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.

COURT FILE NO.: FC-20-18-00 DATE: 20230323

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Durham Children’s Aid Society Applicant Counsel: Lana Pryce

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R.S. Respondent mother Counsel: Roger Rowe

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S.S. Respondent father (On his own behalf, and present by Zoom for some, but not the entire motion)

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M.A. Respondent aunt Counsel: June Mayhew

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R.H. Respondent uncle (On his own behalf, and present in person for some, but not the entire motion)

Also In Attendance: Sandra Grant, counsel for the child, A.S.

HEARD: February 15 and 16, and March 14, 2023 RELEASED: March 23, 2023

REASONS FOR DECISION ON A MOTION

JUSTICE ALEX FINLAYSON

PART I: OVERVIEW

[1] This Protection Application concerns an 8 year-old boy named A. A. has resided with his maternal aunt and uncle, M.A. and R.H., since early 2020. [^1] A.’s older half-sister K. also lives with them.

[2] This case used to concern K. as well, but it resolved finally for K. in April of 2021. Pursuant to the Final Order of Fryer J. dated April 29, 2021, K. resides in the deemed custody of her aunt and uncle. K. will only have access to her mother if she pursues it herself.

[3] A.’s situation is not finalized. A.’s placement with his aunt and uncle is still on a temporary, without prejudice basis, pursuant to the Order of Fryer J. dated April 24, 2020, that she made at the first appearance in this case. For reasons that I will explain, the Court is worried that this placement may destabilize; it hopes that will not be the case.

[4] Although Fryer J. also made a temporary without prejudice access Order for A. and his mother on April 24, 2020, it was later varied on consent. The current access Order is now the temporary consent Order of Leef J. April 30, 2021. It provides for weekly, clinically managed access, between A. and his mother, for a minimum duration of one hour per week.

[5] The therapist that the Society retained to clinically manage the access is named Nicole Perryman. She was ordered to write a report after a certain number of therapy sessions. The Society also retained the discretion to increase the mother’s access, and to decrease the level of supervision under Leef J.’s Order.

[6] Between the time of Leef J.’s Order and this motion, the Society exercised its discretion, to permit an additional, weekly visit during the mid-week. Generally after that, and until October 18, 2022, the mother saw A. on Tuesdays and Wednesdays, from 6:30 to 7:30 PM. There has not been any weekend access between her and A. as of yet.

[7] The mother now brings a motion to vary the temporary Order of Leef J. on an interim basis. The mother wants the supervision lifted. Although she has advanced different schedules and terms in her Notice of Motion, her factum and then during oral argument, the mother basically wants visits to take place in her home in Brampton, on weekends. She is alternatively prepared to participate in community visits in Durham, for a while. The Society, the OCL and the aunt take issue with different aspects of the mother’s requests for expanded access, for various reasons.

[8] An interim access motion of this kind would normally be more straightforward. Often, the lifting of supervision, or expansions of parenting time in child protection cases should happen on consent in case management, as a parent works on the underlying protection issues. Often, the expansion of access would not even require argument. But this motion was not so straightforward.

[9] First, the protection concerns in this case involve significant concerns about physical harm by the mother towards K., and perhaps towards A. also. This history has very much impacted an already difficult family dynamic. The relationship between the aunt, and the mother, is strained. And A. has now been diagnosed with learning and cognitive difficulties by Dr. Daniel Fitzgerald. [^2] He has a high degree of special needs. The mother’s mental health, also diagnosed by Dr. Fitzgerald, poses some challenges. There are risk factors based on the past family violence, and now so in the context of these diagnoses. The risk factors relate to the mother’s ability to handle this child, in an unsupported environment.

[10] Second, this motion took much longer to hear than was originally scheduled. It was initially put into my calendar for one hour. The time required was significantly underestimated. This motion ended up being heard over three days.

[11] The mother wanted to conduct an out of court questioning of Nicole Perryman and Dr. Daniel Fitzgerald. The parties could not agree about who would fund the questioning. In an attempt to streamline this and to avoid a different argument about procedure, I permitted the mother to call Ms. Perryman and Dr. Fitzgerald to give oral evidence on the motion pursuant to rule 14(17) of the Family Law Rules.

[12] There were then more delays when it came time for that to occur, because the mother did not subpoena Ms. Perryman’s notes and records properly. The aunt and the OCL wanted the notes. Ms. Perryman also experienced some illness on the day she eventually testified. She came to Court one hour late. The Court gave the parties considerable latitude in their questioning of the witnesses. There were extensive examinations, by four counsel. In the end, the Court heard oral evidence on February 15 and 16, 2023, but there was not enough time for argument. The Court put the matter over for argument on March 14, 2023.

[13] Third, although access is still in dispute, in broad strokes, and at least since December of 2022 until this motion was argued, all parties seemed to agree upon what the final outcome of this case might look like, on a ‘big-picture’ basis. They all seemed to agree that A. will remain in his current placement with the aunt and uncle, and that A. will have some kind of access with the mother. To be clear, over the course of the three days that I heard this motion, none of the parties took the position that there should be no access between A. and his mother, and no one suggested that A. would be returning to his mother’s care.

[14] But ultimatums were also issued.

[15] The aunt has said she will no longer care for A., if the Court orders access for the mother on weekends. That, she says, will interfere with her family time.

[16] For her part, the mother just stopped attending visits for two months as of October 18, 2022. After some visits resumed on December 27, 2022, the mother did it again as of February 1, 2023. The mother also failed to provide the Court with evidence of her work schedule, that may have enabled me to better deal with the scheduling issues in this case.

[17] Although it does not yet have a solution for this case in the longer term, the Society was the principal party to make a reasonable proposal to solve the conundrums raised on this interim motion. The Society is prepared to invest resources to supervise the mother’s access in the community, to provide therapeutic support, to oversee an expansion of parenting time to semi-supervised parenting time, if it is safe and appropriate, and to facilitate getting the mother from her home or work in Brampton, to Durham, for her visits and therapy.

[18] The Society is also prepared to continue to try to work with the family to move them beyond their impasse. The Society even hosted a settlement meeting between February 16, 2023 and March 14, 2023, after the Court encouraged the parties to have settlement discussions, after hearing the oral testimony on February 15 and 16, 2023.

[19] The Court encouraged the parties to resolve this matter again on March 14, 2023, when the motion itself was argued. Exasperated, Ms. Pryce told the Court that this motion will not settle.

[20] The Society’s efforts are helpful for the short term, but the parties are not being reasonable if they are not thinking longer term. And relying on the Society for transportation and therapy in perpetuity are not long-term solutions. At some point, this protection application will no longer be before the Court.

[21] The Court is very disappointed at some of the attitude of both the mother and the aunt, especially in light of the evidence I heard from Dr. Fitzgerald. As I already expressed during argument of the motion itself, and I repeat it again here, the Court is going to decide this motion based on the record before it. This Court will not decide this motion based on ultimatums and brinksmanship.

[22] The only realistic remedial option before the Court right now, is the one proposed by the Society. That is what the Court intends to order, with some minor modifications.

[23] The Court is also setting next steps in this case. So that it is crystal clear to both the mother and the aunt, the Order being made today is not the final situation respecting access. The mother needs to continue to make efforts to rebuild her relationship with A. The mother needs to understand that as the primary caregiver, the aunt’s needs and schedule will be taken into account. But the aunt needs to accept that if the mother is successful in her efforts, then from the child’s perspective, weekend visits may be considered. And all parties who want a voice and who are participating in the resolution of this case need to come to Court. It is not acceptable to write letters or other documents, and not come to Court.

PART II: PRIOR PROCEEDINGS

[24] I will now provide a more thorough summary of the prior proceedings, for additional context.

[25] According to the initial Protection Application, the protection concerns began in around 2015. Reports had been made to the Peel Children’s Aid Society (where the mother and the children then lived) about K.’s absences from school, and about significant and concerning incidents of physical harm towards K. There were also reported issues about A.’s development following his birth. But the Peel Children’s Aid Society did not bring the matter to Court, and in or around 2017, the mother and the two children left Canada, returning to her country of origin.

[26] By early 2020, the mother and the children were back in Ontario. They were living with the aunt and uncle, in Durham.

[27] In January 2020, the Durham Children’s Aid Society received a report from a school that K. had been abused by the mother for the past 5 years. On January 4, 2020, the police attended at the residence. The mother was asked to leave the residence. According to paragraph 19 of the initial protection application, K. disclosed numerous examples and incidents of physical harm inflicted upon her by the mother.

[28] The Society commenced this proceeding four months later. The first appearance occurred on April 24, 2020. The Society sought findings under sections 74(2)(a)(i) and (ii), 74(b)(i) and (ii), 74(2)(f) and 74(2)(h) of the CYFSA. It proposed to place the children in the care of the aunt and uncle under a supervision order.

[29] On April 24, 2020, Fryer J. made a temporary without prejudice order placing the children in the care of the aunt and uncle. She ordered supervised access on a without prejudice basis, she appointed the Office of the Children’s Lawyer, and she adjourned the matter for a temporary care and custody hearing on June 24, 2020.

[30] The temporary care and custody did not proceed on June 24, 2020. The matter was instead adjourned on consent a number of times for various reasons.

[31] On February 8, 2021, Fryer J. scheduled a summary judgment motion, only respecting K. But it did not proceed either. On February 25, 2021, Leef J. adjourned the summary judgment motion, because of inadequate service upon K.’s father. There were also evidentiary issues with the Society’s summary judgment motion material that Leef J. flagged.

[32] On April 7, 2021, the parties resolved part of the initial protection application, on consent. Based on a Statement of Agreed Facts, the Court found both children to be in need of protection pursuant to section 74(2)(n) of the CYFSA. The Court placed K. with the aunt and uncle under an 8-month supervision order and ordered that the mother’s access to K. would be suspended during the period of supervision, unless K. sought out access to her mother. The final Order is silent as to a disposition, or access for A. The Court set a return date for the Status Review for K., and a date for an access motion for A.

[33] The mother’s access motion did not then proceed, either. Instead, it resolved on consent on April 30, 2021. That is the Order of Leef J. for clinically managed access, that I referred to above.

[34] The Society retained Nicole Perryman to provide therapeutic access. The Society later added a second day to the schedule of the mother’s contact with the child, such that the mother would now have contact with A. on Tuesdays and Wednesdays, sometimes supervised at the Society and sometimes with Ms. Perryman also in attendance. There were a number of adjournments to monitor the visits. On November 9, 2021, the Court memorialized in its Endorsement that this increase to the mother’s access had occurred.

[35] The first appearance of the Status Review concerning K. occurred on January 19, 2022. The Status Review resolved right away by way of another Statement of Agreed Facts, this time for K. to remain with her aunt and uncle pursuant to a section 102 custody order. Once again, the mother’s access to K. remains restricted, and is only to occur if K. wishes to pursue it.

[36] Fryer J. otherwise adjourned the case respecting A. once more to “continue to monitor therapeutic access sessions”. The Endorsement notes that a report had been requested, but not received. The Court also endorsed that it would be helpful if there was a psychological assessment of A., given some of his concerning behaviours.

[37] It was at or around this point that the parties involved Dr. Fitzgerald. In the next Endorsement of March 16, 2022, Scott J. wrote that the parties were also agreeable to including the mother into the assessment, Fryer J.’s endorsement having only referred to the child. Scott J. permitted the Society to file a 14B Motion to obtain an order under section 98 for the assessment. That 14B Motion was then brought, and went before Hughes J. On May 25, 2022, Her Honour appointed Dr. Fitzgerald to do the assessment.

[38] The matter was then adjourned a few times while the assessment was underway.

[39] Dr. Fitzgerald’s Report was filed with the Court on October 3, 2022.

[40] On November 15, 2022, this motion was scheduled into my calendar, to be argued on December 21, 2022. As explained earlier, the motion did not proceed on December 21, 2022. It ended up being heard over three days in February and March, 2023.

PART III: PRELIMINARY ISSUES

A. The Statement of Agreed Facts in this Case and the Court’s Characterization of Risk for the Purposes of this Motion

[41] I am now being called upon to decide a temporary access motion, after the Court found A. to be in need of protection on consent. The Court has to assess risk in its best interests analysis. Earlier, I summarized what the Society said about the protection concerns in the initial protection application. I also summarized what is set out in various Endorsements. But there is no agreement before me as to the factual foundation for the protection finding. Unhelpfully, the Statement of Agreed Facts just states that “there is no agreement reached regarding the various allegations of physical and emotional abuse perpetrated by [the mother] on [the children]”.

[42] At the attendance before me on December 21, 2022, I was told that the parties intended to refer to aspects of past affidavits that had been filed during the prior proceedings for this motion. While I permitted them to draw these to my attention in Confirmation Forms, I cautioned the parties to limit their excerpts, and pointed out that the record before the Court should generally be the current affidavit material being filed for this motion. Having not addressed the facts supporting the protection finding in their Statement of Agreed Facts, the parties are now filing new evidence and pointing to past excerpts in prior affidavits, to establish physical harm or the risk of it.

[43] Over several paragraphs in her affidavit sworn December 13, 2022, the aunt has described what she had been told and what she observed regarding the mother’s physical harm towards K., and in one instance, what A. reported about physical harm. A legal assistant in Ms. Grant’s office filed an affidavit pointing to various documents in which the mother admitted physical discipline or harm. In Ms. Grant’s Confirmation Form dated December 22, 2022, subsequently filed, she refers to excerpts from past affidavits which discuss this, too. The aunt does likewise, in much more detail, in her Confirmation Form dated January 15, 2023.

[44] For the purposes of this motion, there is evidence of an admission from the mother. At ¶5(b) of her affidavit the mother “…[acknowledges and accepts] responsibility for [her] role in the inappropriate discipline [she] used in the past..” Otherwise, there is enough of a current record, of sufficiently credible and trustworthy evidence before me, to find a risk of physical harm and with which to assess best interests. There are also risk factors relating to A.’s diagnoses, discussed below.

[45] For the future, I recommend that the Society and the parties revisit this practice of omitting facts from the Statement of Agreed Facts. This is not the first time that I have observed deficient Statements of Agreed Facts: see for example Durham Children’s Aid Society v. J.S., 2022 ONSC 2535, ¶ 102-106. A Statement of Agreed Facts should have enough information to set out the basis for the protection finding, and the disposition. This is an important document that aids the Court in addressing subsequent proceedings, like this motion and sometimes a Status Review. The Court must have a proper understanding as to the factual basis of the resolution of the prior proceeding, to assess the ongoing issues in the case. The Society and the parties need to keep this in mind, when preparing these documents going forward. The Society should also consider what the impact of agreeing to an “n” finding will be, if it is anticipated that there will be contentious litigation about the underlying risk and protection issues going forward.

B. The Nature of Dr. Fitzgerald’s and Ms. Perryman’s Evidence

[46] The mother wanted to call Dr. Fitzgerald and Ms. Perryman to testify, but there was a dispute about how their evidence would be treated. In my Endorsement of December 21, 2022, I ordered the mother, through counsel, to advise the other lawyers by January 31, 2023, as to how she intended to ask the Court to treat the reports of Dr. Fitzgerald and Ms. Perryman at the return of this motion. I ordered counsel to advise whether he intended to seek to qualify either and if so, in what. I did this to allow the other lawyers to formulate their positions. I also ordered the parties to discuss and see if there would be an agreement as to qualifications.

[47] Leading up to this motion, there was some discussion or correspondence amongst counsel, then in the facta, and then again at the time of argument, as to the nature of Dr. Fitzgerald’s and Ms. Perryman’s evidence.

(1) Dr. Fitzgerald

[48] Dr. Fitzgerald’s curriculum vitae was before the Court when Hughes J. appointed him with the consent of the parties. Counsel for the aunt included it again in her Book of Authorities.

[49] Dr. Fitzgerald is a psychologist. He has been a member of the College of Psychology since 1991. He is also a member of a number of other organizations, related to psychology. He is a member of the Association of Family and Conciliation Courts.

[50] Dr. Fitzgerald’s practice includes the clinical assessment of children, adolescents, adults and families and the assessment of parents, children and families. He conducts both parenting capacity assessments and custody and access assessments. He has been qualified as an expert witness in the field of clinical psychology in criminal and family courts in Ontario. He has given various professional presentations in the field.

[51] In the section 98 Endorsement itself, Dr. Fitzgerald was asked to opine on the child’s attachment to his mother, his sister and to his aunt and uncle. He was asked to opine about what would be required of a caregiver to ensure A.’s safety on a short-term and long-term basis. He was asked to opine about A.’s “current emotional state and what, if any recommendations or strategies would assist A.” given certain statements that the child had made about “wanting to die” and his passive and physically aggressive behaviours. He was asked to opine and make recommendations about the fact that A. was making inconsistent statements about his wishes respecting contact with his mother, when the visits appeared to be “going well”. He was asked to make recommendations regarding services for A. and he was asked for any other recommendations that he might have.

[52] Any previous disagreement about the nature of Dr. Fitzgerald’s evidence resolved on consent, by the first day of the motion. At the outset, counsel for the mother advised that there was no longer an issue as to Dr. Fitzgerald’s qualifications, provided his testimony remained within the scope of the assessment report and the matters for which the Court had appointed him to assess in the section 98 Order. All parties agreed with this approach. They did however say that there may be objections, if Dr. Fitzgerald testified outside the scope of what he was tasked to assess and report on.

[53] The mother’s lawyer’s questioning of Dr. Fitzgerald, and the arguments raised in her factum, focused more on the weight that the Court should place on Dr. Fitzgerald’s evidence. In particular, the mother challenged whether some of Dr. Fitzgerald’s assumptions in the report were flawed and if so, whether that would result in a change to his recommendations. The mother raised questions about whether the report was biased. The mother also questioned Dr. Fitzgerald’s failure to opine on her parenting time.

[54] At ¶143 of Jewish Family and Child Service of Greater Toronto v. E.W, 2016 ONCJ 1, Sherr J. wrote the following about a different assessment by Dr. Fitzgerald and the father’s criticism of it:

Courts should always treat assessments with caution. A psychological assessment is not determinative of a parent’s ability to parent. The assessor does not have the benefit of the full evidentiary record that the judge has. These reports, by their very nature, are predictive. They are just one piece of evidence and what is important for the court is to evaluate how the findings do or do not correspond with the evidence presented. Here, the findings of Dr. Fitzgerald are consistent with the other evidence before the court and help explain the father’s behaviour and challenges.

[55] While I agree with Sherr J.’s comments, I observe that in Jewish Family and Child Service of Greater Toronto v. E.W., the Court was considering how to treat Dr. Fitzgerald’s assessment on a summary judgment motion. Sherr J. made those comments when rejecting the father’s submission, that the Court should employ its mini-powers under rule 16(6.2), and allow the father to cross-examine Dr. Fitzgerald. The father in that case, who was represented throughout, had the opportunity to seek leave to cross-examine Dr. Fitzgerald before the motion, and chose not to pursue it.

[56] By contrast, in this case before me, the mother sought leave to question Dr. Fitzgerald before this motion. The Court afforded her the opportunity to do so in Court, for the reasons set out above. The Court had the benefit of hearing Dr. Fitzgerald’s oral testimony, in addition to reading his reports.

[57] The mother did not undermine Dr. Fitzgerald’s evidence on the grounds set out above. The mother did not specifically undermine any of Dr. Fitzgerald’s findings about the child’s needs, or the mother’s mental health. And Dr. Fitzgerald was not appointed to assess parenting capacity or the mother’s access. Therefore, in this ruling, I rely on and give weight to Dr. Fitzgerald’s evidence, along with the other evidence that I refer to, below.

[58] To be clear, the parties’ agreement at this motion, and the manner in which the Court has treated Dr. Fitzgerald’s evidence on this motion, is not binding on the trial judge. If this matter goes to trial, the parties will still need to have a hearing with the trial judge, if concessions acceptable to the Court respecting Dr. Fitzgerald’s qualifications, are not made.

(2) Ms. Perryman

[59] The mother asked the Court to treat Ms. Perryman as a “participant expert”. The OCL and the aunt took issue with Ms. Perryman being qualified as such. They seemed to suggest that she was retained by the Society for the purposes of litigation, but that she does not qualify as a “litigation expert”. The OCL separately argued that the Court should not qualify anyone as an expert at a motion, citing Harrop v. Harrop, 2010 ONCA 390.

[60] If Ms. Perryman had been retained by the Society as a “litigation expert”, then there may be an argument that she is not qualified, or perhaps that she did not comply with the requirements of the rule respecting litigation experts. For example, she did not sign the acknowledgement of expert’s duty form.

[61] But just because Ms. Perryman was retained to work with the mother and the child, during which she would report back to the Society, the parties and the Court, does not in itself make her a litigation expert. That does not mean, as rule 20.2 defines it, that she was “engaged for the purposes of litigation to provide expert opinion evidence”.

[62] In fact, there is very little evidence before me as to the nature of the retainer between the Society and Ms. Perryman. I was not shown any instructing letters, for example. Ms. Perryman said she was retained by a worker from the Society, not legal counsel.

[63] According to Ms. Perryman’s report dated January 31, 2022, the mother and the child were referred to receive “psychotherapy and therapeutic access intervention as [the mother] began to reconnect and increase her parenting time with [A.]” This is consistent with the consent Order of April 30, 2021, which talks about “clinically managed access”.

[64] In regard to the reporting function in the Order of April 30, 2021, that does not make the report written a “litigation expert report”. Rather, the Order just clarified the parties’ agreement, that the clinically managed access supervisor (Ms. Perryman) would have a reporting function respecting “the strengths, any concerns during the visits, and any further recommendations”.

[65] Ms. Perryman is a social worker and a therapist. She has a M.S.W. degree and a M.A. in Counselling Psychology. She has clinical training and employment experience in counselling and psychotherapy. She has former work experience as a children’s service worker with the Children’s Aid Society. She has also undertaken investigations and prepared reports for the Office of the Children’s Lawyer pursuant to section 112 of the Courts of Justice Act, and she has undertaken various other kinds of assessments.

[66] In my view, her therapy evidence can be that of a “participant expert”: see rule 20.2(1); see Westerhof v. Gee Estate, 2015 ONCA 206; see also Girao v. Cunningham, 2020 ONCA 260. She was not retained to provide expert opinion evidence for the purposes of litigation, but she is able to provides expert opinion evidence “based on the exercise of her skill, knowledge training or experiencing while observing or participating in the events in issue”. She is able to give evidence regarding her observations and clinical impressions of the mother and the child during her interactions with them: see D.J. v. S.F., 2017 ONCJ 879, ¶278-279.

[67] But I also observe that most of Ms. Perryman’s evidence that I rely upon for the purposes of this motion, are merely her factual observations. This is not so different from the kind of evidence that a Society social worker might offer up to the Court.

[68] In regard to the OCL’s reference to Harrop v. Harrop, that is a short, four paragraph endorsement of the Ontario Court of Appeal in which the Court held that a motions judge should usually not be ruling on the admissibility of expert evidence at trial. But that is not what is happening here. I have been asked to determine the nature of some of the evidence before the Court, for the purposes of this motion.

[69] Moreover, new rule 20.2(15) now makes provision for the Court to receive expert opinion evidence on a temporary motion or a summary judgment motion, although the rule provides no guidance as to how a voir dire as to qualifications is to occur, or the use to which expert opinion may be put at a motion stage, versus at a trial.

[70] In this case, the Court embarked upon a blended voir dire about Ms. Perryman. The process was agreed to by counsel. The Court heard Ms. Perryman’s evidence, followed by arguments about how Ms. Perryman’s evidence should be treated. I have now ruled on that issue. And again, my ruling is not binding on the trial judge, if this matter proceeds to trial.

PART IV: APPLICABLE LEGAL PRINCIPLES RESPECTING THE ACCESS MOTION

[71] The starting point to the analysis about the substantive issues, is to set out the current legal landscape in place as a result of the Orders already made in this case.

[72] Again, A. is in the temporary care and custody of the aunt and uncle by virtue of the Order of Fryer J. dated April 24, 2020. Although it is still a without prejudice Order, that Order was nevertheless made under section 94(2)(c) of the CYFSA.

[73] Pursuant to section 94(8), an order under section 94(2)(c) may contain access terms and conditions. And there were access terms put in place by Fryer J. initially, also on a without prejudice basis. They were later changed on consent on April 30, 2021, when Leef J. made the temporary Order.

[74] Therefore, pursuant to section 94(9), the Court may now vary or terminate the order made under section 94(2)(c) respecting access. In addition, section 104 of the CYFSA deals with access specifically. It empowers the Court to make, vary or terminate an access order “in the child’s best interests”. The reference to “in the child’s best interests” in section 104 directs the Court to apply the statutory best interests’ test in section 74(3), if the mother is able to overcome the variation threshold.

[75] There are a number of well-known principles that apply when the Court is called upon to consider whether to vary an access order on an interim basis pending a trial in a child protection case.: see the decision of Sherr J. in Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784.

[76] First, the mother as the moving party seeking to change access bears the onus of establishing a sufficient change in circumstances has occurred. But as Sherr J. wrote, the threshold is flexible. The threshold is not as onerous as the material change test that applies in domestic cases, or even that which applies when there is a request to change a placement on a temporary basis in child protection case. Rather, there must be a sufficient change in circumstances since the making of last order. What will be sufficient depends on the circumstances of the case: see also my decision in Children’s Aid Society of Toronto v. S.C., 2017 ONCJ 599.

[77] In Catholic Children’s Aid Society of Toronto v. R.M., Sherr J. also held that the Court should then conduct a contextual analysis when considering whether to change access and if so, what terms and conditions are appropriate. The Court should consider the extent of the variation sought and whether it is proportional to the changed circumstances, whether the passage of time has yielded a fuller picture to the Court about the child, the parent or the family or a community member, and whether the changed circumstances reduce or increase the risk of harm to the child. The Court must also keep in mind the objectives in the CYFSA in section 1. The Court should apply the best interest factors in section 74(3) of the CYFSA, too.

PART V: ANALYSIS

A. There Have Been Sufficient Changes in Circumstances For the Court to Make A New Access Order

[78] I agree that there have been sufficient changes in circumstances to change access, although not all of the changes have been positive ones.

[79] I find that the following, sufficient changes, have occurred:

(a) The Court and the parties now have the benefit of Dr. Fitzgerald’s report and oral evidence, as well as Ms. Perryman’s report and evidence. The passage of time, coupled with steps taken in the litigation, have yielded a fuller picture; (b) This means that the Court and the parties not only now know what the child’s needs are, but the parties also have roadmaps in these reports for moving forward to address those needs; (c) The mother has taken some steps to work with a therapist. As I will explain though, she has not completed therapy; (d) Some of the mother’s visits have gone well; (e) Some of the mother’s visits have not gone well; (f) The mother has not consistently attended visits; (g) The child has difficulty with transitions; (h) The mother has changed her position, and is no longer seeking the child’s return to her care. There is a new final outcome that seems to be proposed by all, within which the question of access can be considered; and (i) But the aunt has taken a very rigid position respecting potential weekend visits, and as such the child’s placement may be in jeopardy.

[80] The mother argued that there have been some other changes in circumstances, which I do not accept. I do not find that just because the mother has had visits, for some time in the “fishbowl” setting of the Society’s office (these are the mother’s words, not mine) that that amounts to a change in circumstances, in itself. For example, there was no evidence before the Court, other than the mother’s say-so, that A. has anxiety as a result of having visits at the Society’s office. Dr. Fitzgerald did not observe A. to be anxious at the Society’s offices. Rather, he testified that A. knows the staff and the environment, the set up at the Society’s office and the play area outside. He testified that A. seemed comfortable at the Society’s offices.

[81] Likewise, I also do not find that the fact the mother has to travel from Brampton to Oshawa to be a change in circumstances. There is nothing new here. The Society continues to fund the mother’s travel at this point. Drivers pick her up and take her home.

[82] While I am sympathetic to the fact that the mother has to work, and that limits when she can have visits, she is hard pressed to rely on the combination of the distance and her work obligations, when she failed to put before the Court complete evidence about her work schedule, to enable me to fully consider these logistics.

[83] And just because there have been changes in circumstances does not mean that the outcome sought by the mother flows automatically, especially given the negative nature of some of the changes. As the aunt points out in at paragraph 71 of her factum, the mother is asking for sizeable changes to the status quo in place in not ideal circumstances.

B. The Child’s Best Interests

[84] I do not intend to specifically refer to each of the subparagraphs in section 74(3), or to deal with them in the order that they appear in the legislation. I will focus on the child’s needs, and on the parties’ abilities to respond to and to be sensitive to those needs, when considering what access Order to make. I consider the risk to the child, as required by sections 74(3)(c)(x) and (xi). I will address the child’s views and wishes as well.

C. Dr. Fitzgerald’s Evidence About the Child’s Needs

[85] The assessment of the child’s needs, and appropriate care or treatment for those needs, is relevant under a number of subsections in section 74(3), including but not limited to (c)(i) and (ii).

[86] Dr. Fitzgerald actually wrote two reports, one for court and a more limited report that could be provided to A.’s school and other service providers.

[87] Dr. Fitzgerald performed various testing on the mother and the child. He also spent several hours interviewing the mother, and he observed her interactions with A.

[88] Dr. Fitzgerald diagnosed the child with a mild intellectual disability, a learning disorder, attention deficit hyperactivity disorder, combined presentation, oppositional defiant disorder. He noted that the child will require intensive support in the years ahead, in order to develop his reasoning, communication and social skills. He opined that school will be a challenge for A., given his cognitive limitations and weak communication skills.

[89] Dr. Fitzgerald observed that the child has a “significant impairment in the ability to independently regulate his emotions and his behaviour”. He is dependent on others to manage situations at home and at school.

[90] Dr. Fitzgerald recommended that the child receive a speech and language assessment, and that he should be formally identified at school as a student with a mild intellectual disability with coexisting social-emotional difficulties so that his teachers and school administrators can develop and Individual Educational Plan.

[91] Dr. Fitzgerald also recommended that A. should receive treatment for ADHD. He recommended consulting with A.’s pediatrician to determine whether there are suitable medical options to enable A. to have greater capacity for self-control and focus.

[92] Dr. Fitzgerald observed that A. is responding well to the behaviour management supports that his aunt and uncle have in place for him. He wrote, and testified, that close collaboration between home and school will be important.

D. The Plans to Meet the Child’s Needs and their Impact on Access

[93] On the one hand, (subject perhaps to the recent position taken by the aunt and uncle about A.’s placement), the Court does not need to engage in an analysis of competing plans of care, to determine who is best able to meet the child’s needs, given the mother’s new position that A. should remain with the aunt and uncle. But an analysis of the plans is still relevant when it comes to access, because the child’s relationship with his mother is a specific best interests’ factor under section 74(3)(c)(vi). The child’s relationship with his mother is a part of the competing plans. Figuring out what the aunt’s and the mother’s relationships with each other will look like in the future is essential for crafting a plan that will work. Any access ordered will most likely impact other aspects of the child’s needs.

[94] Therefore, I find there is no question that the aunt and the uncle are the persons who have taken the lead in meeting this child’s needs. The aunt says that E. an IEP. She says he is in a small class with educational assistants. He does not go out for recess until a staff member is outside to supervise him. He attends a day care before and after school.

[95] The aunt says she works closely with school staff. Either she or her husband help A. complete his homework at night.

[96] The aunt says that she has a family physician, for A. Apparently after Dr. Fitzgerald testified, there was some consultation with a doctor about medication. The Court needs more information about that.

[97] The aunt also says that she and her husband treat A. with love, firmness and structure, not anger and punishment. Consequently, she says he responds with love and respect.

[98] Although the mother is no longer seeking to have A. return to her care, she is still proposing that she “co-parent” the child, and that she have “structured parenting time”. The mother says she has already got involved in some aspects of A.’s care, like providing her consent for an IEP at school. She wants to continue to be part of a support team.

[99] But the aunt says that a co-parenting situation with the mother can never work. She will not consent to it.

[100] I tend to agree that unless something is done to mend the relationship between the mother and the aunt, it is doubtful that a co-parenting regime can work given the level of animosity between them. It is also likely that if this relationship between the mother and the aunt does not improve, any access regime will be fraught with difficulty, especially after this case ends.

[101] While “co-parenting” does not necessarily need to rise to the level of joint decision-making, I do find the aunt’s pronouncement about things never working to be problematic. Dr. Fitzgerald wrote that the mother needs to gain a deeper understanding of A.’s needs and challenges. For that to occur, Dr. Fitzgerald says information needs to be released to her, and she needs to participate in specialized training to help manage children with learning and behavioural issues and ADHD. That will require some coordination between the aunt and the mother. It is in everyone’s interests if the mother implements similar strategies during the time that she has with A.

[102] By the same token, the mother lacks insight, if she thinks in this current environment, that she and the aunt can make joint decisions about A.

[103] The mother has taken some parenting courses. While during his in-court testimony, Dr. Fitzgerald testified that general parenting classes can be helpful in terms of a parenting understanding child management strategies and techniques, he specifically suggested courses through the Ontario Learning Disabilities’ Association.

[104] Dr. Fitzgerald said the Ontario Learning Disabilities’ Association has programs for parents, to help them build their skills and understanding about the specific child development issues that children with ADHD have. I do not know that the mother has taken targeted parenting courses now that A. has these diagnoses. I would like to hear more about this at an upcoming court date.

E. The Child’s Attachment

[105] The issue of attachment is relevant to a number of subparagraphs in 74(3) too, including (c)(i), (ii), (v), (vi), and (vii). Dr. Fitzgerald opined that A. has a strong attachment to his aunt and uncle, whom he views as his primary caregivers. He also has a strong attachment to his sister. This is consistent with the other evidence before the Court.

[106] Dr. Fitzgerald wrote and testified that the breaking of this bond “could lead to significant emotional and behavioural disruption for him”.

[107] So too could an access order. For example, Dr. Fitzgerald was concerned that if A. were to spend a significant portion of his non-school time with the mother at this time, his return to his aunt’s and uncle’s home, would be marked with significant increases in aggressive and disorganized behaviour. But on the other hand, if A.’s behavioural and treatment needs can be addressed successfully, it may be possible for the mother and the child to improve their relationship in a gradual manner.

[108] Dr. Fitzgerald testified that the focus should be on developing and implementing educational treatment services through coordinated efforts between caregivers, educators, medical staff and treatment providers, and that this can be best done in the home with his aunt and uncle.

[109] This underscores even more the importance of implementing Dr. Fitzgerald’s recommendations, in a coordinated and responsible manner.

[110] By contrast, Dr. Fitzgerald opines that the child’s attachment to his mother is anxious and disorganized.

[111] Likewise, Ms. Perryman observed the child to be very connected with his aunt. She noted that he talked very little about the mother initially, although he became more vocal about his relationship with his mother, when therapeutic access sessions started.

F. The Aunt’s Statement That A. Should Be Taken into Care Because the Court is Considering Ordering Access on Weekends

[112] The evidence that follows is particularly relevant to section 74(3)(vii) of the CYFSA.

[113] Consistent with Dr. Fitzgerald’s evidence about attachment, according to the aunt, A. “consistently” states that he wants to live with her and her husband forever and that he does not want to visit his mother. According to the aunt, “we are now his family”.

[114] But the aunt has not behaved in accordance with A.’s wishes to remain in her care, as of late. She is not willing to agree to the mother having any weekend parenting time. Although she has not described in any way what exactly happens in her home on weekends, she refers to weekends as “family time”. The aunt’s plan, is that she is prepared to facilitate a limited amount of access between the mother and A. She says the mother and the child will have to attend at a local supervised access center in Durham. [^3] Most troubling, the aunt has said that she will have A. taken into care, if weekend access is ordered on this motion.

[115] As set out above, this motion was heard on February 15 and 16, 2023 and then on March 14, 2023. Neither the aunt nor the uncle were in attendance on the first day.

[116] At the end of the day on February 15, 2023, the Court stated that it wanted the aunt in attendance for the balance of the motion given the position being taken. The aunt and uncle attended on February 16, 2023, but only for the latter part of the day. They did have their daughter attend in their place, until they arrived on February 16, 2023.

[117] On the afternoon February 16, 2023, the Court expressed its view to the aunt directly, that she was a very important person in the child’s life. It also expressed to counsel in their presence, that the Court was troubled by the position being taken.

[118] The Court directed that anyone involved in the resolution of this motion needed to be in attendance on March 14, 2023, when arguments would be made. Obviously, that is because there would be arguments or discussions about possible outcomes, and all important persons involved in these decisions should be present and “at the table”. At the request of the aunt’s counsel, I specifically endorsed the importance of having the aunt and uncle in attendance for March 14, 2023.

[119] But the aunt and uncle did not re-attend on March 14, 2023. Once again, they had their daughter attend in their place. Not only that, without permission of the Court, the aunt filed additional material. Through her counsel, the aunt filed a typed letter, said to be authored by her and the uncle. Although it is purportedly from both of them, aspects of the letter are authored from the aunt’s perspective. She instructed her counsel to file this letter to a Confirmation Form dated March 10, 2023, for the attendance on March 14, 2023.

[120] The letter talks about Dr. Fitzgerald’s findings. The letter criticizes Ms. Perryman. This letter discussing the evidence was written before there had even been submissions by counsel about the evidence.

[121] According to this letter, the aunt and uncle had now decided A. should in fact be brought into care. This was no longer just a future consequence, if the Court ruled on weekend access. The aunt and uncle went on to write, after saying they would no longer be able to care for A., they would want mid-week or weekend access with A. once A. is in care, something to which they do not fully agree, for the mother.

[122] The letter concludes as follows:

I am tired, stressed and exhausted, brain is never settled. This whole situation is not good for the physical, mental and emotional health of my family. We hope that [A.] remembers our many good times together, knows that we tried so hard to fight for him and can understand why we had to let him go. We are going to dedicate our time and energy to supporting K’s continued healing journey. We hope that A. can find healing as well.

Please advise CAS to remove A. from our care. We no longer want to continue to fight for custody of him. We do not want to be the one to jeopardize his relationship with his MOTHER. We do request visits with him on the 2nd Saturday of the month and/or Thursday evenings. We request for these visits to ensure he is safe and has his needs met.

Please this is our final decision. We would appreciate it if the court can communicate the next steps of having A removed from our care.

[123] This letter was written after Dr. Fitzgerald’s evidence about how harmful it would be for this child if the placement was not maintained. In fact, Dr. Fitzgerald recommended that there be permanency planning now for A. He wrote that A. needs to have a clear understanding of with whom he will be living.

[124] The Society and the OCL made submissions about permanency planning, but they advised the Court that they have been hesitant to tell the child that he will be remaining with his aunt and uncle, because the mother might change her mind. While valid concerns, this does not now rest solely on the mother.

[125] It is very hard for the Court to understand this escalation. The fact that the aunt “hopes” this child, age 8, whom she now knows has been diagnosed with learning and cognitive limitations, will understand that she “fought for him” and can “understand why we had to let him go” is upsetting. This letter reveals a lack of insight into what the emotional impact on A. would be of putting him into care, but then visiting him occasionally each month.

[126] Despite writing this letter, the child was fortunately not taken into care. Although the letter was attached to it, the aunt’s updated Confirmation Form dated the next day, took a different position. The Society did not take steps to remove the child, other than to put its placement department on notice of the problem.

[127] On March 14, 2023, Ms. Mayhew reported that the aunt was “very upset” after the appearance in Court on February 16, 2023. She said the aunt did not intend to create the impression that she was tired of looking after A., but that she is “burning out” and needs weekends to “recharge” and “and do all the things people normally do during the week because she has a full-time job”. Counsel said the aunt didn’t intend to put the Court in an “untenable position”.

[128] Many, many separated families with parents with “full-time jobs” also have children visit other parents in other households on weekends. I do not understand why that is not readily apparent to this aunt. And in terms of the statement that the aunt did not want to put the Court in an untenable position, that is exactly what has been done.

[129] What is the Court to make of this? The most generous interpretation, is the aunt and uncle may actually be struggling to care for A. But that runs contrary to the other evidence put before me.

[130] This letter reveals a concern about a lack of commitment to the child. That is surprising, given the other evidence to the contrary that was put before me. And that is problematic, given that Dr. Fitzgerald heavily relied on the strength of the child’s placement in this household during the assessment.

[131] The letter certainly reveals a reluctance by the aunt and the uncle to support the relationship with the mother, if the relationship that the Court determines should be put in place, departs from their views. That is also problematic on a best interests’ analysis.

[132] At its worst, if the aunt and uncle were not being serious when they wrote this letter, and this was some kind of litigation stunt, evidenced by the fact that the child was not then removed, yet this letter was attached to an updated Confirmation Form filed for the day that there was to be argument, then that is very inappropriate.

[133] Because of the good care that they have provided for A. by most accounts, I am prepared to give the aunt and uncle the benefit of the doubt. I will accept Ms. Mayhew’s submission that the aunt and uncle are stressed out, probably in part because of the protracted litigation. I accept that the aunt had an immediate change of heart after writing the letter, which Ms. Mayhew also said.

[134] And regardless of the wisdom of this letter, I would still commend the aunt and uncle for stepping in to care for A. thus far. It would help if the mother acknowledged this too, if she has not already done so. But I am also going to ask the aunt and uncle, again, to please have an open mind depending on how things unfold next.

G. The Mother’s Visits With A.

[135] The visits between the mother and A. that have occurred are a good indication of the child’s current relationship with the mother. They also provide some information about how the Court should assess risk: see sections 74(3)(vi), (x) and (xi).

[136] By all accounts, there were aspects of the mother’s visits that were quite positive. As set out in the affidavit of Ms. Williams, sworn December 13, 2022, the mother and child would eat dinner prepared by the mother, watch movies, play games or interact with each other. During warm weather, visits were done in the park located on the Society’s premises.

[137] Diana Irvine, an access facilitator with the Society, deposed that she observed the mother be affectionate and attentive to the child. That they would hug and cuddle. She observed the mother patiently help the child with educational activities, too.

[138] According to Ms. Perryman’s report, the child had five initial therapy sessions with her over zoom. He was shy at first, but over time became comfortable. Ms. Perryman testified that she developed rapport with A., and that she saw improvement in him.

[139] Ms. Perryman observed a number of visits between the mother and A. Ms. Perryman met with the mother after the visits to review how they went, and to provide feedback and suggestions. Ms. Perryman reported that the mother asked questions about how she could participate.

[140] Ms. Perryman reported that the mother responded well during therapeutic parenting, by planning sessions and integrating various interventions she learned in coaching, into the visits. She responded well to interruptions by Ms. Perryman, and was able to shift her approach. Ms. Perryman also reported that the mother and A. appeared relaxed, calm, playful and engaged with each other during therapeutic parenting time.

[141] But there were also not insignificant problems during the mother’s access, as well. Ms. Williams says that A. struggled during visits. For example, A. told her that he did not want to see his mother.

[142] Ms. Williams says an access facilitator often had to intervene to resolve conflict between the mother and the child, when the mother was unable to redirect the child.

[143] Ms. Williams says that the mother displayed emotional dysregulation during visits. She cites the mother walking out of parenting time abruptly, and making threats to the child, that she would not return to parenting time, as examples of this dysregulated behaviour. It is Ms. Williams view, that the mother is overwhelmed at times. Ms. Irvine also observed the child to challenge the mother with his behaviour, and the mother having difficulty managing the child’s behaviour.

[144] Dr. Fitzgerald, who observed the mother and child together twice, wrote that by all reports, the mother’s visits with the child were improving. During his in-court testimony, Dr. Fitzgerald acknowledged that the mother’s visits were at the end of an already long day for A.. Notwithstanding the time of day and even though the mother travelled a long distance, he observed her to greet the child, have games and food ready, and generally be prepared for the visit.

[145] But Dr. Fitzgerald likewise noted that the child can be behaviourally challenging at times. Dr. Fitzgerald himself observed A. to be hyper active, impulsive and oppositional with his mother during his first observation visit.

H. The Mother’s Missed Visits With A.

[146] It is a significant problem, that the mother stopped attending visits for over two months, between October 18, 2022 and December 27, 2022, and again in the 1 ½ months between February 1, 2023 and the conclusion of this motion. Even Ms. Perryman’s report states that some psychotherapy sessions were missed or cancelled during the mother’s therapeutic time.

[147] The mother says that in the past, when she had evening visits, she was too mentally and physically exhausted to enjoy meaningful parenting time. The mother largely blamed the missed visits since October 2022, on some illnesses, and the requirements of her work. Yet she is also accused by the Society, the aunt and the OCL of not being transparent with her work schedule, while claiming she can only have access on weekends.

[148] Indeed, there is no evidence before me as to the mother’s work schedule. While the mother’s counsel says that she did respond to past inquiries about her schedule, the actual schedule is not set out in any of her affidavits filed for this motion.

[149] In her affidavit of January 31, 2023, the mother says she recently obtained a full-time job (without describing the job or the work hours). But according to her counsel during submissions on March 14, 2023, the mother no longer had that job and she started a new one just days earlier.

[150] The mother’s failure to consistently attend visits is obviously problematic, because the mother cannot improve her relationship if she is not attending. It is not reasonable for her to expect the aunt and uncle to adjust their lives further, if the mother is not consistent and will not follow through. It puts the Court in a difficult position, if she expects the Court to work with the parties in case management to achieve outcomes and she is not following through on her end. It is also problematic from the child’s perspective, given the evidence about attachment, dealt with above, that has to be worked on.

I. The Child’s Views and Wishes

[151] Section 94(11) of the CYFSA directs that at the interim stage of a case, the Court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained. Section 74(3)(a) also places the child’s views and wishes front and center, in the best interests’ analysis. Moreover, the first sentence in the preamble to the CYFSA acknowledges that children “are individuals with rights to be respected and voices to be heard”.

[152] However, the right to respect and to be heard is not tantamount to the right to decide. And despite their additional importance within the statutory scheme, a child’s views and wishes are to be “given due weight in accordance with the child’s age and maturity”.

[153] The child has made problematic statements about wanting to die, or to kill others, and about not wanting to see his mother. Above, I referred to the evidence of Ms. Williams and the aunt respecting the child’s statements about visits with the mother.

[154] For the OCL, Ms. Grant filed a Confirmation Form on November 10, 2022, setting out that the child’s views are that he wishes to remain in his current placement, and to have no access with his mother. She also filed an affidavit of her law clerk to this effect. At paragraph 28 of her factum, Ms. Grant also sets out 7 statements reflecting the child’s views and wishes, which include that he wishes to live with his aunt, uncle and sister, and that he does not want to have parenting time with the mother.

[155] But there is some evidence of inconsistent statements, about the child wanting to spend more time with his mother, too. Ms. Perryman noted the rift between family members in this case. She believes that the child is aware of his conflict, and has made statements about “hating” his mother with little understanding of the impact of the statements. Regardless of the cause, she wrote that during the parenting time, he did not consistently demonstrate negative perceptions or unhelpful thoughts surrounding his mother.

[156] Dr. Fitzgerald does not believe that A. has symptoms of depression. The statements of wanting to harm himself are impulsive and do not reflect a clear intention to do so, rather they are made to draw attention to himself or to express anger or frustration.

[157] It is important that the concept of “views and wishes”, and the weight to be attached to them, be properly and thoroughly explained to the mother and the aunt by their counsel. While the OCL put this evidence before the Court, the OCL did not take the position that an Order should be made based on those views and preferences.

[158] The child is 8. The child has learning and cognitive limitations. These statements have to be viewed in that context, and in the context of his disrupted relationship with his mother.

J. The Mother’s Mental Health and Its Impact on Parenting and Risk

[159] Dr. Fitzgerald concluded that the mother faces some cognitive challenges. Diagnostically, the mother displays clinical symptoms of cyclic mood disorder with intermittent hypomanic states and paranoid and borderline personality features.

[160] Dr. Fitzgerald wrote that the mother experienced considerable trauma and turmoil in her life. He recommended that she receive dialectical behavioural therapy, as she has difficulty working cooperatively and collaboratively with others, and trust issues. He wrote that she needs to enhance her emotional strength and interpersonal resilience.

PART VI: SUMMARY OF THE COURT’S FINDINGS

[161] I find that this Court cannot at this time order the expansion of parenting time that the mother seeks, for at least five clusters of reasons.

[162] First, the mother has sought too significant of a change, without the conditions being in place for it to safely succeed. Depending on which iteration of the mother’s position the Court refers to, the mother is asking to increase her visits from short, supervised visits, to as much as 5 hours in duration, in a community in which A. does not reside or know. The Court cannot order this, especially now that it has the diagnostic report about the child’s high needs, and there remain questions about the mother’s ability to understand and to meet the child’s needs during visits.

[163] Second, the parties need to take the steps required to implement Dr. Fitzgerald’s recommendations. Once that is underway, that will hopefully enhance the conditions for any access to succeed.

[164] Third, the mother has not demonstrated the necessary commitment to pursuing access. I do not find valid her reasons for stopping visits after October, 2022, and again as of February 1, 2023. Even if she did have valid reasons, this interruption has not helped her relationship, from the child’s perspective.

[165] Fourth, despite the deficiencies in the Statement of Agreed Facts in this case, the Court is still aware that the core protection concerns are based on the physical harm of a child. The Court must be mindful of that, now in the additional context of A.’s special needs and the mother’s mental health. Dr. Fitzgerald is concerned that in a less structured setting, A. may cause strong emotional reactions from the mother, which could trigger an escalating cycle and lead to safety concerns. This is a reasonable inference.

[166] Fifth, related to the fourth, the mother’s therapy is not complete. Ms. Perryman reported that when they stopped the therapeutic program, she had not been able to complete some of the goals, and she recommended that therapy continue. Ms. Perryman testified that after she completed her report, she did not receive any instruction to continue. She even reached out to continue, but was not authorized to do so.

[167] By contrast, according to the affidavit of Society worker Ms. Small, sworn December 13, 2022, Ms. Perryman was told that funding was available, and to arrange more sessions with the mother and the child, through the aunt, directly.

[168] On February 16, 2023, Ms. Pryce said that the Society did not object to re-involving Ms. Perryman, but the aunt did.

[169] I really do not know what happened here. This is very unfortunate. This kind of miscommunication was really unhelpful and should not have happened. Frankly, someone should have taken the necessary steps to monitor and follow up on this, and to get Ms. Perryman re-involved. Even if there was some miscommunication, at some point, it should have been obvious to all involved, that Ms. Perryman was no longer involved, and that ought to have triggered questions.

PART VII: OTHER COMMENTARY AND CONCLUSIONS, AND STRUCTURE OF THE ORDER BEING MADE

[170] On the other hand, while I cannot at this time order the expansion of parenting time that the mother seeks, it is also important for all of the parties to remember that the mother was the parent with whom A. resided prior to child welfare intervention. The Court’s order should promote family reunification insofar as possible and in the child’s best interests. In this case, that does not mean a return to the mother. But that does mean that there should be some ongoing effort towards developing a positive mother child relationship, especially when none of the parties take the position that there should be no access.

[171] As Sherr J. wrote in Catholic Children’s Aid Society of Toronto v. R.M., the Court should ensure that access does not remain static, unless the child requires this.

[172] But the aspects of the mother’s and the aunt’s positions and actions that are rigid and problematic, are undermining the Court’s very ability to move this matter forward towards an effective resolution. To help the parties seriously think about this, I pose the following questions to them.

[173] The Court still has to approve a settlement that they come up with, or failing settlement it will have to make an order at trial. If this case is to settle, how do they expect that the Court will agree, that a section 102 order is an appropriate disposition, knowing that the aunt is willing to jeopardize the placement if there is an access order that she does not like? Even if this aunt resiles from this position, how can the Court order a section 102 order now, if the conditions for access are not in place for it to succeed?

[174] If the aunt’s plan is to prevail and there is not to be weekend access, then when will the mother see the child? Where will the mother have supervised access if that is the permanent plan being proposed by the aunt? Who will pay for it, if not at a center? How can that happen during the week, given the child’s school and special needs?

[175] Does all this uncertainty not mean that there may need to be another supervision order as an alternative to a section 102 order? Then, does that not then delay the messaging to the child about permanency, that Dr. Fitzgerald, the Society and the OCL think is essential? Does that not then prolong the amount of time that these parties are embroiled in this litigation?

[176] Applying Sherr J.’s comments from Catholic Children’s Aid Society of Toronto v. R.M. about the importance of access not remaining static to the context of this case, if the end goal in this case is a section 102 Order, then the parties must responsibly seize the opportunity now, to put in place conditions, that will increase and not decrease the likelihood that that a section 102 Order, with access, will succeed, when it is ordered.

[177] I agree with the Society that the Court should re-instate the access that the mother stopped attending. I agree that one goal is that access might be gradually increased, if it can occur in a safe way. I agree with the Society, that perhaps if the next phase is successful, the caregivers may see positive developments and soften their position. Maybe there can then be a visit on some weekends, which will not lead to an escalation and a placement breakdown.

[178] To this I would add that the Society should be exploring some kind of counselling for the mother and the aunt to work on their relationship. I very much agree with the Society that the situation does not have to boil over into a crisis, with threats of a placement breakdown. But that is very much up to the mother and the aunt, and their counsel. And the mother and the aunt need to change their attitude and stop pushing matters to the brink, if this is to de-escalate.

[179] Therefore, the Court is mostly ordering what the Society has proposed for next steps. But I will first share the following three additional specific observations with the parties.

[180] First, the Society is proposing that Odessa Anderson from Synergy Link supervise the mother’s visits in the community. The Society says it needs to see positive interaction between the mother and the child, before the parenting time can move to unsupervised.

[181] But at the same time, the mother needs therapeutic support for the visits to be positive. Ms. Anderson is not able to provide the same kind of therapeutic support that Ms. Perryman provided. Furthermore, Ms. Perryman already has a supportive relationship with the mother, and rapport with the child. It does not make sense to add multiple professionals into the mix, unless it is necessary.

[182] The Court encouraged the parties to have further settlement discussions between February 16 and March 14, 2023. The Court recommended to counsel that they start putting into place some of the recommendations in the reports, that might make a final custody and access order at the end of the day succeed. As part of that discussion, I specifically asked counsel for the mother to explore whether Ms. Perryman would be willing to resume working with the mother and the child now, whether she could provide service in the community, and how much her services would cost.

[183] Ms. Perryman is willing to be reinvolved. But unfortunately, the logistics of that were not fully explored. No one knew whether she would provide supervision in addition to therapy (although her mere presence is a form of supervision) and whether she would work on the weekends. As such, I may have no option but to order the involvement of both Ms. Anderson and Ms. Perryman. Hopefully duplication can be avoided when more information is actually obtained.

[184] Second, transitions are a problem for this child. The visits that have occurred on Tuesdays and Wednesdays, in the evenings, may have exacerbated the problem. According to Ms. McLaughlin’s contact log with the site supervisor at A.’s day care, in 2020 and again in 2021, A. was exhibiting behaviours on the evenings before going to visit his mother. According to the day care provider, he would become defiant, refuse to go, and move slowly, forgetting the routine when preparing to leave. A. returned to day care in September of 2021, with better manners. But then his behaviour deteriorated by October, of 2021.

[185] Ms. Perryman also noted that transitions were difficult. During his in-court testimony, Dr. Fitzgerald testified about his observations of some difficult interactions between the mother and the child, that occurred at the end of the day, mid-week.

[186] But only two solutions were offered to reduce the impact of the transitions on the child. One was weekend access, which I am not prepared to order for the reasons set out above, and which at this time is problematic in its own right. The other solution, proposed by the Society, was to decrease the number of mid-week visits back to one. But the second visit was added in the first place to enable the mother and the child to have therapy with Ms. Perryman.

[187] I would only be prepared to reduce the number of visits if Ms. Perryman can provide both a therapeutic and supervisory role, and perhaps if the visits could be lengthened. But if reducing the time to once per week means that the mother just has a therapy session with the child in an office, or no therapy and a monitored visit by Ms. Anderson, then I would not do that.

[188] In the meantime, the mid-week evening visits will have to continue as currently ordered. The Society has been and is prepared to continue to arrange a driver to take the mother from Brampton to visits in Durham.

[189] Proposals were made for the time of the child’s visits to start earlier. Unfortunately, here again, the Court cannot set a definitive start time for the visits, given the mother’s failure to produce full details of her work schedule, and the lack of information about whether there is actually any flexibility in her work situation. The mother needs to rectify this forthwith by providing disclosure. If it is possible for there to be any flexibility, she should make herself available earlier in the day, at least some of the time.

[190] Third, soon after the CYFSA came into force, Sherr J. released the decision Catholic Children’s Aid Society of Toronto v. K.R., 2018 ONCJ 288. At ¶ 7, he gave societies some early guidance about some of their basic responsibilities under the then new legislation. After referencing the paramount and other purposes of the then new CYFSA, Sherr J. told societies that as soon as practical they should be doing the following:

(a) providing timely and ongoing file disclosure to counsel for the parties and counsel for the children so that they can meaningfully participate, if they choose to do so, in a discussion about what services for the children and their family will best meet the purposes of subsection 1 (2) of the Act; (b) assessing the strengths of the children and their family in order to determine what services can be provided to them that will build on those strengths; (c) giving the children, where appropriate, and their family the opportunity to have input into what services should be provided to them, in a manner that best meet the purposes set out in subsection 1 (2) of the Act; and (d) providing a clear list of expectations for the children’s family about what they need to do. This can be set out in a letter.

[191] And then, at ¶ 8, Sherr J. discussed the Court’s job. He wrote that it is the Court’s obligation to ensure that the purposes of the CYFSA are achieved. In a footnote to his decision, he said, “[t]his will be easier to do when a case is actively case - managed by one judge who can set out expectations for the parties, monitor compliance with those expectations and ensure that services are being provided for the children and their families consistent with the purposes set out in subsection 1 (2) of the Act.”

[192] I am not citing Sherr J.’s decision here to be critical in any way of the Society in this case. The Society has gone to lengths to provide funding and services for this family, and it has hosted meetings to help the family settle.

[193] I am citing this case to remind the mother and the caregivers in particular, that they, along with the Court and the Society, have a shared duty in case management. We have to work together to come up with good outcomes going forward. The lawyers have a role in this too, consistent with the obligations in rules 2(4) and 2(5) of the Family Law Rules. Counsel have a particular role to play in getting clients to back down from extreme positions.

[194] In keeping with the Court’s obligations, I intend to set out a list of expectations for the next event in this case, in addition to making an access order.

PART VIII: ORDERS

[195] I make the following Orders:

(a) This Order shall commence the week of March 27, 2023, or as soon as the Society can arrange to have the professionals, referred to below, involved; (b) The mother shall immediately disclose a copy of her work schedule to the parties. She shall also explain whether there is any flexibility to her new schedule; (c) If necessary, for example because the schedule does not exist in written form, the mother shall ask her employer to write a letter explaining this; (d) The mother shall have supervised visits on Tuesday and Wednesday evenings, for at approximately 1.5 hours, from approximately 6PM to 7:30 PM. The Society has the discretion to lengthen the duration of the visit if it can start earlier, as set out below. The visit shall end by 7:30 PM; (e) One of these weekly visits shall be supervised by a designate of the Society such as Odessa Anderson. The other visit shall occur during therapy with Nicole Perryman; (f) The parties may arrange to start the visit earlier, depending on the work schedule to be produced, and when the mother can reasonably arrive. This may also provide an opportunity for longer visits; (g) The Society also has the discretion to change the day of the week of the visits, depending on the availability of Ms. Anderson, Ms. Perryman, and if the mother can arrive earlier on some days versus others; (h) During the first two weeks, the visits and therapy shall either take place in the Society’s Office or in Ms. Perryman’s Office as the case may be. Afterwards, the visits may expand into the community; (i) The mother should plan in conjunction with Ms. Anderson or Ms. Perryman as the case may be, what activity they will be engaging in for upcoming visits. I ask the Society to consider assisting the mother with any funding that she may need, for community activities with the child; (j) The Society shall take steps to immediately renew Ms. Perryman’s involvement to provide therapeutic access between the mother and the child, to implement the above plan; (k) The parties should explore whether Ms. Perryman is willing to both provide therapeutic access and supervise the mother’s community access; (l) If Ms. Perryman is willing to supervise the mother’s visits in the community while providing therapeutic access, then the Society need not involve Ms. Anderson to supervise visits on the other weekday evening; (m) When this matter is reviewed, and provided Ms. Perryman is willing to supervise the mother’s visits in the community, then the Court will review whether it is necessary to continue to have two, back-to-back visits per week, or whether the schedule can be changed in a different way. If there needs to be a minor change before the return date, as a result of new information from Ms. Perryman about her ability to supervise and to provide therapy, then I may be contacted; (n) The Society shall continue to make drivers available to get the mother between her home or her place of work in Brampton, to Durham. As set out above, the supervised visits and the therapeutic access may start earlier than 6:00 PM, if the mother can arrive in Durham earlier, to be revealed once the work schedule is produced. The drivers should be made available earlier, if it turns out that the mother can leave from Brampton earlier; (o) The Society shall also continue to ensure that the child comes to its office, to Ms. Perryman’s office, or to such other location as the case may be, for the supervised access and therapeutic access, and then any semi-supervised visits; (p) The Society has the discretion to permit semi-supervised visits in the community, in addition to the therapeutic visits. Having heard the submissions, I shall set a target date of May 1, 2023 for this to start, but provided the supervised visits are successful; (q) Based on the Society’s submissions, success means that the mother attends all visits, she does not leave visits early or make inappropriate comments to the child, that there is no aggression from the mother towards the child, and that the mother is able to appropriately handle or redirect the child’s behaviour and any aggression towards her, with Ms. Anderson’s and/or Ms. Perryman’s support and feedback; (r) The Court requests that the Society not demand a standard of perfection in assessing success, and that it consider a progression if the visits are safe and the mother’s relationship with the child is developing; (s) Even if there are to be semi-supervised visits, there should still be therapeutic sessions with Ms. Perryman. The Society does not have the discretion to end these, without court approval; (t) The Society also has the discretion to facilitate additional visits on school closures and during other days during the summer, but this is dependent on the mother’s work schedule and her willingness to attend; (u) At the conclusion of argument, the mother’s counsel asked for a date to argue a motion for state funded counsel, advising that there are issues with the mother’s funding for legal services. Therefore, this matter shall return before me on May 12, 2023 by zoom at noon for 60 minutes, to address the mother’s motion for state funded counsel. The mother’s counsel should first attempt to negotiate a resolution of the funding issue with Legal Aid Ontario or the Attorney General for Ontario, failing which the mother’s motion material and factum shall be served on or before April 21, 2023. Any response and facta by LAO or the AGO by May 5, 2023 and any reply by the mother by May 10, 2023; (v) If the funding issue settles, please advise the Court in advance so that I may vacate this date, unless an appearance is otherwise required for the reasons set out in the next paragraph; (w) Beyond that, I am setting a date of June 9, 2023, for this Court to review how the visits have gone, and with a view to a further progression. If minor adjustments need to be made to this Order between now and June 9, 2023, as set out above because of any new information relating to Ms. Perryman’s role for example, then I may be contacted by 14B, or if it can wait, minor adjustments may also be spoken to on May 12, 2023; (x) I continue to encourage the parties to work on resolving these issues between themselves, without needing the Court to impose outcomes on them. For this purpose, the parties should also have another all-party meeting amongst themselves before June 9, 2023. They might use the reports and this ruling as a template for next steps and a resolution of this case; (y) If not, the appearance on June 9, 2023 shall proceed by way of an appearance for 90 minutes between 10:30 AM and Noon. It will proceed in person; (z) The appearance shall be held as a combined case conference and the continuation of a motion. The Court retains the discretion to make additional orders on June 9, 2023, if there is no agreement between the parties; (aa) For June 9, 2023, the Court specifically requires that the mother, the aunt and uncle, and all lawyers be in attendance; (bb) There is much work to do in this case. The parties are to start implementing the recommendations in Dr. Fitzgerald’s reports with which they agree. I am to be advised of the recommendations with which they do not agree next time, and the reasons for any disagreement; (cc) In addition for the June 9, 2023 appearance, it would be helpful to have a summary from Ms. Perryman as to her additional work with the mother and the child; (dd) The parties shall also each file an affidavit setting out the following by way of an update:

• advising as to their perspectives about how the visits and therapy have gone and unless the Court is advised before hand, whether Ms. Perryman has been able to take on an expanded role, discussed above;
• whether the IEP that the aunt referred to was obtained as a result of Dr. Fitzgerald’s assessment of A., or beforehand. If beforehand, whether any further steps are needed;
• whether Dr. Fitzgerald’s assessment of A. has been provided to the school and other service providers, and what has happened as a result of that. If not, why not?;
• whether steps have been taken to have the child formally identified as Dr. Fitzgerald recommended, and what has happened as a result of those steps. If not, why not?;
• whether steps have been taken respecting the speech and language assessment for A., and what has happened as a result of those steps. If not, why not?;
• whether steps have been taken respecting consulting a pediatrician to discuss medication, and what has happened as a result of those steps. The Court requires any recommendations made [^4]. If not, why not?;
• from the mother, all information required for the Court to have a full picture of the mother’s work schedule and commitments;
• from the mother, the Court requires complete particulars about how she has gotten involved at the child’s school, as she said in her affidavit on this motion;
• from the aunt, the Court requires evidence containing all information necessary for the Court to have a full picture of what happens during “family time” in the aunt’s household. Without restricting the kind of information to be provided, that means information about who resides in the aunt’s household, a general schedule of the kinds of activities or events that happen on weekends in the aunt’s household, details and a schedule of any specific activities that are scheduled, details and a schedule of activities or outings that any individual person engages in separately from the group, an explanation as to whether some members of the aunt’s household go out on weekends, or whether the entire family remains at home the entire weekend;
• from all parties, but from both the mother and the aunt in particular, the Court requires proposals as to how both can participate in managing the child’s educational and medical needs going forward;
• the parties’ views about whether there should be some form of counselling between the aunt and the mother, and if so, specific proposals for that to occur. The Society should assist with referrals in this regard. If not, why not?;
• from the mother, updates about whether she has taken any steps to pursue DBT and any parenting courses through the Ontario Learning Disability Association, having heard Dr. Fitzgerald’s testimony. The Society should also be assisting the mother to access these services. If not, why not?; and
• proposals as to a process for a final resolution of this case, if the parties cannot use the above information as a framework for a settlement of the case.

PART IX: CHILD SUPPORT

[196] At paragraph 77 of the aunt’s factum, the aunt points out that the mother has not paid child support for the past three years, and that the mother has collected tax benefits for the children, even though they have not lived with her. While this case is not about child support per se, if what the aunt’s counsel is saying is true, the mother must understand that that is not helping her relationship with the aunt.

[197] One way for an olive branch to be extended might be if this child support and tax benefit situation was rectified. I recommend that the mother’s counsel have serious discussions with the mother about this. Perhaps Mr. Rowe and Ms. Mayhew can have their clients enter into the necessary agreements, or even a consent Order, to get these issues rectified.

[198] I wish to thank counsel for their assistance with this matter.

Justice Alex Finlayson Released: March 23, 2023

[^1]: M.A. is the mother’s half-sister, and R.H. is her husband. [^2]: As I explain when summarizing the prior proceedings below, on May 25, 2022, Dr. Fitzgerald was appointed to undertake an assessment of the mother and the child pursuant to section 98 of the Child, Youth and Family Services Act, 2017. [^3]: I have no clear understanding of exactly how this will work, particularly after this child protection proceeding is over and the Society is no longer involved by providing drivers for the mother. Any visits in an access center would likely have to occur on weekends. [^4]: There was some indication that a doctor may have already been contacted, when the Court raised this during the motion.