s access need not take place at a supervised access centre but could take place elsewhere, in the society’s discretion.

[38] The paternal grandmother opposed unsupervised access to the mother and on a number of occasions did not cooperate for access to take place. She did not provide the child to volunteer drives at least four times.

[39] Once access between the mother and child was established, however, it went well, and slowly expanded. Society workers saw no signs of drug use, three random drug tests came back negative, the mother became cooperative with the society, and the child was “happy, healthy, and smiley” when observed by society worker Ms. Alberta Abbiw. The mother showed ability to care for the child. The mother’s home was appropriate.

[40] Supervised access worker Cindy Key, who observed 38 access visits, found the mother to be affectionate, loving, and engaged. She observed the mother to provide appropriate supervision, healthy snacks, and an acceptable sleeping environment.

[41] Having no concerns about the mother’s mental health, the mother’s parenting skills, alleged drug use, or the mother’s commitment and ability to parent the child, the society indicated it was moving towards reintegration of the child with the mother. The paternal grandmother was not happy with this.

[42] The mother’s first overnight visit took place July 25, 2019. Ms. Abbiw testified that by the time overnight visits were to commence the society had no concerns about substance abuse by the mother.

[43] Leading up to the first overnight visit and thereafter, the paternal grandmother launched what can only be described as an unrelenting campaign of surveillance of and allegations against the mother. Those allegations were variously that the mother neglected the child, abused the child, or allowed others to abuse the child. These were interspersed with aspersions about the mother’s alleged sexual practices, and the repeated suggestion that she trafficked drugs and sold sexual services.

[44] Since July 2019, the paternal grandmother has reported countless “injuries” to the child in the care of the mother.

[45] None of these “injuries” has ever been found to be serious, none have ever required medical care, and none have been confirmed to have been caused either intentionally or unintentionally by the mother through either abuse or neglect. On no occasion has the society ever verified a concern that the mother harmed the child.

[46] Medical professionals have never verified abuse or neglect and the mother has never been charged criminally. Rather, the evidence is that the child experienced bumps, bruises, and scrapes consistent with what is typical for a young child. The child was repeatedly taken to the emergency department, seen by medical professionals and child protection workers, and police have been involved on more than one occasion.

[47] The paternal grandmother repeatedly videotaped the child without clothes on at the beginning and end of the child’s time at her home, despite being told by multiple professionals – including Detective Harris of the Child Abuse Branch, Dr. Baird of the Child Advocacy and Assessment Program (CAAP), and Ms. Olga Bakai, the kinship worker -- that this is neither appropriate nor acceptable. Although the paternal grandmother stated in her testimony that this stopped a “long time ago”, I prefer the evidence of the father on this point that it stopped only during the trial.

[48] Also, since July 2019, the paternal grandmother has engaged in a pattern of following the mother, parking outside her home during the mother’s parenting time, questioning others about the mother, and videotaping her. While the paternal grandmother denied this at trial, I prefer the mother’s evidence on this point, as well as that of Ms. Bakai who testified that the paternal grandmother has acknowledged some of this behaviour to her. Child protection workers confirmed that the paternal grandmother repeatedly contacted them with apparent “information” about the mother clearly obtained in this manner.

[49] The mother testified that she has felt stalked and harassed since the child was withheld by the paternal grandmother in 2019.

[50] In October 2019, the society amended its application to seek placement of the child with the mother under a six-month supervision order (this was further amended in April 2021 to seek a four-month order instead). In November 2019, the parties agreed (all being represented by counsel) to a temporary order whereby the child would be reintegrated into the mother’s care. The child would be with the paternal grandmother and father 6 days of every 14, and with the mother 8 days of every 14. The reintegration was to be completed by mid-February 2020. The father and paternal grandmother testified that they felt pressured into agreeing to the order. Neither ever brought a motion to change it.

[51] From February 17, 2020, onwards, the child has essentially resided with the parties in accordance with the schedule arrived at on consent. However, in March 2020, when the child was not returned to the mother in accordance with the schedule, the society brought a motion for her return to the mother. This resulted in an order that the paternal grandmother’s access be in the society’s discretion. In April 2022, the society directed that the parties resume the schedule agreed to in the temporary care hearing (8 days to the mother/ 6 days to the paternal grandmother and father), but the order in effect until trial provided for access in the society’s discretion.

[52] In December 2020, the mother made certain social media posts about the father exposing customers to Covid-19 by attending at the paternal grandmother’s restaurant locations. She also made posts, in the context of a Hamilton-based social media campaign regarding allegations of sexual misconduct, about the father having been abusive to her.

[53] By letter dated February 23, 2021 to the paternal grandmother, the franchisor banned the father from the paternal grandmother’s two restaurant locations following the social media campaign. The letter refers to non-discrimination, anti-harassment, and equal employment policies. The father blames the mother for being banned from those sites, and no longer being able to attend conferences and events with that company. The father and paternal grandmother launched a civil suit against the mother seeking damages of approximately $650,000.

[54] After the letter from the franchisor, the father was charged with sexual assault against an employee. He testified that he has not told the franchisor about that and does not think they know about it. He did not disclose this charge to the society, but a society worker saw his name on a court docket in June 2021 and raised the issue with him.

[55] Exchanges initially took place at the mother’s home, but from September 2020 were moved to a location in the community. The father brings a colleague who is also a friend. The exchanges are now intermittently observed by society workers. The father has video-taped countless of these exchanges. Despite making serious allegations about the child’s reactions when transitioning to her mother’s care and about the mother’s conduct on exchanges, there was no video evidence in the trial to substantiate these allegations. The father’s allegations are not confirmed by society workers who have attended.

[56] The father’s time has been organized with the paternal grandmother. He testified that the child almost always sleeps at the paternal grandmother’s home and that mostly, he sees the child there. He thought the child had stayed overnight in his home approximately ten times since birth. While he has a room for the child at his home, the child does not spend a great deal of time there.

[57] The paternal grandmother and the father continue to allege that the mother has untreated drug issues, and that she is neglectful and abusive. They cast aspersions – without substantive evidence – about how she earns a living, and on her sexual practices. They argue that she is unstable, unable to maintain housing, and cannot take care of herself.

[58] The mother has been observed extensively by child protection workers since late 2018. There were numerous supervised visits, many attendances of workers at the mother’s home while the child was present, and, as noted, many exchanges of the child have been supervised by society workers. The society’s evidence was that the mother has been and continues to be caring and loving, and that she supports the child’s growth and development appropriately. The child has consistently been observed to be clean, well-groomed, happy, and active in the mother’s care.

[59] Society workers have never observed the mother to be under the influence of any drug or alcohol, have never noted the child to smell of cigarette or marijuana smoke, and have expressed no concerns about the mother’s ability to support herself.

[60] The mother has moved with the child on several occasions since the society became involved – approximately twice per year (about 8 moves since 2018). The mother has not been homeless, has not lived in a shelter, and always finds appropriate housing for herself and her children. The mother has always been able to meet the physical needs of the child.

[61] The father and paternal grandmother have been unable to accept that from a child protection perspective, there is no risk of physical harm arising from the mother’s care of the child. Both express uniformly negative views about the mother.

[62] When the child arrives at her paternal grandmother’s home, the child is changed out of what she referred to as her “welfare clothes” into more expensive clothes and bathed as if to disinfect her. She is changed back into her “welfare clothes” clothes when she goes home to her mother. The paternal grandmother says this is because the mother “steals” the child’s clothes.

[63] The child is healthy, well-adjusted, and developmentally on track. She is exceeding age milestones notwithstanding having been born prematurely. Yet, the father and paternal grandmother both seek to reduce the mother’s parenting time significantly. They have been unable to accept the evidence of child protection workers, medical professionals, or the police which confirm that the mother is neither abusive nor neglectful. They are wholly unable to see that to the extent that the child is doing well, some credit is due to the mother’s love and parenting skills.

[64] By contrast, although the mother has at times made allegations against the father and paternal grandmother, she had no difficulty at trial acknowledging that they are important to the child, that the child loves them, and that they should be involved in the life of the child. At various points she made positive statements about the father and testified that he would be a “great dad” if his mother would let him. She said she would seek his opinion on parenting issues affecting the child. She was child-focused when considering the appropriate schedule.

Relevant Court Orders

[65] The following orders have been made in relation to these parents:

a. On April 10, 2019, Justice LaFrenière ordered on a temporary without prejudice basis that the child remain in the care of the paternal grandmother under terms of supervision, with supervised access to the mother.

b. On April 23, 2019 Justice LaFrenière ordered on a temporary basis, opposed by the paternal grandmother and the father, that access as provided for in the April 10, 2019 order need not take place at the society.

c. On November 28, 2019, Justice Pazaratz ordered on consent, with all parties represented by counsel, that the child be reintegrated into the care of the mother by February 17, 2020, with the child to reside with the mother 8 days of every 14 and with the paternal grandmother and father 6 days of every 14.

d. On March 25, 2020, Justice Pazaratz ordered on a temporary basis that the child be immediately returned to her mother. Access to the paternal grandmother and the father was to be in the discretion of the society. The order included a police enforcement clause.

e. On September 16, 2020, Justice Bale made statutory findings regarding the child’s name.

f. On December 23, 2020, Justice Pazaratz made an order for Christmas access. No costs were ordered.

g. On March 26, 2021, Justice Brown made an order providing for two days of make-up time to the father. A costs order was made against the mother.

h. On May 31, 2021 and January 31, 2022, Justice Bale made orders concerning the conduct of the trial.

Witnesses

The Society’s Witnesses

[66] The society called the following witnesses.

Shawna Small, Ongoing Service Worker Detective Constable Shannon McLean, Hamilton Police Services Dr. John Burke Baird, Division Head, Child Advocacy and Assessment Program Dr. Kathleen Nolan, Child Advocacy and Assessment Program Dr. Justin Weresch, Family Physician Alberta Abbiw, Family Service Worker Detective Harold Harris, Hamilton Police Services Cindy Key, Family Resource Worker Melissa Buckton, Family Service Worker Olga Bakai, Kinship Service Worker Ioanna Carmazan, Family Service Worker Becky Cooper, Records Disclosure Clerk, Hamilton Police Services

[67] I had no difficulty with the credibility of the testimony of any of the witnesses called by the society, unless otherwise noted in the decision below. I found the society workers to be forthright and direct in their responses, and able to acknowledge issues and challenges in the society’s management of this case.

[68] I similarly had no difficulty with the evidence of Dr. Baird, Dr. Nolan, Dr. Weresch, Detective Harris, or Detective Constable McLean all of whom testified in a straightforward and direct manner. I comment further on their evidence below.

The Mother’s Witnesses

[69] The mother testified and called no additional witnesses.

[70] In general, I found the mother to be a compelling and forthright witness who testified with candour about her circumstances and experience. She presented as resilient and resourceful, and committed to raising her daughter to explore her world with curiosity and without undue limitations.

[71] The mother was candid about her mental health struggles and acknowledged that she did not engage constructively with the society in the early part of its involvement in 2018 and early 2019. She was able to acknowledge that she had made allegations against the paternal family and confirmed her understanding that being evicted from housing is a concern.

[72] The mother withstood gruelling cross-examination without losing her temper (she did not react, for example, when counsel put statements such as the following to her: your life has been a crisis for the last four years; you basically can’t take care of yourself; you are an adult who tends to shirk responsibilities; and you were irresponsible from 2013 and you are just as irresponsible today.) I find that the mother’s ability to be challenged in that way and not anger belies the paternal grandmother’s evidence that the mother is “explosive.”

[73] I did find the mother somewhat less than forthright about her travels since the child was born. I also found her less than contrite about her ill-considered social media postings in 2020 which were disparaging to the father and heightened conflict at that time between herself and the paternal family.

[74] I noted the mother’s ability to speak positively about the paternal family, to see strengths in the father, and to recognize the child’s affection for her paternal grandmother even in the face of the conduct levied against her for over four years. The mother repeatedly confirmed her wish to work with the paternal family, her intention to seek their input on matters related to the child’s upbringing, and her commitment to including them in special moments in the child’s life.

[75] Where the mother’s evidence conflicts with that of the paternal grandmother and/or the father, I prefer the evidence of the mother unless stated otherwise below.

The Father’s Witnesses

[76] The father testified and called T. M., his friend and business partner as a witness.

The Father’s Evidence

[77] The father is completely aligned with the paternal grandmother and his evidence echoed hers in almost all respects. At times it became clear that statements made by him were based simply on what his mother had told him, not based on his own observations or experience. This was the case for example with respect to his evidence about the “ear bruise” and the diaper rash.

[78] In general, I found the father to be a less-than-credible witness. He made several statements, which when pressed, he then “adjusted.” For example, in direct examination he referred to having spent “overnights” with the child before the end of December 2018. When pressed by the mother in cross-examination, this became “an overnight.” His statement that the mother “smoked pot all the time” when they were together was not credible in the face of his statement to Ms. Williams in October 2018 that she was a great mother and he had no concerns, and his subsequent statement to Ms. Small in February 2019 to the same effect.

[79] I also do not believe the father’s evidence that the child consistently “cries hysterically” when going to the mother’s home. When pressed on this and why he had not told the worker about it, he adjusted his testimony to state that the behaviour was “recent” (unlike the paternal grandmother who said it had been happening since 2019, which I also do not accept.) The worker testified that this allegation was only made after the trial commenced in March 2022.

[80] The father showed no insight into the impact of his negative views about the mother. He saw no difficulty with the paternal grandmother denying the child any time with her mother between February and April 2019. He expressed no concern about the paternal grandmother videotaping and photographing the child at the beginning and end of their parenting time saying they “kinda had to.” He said that he supported the practice since no one believed them and doctors were not able to determine when injuries occurred. This, notwithstanding the father having heard the evidence of Dr. Baird and Detective Harris about the problematic nature of this behaviour.

[81] The father testified that the repeated police wellness checks on the mother orchestrated by the paternal grandmother were “a good idea.”

[82] He did not seem troubled when confronted with not having paid child support at any time to the mother. The father also saw no apparent irony in stating that a parent should not sabotage the other parent’s life, notwithstanding the current $650,000 civil suit against the mother for libel and defamation. He stated that he continues to pursue that case, even as the evidence seems clear that whatever the mother’s statements, they were part of a larger campaign in which numerous individuals expressed concern online about his workplace conduct with employees. Yet, the lawsuit is only against her.

[83] The father did acknowledge that the paternal grandmother has nothing good to say about the mother. He too was unable to say anything positive about the mother in his evidence.

T. M.’s Evidence

[84] T. M. has assisted the father with exchanges of the child since March 2020.

[85] I found some parts of T. M.’s evidence credible, but not all. He loves the child and is happy to help the father. It is kind of him to do so for such a sustained period. While he over-estimated how many exchanges he has assisted with (in the range of 120, not 250), he has been present at many, many exchanges.

[86] I found T. M.’s evidence to be internally inconsistent. He testified that the child is great, and that he and the father have “a lot of fun with her” in the car when attending for exchanges, that the father laughs and jokes with her, and that generally the exchanges are “smooth.” However, he seemed to correct himself to also testify that 95% of the time, the child is kicking and screaming when leaving the paternal grandmother’s home, and “hysterical” when going to meet the mother. He said that “almost every time” they leave the paternal grandparents’ home, the child is “so upset” and that most of the ride is trying to calm the child down. T. M. stated that this happened routinely, yet the father, as noted, stated when pressed that it started “recently.” Yet, somehow, the father, who T. M. stated video-records all the exchanges, doesn’t record until they arrive at the exchange location, after the child has stopped crying. This strains credulity.

[87] I did find other aspects of T. M.’s evidence credible, however. He confirmed the routine of the paternal grandmother taking the child upstairs to change her clothes, and that conversation will frequently ensue to the effect of what “terrible” things happened to the child at the mother’s home. He also confirmed that the father and paternal grandmother view the mother as “abusive.”

The Paternal Grandmother’s Witnesses

[88] The paternal grandmother testified and called the following additional witnesses:

A. M., maternal grandmother Jessica Wilson, server at restaurant attended by mother

[89] I have the following comments about the credibility of the paternal grandmother and her witnesses.

Evidence of the Paternal Grandmother

[90] Limited aspects of the paternal grandmother’s evidence were credible. I accept, for example, that she loves the child, sees herself as a parent to the child, and wants what she believes is best for her. I accept also that in her heart-of-hearts she believes that she can offer a better life to the child than the mother can.

[91] However, I am unable to find that the paternal grandmother was a credible witness overall. Her evidence regarding the mother’s alleged substance abuse, the mother’s demeanour, the condition of the child after time with her mother, the child’s “injuries”, and the child’s reactions to going to see her mother is simply not credible, in the context of the overwhelming evidence to the contrary.

[92] The evidence regarding the child’s reactions to seeing her mother was not believable, in the context of the other evidence in the trial. The paternal grandmother testified that since before the mother lived at C. Crescent (from which the mother moved in September 2020 when the child was under two years of age) she would cry hysterically when going to see her mother. (The father’s evidence, by contrast, was that this started “recently.”) However, this is not credible in the context of: the paternal grandmother having video cameras throughout her house, routinely videotaping the child, yet only having produced two videos to the effect, made during the trial; the evidence of society workers who noted only a few occasions where the child was unsettled at exchanges; and Ms. Bakai testifying that this consistent “hysterical” behaviour was first raised as an issue in March 2022 after the trial commenced. I simply do not believe the paternal grandmother’s evidence on this point.

[93] Similarly, the paternal grandmother’s evidence was that the child routinely looked “rough” coming from her mother’s home, smelling of smoke and perfume, with dirty hair and clothes and otherwise unkempt. Again, the paternal grandmother took photos of the child at the beginning and end of her time there – yet no photos were put in evidence of the child’s apparent neglected state upon arrival. Further, this evidence is entirely at odds with multiple workers’ observations of the child in the mother’s care, throughout CCAS involvement.

[94] The most striking feature of the paternal grandmother’s evidence is her utter disdain for the mother and her belief that the mother has nothing to offer the child. This is not a credibility issue per se and will be addressed further, below. On this, she was candid.

Evidence of the Maternal Grandmother

[95] The paternal grandmother called the maternal grandmother to testify. I found some but not all of her evidence credible. She had difficulties with dates and with the sequence of some events.

[96] The maternal grandmother does not currently have a relationship with the mother. Her access to the child has been through the paternal grandmother and it could be said that she is dependent on the paternal grandmother for that access.

[97] Although the maternal grandmother testified in chief that she is not worried about the mother taking the children away from Hamilton, she agreed that she told the paternal grandmother in January 2019 she was worried that the mother could take them to California. She confirmed that this was something the paternal grandmother was worried about.

[98] I did not believe the maternal grandmother’s evidence regarding the mother’s drug use or the quality of care of the child or the other brother. When asked in chief about “problems” when the mother was living with her between October and December 2018, the maternal grandmother stated that the mother didn’t follow house rules, was disrespectful to her, didn’t take care of the children, and didn’t clean her room. Only when asked what could be characterized as a leading question about “bad smells” did she say that she smelled what she thought might be marijuana.

[99] None of the allegations about the maternal grandmother’s apparent concerns with the mother were made to the CCAS until she met with the paternal grandmother in January 2019.

Evidence of Jessica Wilson

[100] Ms. Wilson was an employee at a restaurant in which the child sustained an injury while in the mother’s care. Her evidence of what she saw differed from that of Detective Harris and a society worker who reviewed a video obtained by the paternal grandmother from the restaurant. She did not know the mother or the paternal grandmother and I do not find that she had any reason to deliberately misstate. However, she may have not remembered accurately.

Evidence and Procedure

Expert Witnesses

[101] On consent, the following individuals were found to be experts in this proceeding. I found them each to be credible and their evidence helpful to the court. Their CVs were marked as exhibits.

[102] Dr. Burke Baird, the Division Head at the Child Advocacy and Assessment Program (CAAP), located at McMaster Children’s Hospital in Hamilton, was found to be a participant expert in the area of pediatrics and child maltreatment. He gave his evidence in a balanced manner and was able to acknowledge when his notes or understanding may have been faulty. He was involved in relation to the “ear bruise” in July 2019; and the minor case of vulvitis, also in July 2019. At no point did he conclude that the mother abused or neglected the child. He also received photos from the paternal grandmother and noted that the child was being photographed often for “obvious non-injuries” and told her this should not continue. He stated that the paternal grandmother was repeatedly photographing the child in a context where a “reasonable person would know that these were not injuries.”

[103] Dr. Kathleen Nolan, a physician at CAAP, was also found to be a participant expert in pediatrics and child maltreatment. Dr. Nolan was involved in December 2019 and March 2020, both times in relation to marks on the child’s hand. The first could have been burns or abrasions, while the second appeared to be an accidental burn. She was unable to make conclusions about the cause or timing of those marks. She described the paternal grandmother and her partner being “very unhappy” with her and her opinion. The paternal grandmother lodged a complaint to the College of Physicians and Surgeons about her. Dr. Nolan was concerned that the child had been brought to the emergency department five times for matters that were clearly not emergencies.

[104] Dr. Justin Weresch, the child’s primary physician, was found to be a participant expert in family medicine. He indicated that the child is up to date for her vaccinations, advised that he has no concerns about the child’s care, and stated that he has never felt the need to call the CCAS about the mother’s care of the child. In her evidence, the paternal grandmother stated that if the child is placed in her care, she would likely change her physician because Dr. Weresch appeared “biased” in favour of the mother.

Evidentiary Issues and Rulings

[105] The court made several evidentiary rulings in this trial most of which do not require discussion. However, I wish to comment on the following select issues.

[106] Failure to Produce Document Briefs: This matter was before Bale J. on January 31, 2022, for a trial management conference. Timelines were set for the exchange of document briefs (30 days before the commencement of trial). The society complied and served and filed its document brief as required. Neither the father’s counsel nor the paternal grandmother’s counsel served or filed any document brief, notwithstanding a reminder by the society by letter after Bale J.’s deadline had passed. Nevertheless, several documents and videos were sought to be entered into evidence by them during the trial. The mother, who was self-represented, also did not serve or file a document brief. However, while she made use of certain documents in cross-examination, she did not seek to have any documents entered as evidence.

[107] Ruling regarding Cross-Examination by Aligned Parties: An issue arose regarding the scope of cross-examination by counsel for the father and paternal grandmother, where “cross-examining” witnesses who were wholly aligned in interest (for example, counsel for paternal grandmother’s “cross-examination” of the father). The issue did not arise in cross-examination of society witnesses as counsel generally did a reasonable job of not duplicating questions, those witnesses were not aligned with the cross-examining party, and there was in any event no objection. However, the society rightly objected when Mr. Runco, counsel for the paternal grandmother, commenced “cross-examination”, with leading questions, of witnesses called by Mr. Garcea, for the father. It is a basic principle of trial procedure that leading questions may only be asked by parties adverse in interest. The remedy sought by the society and granted by the court was a direction that only non-leading questions be permitted when examining witnesses called by an aligned party, unless seeking to impeach the testimony of a witness.

[108] Brown and Dunn Violations: There were numerous Brown and Dunn violations committed in this case, most egregiously when the paternal grandmother testified in chief. This was so notwithstanding the court having asked counsel, before he commenced his case and while the mother was still testifying, whether he had addressed the evidence from a Brown and Dunn perspective. The court specifically gave counsel an opportunity to review his notes before concluding his cross-examination. Counsel declined that opportunity.

[109] I heard submissions on the applicability of Brown v. Dunn several times and gave a fulsome ruling. There seemed to be confusion about what that rule requires. It is not sufficient to simply tell the witness that “there is another version” of events. While “not every scrap of evidence needs to be put to the witness in cross examination,” a witness should not be ambushed by not having an opportunity to give her contrary evidence on important issues. See R. v. Quansah, 2015 ONCA 237, 2015 CarswellOnt 4940. To satisfy the rule in Brown and Dunn, on consequential evidence, the witness must be told not only that there is another version but what that version is. Only then does she have a fair opportunity to explain. The remedy is a matter of judicial discretion. In this case, I permitted the evidence, but also permitted the mother (and several other witnesses) to be recalled.

[110] Motion for Production of the Mother’s Passport and Driver’s Licence: Counsel for the paternal grandmother brought an oral motion without notice during trial seeking the production of the mother’s passport and driver’s licence, on the argument that this was relevant to her credibility regarding her testimony about her travel. The motion was brought on Day 16 of the trial. Notwithstanding my dismay regarding the lateness of the motion, I ordered that if those documents were in her possession or control, they be produced the following morning. In the result, the mother’s evidence was that the passport was stolen and that she had to relinquish her driver’s licence to Service Ontario in relation to a licence suspension.

[111] Rulings regarding Videos: I made two rulings regarding videos sought to be entered into evidence by the paternal grandmother.

[112] The first ruling related to a video purporting to show a society worker kissing the cheek of the mother. The stated purpose of the video, which counsel asserted had been previously disclosed, was to impeach the mother’s denial that the worker “appeared” to have kissed her. I permitted the showing of the video. However, as the video was not put to the worker in cross-examination, I also permitted the society to recall that worker on that issue. In the result, however, counsel was then unable to tender the video in a viewable form. This issue arose on Day 17 of a 29-day trial. Counsel did not request permission at any later point in the trial to have the video shown in a different format.

[113] The second ruling related to an apparent video alleged to have been posted on the mother’s Instagram account purporting to show her selling drugs online. The mother denied having either made or posted the video. Counsel for the paternal grandmother acknowledged that the video had never been disclosed to the other parties until the day prior when I had ordered that it be circulated. Counsel said he did not anticipate the mother’s “obstinance” and that he would have disclosed it in advance if he thought it would become relevant. He also said the video was “one small piece in a house of evidence” rather than an essential piece of evidence upon which his client’s case turned. Counsel for the paternal grandmother and father both submitted that, at its highest and best, if admitted, the video would go the mother’s “credibility.” They did not assert that it would confirm that the mother sells drugs or is a drug dealer. I agreed with the mother that had that been the case, the video would certainly have been shown, in full, to the society and the police well in advance of the trial, given the paternal grandmother’s allegations, her propensity to involve the police, and her steady reporting to the society. I declined to admit the video. This was a six-week trial in which I had ample other opportunity to assess the mother’s credibility.

Zoom Trial

[114] This trial took place by Zoom. All parties were able to participate effectively and at no time did any party or counsel object to this manner of proceeding. Documents were shared using the Sync document platform, which was effective.

Consideration of Evidence

[115] This trial was a 29-day trial, much longer than necessary in the circumstances. Eighteen witnesses testified. In the analysis below, I have addressed what I found to be the most relevant aspects of the testimony and evidence tendered during trial and commented on credibility where I have concerns. While I have not discussed all the evidence presented at trial, I have very carefully considered the totality of the evidence in my determination of the substantive issues.

B. PRELIMINARY FINDINGS

[116] On a child protection application, and before any finding in need of protection or disposition is determined, the court must address certain preliminary findings under section 90 of the CYFSA, as follows. These findings relate to the child’s name, any indigenous identification, and the place from which the child was removed when brought to a place of safety.

[117] In this case, the following findings were made on consent by Bale J., at the trial management conference:

a. The child’s name is [name redacted];

b. The child was born [date of birth redacted];

c. The child is not a First Nations, Inuk, or Métis child.

C. PROTECTION FINDINGS

[118] On a child protection application, the court must ascertain, before turning to the questions of disposition and any access arrangements, whether the child is in need of protection.

[119] In this case, for the reasons set out below, I conclude that the child is in need of protection under section 74(2)(h) of the CYFSA, namely, based on risk of emotional harm.

Positions Regarding Protection Findings

[120] The society argues that the child needs protection under section 74(2)(h), risk of emotional harm. The society states that while the initial protection application brought in April 2018 sought a finding, in addition, based on risk of physical harm (s. 74(2)(b)), it says that such concerns have been fully addressed. The risk of emotional harm that exists, it says, arises from the high level of conflict between the child’s caregivers, and the paternal family’s “extremely negative messaging to [the child] about her mother.”

[121] The position of the paternal grandmother and the father with respect to the protection finding is confusing. The three-times Amended Answer and Plan of Care filed jointly by the father and paternal grandmother on the first day of trial did not specify the protection findings sought, if any, but simply claimed a “return” to their care under a section 102 custody order. Previous responding documents filed sought findings under s. 74(2)(a), (b), (c), (e) (h), and (n). At the trial management conference held January 31, 2022, Bale J. documented that they sought a finding under section 74(2)(b) and (h). In submissions and their joint factum, however, counsel argued that there is no basis for a protection finding as the child was in the “charge” of the paternal grandmother when the application was brought, and the child was therefore not in need of protection.

[122] Below, I will address the issue of whose “charge” the child was in. For the purpose of this part of this decision, suffice it to say that I reject that argument, and will consider the two CYFSA sections documented by Bale J. as being pursued by the paternal grandmother and the father, namely sections 74(2)(b) and (h). While the allegations of the father and paternal grandmother are somewhat scattershot, they appear to state, if there is to be a protection finding, that the child is at risk of physical and emotional harm arising from the mother’s abuse and/or neglect resulting in injuries to the child; her past and continuing drug use; her instability of housing and employment; her “questionable” activities and “nefarious” partners; and her inadequate instrumental care of the child. There are also insinuations about risky sexual practices and interests. In closing submissions, counsel for the father confirmed that if findings are to be made, they would not oppose the findings sought in the society’s original protection application (s. 74(2)(b) and (h)).

[123] The mother’s Answer and Plan of Care did not identify specific protection findings sought, stated that the child is not in need of protection from her, and sought a section 102 custody order. The mother’s closing submissions did not address the protection finding per se.

THE LAW

Legislative Provisions

[124] Sections 74(2)(b) and (h) of CYFSA are engaged in this application. Those sections read as follows:

74. Definitions

(2) Child in need of protection – 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.

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

[emphasis added]

Risk of Physical Harm under s 74(2)(b)

[125] In cases where the society is alleging that the child is in need of protection due to physical harm or a risk of physical harm, the following principles have been applied:

a. The society must prove causation by act, omission, or pattern. It is not necessary to prove intention: Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, 2008 CarswellOnt 9306 at 28, affirmed at Jewish Family and Child Service v. K.(R.), 2009 ONCA 903, 2009 CarswellOnt 7908;

b. Physical harm caused by neglect or error in judgment is still physical harm. However, it must be more than trifling physical harm. C.A.S. Niagara v. P.(T.), 2003 CanLII 2397 (ON SC), 2003 CarswellOnt 403 at 59, 60; Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458, 2006 CarswellOnt 7548 at 17;

c. Harm caused by neglect or error in judgment comes within the finding: C.A.S. Niagara v. P.(T.), 2003 CanLII 2397 (ON SC), 2003 CarswellOnt 403 at 65;

d. The risk of harm must be real and likely, not speculative: Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458, 2006 CarswellOnt 7548 at 19; Children’s Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (ON SC), 2000 CarswellOnt 2156 at 8. “Risk” means more likely than not. See: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, 2019 CarswellOnt 332 at 17;

e. Limited capacity of the parents may lead to harm or risk of harm if there is an inability to sufficiently acquire or improve parenting skills: Children's Aid Society of Hamilton v. O.(E.), 2009 CanLII 72087 (ON SC), 2009 CarswellOnt 8125 at 211-215;

f. Instability of housing and caregiving arrangements can create a risk of harm under section 74(2)(b): Catholic Children's Aid Society of Hamilton v. S. (L.), 2011 ONSC 5850, 2011 CarswellOnt 11097 at 380. A prolonged inability to access available resources to provide a child with a stable environment, such as housing, can raise valid protection concerns. See Children’s Aid Society of Toronto v. R.B., 2020 ONCJ 113, 2020 CarswellOnt 2829 at 147;

g. However, the jurisprudence is clear that children should not be removed from a family because of poverty and housing issues. Housing need not be ideal, so long as it is “good enough.” See Children’s Aid Society of Toronto v. N.G., 2022 ONCJ 235, 2022 CarswellOnt 6864 at 149, 152. See also Kawartha- Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 2019 CarswellOnt 5927 at 69;

h. Parents should not be penalized for poverty. Children’s Aid Society of Brant v. K.A.W., 2022 ONCJ 33, 2022 CarswellOnt 793 at 37;

i. Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addictions, inadequate shelter/food are common circumstances leading to findings of physical harm/risk of physical harm. See Children’s Aid Society of Oxford County v. E.M.T., 2019 ONCJ 767, 2019 CarswellOnt 17429;

j. Exposure to domestic violence can ground a risk of physical harm. See Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, 2019 CarswellOnt 332; Valoris v. J.W., C.R. Muskeg Lake Cree Nation, 2022 ONSC 2901, 2022 CarswellOnt 6964 at 507; Catholic Children’s Aid Society of Hamilton v. I.B. et al., 2020 ONSC 5498, 2020 CarswellOnt 13236 at 163-165.

Risk of Emotional Harm under s 74(2)(h)

[126] The allegation that a child is in need of protection due to having suffered or being at risk of emotional harm may be more difficult to establish than physical harm or risk thereof. To come within the subsection, the court must find that the child is at risk of suffering one of the specifically enumerated harms: anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development, and that there are reasonable and probable grounds to believe that this results from action or inaction on the part of the parent or person having charge of the child.

[127] See for example Children’s Aid Society of Algoma v. A.B., 2018 ONCJ 831, 2018 CarswellOnt 19912 at 13 and Chapman v. York Region Children’s Aid Society, 2021 ONSC 2620, 2021 CarswellOnt 5213. See also Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, 2019 CarswellOnt 332, in which the court stated at para. 16: “Although no actual emotional harm symptoms need to be shown, the society cannot rely on only 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.’”

[128] To show actual emotional harm or risk of emotional harm, expert evidence is often helpful both to establish the specific harm or risk and draw the link to the caregiver. It may be that the evidence of a participant expert such as the child’s counsellor could suffice. See Catholic Children’s Aid Society of Ottawa v. C.L., 2018 ONSC 1241, 2018 CarswellOnt 2894 at 26. The standard of proof for determining whether there is a causal connection between the emotional harm and the parental conduct or neglect has been established is a lesser standard than the balance of probabilities. See Children and Family Services for York Region v. S.A., 2009 CarswellOnt 8751 at 20; S.(D.), Re, 2001 CanLII 28177 (ON SC), 2001 CarswellOnt 733.

[129] Some courts have held that expert evidence is required to establish emotional harm or risk of emotional harm, and a link to parental conduct or neglect. In A.C. v. V.A., 2012 ONCJ 7, 2012 CarswellOnt 516, Phillips J. cited Linhares de Sousa J. in S.(D.), Re (cited above) and Steinberg J. in Catholic Children’s Aid Society of Hamilton-Wentworth v. L. (C.), 2002 CarswellOnt 3713, at 4, concluding at para. 69 that “the weight of the caselaw is clear that, in child protection cases, in order for the court to be satisfied of the sufficiency of evidence at a finding of ‘emotional harm’ there must be evidence offered beyond the competence of lay persons. Judges need the assistance of expert witnesses.” Similarly, Kukurin J. stated in Chatham-Kent Children’s Services v. C.P., 2014 ONCJ 395, 2014 CarswellOnt 11682 at para. 22 that to show risk of emotional harm in that case, the society would need “fairly heavy duty” expert evidence.

[130] However, numerous other cases establish that expert evidence of emotional harm or risk of emotional harm is not a pre-requisite. Thus, in Children’s Aid Society of Ottawa v P.Y. and A.S., 2007 CarswellOnt 2635, the court held that while expert evidence would have been useful, it was not required. The court also noted that terms such as “withdrawal” and “aggression” are not only psychological terms but are commonly understood. See also Catholic Children’s Aid Society of Toronto v. E.S., 2016 ONCJ 279, 2016 CarswellOnt 7840 at 94 in which Murray J. stated that sometimes a child’s distressed reactions to parental behaviour are sufficiently clear that a finding of a risk of emotional harm can be made without expert evidence. Further, in Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, 2019 CarswellOnt 5568, on appeal, Horkins J. held that it is not an error to find emotional harm or risk of emotional harm in the absence of expert evidence. See para 59. See also Chukwunomso v. Ransome, 2017 ONCJ 121, 2017 CarswellOnt 3332 per Spence J.

[131] High levels of parental conflict have been found to create risk of emotional harm within the meaning of the CYFSA and formerly the CFSA. See: Family and Children’s Services of St. Thomas and Elgin v. M. and O., 2022 ONSC 28, 2022 CarswellOnt 19 per Price J. See also Children’s Aid Society of Waterloo (Regional Municipality) v. A.(B.), 2005 ONCJ 220, 2005 CarswellOnt 2920 in which the children were found to be in need of protection in part because of risk of emotional harm caused by intense conflict. In that case, among other things, the father demonstrated contempt for the caring abilities of the mother and attributed bias to the society.

[132] Behaviour that seeks to estrange a child from a parent, often referred to as “alienation,” has similarly been found to create risk of emotional harm. See for example Children’s Aid Society of Toronto v L.R., 2020 ONCJ 22, 2020 CarswellOnt 441 per Zisman J., affirmed, 2020 ONSC 4341, 2020 CarswellOnt 10167, per Horkins J. The lower court had “no hesitation" finding that the mother had alienated the child, and that this constituted emotional harm within the meaning of the statute. The mother’s behaviours included maintaining that the child was physically and sexually abused despite the child making no disclosures, and two police investigations, as well as the mother “poisoning” the child’s mind against the father and maternal family.

[133] See also Children’s Aid Society of Waterloo (Regional Municipality) v. L.(K.A.), 2010 ONCJ 80, 2010 CarswellOnt 7373 in which McSorley J. found risk of emotional harm to the child based on high conflict, alienating behaviours. While the finding of risk of emotional harm had been made on consent, the decision nevertheless carefully documents a range of concerning parental behaviours grounding the finding. The mother was found to have embarked on a campaign “for years” to alienate the children from the father. See also Jewish Child and Family Service of Greater Toronto v D.M.G., 2019 ONSC 5459, 2019 CarswellOnt 15084 at 102, in which the court stated, “there is no doubt that parental alienation contributes to emotional harm to a child who is victimized by it.”

[134] Expert evidence is not necessary for a court to ascertain whether “alienating” behaviours are taking place. See A.M. v. C.H., 2019 ONCA 764, 2019 CarswellOnt 15391 in which the Ontario Court of Appeal stated:

In finding that the mother alienated the child from the father, the trial judge was not purporting to make a psychiatric diagnosis of any syndrome or condition. Rather, he was making factual findings about what happened in this family. This is the stuff of which custody trials are made, and as conceded, no expert opinion was required to enable him to do so. See paras 31, 32.

[135] See also S.(C.) v. S.(M.), 2007 CarswellOnt 1267 at 65, affirmed 2010 ONCA 196, 2010 CarswellOnt 1493 at 5 where the Ontario Court of Appeal confirmed the alienation finding which had been made without expert evidence. Further, see the recent decision of the Ontario Court of Appeal, Bouchard v Sgovio, 2021 ONCA 709, 2021 CarswellOnt at paras. 73-75.

[136] In the appeal decision in L.R. v. Children’s Aid Society et al, cited above, Horkins J. stated, citing A.M. v. C.H.:

I reject the mother’s argument that the absence of an expert opinion to document the risk somehow supports her ground of appeal. In some cases, the parental alienation is subtle, and an expert opinion may be required to prove the risk to the child. This is a clear case of ongoing systematic parental alienation, supported by numerous unchallenged findings of fact. The trial judge did not need an expert opinion to document the obvious.

[137] In the case of Leelaratna v. Leelaratna, 2018 ONSC 5983, 2018 CarswellOnt 16633, Audet J. took judicial notice of the emotional and other effects of a child’s estrangement or alienation from a parent as follows, at 68:

I take judicial notice of the significant short-term and long-term negative impacts that a child’s estrangement or alienation from one of his parents can have on that child’s social and emotional development and adjustment, physical, psychological and mental health, as well as on his overall well-being…

[138] See also G.(J.M.) v. G.(L.D.), 2016 ONSC 3042, 2016 CarswellOnt 7799, in which Fryer J. stated at 103: “It is contrary to the best interests of children, and indeed harmful to them, to become unjustifiably estranged from a parent whether the result of alienation or a combination of factors.”

[139] In C.(W.) v. E.(C.), 2010 ONSC 3575, 2010 CarswellOnt 5955, W.L. MacPherson J. heard substantial expert evidence from Dr. Barbara Jo Fidler regarding what constitutes alienation, behaviours that can be considered alienating, and effects of alienation on the behaviour of children. Dr. Fidler has given similar evidence on alienation in numerous other cases, including, for example, L.(A.G.) v. D.(K.B.), 2009 CarswellOnt 188 and G.(J.M.) v. G.(L.D.), 2016 ONSC 3042, 2016 CarswellOnt 7799.

[140] Since C.(W.) v. E.(C.), numerous cases have relied on MacPherson J.’s summary of that evidence and Dr. Fidler’s “Red Flags for Parental Alienation” have been adopted by courts across the country without direct reliance on expert evidence. See for example: P.R.M. v. L.G., 2016 MBQB 242, 2016 CarswellMan 551 at 179; Malhotra v. Henhoeffer, 2018 ONSC 6472, 2018 CarswellOnt 18560, affirmed as A.M. v. C.H., 2019 ONCA 764, 2019 CarswellOnt 15391, cited above; M.(L.) v. B.(J.), 2016 NBQB 93, 2016 CarswellNB 340; Droit de la famille - 211179, 2021 QCCS 2765, 2021 CarswellQue 10457; Cantave v. Cantave, 2014 ONSC 5207, 2014 CarswellOnt 12144 at 58; and Maharaj v. Winfred-Jacob, 2016 ONSC 7925, 2016 CarswellOnt 19883 at 138 – 145.

[141] As set out by MacPherson J. and cases citing that decision, Dr. Fidler has identified processes and strategies used by parents who seek to estrange a child from another parent. Since MacPherson J.’s decision, Dr. Fidler, along with Professor Nicholas Bala, has updated that research. Based on extensive literature review, behaviours including the following (this is not a comprehensive list) are now identified by Dr. Fidler as “parent alienating behaviours”:

• Bad mouthing, denigrating of other parent’s qualities, parenting, or involvement with the child;
• Believes or portrays other parent as dangerous (harmful, angry, mean) or sick; convinced of harm or abuse by other parent despite absence of evidence; especially concerning if there are unfounded allegations of sexual, physical and/or emotional abuse despite independent investigations that do not support;
• Believes or implies that other parent never really loved or wanted the child;
• Acts fearful and/or suspicious of other parent in front of the child;
• Fosters dependency on and need for protector;
• Uninterested in other parent’s time with the child;
• Indulges child with material possessions and privileges;
• Body language and non-verbal communication reveals lack of interest, disdain, and disapproval;
• Engages in inquisition of child after time spent with the other parent;
• Does not believe child has any need for relationship with the other parent;
• Repeats negatives and embellishes or exaggerates negative attributes of the other parent.

Fidler, B., & Bala, N. (2020), “Concepts, Controversies, and Conundrums on ‘Alienation’: Lessons Learned in a Decade and Reflections on Challenges Ahead” Family Court Review, 58(2), 576-603.

See also C.(W.) v. E.(C.), cited above, at 63-71.

[142] Further, see Fielding v. Fielding, 2013 ONSC 5102, 2013 CarswellOnt 11117, in which the court lists alienating behaviours identified by an expert, finding it to be a “useful checklist of parental misconduct which may impair a child’s relationship with the other parent.”

[143] In C.(W.), v. E.(C.), cited above, MacPherson J. also summarized Dr. Fidler’s evidence regarding the impacts of behaviours such as those listed above, on children. Consistent with the effects of which Audet J. took judicial notice in Leelaratna, cited above, she stated:

The literature confirms that there are additional negative impacts of severe alienation which include: the loss of one-half of the child’s family; poor interpersonal relationships; a distorted view of reality; low self esteem (arising from the belief that if one parent is bad and the child is made up of both parents, the child must also be bad); and self-doubt about their perceptions.

See C.(W.), v. E.(C.), cited above, at 137.

[144] The literature suggests that alienation is a process and how the effects manifest in children depend on a variety of factors, including the age of the child. Dr. Fidler has summarized behavioural manifestations in children in mild, moderate, and severe cases. In younger children, observable impacts may be milder, with more serious manifestations typically observable at age 8 or 9, although sometimes as young as 4 or 5. Where effects are still mild, there may be a few “resisting child behaviours” at transitions between homes. Where manifestations become “moderate,” there may be more difficulties with transitions, with the child insisting they do not want to go to the other parent, the child may take longer to adjust after a transition, but the child’s behaviours can be mixed, confused, or inconsistent. When effects become severe, the child may repeat the negative statements about the denigrated parent, display animosity towards the rejected parent, and act out aggressively. See Fidler and Bala, cited above, at Appendix B.

[145] In summary, behaviours that seek to or have the effect of estranging or alienating a child from another parent are a form of high conflict behaviour which may cause risk of emotional harm to children within the meaning of section 74(2)(h) of the CYFSA. Courts have taken judicial notice of the types of behaviours that may be considered “alienating,” and of the potential impact of those behaviours on children. Expert evidence, while potentially helpful, is not required for a finding on that basis.

Timing of Finding in Need of Protection

[146] Courts have held that the time to which the finding in need of protection relates is flexible. That is, the finding can be made in relation to circumstances at the time the application was brought, up to and including the time of the hearing, so long as adequate disclosure is made to all parties. This is because the risk that is identified at outset of a case may be under control or resolved when the protection hearing proceeds but may return. A risk that is not present on the day of the hearing may nevertheless justify a protection order. See Children’s Aid Society of Toronto v. R.M., 2019 ONSC 2251, 2019 CarswellOnt 5568 at 90-96; Children's Aid Society of London and Middlesex v. T.Y., 2017 ONSC 3460, 2017 CarswellOnt 11825 at 94.

[147] The court must assess the extent to which any need for protection has been resolved over the course of the litigation or whether other grounds for protection have emerged. Even if the need for protection at the initial stage has been resolved, that does not change the court’s ability to make a finding in need of protection. See Catholic Children’s Aid Society of Toronto v N.N., 2019 ONCJ 8, 2019 CarswellOnt 334 at 129.

ANALYSIS

Risk of Physical Harm

[148] As indicated above, the society is of the view that any risk of physical harm, to the extent that it existed, has long-since been addressed. The father and paternal grandmother say that if it is appropriate to make a protection finding at all, there were a range of physical risks when the society became involved and there continues to be. These can be summarized as: risks related to the mother’s alleged substance abuse; risks demonstrated by injuries to the child; risks arising from the mother’s allegedly problematic lifestyle; risks arising from inadequate instrumental care of the child; and risks related to housing and income instability. There is also a somewhat diffuse allegation that the mother is generally unstable, puts her head in the sand, and has a crisis orientation. I will address these in turn. I will also address various charges of violence that have been made against the father.

[149] I conclude that while there may have been a modest risk of physical harm related to the mother at the time the society became involved, it was speculative, and concerns arose more from the mother’s failure to engage with the society to show the adequacy of her circumstances than from actual, real, risk of harm. I do not find that risk of physical harm has been shown at any point since the society became involved at a level sufficient for a protection finding. While I have concerns about the allegations against the father, I similarly find that they are insufficient to ground a risk of physical harm, and in any event, he did not have charge of the child when the society intervened.

i. Substance Abuse Allegations

[150] As seen above, the father and the paternal grandmother allege that the mother has issues related to using illicit substances. In the current Answer, they state “the mother has had alcohol and drug addictions in both the past and recently, and they have not been addressed, despite our repeated requests for drug testing.” This allegation is simply not borne out on the evidence.

[151] As also seen above, both the father and the paternal grandmother told the society early in its involvement that there were no concerns about drug use or the mother’s care of the child. The allegations were made for the first time on January 31, 2019, the child having been in the mother’s care since she came home from the hospital in October 2018. The allegations seem to be linked to both grandmothers’ fears that the mother wished to move with the child to California. On February 7, 2019, the father told the society workers that he had never observed the mother use drugs and that he had no concerns about her as a parent. He also indicated that the paternal grandmother’s real concern seemed to be about the mother leaving with the child.

[152] All of the allegations were made on or after January 31, 2019, and include (but are not limited to) the following:

a. On June 7, 2019, the paternal grandmother swore an affidavit setting out her concerns about the mother using drugs regularly while in a caregiving role. She said she observed the mother to be impaired while visiting the child at the hospital at least ten times between July and September 2018. This was never raised with the hospital or the CCAS staff, none of whom reported observing such behaviour.

b. In November 2019, the paternal grandmother swore a further affidavit, now stating that the mother was impaired when she returned from “vacation” in January 2019 to pick up the child. In oral evidence she said the mother was “fried out of her mind” when she returned from Thunder Bay. Nevertheless she (inexplicably, if this were true) returned the child to the mother and did not report concerns to the society until two weeks later, after meeting with the maternal grandmother.

c. Over the course of the society’s involvement, the paternal grandmother frequently alleged to police, the mother’s landlords and employers, and medical personnel that the mother is a drug addict and/or drug dealer.

d. On March 18, 2021, the paternal grandmother – who by now had spent no time with the mother since February 2019 – told society worker Ms. Bakai that the mother is a drug dealer. She also said to Ms. Bakai that the mother was using cocaine, marijuana, and steroids. Similar allegations were repeated in July 2021.

[153] The mother submitted to a drug test on February 4, 2019, and there was evidence of marijuana use. Further testing on June 24, July 5, and July 9, 2019, were negative for all substances. The mother attended Alcohol, Drug and Gambling Services on June 11, 2019, as requested by the society. No recommendations were made for further services through that agency.

[154] No society worker has ever observed the mother to appear intoxicated or to smell of marijuana or any other drug. Over the more than four years of the society’s involvement, she has been observed by workers Brianne Williams, Shawna Small, Alberta Abbiw, Melissa Buckton, Cindy Key, and Ioanna Carmazan. She has been observed at the Kiwanis Centre, at her home, and on exchanges. Visits by society workers at the mother’s home have been announced and unannounced. There is no evidence that any doctor, nurse, or other medical professional has reported a concern about misuse of drugs or alcohol by the mother.

[155] Against all the other evidence in the trial, the paternal grandmother’s allegations about drug use by the mother, echoed by the father, are simply not credible.

ii. Injuries to the Child

[156] Perhaps the central component of the allegations by the paternal grandmother, repeated by the father, are the unrelenting allegations that the child sustains injuries in the mother’s care, either due to the mother’s abuse, permitting others to abuse the child, or neglect. The paternal grandmother is convinced that the injuries are proof that the child is not safe in the mother’s care.

[157] The most recent Answer states “[t]he mother has directly and indirectly subjected [the child] to unexplainable injuries and harms resulting in multiple visits to urgent or emergency healthcare providers, and she has mislead them (and us) in regards to the true nature of the illnesses, injuries, or other harms that have befallen [the child].”

[158] While I will review several (but not all) of the alleged “injuries” here, the short version is that this child has experienced bumps and bruises common to young children who explore their world. The mother has never been found to have abused or neglected the child, or to have permitted others to do so, no “injury” has ever required any form of “treatment” (although the child has repeatedly been taken to the emergency department). The mother has never been charged with any criminal action or inaction causing harm to the child.

[159] I summarize select incidents:

a. On July 23, 2019, several days before overnight parenting time was to start with the mother, the paternal grandmother took the child to the hospital due to what was found to be a mild case of “vulvitis” (diaper rash) which Dr. Baird said is common in young girls who use diapers. She told Dr. Baird that she was concerned about sexual abuse. In an affidavit the paternal grandmother specified that she “strongly suspected” the mother’s boyfriend.

b. On July 25, 2019, the child had her first overnight visit with her mother. On July 26, 2019, the paternal grandmother noticed a small bruise to the child’s ear, about 5 mm. The child was seen by Dr. Baird at CAAP, who was concerned that the bruise could have been “inflicted,” which he stated meant that it could have resulted from the actions of another person, not necessarily intentionally. No treatment was required. The mother did not know when the bruise occurred. Dr. Baird agreed that the bruise could have been caused by the pacifier that had been reported to the police to have been in the crib that night. A police investigation was inconclusive. Detective McLean testified that the paternal grandmother, when interviewed, was very focused on “how dangerous” the mother is and how the mother was a “neglectful drug user.” She said the paternal grandmother believed that the bruise could be related to the mother’s boyfriend’s sexual preferences. The paternal grandmother testified that the bruise could have been caused by the mother’s dildoes or sex toys. The society verified harm by an unknown perpetrator.

c. In December 2019, the child had two small marks on her fingers and was taken to the hospital by the paternal grandmother at the recommendation of the society worker. It was unclear whether the marks, about 5 mm each, were abrasions or burns. Dr. Nolan was unable to date the marks or ascertain the cause. The marks did not require treatment. Dr. Nolan testified that the paternal grandmother was “disappointed” that she could not give a more definitive opinion.

d. In January 2020, the child accidentally bumped her head against a table at a restaurant while in the mother’s care resulting in a bruise under her eye. The paternal grandmother took the child to the hospital where she was seen by Dr. Canesius and Dr. Doyle, who found that the mother’s explanation was reasonable. The paternal grandmother subsequently obtained a video from the restaurant, not tendered in evidence. The video was viewed by Detective Harris and worker Olga Bakai, who agreed that the video was consistent with the mother’s explanation. Detective Harris testified that one of the paternal grandmother’s theories was that someone had assaulted the child, the mother tried to cover it up by putting make-up on the child, and then took her to the restaurant, where she staged an accident.

e. In March 2020, the paternal grandmother found a 1 cm mark on the child’s finger. Dr. Nolan at CAAP said it was likely an accidental burn. She was unable to date the mark or determine what caused it. The police were involved. Detective Harris said the paternal grandmother told him she did not notice the mark initially and that there was a period when the child was not visible on video in her care. It was unclear where or how the burn occurred. The police closed the investigation and the society did not verify a concern. No treatment was required.

f. Other “injuries” which took place can be summarized as: bumps and bruises caused by the child falling; scratching her cheek on a book; falling on a wooden toy; bumping her head on concrete while playing outside; scratch marks on the child’s ankles from going on a hike; marks around the child’s diaper line; scrapes on the child’s knee; a scratch on the child’s leg; a mark on the child’s thigh that looked like a car seat pinch; a mark on the child’s forehead; scratches caused by the mother’s dog; and scrapes on the child’s knuckles from going down a slide. Some took place in the grandparents’ care. None required treatment.

[160] For a time, early in its involvement, society workers recommended that the child be medically seen when “injuries” were alleged. Largely, this appears to have been due to the paternal grandmother’s suspicions and the society’s attempts to reassure her. However, as noted, Dr. Nolan expressed concern in March 2020 about the many visits to the emergency room, encouraging the paternal grandmother to stop this practice. Asked at trial about why she didn’t just take the child to the doctor for these non-emergency concerns, the paternal grandmother said she would always just go to the hospital because doctors take too much time.

[161] On August 31, 2020, family service worker Melissa Buckton and her supervisor Jacquie Shoreman wrote to the parties setting out the society’s position on the file. In part, the letter set out that “[m]any injuries had been brought to the concern of the society which had been determined by medical professionals to be minor injuries typically seen on a child [this child’s] age” and that the remaining protection concerns related to conflict in the family, not injuries to the child. The letter expressed concern about “hyper-vigilance” regarding the child.

[162] In his testimony, Dr. Baird stated that the paternal grandmother provided him with many photos, and it was clear that the child was being photographed for “obvious non-injuries… where a reasonable person would know that these were not injuries.”

[163] The child has sustained the bumps and bruises that children do as they move from infancy to being school age. I do not find risk of physical harm based on the marks the child has sustained.

iii. Risks Related to Alleged “Lifestyle”

[164] The paternal grandmother and father make a series of allegations related to the mother’s apparent lifestyle, which they suggest causes risk of physical harm. The most recent Answer states, for example that: the mother has had many questionable romantic partners over the last three years and has introduced those nefarious men to [the child]; the mother has been involved in questionable activities, including association with persons known to run a gambling house; and, the mother has chosen on many occasions to go on last minute trips, “without accounting or explanation how she is able to afford travel, exactly where she is travelling, or why she is travelling in the first place…”

[165] Even at the conclusion of a 29-day trial, the allegations about lifestyle concerns in this case amount to little more than innuendo and aspersions. It is surprising that these allegations persisted, with virtually no evidentiary basis. Counsel must guide clients on the reasonableness of their positions in the context of the evidence and the law.

[166] Addressing the allegations briefly:

a. Romantic partners are relevant only to the extent that they spend time with the child. Concerns about those partners must have an evidentiary basis. The evidence of society workers is that the mother’s former partner provided a criminal record check and underwent a child welfare check. There was no cause for concern.

b. There were insinuations during the trial related to suspicions about the mother’s sex life. Frankly, I found these aspersions offensive to the mother and irrelevant to the case. The court is not interested in the private and consensual sexual practices of litigants save and except where there is evidence (not aspersion or inuendo) that link with risk to the child. There was no such evidence here.

c. The paternal grandmother expressed concern that the child could get a sexually transmitted disease by hugging one of the mother’s friends, J., who apparently has a TikTok presence that the paternal grandmother says shows he is promiscuous. She was also worried about the mother’s friendship with S., who the mother agreed was depressed. The paternal grandmother also expressed concern about the suspected sexual interests of the mother’s former partner. I gather that these are the “nefarious men” referred to in the Answer. There was no evidence of a legitimate child protection concern arising from these friendships maintained by the mother.

d. The mother’s work includes catering. She testified that she has catered events that include poker parties. The evidence was that the children – the subject child and the brother – have been to the location when food was being dropped off. There was no evidence to substantiate a risk of physical harm arising from these activities.

e. I fail to see how the mother’s travels are a legitimate child protection concern unless linked with evidence of wrongdoing during those travels, harm to the child, or risk of harm to the child. Such evidence was not adduced at trial.

iv. Inadequate Instrumental Care of the Child

[167] The father and paternal grandmother allege that the mother’s instrumental care of the child is poor.

[168] In the most recent Answer, they state that the mother does not provide proper meals and instead orders fast food, putting the child’s health at risk. In their evidence they allege that the child is unkempt after spending time with her mother. Allegations include the child smelling of perfume and cigarettes, having greasy hair with too much leave-in conditioner, having dirty nails, and wearing unsuitable clothing. The paternal grandmother repeatedly complained to kinship worker Ms. Bakai about the child’s condition.

[169] The evidence of any witnesses other than the father and paternal grandmother does not support these allegations:

a. Dr. Weresch, the child’s physician, voiced no concerns about the mother’s care of the child and testified that he has never felt the need to call the society.

b. In October 2021, the child was assessed by the Growth and Development Clinic, and the conclusion was that she is developing exceptionally well, has grown by leaps and bounds, and is developmentally on track. There is no evidence that any concerns were raised about the child’s condition by that clinic.

c. None of the workers who have been involved since the file opened in 2018 have expressed concern about the child’s state in the care of the mother. They have consistently observed that the child looks well taken care of. Their evidence is that the mother provides good instrumental care: she engages the child, stimulates her, and soothes and comforts her, and is loving and appropriate.

d. T. M., who was present on upwards of 120 exchanges of the child, did not testify to any concerns about the child’s condition when being picked up from the mother.

[170] The child has been in the care of the mother more than half the time and is thriving. The evidence does not support a finding of risk of physical harm based on her care of the child.

v. Employment and Housing Instability

[171] The father and paternal grandmother raise concerns, with some evidentiary basis, about the mother’s employment and housing instability. They express two concerns: first, that the mother moves frequently; and second, that the mother does not have consistent employment.

[172] In the more than four years that the society has been involved, the mother has moved on average, twice per year, approximately eight moves in total. She has rented accommodation, except when she has stayed either with her mother, or her father. On one occasion, she was evicted. She acknowledged that this was a concern.

[173] The evidence of society workers, however, who have viewed her accommodation, is that the mother always succeeds in finding suitable accommodation, has never been homeless, and has never resided in a shelter since the birth of this child. While the mother could and should have given the society more notice of her moves, no danger to the child has arisen from her failure to do so. Currently the mother lives in a two-bedroom home in Hamilton, which she rented for one year in May 2022. I find that the mother’s housing circumstances, while not ideal, are “good enough.” See CAS of Toronto v. N.G., 2022 ONCJ 235, 2022 CarswellOnt 6864 at 149.

[174] While the paternal grandmother and father are concerned that the mother and children sleep in one bed, and while the society recommends separate beds, I agree with the society that co-sleeping in this context does not ground a finding based on risk of physical harm.

[175] I do note that had the father paid consistent child support, or any child support for that matter, this might have assisted the mother in stabilizing her housing. The child has been in her care 8 days out of 14 since February 2020 and child support would certainly have been due. He testified that his income is about $70,000 per year but that it was previously higher.

[176] On the issue of employment, as noted above, the mother has a range of income earning avenues, including catering, event planning, translation, waitressing, and reception services. She consistently meets the needs of the child with her income. Having irregular income sources is only a child protection concern where it compromises a parent’s ability to consistently meet the needs of the child. The evidence does not support such a finding here. And, again, were the father to pay child support, this would provide further economic stability in the other’s home.

vi. The Mother’s Alleged General Instability and Crisis Orientation

[177] The mother was asked a series of questions intended to show, it seemed, that her head is frequently in the sand, that she does not address important issues head on, and that she waits for matters to become a crisis before acting.

[178] There is some evidence to support this. For example, the mother is in arrears of child support payable to C. S., the father of the child’s brother, and enforcement proceedings have resulted in the loss of her driver’s licence; she has not consistently participated in court proceedings with C. S., and there is currently an order that he has custody (although I accept the mother’s evidence that the child’s brother is with her most of the time); she has allowed herself to be evicted from a residence; and, she did not respond to the father and paternal grandmother’s civil proceeding against her, leading to the possibility of a default judgment.

[179] I accept the mother’s explanation that C. S. is and was abusive to her (the father in this case told a society worker that it is C. S., not the mother, whom the society should be concerned about), and that she has managed her relationship with him carefully, prioritizing seeing her son as much as possible, while not antagonizing C. S. The mother stated that she believes C. S. will consent to expunging the arrears, and no evidence was led to the contrary. Neither the father nor the paternal grandmother called C. S. as a witness. I also note, again, the irony of critiquing the mother for her non-payment of child support where none has been paid to her in this case. The suggestion that she could be incarcerated for non-payment of support also seemed gratuitous given the father’s similar risk as a person charged with sexual assault.

[180] The mother acknowledged, fairly, that allowing the circumstance to unfold that resulted in her eviction was “not great.”

[181] Finally, I accept the mother’s statements that she has been in no position to deal with the paternal family’s civil case in the context of this litigation and that she has focused on what matters most to her: her children. The real issue, in my view, is how the father and paternal grandmother could see it as reasonable and necessary to bring such a case against the mother, where the evidence is that many individuals were part of the social media campaign in question, and yet the case is brought only against her. The Statement of Claim suggests that the father and paternal grandmother’s standing and character have been impugned. It seems more likely that the father being charged with sexual assault against an employee, not the first criminal charge against him, would have a more significant reputational effect. It is difficult not to conclude that the lawsuit is vindictive and designed to intimidate the mother in the context of this litigation.

vi. Allegations Against the Father

[182] As the father did not have charge of the child at the initiation of proceedings, these comments may be unnecessary at the findings stage, given the wording of section 74(2)(b). Nevertheless, out of an abundance of caution, I address the allegations and these comments become relevant in terms of disposition.

[183] The father is currently charged with sexual assault against an employee. He minimized the charge in his testimony. It appears that the father chose not to disclose this charge to the society, although obviously relevant in a child protection case. Rather, society worker Ms. Carmazan saw his name on the docket at court and raised the issue with him. The father also testified that he has not disclosed the charge to the paternal grandmother’s franchisor (which has already banned him from the premises). It appears that he wishes to hide the charge from them as well.

[184] In 2018, the father was charged with assault against his current partner. Those charges were resolved without a conviction by way of the father’s participation in the PARS program. The father testified that his partner slapped him and he “held her down.” He minimized this, stating that “men are treated this way by the courts sometimes.”

[185] Ms. Carmazan also discussed a 2009 assault charge against the father. The evidence of records clerk Becky Cooper confirms that the father was not convicted of a criminal offence. The father testified that this was a “one-sided story” and charges were “completely withdrawn.”

[186] The mother alleged, and the father vehemently denied, that when the parties were together, the father choked her and threw her down the stairs. I have insufficient evidence to make a finding on this.

[187] I am concerned by the evidence regarding the charges against the father, but also by his minimization of his acknowledged conduct in 2018 with his current partner. He appears to have limited insight on this issue. The paternal grandmother also appears unconcerned. When asked about whether this should be a cause for concern she said simply that he is innocent until proven guilty. She was unable to acknowledge in cross-examination that if the mother had a partner with a similar background, she would certainly – on the record in this case – be more than concerned.

vii. Conclusion Regarding Risk of Physical Harm

[188] It should be clear from the foregoing that the evidence does not ground a risk of physical harm, either at the commencement of the society’s involvement or presently. The mother does not pose a risk to the child through act, omission, or pattern of behaviour. She is not abusive. She is not neglectful. She does not allow others to hurt the child. She is not an illicit drug user. Her lifestyle choices are her own, and do not put the child at risk. She is attentive and loving. She meets the child’s needs. Her housing, while somewhat unstable, is adequate.

[189] If I am wrong and there was a risk of physical harm to the child in 2019 when the protection application was brought, I find that the risk has been resolved.

Risk of Emotional Harm

[190] As noted, in the amended child protection application, the society sought a finding based on risk of emotional harm. In the factum and closing submissions, this was particularized as risk arising from the high level of conflict amongst her caregivers, and from the paternal family’s extremely negative messaging to the child about the mother.

[191] I am deeply concerned about risk of emotional harm in this case, on both bases advanced by the society. The conflict between the parties has been significant. The attitudes, statements, and behaviours of the paternal grandmother and the father about the mother are very likely to expose the child to risk of emotional harm within the meaning of the section.

[192] The society advised the family as early as August 2020 about their concerns of adult conflict on the child. That letter stated in part:

The society assesses at this time that the only remaining protection concern for [the child] is the impact of conflict within her family system. [The child] is at risk of emotional harm through family behaviours that work to entrench family divisions…Risk of harm for [the child’s] emotional well-being will increase as she grows as she will become more aware of the animosity. [The child] loves and has a special relationship with all of her caregivers. [She] deserves to experience these relationships without the emotional harm of feeling divided loyalties…

It is clear through the high level of allegations/negative comments made by family system members that there is pervasive adult conflict occurring… which places the [the child] at risk of emotional harm.

[emphasis added]

[193] Having regard to the extensive caselaw set out above on risk of emotional harm, I have little difficulty finding that the level of conflict between the respondents substantiates a risk of emotional harm to the child. The conflict, which is fuelled to a great extent by the conduct of the paternal grandmother and father, ignores that this child needs peaceful relations between the adults who love her.

i. Utter Disdain for the Mother

[194] It is difficult to overstate the extent to which the paternal grandmother has shown and continues to show disdain for the mother, notwithstanding the significant positive evidence about her parenting abilities. A few examples will suffice:

a. A text dated June 28, 2019, from the paternal grandmother to worker Ms. Abbiw was read into evidence. The paternal grandmother stated that the mother is an “incompetent, selfish, irresponsible, alcoholic biological mother who is the most dangerous human to poor vulnerable innocent children…”

b. In May 2020, the paternal grandmother emailed worker Ms. Buckton complaining about the mother’s care, stating “such clear evil intent, negligence, irresponsibility, carelessness, arrogance, defiance and vengeful actions on [the mother’s] part and this intelligent, beautiful 19-month-old little girl who we adore continues to suffer, our families suffer, we are beyond concerned.”

c. The paternal grandmother has variously and continuously told doctors, the police, and society workers – in the absence of any credible evidence – that the mother is dangerous, that she lies, that she uses drugs, that she sells drugs, that she is a “prostitute,” that she is promiscuous, and that she would deliberately harm the child (such as the restaurant allegation).

d. The paternal grandmother’s evidence at trial, about the mother, was toxic. She was unable to say anything positive about the mother or to the mother when being cross- examined by her. I would describe her testimony as vicious.

e. The paternal grandmother does not accept that to the extent that the child is doing well, that this is at least partly attributable to spending 8 days out of every 14 with the mother.

ii. Convinced of Harm to the Child

[195] The evidence is that from January 31, 2019, forward, the paternal grandmother has asserted the view that the mother is a danger to the child.

[196] Counsel acknowledged in submissions that the paternal grandmother has not accepted the conclusions of Dr. Baird, Dr. Nolan, Dr. Canesius, any of the society workers, or the police. It is clear that she also does not accept the perspective of Dr. Weresch, who she says is “biased.” The paternal grandmother believes that each of these professionals is simply wrong, incompetent, or aligned with the mother.

[197] The paternal grandmother seemed unduly preoccupied with the mother’s private sexual life, making frequent reference, in her allegations to the society, to suspected sexual practices. In evidence she went so far as to say it was “very possible” that there was an intimate relationship between the mother and one of the workers because the mother is “very open, as you know.”

[198] When asked about the numerous police wellness checks the paternal grandmother had requested since the society became involved, she stated that she still feels like doing that now.

iii. Denies Bond Between Mother and Child

[199] The paternal grandmother is unable to recognize the love-bond between mother and child, notwithstanding the evidence of multiple society workers over the four years of involvement that the mother is warm and loving with the child, that the child loves and is comforted by the mother, and that the child goes easily to her. In cross-examination, she stated to the mother that she had not bonded with the child, that “she doesn’t want to go to you, ever; she never asks about you, not even once” and that “I don’t believe that there is a love connection with you.” She stated to society counsel that she does not believe that the mother loves either of her children.

[200] The paternal grandmother acknowledged that she allows the child to call her “mom.” Asked by the mother whether she felt this might be confusing to the child, and that perhaps she should correct the child to be referred to as “grandma” (or something equivalent), the paternal grandmother stated that “that’s how she feels about me,” and, “what’s the big deal, it’s only you it would bother, not her.”

[201] The paternal grandmother does not believe that the child needs a relationship with her mother. She withheld the child from the mother from February to April 2019, stating in her evidence that organizing visits for the mother “never crossed my mind,” that she was never asked, that she was worried about giving the baby to someone not in a fit state and that she was worried about conflict. At trial, while her “position” is that the mother should see the child on alternate weekends, she advised the court that the child should really be with her (and the father) all of the time and the mother should have supervised access “for a few hours at first.” She sees no value in the child’s relationship with her mother.

[202] Conversely, the paternal grandmother testified that the child cannot be successful without her. She said: “No one will protect her like [the father], [my partner], and me.”

iv. “Inspections” and Clothing

[203] The paternal grandmother persists in “inspecting” the child before and after her time with her mother, based on the continued belief that the child is in danger at her mother’s home. The paternal grandmother, father, and T. M. (the friend who is present at exchanges) testified that when the child arrives, she is taken upstairs to be changed. The paternal grandmother stated that the child frequently smells bad and that her hair is “disgusting.” Society counsel suggested in closing submissions that it was almost as if the child is “disinfected” after time with her mother. I accept that characterization.

[204] The evidence is that the paternal grandmother has routinely photographed and/or video-taped the child upon arrival with a mounted camera and separate lighting. She stated that this is for the child’s protection and so the paternal family is not blamed. She has been told by Dr. Baird, Detective Harris, and society workers that this is not appropriate. While she testified that this stopped “a long time ago,” I do not believe this in the face of the father’s evidence, which is that it only stopped during the trial. That the grandmother (and father) cannot see that this behaviour is unacceptable is deeply concerning.

[205] Part of the “ritual” upon arrival at the paternal grandmother’s home is also that the child is changed into clothing purchased by her. She said that this is because the mother “steals” the child’s clothing. The paternal grandmother referred to the clothing the child arrived in as “welfare clothes.” She changes the child back into her “welfare clothes” when she goes back to the mother.

v. Messaging to the Child

[206] There is a pattern of relentless negative messaging to the child about the mother that appears to be wholly unrecognized by the paternal grandmother and father. These messages are inherent in behaviour such as:

a. The repeated inspections and clothing changes referred to above;

b. Repeated statements in the presence of the child after time with the mother to the effect of “what happened to you over there,” testified to by T. M.;

c. The paternal grandmother’s stating that she refuses to “lie” to the child to tell her she will have a good time at the mother’s home. Instead, she says words to the effect of: “It’s ok, you’ll be back here soon”;

d. Allowing the child to call her “mom”, with no clarification of roles and relationships.

[207] Confronted in cross-examination with the inherent messaging, the paternal grandmother stated simply that she never speaks badly about the mother to the child, “but that things will be very different when she grows up.” I have great difficulty accepting the evidence that the child is not exposed to negative comments about the mother in the paternal grandmother’s home. Given the paternal grandmother’s many negative statements about the mother at trial, and the evidence of society workers about the paternal grandmother’s statements to them about the mother, I find it more than probable that the child is routinely exposed to negative statements about the mother in the paternal grandmother’s home, in addition to the other negative messaging.

vi. Stalking Behaviours

[208] The mother alleged that she is followed, harassed, and stalked by the paternal family and has been since 2019. She stated that they have interfered with her employers and landlords, and that they tracked down her friends to obtain information about her. The apparent purpose seems to have been to catch the mother in some nefarious act or gather evidence against her that would suggest that she is a bad mother. The paternal grandmother flatly denied this. This behaviour is relevant to the issue of emotional harm because it shows the extent to which the paternal grandmother distrusts the mother, and her steadfast belief that the mother must be monitored, because she is dangerous to the child.

[209] On the paternal grandmother’s own evidence at trial and her statements to workers, as well as on the evidence of the father and T. M., I have no difficulty concluding that the paternal family has engaged in surveiling the mother in various ways including: following her; contacting her friends, employers, and landlords; and monitoring her social media. This has greatly increased conflict. Examples from the father’s and paternal grandmother’s own evidence and statements include:

a. The father testified that he observed when the mother was evicted and then the whole family attended while the eviction was taking place. I have difficulty with his evidence that he just happened to be exercising in that area. I accept the mother’s evidence that this turned the eviction into a “circus” in front of the child.

b. The paternal grandmother testified that when the mother was evicted, she attended at the mother’s home and she saw “the man from the poker parties.” She would only know who that was if she had been following the mother to or had attended at the events she catered involving poker.

c. The paternal grandmother testified that the mother received a ticket related to a car accident and that she “saw the ticket.” Ms. Carmazan said that the family claimed to have a photo of it. This was not given to the paternal grandmother by the mother.

d. The paternal grandmother testified that she followed the “sketchy looking” drivers a couple of times to the mother’s home (as an aside, it is unclear why she was using volunteer society drivers when she could have done pick ups and drop offs herself).

e. The paternal grandmother testified that she went to the restaurant where the child bumped her head, to speak with staff and obtain a video. She also seemed to know what restaurant the mother was at on at least one other occasion.

f. The father and T. M. testified that part of every pick-up and drop off is videotaped by them. This is without the mother’s consent.

g. The mother regularly advised the society when she felt that she was being followed or stalked. Ms. Bakai’s evidence was that the paternal grandmother acknowledged a number of those incidents to her.

h. The paternal grandmother told Ms. Carmazan that on one occasion she saw a taxi parked in the mother’s driveway and then followed it to Barton Street, making a video. In her evidence the paternal grandmother acknowledged showing the worker a video of the mother getting in a taxi (but not going to Barton Street). Either way, the paternal grandmother was watching the mother and videotaping her.

i. The paternal grandmother presented detailed information to worker Ms. Buckton about the mother’s trip to St. Maarten, including who supposedly watched the child while she was gone. Ms. Buckton testified that she “very regularly” got calls from the paternal family with allegations arising from their observations of the mother. Ms. Buckton agreed with Mr. Garcea in cross-examination that the paternal family had a “high success rate regarding telling you things” about the mother, such as when she had moved from one residence to another.

j. The paternal grandmother acknowledged in evidence that she had hired a private detective in relation to the mother. She admitted to Ms. Carmazan that she had hired more than one. (To the worker’s knowledge, none had ever reported a child protection concern to the society.)

[210] The mother’s evidence, which I accept, is that she was repeatedly followed, that landlords and employers were contacted by the paternal family, and that at times the paternal grandmother would sit in her vehicle outside the mother’s home. The mother testified, and I accept, that between January and April 2022, she believed that the paternal grandmother had followed her about twenty times.

[211] Ms. Bakai testified that she received a call from an employee of a property management company managing the home in which the mother was living in June 2021, alleging they had information that the mother was selling drugs from the home. Ms. Bakai testified that it would be very unusual for a person to make such a call to the direct phone number of a kinship worker; rather, such calls go to the main society number and are then screened. While statements allegedly made by the property management employee would be hearsay if tendered for their truth, the fact that Ms. Bakai received the call alleging the same concerns as the paternal grandmother is not.

[212] Society worker Ms. Carmazan agreed that it appeared that the mother was being followed and watched. She agreed with the mother in cross-examination that she was getting more “information” from the paternal family than elsewhere. She stated her observation that the family was watching the mother, her family, and her friends.

[213] The paternal grandmother’s counsel stated in submissions that the paternal family seemed to know about the mother’s moves when she changed residences, they were “attentive to” her whereabouts and plans, and that they knew, for example, about how many bedrooms and beds each residence had. When the court characterized this as surveillance, counsel stated that it was simply “vigilance.”

vii. The Paternal Grandmother Indulges the Child

[214] While being critical of the clothing provided by the mother and the mother’s housing circumstances, the paternal grandmother’s admitted approach is to indulge the child. She stated that she loves buying clothes for the child (“I buy her the most beautiful things”), that the child has so many toys she doesn’t have time to play with, and that the child has a “princess bed.”

[215] Again, no child support is paid that might assist in evening out, even to a limited extent, the standard of living. Instead of helping and being supportive, the paternal grandmother and father are instead critical of the mother’s lower material standard of living.

viii. Conflict in which the Mother has Participated

[216] On the evidence, there has been conflict between the mother and the paternal family in which the mother has participated.

[217] For example, the mother has alleged that the father used cocaine in the past and dealt drugs; she alleged that the father had a person living in his basement with mental health issues and a criminal record; she raised concerns about the father’s brother who she says may have drug and criminal issues; and she alleged that the father had abused her physically in the past. The mother also stated her belief that the paternal family poisoned her dog. The mother also made ill-considered posts on social media which the father believes may have impacted his employment. At a minimum, this contributed to the high levels of conflict.

[218] Having said that, the mother’s approach to the paternal family currently is very different than that of the paternal family. She testified throughout the trial, and I accept, that she believes the father has much to offer his daughter and that she would do her part to involve him in decisions for the child. In her closing submissions, she stated that she wants to be able to ask the paternal grandmother’s advice on issues related to the child, and that she knows the child loves the paternal family. She was thoughtful when asked about what a schedule could look like, focused on the child, and on an approach in which “everyone puts aside their hatred” for the child’s benefit. She was able to see and articulate the important role of all the child’s family in her life. I found the mother compelling and credible, and able to put the child’s emotional well-being at the forefront.

ix. Evidence Regarding the Child’s Reactions

[219] The evidence is that the child is a happy, confident, social child with an infectious laugh and personality. She is on track developmentally. The credible evidence is that she is well-bonded with her mother and with the paternal grandmother. Workers have observed that the child is playful, curious, explores her world, and seeks comfort from the adults who love her.

[220] As seen above, where there is “alienating” behaviour, or behaviour intended to estrange a child from a parent, moderate effects are more likely to be visible with children from age 8 or 9, although sometimes earlier. This child is only 4. It may be early to observe consequences of the paternal family’s behaviour or of the conflict.

[221] Having said that, if the paternal grandmother’s or the father’s evidence is true regarding difficulties with the child’s transitions, this could suggest that manifestations of their concerning behaviours are starting to appear. The implication of the father and paternal grandmother’s evidence seemed to be that these behaviours show that the child does not love the mother. In the context of the other evidence about the bond between the mother and the child, it is more probable that if the behaviours are in fact starting now to occur, it could be a consequence of the extremely negative messaging about the mother to the child.

[222] The credible evidence on this is from Ms. Bakai, who stated that the issue was first raised with her on March 30, 2022, during trial. When recalled, she testified that she was recently shown two videos of the child crying and saying that she did not want to go to her mother’s home. Ms. Bakai also noted the possibility that the child might be showing distress arising from having a babysitter (the paternal grandmother’s sister) during the trial, and the consequent change in routine.

[223] There is not enough evidence about the child’s behaviours, nor is she of an age where that would be expected, to find that “alienation” has taken place. The apparent recent issues with transitions could have numerous causes.

x. Conclusion Regarding Risk of Emotional Harm

[224] In this case, the claim is not that emotional harm has taken place, but that there is a risk of emotional harm within the meaning of section 74(2)(h) of the CYFSA.

[225] I find, on the evidence above, that the risk is amply made out. I reach that conclusion for reasons including the following:

a. There is a real risk that the child will suffer emotional harm arising from the high conflict between the caregivers, including from the paternal family’s behaviours and attitudes towards the mother, which I find are intended to or have the effect of estranging or alienating the child from her.

b. Numerous characteristics of “parent alienating behaviour” are present in the conduct of the paternal grandmother and father. Those include:

i. The paternal grandmother and father show disdain for the mother and denigrate her in multiple contexts to third parties such as police, children’s aid workers, and medical staff. It can be expected that when the child starts school, such behaviour would continue in that context. It is highly unlikely that the child would be shielded from such negativity about the mother.

ii. The paternal grandmother and father portray the mother as dangerous to the child despite the absence of credible evidence.

iii. The paternal grandmother insists that the mother does not love the child, the child does not love the mother, and the child has no need for a relationship with the mother. Neither she, nor the father articulate any positive qualities of the mother or benefit she brings to the child.

iv. By contrast, the paternal grandmother believes that the child cannot be successful without her, her partner, or the father, suggesting that they are her “protectors.”

v. The paternal grandmother routinely “inspects” the child following her time with her mother, changing her out of her “welfare clothing,” sending damaging messages to the child about her mother and how she is cared for.

c. While I do not find that the child has been “alienated,” I find, as did the court in Maharaj v. Winfred-Jacob, 2016 ONSC 7925, 2016 CarswellOnt 19883 at 138 – 145 that the child is at risk of that outcome, and that the process, in terms of paternal conduct, has begun.

d. I recognize that I do not have expert evidence in this case. However, I draw on the extensive caselaw setting out the factors for consideration in reaching these conclusions. As in A.M. v. C.H., 2019 ONCA 764, 2019 CarswellOnt 15391, I am not diagnosing a syndrome or condition but making factual findings about what has happened in this family.

e. I also find that while the mother participated in conflict with the paternal family earlier in the society’s involvement, her current approach to both the paternal grandmother and the father is child focused, respectful, and mature.

[226] Accordingly, I find that the child is at risk of emotional harm under section 74(2)(h).

The “Charge” and “Parent” Issue

[227] The paternal grandmother and father argue that there is no basis for a child protection finding because the child was in the “charge” of the paternal grandmother when the application was brought, and because there were and are no child protection concerns about the paternal grandmother. Accordingly, they say, there should be no finding, and the court should either not make a dispositional order or make a section 102 custody order without a finding having been made, “returning” the child to paternal grandmother.

[228] The argument arises out of the wording of section 74(2)(b) and (h) of the CYFSA. Section 74(2)(b) states that the risk of physical harm must be occasioned by the person “having charge” of the child. Section 74(2)(h) says that the risk of harm must be occasioned by a “parent” or person “having charge” of the child.

[229] The society states that this is a red herring, because in any event, the paternal grandmother is a “parent” under the CYFSA by virtue of having access under an order.

[230] I find that the paternal grandmother did not have charge of the child when the proceeding commenced, which is the relevant time for determining “charge” of the child, whether under section 94, or for or the purpose of a protection finding at trial. This is so for reasons including the following:

a. While the child was physically in the paternal grandmother’s home and had been since January 2018, she was withholding the child. The mother did not acquiesce in that arrangement. She asked the paternal grandmother to babysit for a few days, and when she returned, actively sought the child’s return. “Having charge” cannot be established through a self-help remedy such as withholding a child.

b. The following cases are instructive on this point: Catholic Children’s Aid Society of Toronto v. R.A., 2016 ONCJ 880, 2016 CarswellOnt 21767 per Weagant J.; and Children’s Aid Society of Toronto v. A.(S.)and R.(M.), 2008 ONCJ 348, 2008 CarswellOnt 4715 per Spence J.

c. This case is distinguishable from Children’s Aid Society of London and Middlesex v. D.(S.), 2008 CanLII 49155 (ON SC), 2008 CarswellOnt 5739 per Harper J. In that case, the child was apprehended at birth and no parent had occasion to come within the definition of having “charge.” In this case the child had been in the charge of the mother since her release from the hospital in October 2018 and continued in her charge thereafter.

d. I find that this case is similar in some respects to CAS v. T.S. and M.O.U. and C.S, 2020 ONSC 879, 2020 CarswellOnt 1688 in which Summers J. found that the mother had charge of the child at the time of society intervention where she looked to her family for short term help caring for the child before being briefly incarcerated. The court stated, “I find that the maternal grandmother’s role is more appropriately regarded as physical possession with ‘limited incidents of care.’” See also Children’s Aid Society of Ottawa v S.M., et al., 2020 ONSC 4980, 2020 CarswellOnt 11859 per Shelton J., at 21, 22, and 63.

e. Accordingly, when the society’s application was issued on April 8, 2019, the paternal grandmother did not have charge of the child, notwithstanding that the child was physically in her home.

[231] I find that the paternal grandmother is likely a parent, within the meaning of the CYFSA. Section 74 of the CYFSA includes in the definition of “parent”, “[a]n individual who, under a written agreement or court order, is required to provide for the child, has custody of the child or has a right of access to the child.” On that basis, the society argued that whether the paternal grandmother had charge of the child, she is a parent, such that a protection finding could be made under section 74(2)(h).

[232] The general rule is that the determination of who is a parent under the CYFSA is made at the time proceedings are initiated, not based on changed or current circumstances. The definition of “parent” is not to be read retroactively but as though it spoke at the time of initiation of proceedings. See Children’s Aid Society of Hamilton Wentworth v. D.(E.), 1999 CarswellOnt 5056 at 7. See also the recent decision of Finlayson J., Durham Children’s Aid Society v. J.S., 2022 ONSC 2535, 2022 CarswellOnt 5635, in which he thoroughly explained the multiple rationales for why the appropriate date to determine parent status is the date of initiation of proceedings. I adopt his extensive reasons on that issue and wholly concur with his analysis.

[233] The principle makes good sense in the context of the child protection framework, which is concerned with circumscribing state intervention in families while protecting children, and not with unduly expanding who has “rights” in relation to a child.

[234] While distinguished on the facts, this principle was confirmed by the Ontario Divisional Court in Kawartha-Haliburton Children’s Aid Society v. S.(B.), 2011 ONSC 4549, 2011 CarswellOnt 9702 at 15. However, the Divisional Court found in that case that where a society had brought an amended application, before which the proposed parent has been granted an order for custody or access, that person was a parent within the meaning of the Act. That is analogous to the present circumstance where the paternal grandmother was not a parent at the commencement of proceedings, but when the society brought its amended application in October 2019, the child was in her care under the temporary order of LaFrenière J. dated April 10, 2019.

[235] Following the Divisional Court analysis, although the paternal grandmother was not a parent when proceedings were commenced in April 2019, she was a parent when the amended application was brought.

[236] Accordingly:

a. The mother had charge of the child at the commencement of proceedings.

b. The paternal grandmother was a “parent” when the amended application was brought in October 2019, by virtue of the temporary order of LaFrenière J.

c. The father is of course a parent under the CYFSA and no party argued otherwise.

[237] I have rejected the argument of the father and paternal grandmother on this issue and the court certainly has jurisdiction to make a dispositional order in this case.

[238] If I am wrong and it could be said that the paternal grandmother had charge of the child at the time of the intervention, I find that both the grandmother and mother had charge at that time. See Children’s Aid Society of Brant v. J.R., 2022 ONCJ 166, 2022 CarswellOnt 4913 at 51 - 54; Catholic Children’s Aid Society of Toronto v. W.I., 2014 ONCJ 62, 2014 CarswellOnt 1458 at 40 - 44; and Children’s Aid Society of London and Middlesex v. D.(S.), 2008 CanLII 49155 (ON SC), 2008 CarswellOnt 5739, cited above, at para. 32.

Conclusion Regarding Protection Finding

[239] Based on the forgoing, I find that:

a. the child was not and is not at risk of physical harm under section 74(2)(b) of the CFYSA; and

b. the child is at risk of emotional harm under section 74(2)(h) of the CYFSA.

D. DISPOSITION

Positions

[240] While the society initially sought a four-month supervision order with no preference with respect to the specific parenting arrangement, after 29 days of trial, the society supported the mother’s claim for a custody order, with limited access to the father and paternal grandmother.

[241] The mother sought sole custody with a reduction of the paternal grandmother and father’s time with the child. Although partway through trial she stated that she wished to seek a supervision order, she withdrew that statement, reiterating her preference for a custody order. Her stated concern in briefly considering a supervision order was what she said was need for ongoing support of the society and protection from the paternal family.

[242] The paternal grandmother and father both sought “return” to their care under a section 102 custody order, with time to be organized between them. The father stated that he wished to have sole decision-making responsibility and the paternal grandmother indicated that she would be fine with that. They sought minimal parenting time to the mother. Both indicated that the child could be “placed” with either or both, and they would organize their time between them.

The Law

[243] Once a protection finding has been made, the first step for the court is to satisfy itself whether intervention through a court order is necessary to protect the child. If no court order is necessary, the child is returned to the person who had charge of the child immediately before the removal, in accordance with section 101(8).

[244] In determining whether a court order is necessary to protect the child, the court may consider protection concerns other than those that resulted in the child initially coming into care. See Children’s Aid Society of Toronto v S.A.P., 2019 ONSC 3482, 2019 CarswellOnt 9259, in which Shore J. stated at para. 28: “The need for continued protection may arise from the existence or absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time.” (Emphasis in original.)

[245] Sections 101 and 102 of the CYFSA set out the orders available to the court where a finding in need of protection has been made and where the court is satisfied that intervention through a court order is necessary to protect the child in the future.

Supervision Orders under Section 101

[246] Section 101(1) provides the option of a supervision order for a period between three and twelve months. In determining whether a supervision order may be appropriate, the court must consider factors including a parent’s ability to cooperate, a parent’s reliability, and likely compliance with the Order. See: Catholic Children’s Aid Society of Toronto v. L.R., 2020 ONCJ 22, 2020 CarswellOnt 441 at 620. Section 101(2) provides that the court must inquire as to what efforts were made by the society to assist the child before the intervention.

[247] Section 101(3) states that the court shall not make an order removing a child from the care of the person who had charge immediately before the intervention, unless it is satisfied that less disruptive alternatives would be inadequate to protect the child.

Custody Orders under Section 102

[248] Section 102 provides the option of a custody order which is deemed to be a custody order under section 28 of the CLRA.

[249] While counsel for the father and paternal grandmother submitted, providing no caselaw on the issue, that such an order could be made without a protection finding, that is not the case. See Family and Children’s Services of Frontenac, Lennox, and Addington v. B.(B.), 2013 ONSC 2210, 2013 CarswellOnt 5160. A finding is required for an order under section 102 and has in any event been made.

[250] When making a custody order, the court may order any of the incidents of custody available under the Children’s Law Reform Act. See Windsor Essex Children’s Aid Society v. E.W., 2014 ONCJ 562, 2014 CarswellOnt 15037. Custody orders, and the specification of access, provide permanency.

[251] Potential incidents of custody as listed under the CLRA, include, but are not limited to:

a. Decision-making responsibility;

b. Time-sharing – regular and holiday schedules;

c. Contact with persons other than a parent;

d. Communication between parties;

e. Prohibitions on changing a child’s residence;

f. Any other order the court considers necessary.

[252] When making an order under section 102, the court may, under section 102(3) also make a restraining order under section 35 of the CLRA, without the need for a separate application.

[253] A custody order in favour of the parent who had charge of the child at the time of the society’s intervention may be appropriate where:

a. a protection finding has been made;

b. any protection issues related to the parent to whom the child is to be placed have been adequately addressed such that the child can be safely returned;

c. there is nevertheless a need for an order to protect the child; but,

d. the ongoing supervision of the society is no longer required, nor would it be beneficial.

Best Interests

[254] When making an order under section 101 or 102, the court must do so in the child’s best interests, as set out in section 74(3) of the CYFSA.

[255] In Barendregt v. Grebliunas, 2022 SCC 22, 2022 CarswellBC 1292, Supreme Court of Canada recently noted the heavy responsibility inherent in any best interests’ determination. A best interests’ analysis must take into account a “broad range of considerations” and is “highly contextual.” An important principle is that a child is to have as much time with each parent as is in her best interests. A corollary to that rule is sometimes referred to as the “friendly parent rule,” which instructs courts to consider the willingness of a parent to foster and support the child’s relationship with the other parent. See para. 133.

[256] Under the CYFSA, a number of factors which assist in determining a child’s best interests are set out. The court must consider children’s views and preferences unless they cannot be ascertained. The court must also consider any other relevant factor, including (but not limited to) the following:

a. the child’s physical, mental, and emotional needs, and the appropriate care or treatment to meet those needs;

b. the child’s physical, mental, and emotional development;

c. the importance, for the child’s development, of a positive relationship with a parent and a secure place as a member of a family;

d. the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family, or member of the child’s community;

e. the importance of continuity of care and the possible effect on the child of the disruption of that continuity;

f. the risk that the child may suffer harm by being removed from, kept away from, returned to, or allowed to remain in the care of a parent; and

g. the degree of risk, if any, that justified the finding that the child is in need of protection.

[257] In considering best interests, the court must consider not only the impacts on a child of short-term disruptions, but a child’s long-term best interests. A.M. v. C.H., 2019 ONCA 764, 2019 CarswellOnt 15391 at 23 and 39, affirming Malhotra v. Henhoeffer, 2018 ONSC 6472, 2018 CarswellOnt 1860. See also A.(A.) v. A.(S.N.), 2007 BCCA 363, 2007 CarswellBC 1591 at 26-28 in which the British Columbia Court of Appeal held that it is an error not to give paramountcy to a child’s long-term best interests.

[258] The enumeration of factors relevant to best interests as set out in section 74(3) of the CYFSA is not exhaustive, as seen in the wording that the court may consider “any other circumstance” that the court considers relevant. As noted by the father and paternal grandmother’s lawyers in their joint written submission, the best interests tests under the CYFSA, Divorce Act, and Children’s Law Reform Act are similar. In a case such as this, particularly where the court is considering a custody order, several additional “circumstances,” codified in section 24 of the Children’s Law Reform Act bear consideration in this case. These include:

a. Section 24(3)(c): each parent’s willingness to support the development and maintenance of a relationship with the other parent;

b. Section 24(3)(h): the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; and

c. Section 24(3)(i), the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child.

d. Section 24(6) is also instructive and provides that on the allocation of parenting time, the court shall give effect to the principle that the child should have as much time with each parent as is in her best interests.

[259] Conduct that would estrange a child from a parent reflects an inability to adequately parent. Malhoetra v. Henhoeffer, cited above at 156, 162 – 164, applying the Divorce Act, section 16(9) and considering CLRA section 24(2)(d).

Risk of Emotional Harm based on Alienating Behaviors and Link to Disposition

[260] A finding of risk of emotional harm based on high conflict between caregivers and behaviours that may have an alienating effect on a child requires careful consideration in the determination of the most appropriate parenting arrangements for a child.

[261] Where alienation has taken place, as understood in the caselaw, courts have considered several options discussed by Dr. Fidler and other experts. These options have been considered in the absence of expert evidence in a number of cases and include:

a. Do nothing and leave the child with the alienating parent;

b. Implement a custody reversal by placing the child with the rejected parent;

c. Leave the child with the favoured parent and provide therapy; or

d. Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent.

M.(L.) v. B.(J.), 2016 NBBR 93, 2016 NBQB 93, 2016 CarswellNB 339 at 140.

Malhotra v. Henhoeffer, cited above, 110, 178.

Children’s Aid Society of Waterloo (Regional Municipality) v L.(K.A.), 2010 ONCJ 80, 2010 CarswellOnt 7373 at 114 – 121.

[262] The cases cited above generally considered remedies in the context of older children who are showing the effects of the alienation, often cases in which children were rejecting parents.

[263] That is not yet the case here. The child is only four years old, and while the paternal grandmother and father testified to issues at transitions of the child between homes, no finding was made that the child has been “successfully” estranged or alienated from her mother.

[264] The concern, in this case, is rather with risk of emotional harm based on high conflict and the pervasive and unrelenting behaviours of the paternal grandmother and the father, documented above. The challenge is what arrangements will prevent the otherwise foreseeable emotional harms from unfolding. The longer the toxic behaviours continue unabated, the greater the risk to the child and the harder it will be to resolve or address the issue as the child ages. See M.(L.) v B.(J.), as cited above, at 142 citing C.(W.) v. E.(C.), at 143. Hazelton v. Forchuk, 2017 ONSC 2282, 2017 CarswellOnt 5232 in which Gray J. stated: “[W]here parental alienation exists, it is manifestly important that steps be taken immediately.” See paras. 73-75.

Analysis

[265] As seen above, this court has found that the child is currently in need of protection due to risk of emotional harm.

A Dispositional Order is required to Protect the Child

[266] While it is an option, even where a finding has been made, to simply return a child to the parent who had charge of the child when the application was brought, with no order as to disposition, that is manifestly not appropriate here. Given the nature of the findings, without an order, conflict will continue, risking harm to the child. There is currently no underlying parenting order in place, and without an order the child would be in legal limbo. This child needs, for her protection, a legal framework to govern the relations between the mother, and the paternal grandmother and father.

Custody versus a Supervision Order

[267] The proposals before the court are currently that the child be in the custody of the mother or the paternal grandmother and father, the society having adopted the mother’s position at the conclusion of the trial.

[268] The mother provides good and loving care to the child. She does not abuse substances. The child is developmentally on track. The mother has never been found to abuse, allow others to abuse, or to neglect the child. While her housing has been somewhat unstable she has not been homeless, and she has been able to provide adequately for the child. In short, she is a good parent who needs to be permitted to “get on with it” -- to parent, without further interference, surveillance, or harassment.

[269] I have considered whether a supervision order might be necessary or beneficial to assist in monitoring the behaviour of the father and the paternal grandmother to the extent that it impacts the child. In my view, that is neither necessary nor beneficial. The society has been involved for a lengthy period, and with all due respect to their significant efforts, has been unable to curb that behaviour. A supervision order would simply continue to unduly intrude on the life of the mother, with no foreseeable benefit to ameliorating the situation. In any event, it is an option for the mother to request assistance of the society on a voluntary basis if she wishes.

Who should have Custody

[270] I have found that the mother had charge of the child at the commencement of proceedings. No order should be made removing the child from her unless less disruptive alternatives are inadequate. This child can safely be returned to the care and custody of her mother.

[271] In my consideration of custody, it is clear to me that the only order in the child’s best interests is that she be in the custody of the mother and that she reside primarily with her mother. I reach this conclusion for reasons including the following, applying the principles in Barendregt v. Grebliunas, cited above, as relevant to this case; the best interests factors in CYFSA section 74(3); and having regard to sections of the CLRA set out above. I will not repeat the detailed findings which underpin the protection finding, but they are relevant to the disposition which is set out here. I have considered all subsections of CYFSA section 74(3) even if not specifically referenced here.

a. This child is too young for her views and preferences to be a factor, nor were they put before the court in any credible manner.

b. Both the paternal grandmother and the mother offer suitable physical care for the child. The paternal grandmother has greater resources and can offer material comforts that the mother cannot. In her care the child has a surplus of toys and clothes, access to a pool, a beautiful room, and all material things that she could need or want.

c. The mother is also able to meet the physical needs of the child. There was no evidence of society workers that the child was anything other than appropriately dressed and physically cared for by her. The mother has been able to provide adequate housing and is able to maintain the needs of the child on her income.

d. The mother is better able to meet the child’s mental and emotional needs and development. Her relationship with the child is loving, nurturing, and positive. The child is attached to her and the child goes to her for comfort. The mother sees positive aspects of the father and the paternal grandmother, and is willing to work together with them for the child’s best interests. She puts the child’s needs ahead of her own.

e. The child has a loving relationship with the paternal grandmother and is attached to her. The evidence of Ms. Bakai was that the child seeks out the paternal grandparents for reassurance, validation, and information. The child loves the father. However, neither the father nor the paternal grandmother recognize that the mother brings benefits to the child. I do not believe that they would nurture the child’s relationship with the mother in any way.

[272] In assessing best interests the court must consider the importance of continuity of care of the child and the possible effect of disruption. The court must also consider the risk that a child may suffer harm by being removed from or kept away from a caregiver (sections 74(2)(vii) and (x)). This is relevant because the child has spent 6 days out of every 14 with the paternal grandmother and a reduction of that time may cause disruption to the child. Any change to that arrangement must be undertaken with care. Further, the court must consider the degree of risk that justified the protection finding. I make the following comments:

a. The best interest factors must be considered collectively and are not “ranked.” They must be assessed with a view to a child’s long term best interests.

b. In this case, on these facts, the child’s best interests involve a consideration of the damaging and corrosive effect of having a relationship with a loving and capable parent toxified by paternal family members who are of the view that she brings no benefit to the child.

c. The paternal grandmother’s conviction that the mother is dangerous and unfit is similar to what the court observed in M.(P.R.) v. G.(L.), 2016 MBQB 242, 2016 CarswellMan 551 at 192 - 197. The mother in that case was “obsessed” with the belief that the father abused the child, “even when logic says otherwise,” and could not accept that the child had an affectionate relationship with the father. My observations here are similar. As in CAS v. L.(K.A.), cited above, the paternal grandmother shows contempt for the mother’s caregiving abilities, steadfastly believes the society is biased, and is blind to the child’s psychological needs.

d. In this context, a situation in which the current 6/8 schedule continues, or the paternal grandmother and father have custody of the child, is far from being in the child’s best interests. While I have not found that the child is yet alienated or estranged, I have documented extensive behaviours that are steering the ship in that predictable but also avoidable direction. The ship must be turned around.

e. The paternal grandmother cannot be said to be a “friendly parent” within the meaning set out in Braendregt v. Grebliunas, cited above. There is little if any evidence that if the child were placed with her, she would foster and support the child’s relationship with her mother. In fact, the evidence supports the opposite conclusion.

f. The degree of risk of emotional harm in this case, without changes to the parenting arrangements, is significant.

g. It may be, in the custody order that I make below, that there is some short-term disruption to the arrangements the child has become used to and that this makes her unhappy or unsettled, for a time. However, the child’s long-term best interests require a more significant role of her mother, and a lesser role of the paternal grandmother, unless and until the paternal grandmother (and father) adjust their views and conduct. As Horkins J. found in L.R. v. CAS et al, cited above, the risk of emotional harm is such that the focus must be on long term best interests.

[273] I find, on all the evidence in this case, that the disposition that is in the best interests of the child is for the child to be in the custody of her mother and to be primarily resident with her, under section 102 of the CYFSA. The mother is loving, capable, and will support the child’s positive relationship with her paternal family. The mother shall be entitled to solely make major decisions for the child on the terms set out in the order.

Parenting Time

[274] Under section 104 of the CYFSA, the court may make an order for access, in the child’s best interests, on conditions that it deems to be appropriate.

[275] In considering options regarding parenting time to the father, I am mindful of the caselaw setting out options where a child has been estranged, but also of the fact that we are dealing here with risk, not yet with “successful” alienation. Changes must be made, however, to ensure that the child’s bond with the mother is nurtured, and the opportunities for the paternal grandmother and father to continue their negative messaging with the child, are reduced. This is necessary for the long-term best interests of the child, and her happy, healthy, well-adjusted development.

[276] Based on the evidence at trial, the society seeks an order for limited access to the paternal grandmother and father on alternate Sundays, plus on special occasions. The mother, recognizing the child’s love for the paternal grandmother and father seeks an order that access be weekly, on Sundays, with a mid-week visit.

[277] The paternal grandmother and father did not address what their access should look like if unsuccessful in being granted custody, but I take as a given that they want as much time as possible.

[278] A preliminary issue is to whom the right of access should be assigned. The paternal grandmother and father presented themselves as a package at trial, essentially saying to the court – just make the order, and we will divide our time between us. The mother states that any access order should be made in favour of the father, and that he can involve his mother in his time as he sees fit, in a more traditional grandparent role. For simplicity, the order that I make regarding time is crafted as time-sharing between the father and the mother. The father and paternal grandmother may plan amongst themselves to divide or share that time between them, as they themselves suggested at trial.

[279] In crafting time, I consider all the evidence above with respect to the alienating behaviours, the need to protect the child as much as possible from negative and toxic messaging, and the need to ensure that there is minimal opportunity to continue to attempt to undermine the bond between mother and child. At the same time, I balance that against the mother’s own concern to make sure the child sees the paternal grandmother, and that she spends time with the father as well.

[280] In the result, I accept the mother’s proposed child-focused schedule: namely, that the child spend Sundays and one evening per week in the care of the father (to be shared with the paternal grandmother, if they wish). I find that this proposal has the benefit of ensuring regular contact, yet the quantity of time is sufficiently reduced to buttress the child’s relationship with her mother and reduce the child’s exposure to toxic messaging – implicit and explicit – about her mother. Below, I also set out special occasions that the child is to be in the care of her father.

[281] The mother has testified, and I accept, that she will be open and flexible with respect to extending time. The less negativity is messaged, the more open the mother is likely to be.

[282] I strongly encourage the parties to engage in a form of reconciliation counselling to attempt to bridge the divisions. That is the path to a resumption of the type of shared schedule that has been in place.

Restraining Order

[283] Under section 102(3), as seen, the court may make a restraining order as incident to a custody order, without the need for a separate application. The mother did not plead this relief in her Answer and Plan and Care.

[284] I decline to make a restraining order. However, the parenting order below contains terms regarding communication and contact between the parties and by the parties, which have been crafted to address the findings I have made above regarding surveillance of the mother. Conflict in this case is unlikely to subside until the behaviours documented above cease.

E. CONCLUSION AND ORDER

[285] For the reasons set out above, this court makes the following order:

a. The child, [name and date of birth redacted], who is not a First Nations, Inuk, or Métis child, is in need of protection under section 74(2)(h) of the Child, Youth, and Family Services Act.

b. The child shall be placed in the custody of the mother, under section 102 of the CYFSA.

c. The mother shall be entitled to make major decisions for the child regarding her education, health care, and religion, on the following terms:

i. The mother shall consult the father before making final major decisions for the child, and, if they disagree, she may make the final decision and shall advise the father promptly of that decision.

ii. The mother shall, within 30 days, advise the father as to the names of the medical professionals, dentist, and other professionals involved with the child. If she changes any of those professionals, she shall advise the father promptly.

iii. The mother shall give the father reasonable notice of upcoming medical and dental appointments for the child and he shall be permitted to attend.

iv. The father shall have access to information about the child directly from third parties, including medical staff and educational staff. If the father has difficulty obtaining such information, if requested, the mother shall provide written direction to those professionals to provide information about the child to the father.

v. The mother shall have possession of the child’s documents, including but not limited to her birth certificate, social insurance number, health card, and passport.

d. The father shall have parenting time with the child as follows:

i. Each Sunday from 10:00 a.m. to 5:00 p.m.;

ii. Each Wednesday from 4:00 p.m. to 8:00 p.m.;

iii. Each Father’s Day, from 10:00 a.m. to 5:00 p.m.;

iv. On the child’s birthday, each year, for a minimum of 3 hours;

v. From December 24 at noon to December 25 at noon in odd-numbered years and from December 25 at noon to December 26 at noon in even numbered years;

vi. One week in July or August each year (Sunday 5:00 p.m. to Sunday 5:00 p.m.) with the father to provide notice to the mother of his chosen week by April 30 each year;

vii. Such further and other time as may be agreed between the father and the mother in advance in writing (text or email shall suffice).

e. The following terms shall apply to the father’s time with the child, and to the paternal grandmother if she is present for that time:

i. The father shall not speak negatively about the mother to the child or in the child’s presence or permit any other person to do so;

ii. The father shall not photograph or videotape the child during his time with her for the purpose of “inspecting” her or permit any other person to do so.

f. The paternal grandmother shall not allow the child to refer to her as “mom” or “mommy” or any other term that suggests that she is the child’s mother and she shall correct the child as necessary. If the child refers to her in that manner, she shall remind the child that she is the child’s grandmother, not her mother.

g. All exchanges of the child shall take place at the front door of the mother’s home and shall be organized by the father or his delegate. The father shall arrange for a third party of his choosing to be present for all exchanges. Neither party shall record or videotape the exchanges without the express consent of the other party, nor may they permit another party to do so.

i. If the father will not be attending for pick up or drop off he shall provide notice by text of who will be attending in his stead.

ii. Both parents shall make every effort to be positive on exchanges and to model respectful behaviour for the child.

iii. The parties shall not serve one another with court papers or arrange for the other party to be served during any exchange of the child.

h. The father and the paternal grandmother shall not knowingly contact the mother’s employers, landlords, or friends. They shall not follow her by vehicle or otherwise, nor shall they request, encourage, or direct that others do so. They shall not attend at the mother’s home except for the purpose of the exchange of the child, absent prior permission in writing (text shall suffice) by the mother. They shall not audio or video-record the mother without her express written consent (again, text shall suffice).

i. The mother shall advise the father of any local residential moves in advance in accordance with section 39.1 of Children’s Law Reform Act.

j. If the mother intends to relocate outside Hamilton with the child, she shall comply with the notice provisions set out in section 39.3 of the Children’s Law Reform Act.

k. The parents shall use a parenting app such as OurFamilyWizard or AppClose to communicate about matters related to the child. The mother shall advise the father within 30 days of this decision of her preferred App, and both parties shall install it within 10 days of her providing such notice. If there is a cost, each party shall pay their own fees in relation to the App.

l. The parents shall text or telephone one another in the event of an emergency affecting the child.

m. This order shall be deemed to be an order made pursuant to section 28 of the Children’s Law Reform Act.

n. If a party moves to vary this order, notice must be provided to the Catholic Children’s Aid Society of Hamilton.

o. If a party moves to vary this order, such variation should come before me for determination, if I am available. While I am not seizing myself, I instruct all parties that they shall advise the Hamilton Trial Coordinator of this paragraph of this order and to indicate that the matter should return before me if possible.

A Final Comment

[286] In many respects, this case is heart-breaking.

[287] I do not doubt that the paternal grandmother and the father love the child and want what they believe to be best for her. I know that they will be disappointed in this decision.

[288] However, they have gone vastly astray and have lost sight of several important principles related to the best interests of children:

a. Children need their parents. They need loving, healthy, happy relationships with their parents, and permission to love and be loved by them. Children who are told that a parent is rotten feel half rotten. This affects children’s long-term development and adjustment.

b. Love is an ever-expanding pie in the lives of children. Children can love and adore a parent with no corresponding loss of love of another parent. Children are enriched by having multiple adults who love and guide them.

c. Children notice and absorb when parents treat each other with respect, kindness, and support. It makes them feel safe and nurtured. This also models pro-social behaviour for them.

d. If children’s physical and emotional needs are met, love matters more than material belongings. That a grandparent or parent can offer nicer clothes, more toys, a pool, or a princess bed does not make them a “better” caregiver than one who offers more modest circumstances.

e. The adults in children’s lives should be clear about their roles. A loving grandmother should generally be referred to as a grandmother, not the child’s mother. Children are entitled to all of their family relationships and the roles should not be unduly blurred or confused.

f. While it is open to all parents to question professionals, and indeed prudent to do so, a stance that “all professionals are biased” or “all professionals are against us” is unhelpful, and unrealistic. I encourage the father and paternal grandmother to consider the likelihood that the observations of multiple society workers, physicians, the police, and others involved in this case – none of whom had a stake in the outcome – are valid. Simply refusing to “hear” their conclusions – which were consistent and repeated, will not help move this forward or to a positive place.

g. Children’s belongings belong to the children and should be treated in that way. Belongings should be able to go back and forth between homes. Children should be able to wear clothing purchased by either parent in the home of the other parent. So too with toys, teddy bears, and other precious items. Children should feel free to bring the items that bring them happiness back and forth between the homes in which they live. This gives them comfort.

[289] I have not ordered counselling in this case as the response from counsel was less than enthusiastic when I proposed it. However, if the dynamic is to improve in this case, I strongly recommend that the parties engage the services of a professional who is skilled at repairing relationships, to help this family get back on track. This little girl is only 4. She has many years left where all parties will be involved to some extent in her parenting. She will be a happier, more emotionally secure and well-adjusted child if “her grown-ups” can work together for her benefit.

[290] Further, if the father and paternal grandmother wish to expand their time with the child, they should expect that a court will ask what steps they have taken to change their attitudes and conduct. Counselling would be an excellent first step.

[291] It is beyond the scope of this proceeding to address child support or the Child Tax Benefit (which I understand is being claimed by the paternal grandmother.) I encourage the parties to meet their financial obligations that relate to the child. This can only be in her best interests. I am certain that it will be a consideration on any variation proceeding.

[292] I do take judicial notice that: the monthly table child support amount for one child on an income of $70,000 (the father’s stated income) is $654 per month; and that that the table amount would be payable under section 3 of the Child Support Guidelines, based on the residential schedule I have ordered herein. I am not, however, ordering child support.

[293] I thank counsel and the mother for their oral and written submissions which were helpful to the court.

L. Madsen, J.

DATE: August 31, 2022