Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 761

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) 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) Idem: order re adult. — 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. . . . 85.—

(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. Toronto Registry No. CFO 12 10623 DATE: 2014·11·28 CITATION: Catholic Children’s Aid Society of Toronto v. M.R. , 2014 ONCJ 761 ONTARIO COURT OF JUSTICE BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — M.R. and C.R., Respondents. Before Justice Ellen B.

Murray Heard on 7-11, 14 and 16 April 2014; 1-2 May 2014, 24 and 30 September 2014; 1-3 October 2014; and 6 November 2014 Reasons for Judgment released on 28 November 2014 Mei Chen ............................................................................. counsel for the applicant society

Arthur C. Brown .................................................... counsel for the respondent mother, M.R. Julia R. Vera ............................................................. counsel for the respondent father, C.R. Helen K. Miller ........................................... counsel for the Office of the Children’s Lawyer, legal representative for the child [ 1 ] JUSTICE E.B. MURRAY:— This is my decision after trial on a protection application brought by the Catholic Children’s Aid Society of Toronto concerning the child D.R., born on […]2004. Ms. M.R. and Mr. C.R. are D.’s parents.

The roots of this case lie in conflict between Ms. M.R. and Mr. C.R. They have not spoken to each other since May 2004, two months after the child’s birth. [ 2 ] The society seeks: • a finding that D. is a child in need of protection pursuant to clauses 37(2)((

f) and (

g) of the Act; • an order placing D. in the care of her father, subject to a 12- month order of society supervision; and • an order that access to D.’s mother be at the society’s discretion. [ 3 ] D. is now in the society’s temporary care, and has been in care for over two years. [ 4 ] The society acknowledges that this is an unusual case. Its sole protection concern arises from the fact that, in the society’s view, mother has consistently failed to support the child’s relationship with father and has acted in a fashion calculated to undermine that relationship.

The society says that mother has thus caused D. emotional harm, harm that will continue if the child lives with mother. If successful, the society intends to restrict the child’s access to mother to visits supervised in its offices, until it is satisfied that unsupervised contact will not lead to a undermining of D.’s placement with father. [ 5 ] Father supports the society’s position. [ 6 ] Counsel for the Office of the Children’s Lawyer representing D. supports the society’s position.

Counsel submits that the child’s wishes as to whom she wants to live are inconsistent and that, in any event, other more significant factors than the wishes of a 10- year-old support the position that D. should be in father’s care. [ 7 ] Mother denies that D. is in need of protection and asks that the application be dismissed. If the court makes a protection finding, she asks that D. be returned to her care under an order of supervision. She says that she is content that an order for access to father be made, as long as the child is safe in father’s care.

She fears, however, that D.’s safety with father cannot be ensured. 1: OVERVIEW OF THE FACTS 1.1: D.’s Parents [ 8 ] Mother is a 41-year-old single parent of two children, D., aged 10, and R., aged 13. She and the children live in an apartment in east end Toronto. Maternal grandmother M.S. lives in Toronto and is close to mother and both girls. R.’s father is not involved in the child’s life. Mother came to Canada from Chile with her parents when she was very young. Mother does not work outside the home and is supported by public assistance. [ 9 ] Father is 42 years old, and is married to C.G. Both Mr. R. and Ms.

G. are immigrants from Uruguay. They formed a relationship in 2007, when father returned to Uruguay to regularize his status in Canada and came here together in 2009. They have one child, L., who is five years old. Father works as a painter on construction sites; Ms. G. is trained as an architect, but is not currently employed. 1.2: The Parents’ Relationship [ 10 ] Ms. R. and Mr. R. never cohabited. They dated for approximately one year, during which Ms. R. became pregnant with D. Ms. R. alleges that Mr. R. was angry at the pregnancy, and pressured her to have an abortion; Mr.

R. denies this, saying that he told Ms. R. that, although they did not love each other, he was ready to support her in having the child and to be involved in his or her upbringing. [ 11 ] Mr. R. was present at D.’s birth. He saw mother and D. from time to time for about two months after the birth. Then there was a breakdown in the parents’ relationship. Ms. R. says that he was irregular in his visits and showed up with people she didn’t know. She felt harassed, and told him not to contact her or try to see the baby. Mr. R. says that Ms. R. gave him an ultimatum: live with me, or you won’t see the baby.

He refused. He says that Ms. R. threatened to make trouble for him with the Canadian immigration authorities if he tried to see the child. Mr. R. continued to have some contact with Mrs. S. for a time, who gave him information about D. He says he provided money for the child’s support through Ms. S.; Ms. S. does not remember this and mother says she received only a few payments. 1.3: Father Claims Access [ 12 ] In 2005, Toronto Social Services commenced an action for child support and, on mother’s behalf, included a claim for custody. Father cross-claimed for access.

He quickly agreed to an order that mother have custody and soon agreed to a final order for child support. Over the next 6½ years, there was an on-and-off dispute with respect to the issue of access, interrupted by a two-year

period during which father was out of the country. [ 13 ] In October 2011, Mother contacted the police and the society; she expressed concern that D. had been mistreated by father on an overnight visit in his home. On the society’s advice, visits were suspended pending an investigation. After investigation, no charges were laid and the society advised that visits could continue. Mother did not believe that the investigation was adequate and D. was re- interviewed by police and the society workers.

No abuse was verified. 1.4: Society Application [ 14 ] The society became concerned that mother was subjecting D. to undue emotional pressure and that she was, intentionally or unintentionally, interfering with the child’s relationship with father. The society commenced a protection application on 24 April 2012. A temporary “without prejudice” supervision order was granted, continuing D.’s care by mother. In June 2012, on the society’s motion, D. was taken into the temporary care of the society. The child then had visits with each parent at the discretion of the society.

Visits were at first supervised and later progressing to unsupervised in the community and at home, and then to overnight visits. [ 15 ] An assessment was completed in March 2013. In August 2013, the society placed D. with mother on an extended visit, intending to ask that the child be placed in her temporary care if “all went well”. Within ten days the society came to the conclusion that mother was interfering with the child’s visits with father and took her back into care. [ 16 ] The society then brought a motion asking that D. be placed with father.

The court’s decision was reserved and, in early December 2013, an order was made granting the request. D. was in the temporary care of father and his wife for three months, at which time father requested that she come back into care. Father said that the child stopped interacting with him and his family and was crying much of the time. He feared for her health. He and the society alleged that the placement had broken down because of mother’s destructive influence on the child during the unsupervised weekend visits.

The society brought a motion and D. came back into care in early March 2014. [ 17 ] D. has remained in care since that time. The pattern of her visits with each parent reflects the pattern from 2013 — supervised visits, progressing to unsupervised in the community and at home, and then to weekend overnight visits. According to the society, those visits have “gone well”. 2: WITNESSES AND EVIDENCE [ 18 ] I heard from many witnesses during this lengthy trial.

Society witnesses included family service and children’s service workers and other society staff involved with the family, as well as D.’s foster mother, J.M., a counsellor from the Schlifer Clinic who had spoken to mother, and psychologist Dr. Raymond Morris. Father gave evidence and called as additional witnesses his wife and the maternal grandmother, Ms. S. Mother gave evidence and called her counsellor from Abrigo to give evidence. [ 19 ] Hearsay statements from D. were introduced in evidence from the society workers, the foster mother, mother, father, maternal grandmother and Ms. G.

Some of the statements were led to establish the child’s state of mind, and some were led in an effort to establish the truth of the facts alleged. The parties and counsel for D. agreed that all hearsay statements from D. would be admitted, leaving it to the court to decide what weight should be given to any particular statement. In assessing the weight to be given to statements of both types, I considered the reliability of the reporter as well as D.’s reliability in any particular situation. [ 20 ] Also admitted into evidence as business records were records from D.’s doctor, Dr.

Frank Loritz, and observation notes of visits between D. and father from Access for Parents and Children in Ontario (APCO) 3: D. [ 21 ] The evidence establishes that D. was a bright, generally well-adjusted girl at the time she came into care in June 2012. Except for a short opening at the time of her older sister R.’s birth, [1] there had never been contact between mother and the society before mother initiated contact in October 2011. The child’s grades were good, and teachers did not note any particular difficulty in her work habits, social skills, or academic performance.

Mother involved both R. and D. in extra-curricular activities — archery, gymnastics, and guitar lessons. D. showed particular talent in the arts. [ 22 ] D.’s foster mother, Ms. J.M., reported that, when D. came into care, she was well organized, respectful and had good hygiene. She knew how to behave and got along well with the other girls in the home and with her. Ms.

J.M. did observe that the child seemed somewhat sheltered and that she did not seem to have been exposed previously to many of the social experiences with other children which she came to enjoy in the foster home. [ 23 ] Mother raised both children following dietary practices in which she had been raised — no cow’s milk, no wheat and healthy food. D. was in good physical health when she came into care.

However, as will be seen later below, the child did suffer from conditions that were likely anxiety-related that began at the time that the father moved to re-instate visits in 2009. [ 24 ] During the time that D. has been in care, she has been in good physical health. She continues to do well in school. The children’s service worker Adelina F., described D. as “smart, friendly and likable”, but guarded in what she tells others. Ms.

J.M., her foster mother, reports that she is popular at school, and that she enjoys activities with the five other girls who live in the foster home. [ 25 ] There have been continued concerns about D.’s emotional health since coming into care. Dr. Morris, who saw D. in early 2013, testified that the child was manifesting signs of “concerning” anxiety “in relation to being caught in her parents’…conflict”. Father and mother agree that D.’s emotional health has suffered in care, although for different reasons. Father says that the child is

reacting to mother’s pressure to reject a relationship with him and his family; mother says that D. is unhappy at not being allowed to return home to live with her. [ 26 ] D. was in counselling with Sarah McCormick from Hincks-Dellcrest children’s mental health centre for about 7 months this year, ending in August 2014. Ms. McCormick was not called as a witness. Society workers advised that Ms. McCormick felt that counselling had not been useful for D., that the child did not “open up”, and that counselling should not be attempted again until the child was ready.

D. expressed dislike at having to attend counselling. 4: D.’s WISHES [ 27 ] D. has often said that she wants to live with mother; these wishes have been strong and reasonably consistent since the child first came into care. Some of what D. has said is set out below. • After coming into care in June 2012, D. told children’s service worker Ms. F. frequently that she wanted to go home. • In April 2013 when D. was told of Dr. Morris’ recommendation that she live with mother, the child “shouted with joy”.

When told that his secondary recommendation was that she live with father, D. began crying. • In July 2013, D. told family service worker Ms. Treleaven that she wanted to return home to mother, where she “belonged”. • D. protested when she was removed from her mother’s care after the brief extended visit in August 2013. • D. also told foster mother Ms. J.M. then that she wanted to return home. • Father acknowledged that D. told him that she wanted to live with mother. • In March 2014 (after D.’s short-lived placement with father), D. asked Ms. Treleaven why she wasn’t going back to mother, “like I want”. • Ms.

J.M. testified that before plan of care meetings (where D.’s future was discussed), D. always told her that she wanted to live with mother. Ms. J.M. said that at bedtime the child frequently says that she misses mother. • Ms. J.M. testified that, over this past summer, D. talked ”constantly” and “optimistically” about going home to mother. The child was very excited, and made plans about what she would do when she was at home. [ 28 ] There has been one occasion when D. said that she wanted to live with father and a few others on which she said that she would like to stay in the foster home.

In my view, seen in context, those comments do not indicate a wish on D.’s part not to live with mother. [ 29 ] D. has often been told by the society workers that the society cannot support her living with mother. Ms. F. has told the child that this is because mother won’t allow her to have a relationship with father; Ms. Treleaven has told the child that the society won’t support her return because it does not want her caught in her parents’ conflict. D.’s experience over the past two years is that her placement isn’t affected by what she says she wants.

It seems likely that the message that D. has received is: placement with mother is not a possibility. [ 30 ] It is in this context that I view the evidence that occasionally D. has said that she wants to live with father or in the foster home: • In the fall of 2013 (after D. was abruptly pulled back into care after a short extended visit with mother), D. told the foster mother that she knew the society wouldn’t let her live with mother, and that she would like to try living with father. • In the spring of 2014 (after D.’s placement with father broke down), D. said that she wanted to stay in the foster home. Ms.

Treleaven agreed in cross-examination that, given what society workers have told D. about its position, D. had no reason to think that she had any options except to stay in the foster home. • Immediately before the evidence resumed in this trial in October, Ms. J.M. observed that D. was crying when she returned from a visit with mother. Ms. J.M. asked the child why she was crying, and D. did not reply. Ms. J.M. said “maybe it is because you don’t want to be at mother’s.” Her evidence is that D. nodded her head. Ms.

J.M. testified that she was “confused” after this; she questioned whether D. nodded her head because she had doubts about living with mother, or because she thought that it was the response that Ms. J.M. wanted. Ms. J.M. said that she “didn’t really know what was going on with” D. [ 31 ] I do not doubt that D. has been influenced by mother in the formation and expression of her wishes. That is not surprising. The child lived with mother all her life up to June 2012, and has had regular contact with her since that time.

She had little contact with father before mid-2011, and, excluding the placement from December 2013 to March 2014, has never lived with father. 5: D.’s CONTACT WITH FATHER FROM BIRTH TO OCTOBER 2011 5.1: Birth to March 2007 — Father’s Initial Efforts to Visit D. [ 32 ] Prior to the order made in the protection proceeding in December 2013, D. never lived with father. She had very little contact with him for the first 7 years of her life.

What contact there was, consisted of supervised visits—- about an hour long. [ 33 ] As set out above, father and mother ceased communication in May 2004, just two months after D. was born . [ 34 ] In 2005, Toronto Social Services commenced an application seeking child support and claimed custody for mother. Father cross-claimed for access. A final order granting custody to mother and providing for child was made on consent on 3 May 2005, coupled with a temporary order for supervised access for father at APCO for one hour each week. APCO had difficulty accommodating

the order and, for a period of time, the visits only took place every two weeks.

Mother was not flexible in agreeing to changes that would have facilitated implementation of the access order. [ 35 ] Mother placed a number of restrictions on father during visits: mother would provide all food for visits; father was not to speak Spanish (Spanish is father’s first language, and his English was not good at that time); father was not to take pictures of the child; father was not to bring the child presents (except on one occasion when mother allowed a present). [ 36 ] Counsel for the society, father and the child all suggested that these restrictions were part of a campaign by mother to make visits unenjoyable for D.

Mother denies the allegation and testified that she was simply being protective of D. in imposing these limits. I accept that this was mother’s intention. [ 37 ] When there is a high level of mistrust and little communication between parents of very young children, restrictions of this type are not unusual. The custodial parent may not be satisfied that the other parent will bring healthy food or may mistrust the use to be made of any photographs.

However, if the custodial parent receives reports from access supervisors indicating that the child is enjoying visits, then usually the mistrust recedes and the parent agrees that such restrictions can be lifted. This was not the case with Ms. R. She totally discounted the regular written reports made by APCO staff which described D. settling down in visits, father acting appropriately, and the child enjoying her time with him. [ 38 ] Mother testified that she believed that visits between D. and father in this initial period — up until March 2007 — never went well.

In fact, she believed that father must have been “abusive” in some way because of the child’s demeanour before and after visits. All mother saw of these visits was D. crying at the visiting centre prior to a visit, and being angry or unhappy when she was returned to her by staff after a visit. [ 39 ] Despite mother’s view that visits with father were not good for D., in early 2007 she agreed in mediation that unsupervised visits could begin. Before that could happen, father left the country. He was in Canada illegally and left in order to regularize his status. On 11 March 2007, father had his last visit with D.

Mother was advised by APCO staff that father was leaving the country, but father did not advise mother where he was going and whether he would return. [ 40 ] After father left the country, mother made a successful application to change D.’s name from “D.R.” to “D.R.” 5.2: March 2009 — March 2011— Father’s Attempts to Restart Visits [ 41 ] Two years went by. In late March, 2009 father returned to Canada. He showed up at mother’s door one night, intending to ask for access. She called the police without speaking to him.

Her evidence is that she was afraid of him. [ 42 ] The next month, father commenced a fresh application for access, which was opposed by mother. An order for weekly visits of 1½ hours supervised at APCO was made on 13 August 2009. APCO did not

schedule any visits until 11 July 2010 — 11 months after the order. Father blames the delay in commencement on mother; mother says that the delay was caused by father’s not attending his intake interview and paying the required fee promptly. I cannot determine who was responsible for this delay. [ 43 ] Although mother brought D. to APCO regularly from July to November 2010, no visits took place. At times, D. said that she did not want to go into the visit. When D. was questioned by staff about why she did not want to go, she hung her head and said “I don’t know”.

At other times, D. started to enter the visiting room, and mother intervened, saying “Don’t you remember — you said you don’t want to go?” or protesting to staff that D. didn’t want to go and shouldn’t be forced. [ 44 ] Medical records from D.’s doctor, Dr. Loritz, establish that mother was very anxious about the resumption of visits, and that D. began to exhibit physical signs of anxiety when mother took her to APCO. • In October 2009, mother brought the child to see Dr.

Loritz, saying that she was concerned that D.’s “personality would change” because she was being forced to see father, whom mother characterized as abusive. • In September 2010, mother brought D. to see the doctor again because of what she reported were the child’s daily “tummy aches”. Mother said that the tummy aches had started when D. had to go to APCO for visits. D. told Dr.

Loritz that “stress” was the cause, and said that it was “not fair” that she had to go for visits. [ 45 ] In late November, 2010 APCO terminated the visits because of the persistent refusals. [ 46 ] At trial when questioned about this period, mother conceded that it might “look like I interfered with access”, but asserted that all she had done was advocate for D. and allow her to “make a choice”. She said that it was “never my intention to interfere with access”. [ 47 ] In January 2011, mother filed an affidavit with the court acknowledging that she had influenced D. not to attend visits.

It was agreed that maternal grandmother would provide the child’s transportation to visits. [ 48 ] At trial, mother testified that she had signed this affidavit because her lawyer at the time warned her that she was liable to lose custody of D. if she did not. 5.3: March 2011 — Visits Begin Again [ 49 ] Because of delays in the APCO processs, no actual visits took place until 13 March 2011. [ 50 ] This was the first time that D. had seen father since March 2007. [ 51 ] After the visits started, D. began to have problems with recurrent and prolonged vomiting. She was referred to a specialist

for allergy testing; in May 2011, he ruled out allergies to a number of foods. Dr. Loritz believed that the child’s problems were anxiety- related. [ 52 ] Despite these problems, mother agreed to a quick progression in the access. On 29 May 2011, the parties agreed to unsupervised visits each Sunday for three hours, with transfers to take place at APCO. This allowed father to take D. to his home, where she could spend time with his family — Ms. G. and L. and his sister. [ 53 ] In August 2011, the parties agreed to expand access to overnight visits on alternate weekends, from Saturday morning to Sunday at 4 p.m.

Ms. G. and father testified that these visits went fine. [ 54 ] Mother reported no problems with the visits to the society at the time. However, mother says now that, from the beginning of home visits with father, D. reported physical and emotional abuse to her — father forcing her to sit in one place for an extended time for no reason, father denigrating her, father using a wooden paddle which resulted in a huge bruise on her leg, a scar on her knee — an injury at every visit. [ 55 ] Ms.

G. and L. left Canada in September for a trip to Uruguay, and father continued to have the visits on his own. 5.4: Abuse Investigations by the Society and Police [ 56 ] On 22 October 2011, mother had a telephone conversation with D. while the child was at father’s home. Mother testified that D. was crying uncontrollably, and that she heard father yelling at the child to get off the phone. The line was disconnected and mother called police, asking that they investigate.

Father’s evidence about this incident was that D. had been on the phone with mother for a half hour and that the child’s responses indicated that she was uncomfortable; when the child began crying, he ended the call. [ 57 ] Police came to father’s home that evening and interviewed D. and father.

The child denied abuse, and police reported to mother that they discovered nothing concerning. [ 58 ] What followed over the next six months were further allegations made by mother -- which she says resulted from continuing revelations by D. about what was and had been done to her by father — and further investigations by the society and police, investigations that involved interviews with D. These investigations did not result in verification by the society of any abuse by father and did not result in any charges being laid against him.

The particulars related to these allegations are set out below. • 31 October 2011: Mother calls the society saying that D. is refusing to attend the coming visit with father, and that father had threatened to “hurt her more if she told”. Mother reports that D. had sustained injuries to her shoulder and her legs on prior visits with father. • 3 November 2011: Mother consults Dr. Lortiz. She tells him that she now knows that the stiffness in the child’s shoulder — about which she had consulted him in early September 2011 — was caused by abuse by father. At the time of the earlier appointment, Dr.

Loritz had suggested that the stiffness in the child’s shoulder might be the result of cold from air conditioning in father’s car. On 3 November, mother tells the doctor that D. told her that, on an earlier visit, Father grabbed her by her arm as she lay on the floor on her tummy, and threw her across the room. Dr. Loritz noted that the child “corroborated this account in her own words”. When Dr. Loritz tries to examine D., the child objects, so no examination is completed. He arranges an x-ray of the child’s shoulder, which reveals no abnormality.

At the same appointment, mother describes another problem D. had which she now believes was caused by Father — heel pain, pain that impaired the child’s ability to walk naturally. Dr. Loritz refers D. to a specialist to investigate. The specialist is unable to detect any problem — “no evidence of sprain, strain or any bony injury”. • 3 November 2011: D. is interviewed by society worker Sandra Martey at school. D. says that father grabbed her, threw her across the room, yanked her arm, and slapped her on the back; this was the first time that he had done “something like that”.

She says that she was afraid to tell the police. Mother tells Ms. Martey on same day that father was abusive to her in the past, and that, in August 2011, D. had returned from a visit with father with many bruises. • 7 November 2011: Mother tells Ms. Martey that D. has been abused on every visit at father’s home, and that the child is “sad” and acting out. The school does not confirm this report about D.’s behaviour to Ms. Martey. • 15 November 2011: Ms. Martey interviews father, who denies abuse. He is afraid of having overnight access, given the abuse allegations. • 24 November 2011: Ms.

Martey advises mother that the society investigation is finished, abuse is “not verified” and visits can start again. • 25 November 2011: Mother contacts the society with further information about alleged abuse. She says that D. told her about an incident in which father grabbed the child while she was lying in bed, and hit her with a wooden spoon or other wooden object, and that this probably occurred in the summer of 2011.

D. has also told her that father tells her she is stupid and not pretty because she does not have blonde hair and blue eyes. • 2 December 2011: D. is again interviewed by Sandra Martey at school. She says that father is a “nice” man and he loves her, and that mother is sad when she visits him. She says that she does not want to go on visits because mother has told her that father will take her away, and not bring her back. She does not mention any physical abuse. Father decides that he will not have any overnight access while these allegations are dealt with.

Mother does not bring D. to the visit scheduled for 3 December 2011, saying that the child refuses to go. The parties agree that in the interim, visits will be supervised at the society’s offices. • 5 January 2012: Mother takes D. to Dr. Loritz to investigate tenderness in the child’s shoulder. D. tells Dr. Loritz that father yanks her left arm “every time I visit him”. Dr. Loritz can find no overt dysfunction, and x-rays ordered do not reveal a problem. • 16 February 2012: Mother again takes D. to Dr. Loritz because of persistent recurring vomiting. She thinks that the child may have allergies. Dr.

Loritz advises her that he believes that the problem is anxiety-related. He refers the problem to an allergist, who performs various tests. The results do not indicate that D. suffers from allergies.

• 17 February 2012: D. is interviewed by society worker Natalie Francis at mother’s home. In talking about why she doesn’t want to go on visits with father, the child says that he will not let her eat the food that she brings; that he only allows her one snack; and that he calls her “stupid”. She does not mention any physical abuse. • 18 February 2012: is the first scheduled visit at the society; D. refuses to attend.

Father advises the society that he does not want to try any more visits until the Office of the Children’s Lawyer is involved and the society investigation is completed. • 22 February 2012: Christie Hayos, a social worker from Hincks-Dellcrest, begins intake interviews with D. for counselling that was recommended by the society. Ms.

Hayos calls the society, reporting that D. told her (in front of mother and privately) that father hit her with a piece of wood in the past. • 26 March 2012: Mother contacts the society with further information she has received from D.: □ Father’s sister had also assaulted her, (mother later reported to police that the abuse by the aunt took place on 10 September 2011) and □ on 22 October 2011, before the police came, father awakened her and told her that someone was coming, and that if she did not “protect” him, that he would hit her with “an object”. • 29 March 2012: Police and a society worker conduct a joint interview of D.

When asked if she wants to visit with father, she says no. When asked why, she says “because he assaulted me”; she cannot explain what she means by “assault”. She later says that her mother taught her the word. D. later says that her father hit her on the back. On further questioning, she states she cannot remember where she was hit, but that he used “a wooden thing”. Police note that D. smiles inappropriately when talking about the alleged assault. When asked about the allegation that her aunt assaulted her, D. cannot remember “which aunt” it was — she says that her mother told her about her aunt hitting her.

She describes the allegedly separate assaults by father and by the aunt in identical terms — same place, same location in the house, same time, both involving the “Chipmunk game”. The police note many inconsistencies in D.’s statements. They interview mother, and father, who denies abuse. Police explain to mother why they will not be proceeding with charges. Mother expresses her dissatisfaction. 5.5: Protection Application Commenced [ 59 ] The society commenced a protection application on 24 April 2012, asking for a finding of protection and an order placing D. in mother’s care pursuant to society supervision.

Within two weeks, the society brought a motion asking that D. come into care. The reason for the quick change of position is not clear. On 12 June 2012, an order was made placing D. in the temporary care of the society, with access to each parent at the society’s discretion. Access to each parent was at first supervised, then semi-supervised. [ 60 ] In September 2012, the parties agreed to an assessment to be performed by psychologist Dr. Raymond Morris. [ 61 ] While the assessment was underway, there were no further allegations of abuse made to the society or police.

However, in January 2013 in a conversation with Ms. F., D. spontaneously said that father had hurt her in the past before she came into care, by “flipping” her on several occasions. D. said that this hurt her back; she did not believe that father intended to hurt her; she told him it hurt, but he continued to do it; and she was not afraid of him.

When father was told of this allegation, he apologized to D., saying that she should tell him if he ever hurt her. 6: THE ASSESSMENT [ 62 ] The assessment was not conducted under the Child and Family Services Act ; rather the parties agreed that it was to be a parenting capacity assessment conducted “as if it had been ordered under

section 30 of the Children’s Law Reform Act .” [ 63 ] Dr. Morris delivered his report in March 2013. On consent, I qualified Dr. Morris as an expert in custody and access and parenting capacity assessments. [ 64 ] Dr. Morris met with the society’s family service worker, with each of the parents, and with D. He observed D. with each parent. He interviewed father’s wife C.G., the maternal grandmother M.S., and father’s sister, Adriana R., and received information from D.’s school. He also conducted psychometric testing of each parent.

At the time of the assessment, D. was in the care of the society and each parent had semi-supervised access twice a week for 1½ hours. 6.1: Abilities of Each Parent [ 65 ] Dr. Morris made a number of findings with respect to each parent. • Each parent has an ability to meet D.’s basic needs, and each parent is highly motivated to parent D.

Both parents are strict, but in different ways; mother is strict about hygiene and diet, and father is strict about manners. • Each parent has positive parenting skills, and D. was comfortable with each parent. • There are signs that mother is overprotective and infantilizes D. to some extent ( e.g. , during an observation, mother followed 7½-year-old D. around the room feeding her with a spoon from a thermos). • The relationship between mother and D. is “inordinately close.” Mother perceives D. as an extension of herself and has difficulty distinguishing between her needs and the child’s needs. • There is no indication that either parent has a significant mental illness. • Mother has a poor support system — really limited to grandmother.

Father has adequate supports among his family and community. 6.2: Abuse Allegations by Mother

[ 66 ] With respect to mother’s allegation that father had abused D., Dr. Morris found no support for the allegation in his review of collateral information, the results of psychometric testing of father, or his clinical observations. [ 67 ] Dr. Morris observed that mother believed “100%” that father had abused D. during visits. His opinion is that that mother demonstrates “rigid thinking”, and is unable to consider alternate explanations for what she believed D. had reported to her. [ 68 ] Mother reported to Dr.

Morris that she thought it would be better if the child never saw father again, although she would comply with any court order for access. Dr. Morris found that mother is hyper-vigilant about the possibility of abuse of D. because of her own experiences of abuse — abuse by her father and her first partner. 6.3: Interviews with D. [ 69 ] Dr. Morris interviewed D. twice. She reported no problems or concerns with either parent. She said she liked spending time with each of them, except for mentioning that L.’s crying had sometimes kept her awake.

She said that neither parent used physical discipline with her, and neither parent had abused her. She reported liking Ms. G. [ 70 ] On the first interview, Dr. Morris was struck by D.’s delight with the foster home — the contact with other girls, the activities she was able to enjoy. She did not speak of missing either parent. Dr. Morris thought that the child was experiencing relief at being in the foster home — that it gave her a break, a little freedom from the tight regime of mother’s home, and an escape from the tension of the conflict between the society and father with mother.

In the second interview (conducted soon after the Christmas holiday when D. had extended access with mother), the child announced “out of the blue” that she wanted to return to live with mother. [ 71 ] Dr. Morris found that D. naturally wants to please mother, that she is aware of mother’s negative feelings about father, and that she is likely reluctant to tell mother that she enjoys seeing father. Dr. Morris found that it was likely that D. tells each parent different things and that father is aware of this dynamic, but mother is not. [ 72 ] Dr.

Morris also found that it was likely that mother had exercised “undue influence” or had coached D. with respect to the statements she made alleging abuse by father. [ 73 ] Dr. Morris disagreed with the suggestion by the child’s lawyer that this was a case of “pathological alienation”. He pointed out that D. does not express dislike for Father — she consistently reports that she likes him. 6.4: Harm to D. [ 74 ] Dr. Morris testified that D. shows signs of “concerning anxiety”.

Anxiety that results from being caught in the conflict between mother on the one hand, and father — supported by the society — on the other. Dr. Morris explained that the conflict between the parties causes internal conflict for D. D. regularly enjoys positive experiences with father, but regularly receives negative messages from mother (perhaps explicit, perhaps subtle) that father is abusive and negative. This cognitive dissonance can lead to problems in other areas of a child’s life, since she is not sure that she can trust her own experience.

D.’s internal conflict causes the child to say different things to different people in her life — an adjustment disorder, according to Dr. Morris. [ 75 ] Dr. Morris testified that he saw this internal conflict manifest itself in D.’s her interviews with him. [ 76 ] Dr. Morris testified further that long-term psychological damage can be caused to a child who is cut off from continuing a positive, meaningful relationship with a parent, such as the relationship which D. enjoys with father. Dr.

Morris said if that relationship was terminated, that D. would not only lose the relationship itself, but the benefits that could flow from contact with father and his family. 6.5: Dr. Morris’ Recommendations [ 77 ] Dr. Morris considered three possibilities for D.’s placement — placement with mother, placement with father, or Crown wardship. His opinion was that placement with mother was the preferable alternative, because of the very significant relationship that the child had with mother, and because her wishes were to be placed with mother. Dr.

Morris testified that he would be concerned about trauma for D. if she was removed permanently from mother’s care, “because of the nature and quality” of their relationship. He agreed that some of the anxiety currently demonstrated by the child could be a result of her separation from mother. [ 78 ] Dr. Morris cautioned that, before placement with mother was attempted, certain therapeutic supports must be put in place and that, without these supports, it could not be expected that there would be any change from the situation which existed at the time that D. was apprehended.

The supports he recommended are set out below. • First, mother must establish a relationship with an experienced psychotherapist, who could work with her, and eventually with D. It is important that someone advise the therapist at the outset of the goals of the therapy and the issues to be discussed.

The therapist’s job would be to help mother: □ see that she may have influenced D. in how the child described her time with father when speaking with her; □ see how her own dysfunctional upbringing likely affected her views of father and D.’s relationship with father; □ see that there are different, acceptable ways of parenting, even though those ways may not conform to her standards. • A therapist for D. should be put in place to help her develop “age appropriate autonomy” and to enjoy “a healthy relationship with both parents without the fear of need to please”.

• A parenting co-ordinator should be put in place to assist in implementing the therapeutic/educative interventions”, to monitor the progress of the parents and D., and to help to “bridge” the parents’ differing views on nutrition, hygiene and routine”. Dr. Morris thought that a society worker could fill this role but, because of mother’s distrust of the society, suggested that an individual outside the society’s staff be employed to fill that role. [ 79 ] Dr. Morris recommended that when these supports were in place, the society phase in gradually longer periods of access to father over twelve months. [ 80 ] Dr.

Morris recommended further that if, after these supports were put in place, D. were unable to have relatively conflict-free time with father, that the child be placed with father. If that placement was unsuccessful, Dr. Morris reluctantly recommended continued society placement for D. 7: D.’s BRIEF PLACEMENT WITH MOTHER — SUMMER 2013 [ 81 ] Both mother and society staff searched for the resources recommended by Dr. Morris, particularly a psychotherapist who could assist mother in adjusting her thinking about father and D. Mother, despite diligent efforts, was unsuccessful.

Mother was already in counselling with a therapist from Abrigo, but the therapist advised that she did not offer this type of therapy. Society staff located private practitioners who could do so, but the society was unwilling to pay their fees. Hincks-Dellcrest indicated to the society that they could provide such therapy, but that the waiting list was long, about one year. [ 82 ] Despite the fact that none of the supports recommended by Dr. Morris were in place, the society decided to expand visits to both parents to unsupervised day visits, quickly progressing to overnight visits.

The society perceived no problems in the extended access. In August 2013, the society decided to place D. with mother on an extended visit, intending to ask for an order temporarily placing the child there if all went well. [ 83 ] D. had been with mother for about one week when she went to father’s for an overnight weekend visit. When D. returned, she was interviewed by the family service worker, Ms. Treleaven. D. said that her time with mother was going well, but that she did not like visiting father.

She cried, reporting that father had given her “pasta without sauce”; that she had spent all weekend on the computer and not gone out; and that she was bored, and did not like visiting father. These statements were in contrast to what D. had been telling other workers for months previous—that she liked seeing father and his family. [ 84 ] A quick check with father and his wife revealed that D.’s version of the weekend was inaccurate.

According to them, D. had engaged in activities with the family, eaten tasty meals, and appeared to have had a good time. [ 85 ] D.’s unexplained complaints about visits were interpreted by the society as a danger signal.

They quickly pulled D. back into the foster home, despite the child’s protests. 8: PLACEMENT WITH FATHER — DECEMBER 2013 [ 86 ] Upon D.’s return to the foster home, the society brought a motion requesting temporary placement with father, with supervised access to mother. [ 87 ] In early December 2013, a temporary order was made, placing D. with father, but providing for unsupervised visits on alternate weekends with mother. The evidence from the society and father and Ms. G. indicates that, for the first 4-6 weeks, the placement seemed to go well. The child was relaxed and affectionate with father and his family.

Because father’s home is near the foster home, she was able to stay in the same school and continued to do well at school. [ 88 ] However, there were some indications even in this honeymoon period that D. was reluctant to let mother see that she enjoyed time with father and his family. Father testified that, when he picked D. up from visits with mother, the child walked past him, like he did not exist; when she reached home, her behaviour became normal. Ms. G. testified about an occasion when father was dropping D. off for a visit with mother.

The child was sitting next to him in the front seat of a van, and other family members who were visiting occupied seats in the back rows. D. insisted before they saw mother on moving to a back seat in the van, not next to father. [ 89 ] During the first few weeks that D. was with father, D. reported to Ms. Treleaven that she liked being at father’s home. D. made no reports of abuse or neglect. However, she did tell Ms.

J.M., with whom she had maintained contact, that mother seemed to be treating her differently since she lived with father, that mother was somewhat ”cold” or “tight” with her. [ 90 ] Sometime in February 2014, D. started to show signs that she was not doing well. Father and Ms. G. testified that, after visits or prolonged telephone conversations with mother, D. began to cry and would not discuss with them why she was crying. The child’s crying bouts became more frequent. D. withdrew from interaction with the family — she would just stand and watch them when they ate, or viewed television.

She did not want anyone to touch her. L. became afraid to approach D. [ 91 ] D. told both Ms. Treleaven and father that she wanted to live with mother, and did not want to go to father’s home even for visits. She could not give Ms. Treleaven a reason for her change in behaviour. [ 92 ] Father feared for D.’s health. He told the society that he thought she should go back to the foster home, because that was a “safe place” for her, where she could express herself and maintain contact with him and mother. [ 93 ] D. came back into care on 6 March 2014. Luckily, she was able to return to the same foster home.

[ 94 ] Father and Ms. G. have said that they are anxious to have D. back with them, but that the child’s contact with mother must be supervised, at least initially. If mother has unsupervised contact with D., they fear that the child will start to decompensate again. [ 95 ] Dr. Morris was advised during his testimony that “his plan had been tried” and failed. He said he was not surprised, given that the therapeutic supports he had recommended had not been put in place.

He agreed that, without these supports in place, unsupervised access by mother to D. could have undermined the child’s placement with father. [ 96 ] Evidence established that, although mother and grandmother had not made any allegations of abuse against father to the society during the time that D. was living with father, they both believe that he continued to abuse the child in some way. Mother approached the Schlifer Clinic for counselling in January 2014, after D. had been placed in father’s home.

Mother advised Schlifer social worker, Lisa Thibideau, that D. was being abused in his care; the worker understood that mother was talking about a current situation and advised her that she was obliged to report this to the society. When Ms. Thibideau advised mother that the society had told her that D. was safe in father’s care, mother asked, “Do you believe that?”— indicating that she did not. 9: VISITS SINCE MARCH 2014 [ 97 ] Workers have generally positive observations about the visits they have witnessed with each parent since D. returned to care, while those visits were supervised or semi-supervised.

The workers’ evidence is as follows. • Father is affectionate to D. and D. appears to enjoy the visits. When father visits, he is often accompanied by Ms. G. and L. He and D. will talk about her school activities or sports, he will bring a meal or snack and they may play a game. Father has not been able to visit as regularly as mother, because of demands of his work. • Mother often brings Ms. S. and R. to visits. She always brings healthy meals or snacks and is very affectionate with the child. She and D. and R. will do crafts or listen to music or play a game or work on homework or she may read a book to them.

Workers have observed that mother sometimes treats D. (and R.) as a child considerably younger than she is. For example, Ms. Francis observed that the books that mother brought to read to D. when she was 8 years old were geared to children 3-5 years old. • D. is sometimes distressed at the end of a visit with mother, tearing up, and saying “no”. Mother reassures her that everything is okay, and that she loves her.

Mother often tells D. how much she misses her. [ 98 ] Since sometime in the summer of 2014, visits have been in each parent’s home. [ 99 ] Although neither mother nor grandmother reported concerns about the child’s home visits with father this past summer, at trial both they both testified that D. was still telling them she was badly treated on visits. [ 100 ] When questioned by workers or by Ms. J.M. over the past two years, D. has often said that she likes visiting with father and Ms. G. and L. However, she has also told workers that, if she is living with mother, she is not sure that she wants to see father.

Ms. J.M. testified that, over the summer and into the fall, while D. was sometimes rude to father at the time of pick up ( e.g. , not speaking to him), she always seemed “fine” when the visit concluded. 10: FATHER AND D. [ 101 ] Father and D. have a relationship that is still developing. The child had restricted contact with father the first seven years of her life. The contact was further restricted by the fact that father had limited facility in English, and D. had little facility in Spanish. [ 102 ] Since more regular contact began in 2011, their relationship has progressed in fits and starts.

The child is still unsure in her relationship with father; for example, she does not call him “Father” or “Daddy”. But the evidence is that D. enjoys spending time with father and with his family — her stepmother Ms. G., and her sister L. Dr. Morris found that the relationship is positive. [ 103 ] Father has demonstrated an ability to consider D.’s needs as separate from his own. He testified that, early in the litigation, he thought hard about whether it would be better to walk away from the conflict, since it was putting pressure on D.

His evidence is that what he gradually saw about mother’s treatment of D. convinced him that it was important for him to facilitate an alternative for the child. Although he did not initially wish to ask for custody of D., he became convinced that it was in the child’s best interests to be removed from mother’s constant influence and therefore asked that she be placed with him. [ 104 ] Father has also demonstrated an understanding of the effect of this dispute on D.’s communication with others. As Dr.

Morris testified, father can accept that D. may say different things to different people, in an attempt to protect herself from the conflict. 11: MOTHER 11.1: Mother’s History [ 105 ] Despite having told counsellors at Abrigo and Schlifer and Dr. Morris about abuse that she suffered at the hands of R.s father, Mr. S. and, about emotionally abusive treatment by her own father, [2] at trial mother insisted that she had suffered no abuse prior to what she says was father’s emotional abuse of her. [ 106 ] Mother discussed her relationship with father before D. was born.

She said “he seemed normal, but he wasn’t. . . . he made me think that our relationship was long-term, but it wasn’t.” Mother’s evidence is that, although it may appear that father loves D., mother knows this is not true, based on what D. tells her. She cannot understand why society workers do not see what she does. 11.2: Rigid Thinking?

[ 107 ] While mother is willing to take any type of counselling necessary for her to get D. back, she does not think she needs the counselling recommended by Dr. Morris. Mother is dismissive of his views and says that she is not influencing D. and has never conveyed to the child a negative view of father.

In mother’s view, any problems that D. had in father’s care were the result of his own behaviour. [ 108 ] Mother testified as follows: • She does not believe D. would tell an untruth; D. is very open with her. • She believes everything D. says. • She does not believe that D. would tell her something just because the child thought that she would want to hear it. • D. may say things to please other people, “but not to me — I didn’t raise her to tell stories”. • “I never discuss father or his family with D. — I don’t know him.

The only time we discuss father is when D. says something negative about him.” [ 109 ] Mother has been in counselling herself at Abrigo for about a year. She testified that the counselling has dealt with safety planning, self-esteem, children’s stages of development and how to help D. cope with her situation. Mother has also participated in programs at the Child Development Institute. 11.3: Mother’s Continuing Concerns about Abuse by Father [ 110 ] Mother testified that she believed that D. had been badly treated — although not physically assaulted — while in father’s care from December 2013 to March 2014.

The details of this alleged mistreatment are set out below. • Inappropriate clothing in winter. Mother says that father “hid” the child’s snow pants so that she could not play in the snow and failed to give her mittens, a hat, and boots in snowy weather. There is no record from society workers who visited his home during this time about a problem with outer clothing. • Failure to feed the child adequately . Mother testified that, on the Christmas visit, D. told them that she was “really hungry” and that father or Ms.

G. only gave her cookies for breakfast and provided no lunch — just two pieces of bread without any filling. D. told them this went on regularly. Mother said that she cleaned out D.’s backpack and found three moldy sandwiches, also just pieces of bread with no filling. Mother presented pictures that documented the allegedly moldy sandwiches. The pictures did appear to show three plastic-wrapped sandwiches that were moldy, but the lack of filling was not clear. Mother said that D. reported that her teacher, upset with this neglect, had started providing her with lunch. Ms.

G. testified that she regularly provided D. with good healthy food, the same food that the whole family ate. She made D.’s lunch to take to school daily, offering the child a choice of the type of sandwich. Ms. Treleaven checked with D.’s teacher, who did not report any problems with the child’s lunch and had not given her lunch. • Loss of weight . Mother testified that she knew that D. had lost weight in father’s care — her clothes did not fit, and she was lighter to pick up. Society medical records indicate that the child weighed the same going into and coming out of father’s care. • Being left alone.

Mother testified that D. told her that she was left alone with L. on several occasions, when father and Ms. G. went out. Father denied this. D. never reported to society workers that she was left alone. [ 111 ] Mother’s evidence is that, based on what D. tells her, she believes that the child is still badly treated when she visits father. Despite these concerns, Mother testified that she did not object to D.’s having access, including overnight access, if the child is returned to her.

She said that she had never stopped access and that she did not want to deny the child her father. [ 112 ] Mother acknowledged that, if D. reported abuse or neglect to her again, this would be a “problem” — she would have to report it, but she did not want the child to be apprehended again. She hoped that D. could be in counselling again with someone she could trust, and talk to that person about any problems she had with father. 12: GRANDMOTHER [ 113 ] M.S., D.’s maternal grandmother, was called to give evidence by father. [ 114 ] Ms. S. is 67 years old and a retired office manager.

She separated from her husband, Ms. R.’s father, approximately 20 years ago. Ms. S.’s evidence is that, except for a 10-month period immediately prior to D.’s birth, she and Ms. R. have always been very close; Ms. S. sees mother about four times a week and they talk every day. Ms. S. has also always been very close to D. Ms. S. sees Ms. R. and R. every weekend, and sometimes during the week. When D. is with her mother on a home visit, she also sees Ms. S. [ 115 ] Ms. S. testified that she only met Mr. R. once, before mother gave birth to D., when he and Ms. R. came to her house for dinner.

She thought that he was unfriendly and “too old” for her daughter. [ 116 ] Ms. S.’s perception of Mr. R. is entirely negative. Her testimony is that he has been “abusive” to D. in one way or another throughout her life, starting with the supervised visits at APCO in 2005, and that he is responsible for the society’s removal of D. from mother’s care. She testified that D. said that father told her that he was going to “take you away from your mother”. [ 117 ] Ms. S.’s testimony about father’s mistreatment of D. echoes mother in almost every respect.

Occasionally, the description of alleged mistreatment by father is amplified — for example, grandmother says that D. told her that, at times when she was with father, she “almost fainted” from hunger before he fed her. [ 118 ] Ms. S. testified that, like mother, she believes everything that D. has told her about abuse from father: D. “doesn’t make up stories”. She said that D. did not tell her about problems on access every time she saw the child: “D. keeps it inside . . . she has to survive . . . she has to be safe”. Ms.

S. never reported any problems to police or the society; she testified that her experience was that,

when the society was involved “things don’t go very well . . . they took D. from us”. She was concerned that, if father continued to have access to D., he would abuse the child. [ 119 ] Ms. S. testified that she did not believe that mother needed the therapy recommended by Dr. Morris. 13: DID FATHER ABUSE D.? [ 120 ] I do not find that father abused D., either physically or emotionally. [ 121 ] Two society investigations and a joint society-police investigation have not found reliable support for these claims of abuse. [ 122 ] There is no physical or medical evidence of the alleged abuse. • For example, Dr.

Loritz’s records do not report D.’s suffering from bruises on her legs (as complained of by mother and grandmother) in the summer of 2012, after unsupervised visits started. • Although mother took D. to the doctor in October 2011 to investigate pain in the child’s shoulder and feet, the doctor’s records do not document any physical evidence related to these complaints. • The society worker who first investigated mother’s report that father had physically abused D. observed no bruising or other physical indications of abuse in the child. [ 123 ] D. made statements to some third parties in the fall of 2011 or early 2012 that spoke of physical abuse by father.

These statements were made to Dr. Loritz in November 2011; to society worker Sandra Martey in November 2011; to the intake worker at the Hincks Ms. Hayos in February 2012; and to the police and society worker Natalie Francis in March 2012. [ 124 ] I find these statements unreliable for multiple reasons. • Signs of coaching . There are indications that D. was “assisted” or coached in making these statements. For example, although the child told police that father “assaulted” her, she quickly conceded that she did not know the meaning of the word.

She explained that her mother had taught it to her. • Failure to be consistent. There are many examples of D.’s failure to be consistent in statements to workers alleging mistreatment by father. For example, although D. told Ms. Martey in November 2011 that father yanked her arm and threw her across the room, in her next interview with Ms. Martey, she said that she does not want to see him but in explaining her reasons, mentions no physical abuse. She said that mother told her that father will take her away. She also said that father is “nice”. • Abruptly changing accounts of abuse .

In D.’s statements concerning abuse, discrete incidents of assault quickly morphed over time into claims of ongoing assaults that never stopped. • Unbelievable accounts. Some accounts of D.’s accounts of abuse are simply unbelievable — for example, D.’s later account of the visit of 22 October 2011 in which she said that father woke her up, told her that “someone” was coming and insisted that she lie to police. This allegedly occurred in circumstances in which father would have no reason to believe that police were on their way. • Failure of school to corroborate .

Staff at D.’s school failed to observe any upset in D., despite mother’s insistence that events surrounding the visits were traumatic for the child and that she was sad and acting out at school. • Dr. Morris’ opinion . Dr. Morris’ opinion, based on interviews, psychological tests and observation of father with D., was that it is unlikely that father was abusive to the child, physically or emotionally. • Workers’ observations . When visits were supervised, society workers regularly observed father’s appropriate and caring attitude towards D., and the child’s positive interactions with him.

When visits became semi-supervised and when they shifted to father’s home, workers and the foster mother failed to note any upset in the child before or after visits. D. appeared to enjoy the visits. [ 125 ] The last complaints that D. made alleging any physical abuse by father were in the joint interview with police and society workers in March 2012, prior to her coming into care. Since then, she has seldom complained to workers, the foster mother or other third parties about any type of mistreatment by father.

The statements she made in August 2013 — that Father fed her only pasta without sauce or kept in and did nothing with her on a visit — were quickly forgotten by her in a subsequent interview and have no support in other evidence. I take those statements as the child’s feeble attempt to provide a rationale for saying what she felt mother wanted her to say — that she did not enjoy the visit. [ 126 ] Other than what is reported by mother and grandmother, there is nothing in the evidence that would support the assertion thatfFather has mistreated D. while in his care.

I do not believe that mother and grandmother are reliable witnesses on this topic. Mother’s belief that father represents a danger to D. is longstanding and is illustrated by her statement to Dr. Loritz in 2009 that she was afraid that D.’s personality would change — for the worse — if the child had contact with him. [ 127 ] Mother is able to articulate nothing positive about father or about D.’s contact with father.

According to mother, father is not even mentioned in her household unless D. complains about him. [ 128 ] The evidence establishes that, in any ambiguous situation, mother will readily make a negative assumption about father’s actions. For example, at the time of D.’s earliest visits to father, when the child cried before entering the visiting room, mother’s belief was that D.’s crying must be the result of maltreatment by father.

No other explanation — such as a young child’s discomfort when being removed from her primary caregiver, or the possibility that mother’s own tension about the visit might affect the child — was considered. APCO reports of the positive visits which occurred after D. was taken to father were not considered by mother. [ 129 ] This is a pattern repeated over and over.

When mother was asked in cross-examination about the basis for her belief in 2007 that father was intending to kidnap D., she said that it was because he spoke to the child in Spanish. [ 130 ] Grandmother’s negative and irrational beliefs about father reinforce mother’s views. Her influence is likely strong, as she is

mother’s only regular social support. [ 131 ] I cannot know what D. has actually said to mother and grandmother about her experience during her times with father. I think it is unlikely that mother simply fabricated all the tales of abuse she reports. I think it is likely that mother has constructed a narrative of abuse that started in ambiguous circumstances and amplified by D.’s statements after the child understood what mother expected to hear from her.

In a case that bears similarities to this, an expert witness testified that the parent in question had “confabulated (memory distortion without intention to deceive) the memory rather than fabricated (an intention to deceive) the memory due to her own extreme stress and possible dissociation”. [3] That may be an accurate description of mother’s thought process. 14: PROTECTION FINDING [ 132 ] The society asks that the court find that D. is in need of protection pursuant to clauses 37(2)(

f) and (

g) of the Act. The onus is on the society to establish on a balance of probabilities that: • D. has suffered or is likely to suffer emotional harm demonstrated by serious anxiety, depression, withdrawal, or self- destructive or aggressive behaviour, and • there are “reasonable grounds” to believe that the harm or risk of harm results from the actions or failure to act of mother. [ 133 ] There are many cases in which a parent may be making decisions for a child that are not the best in terms of the child’s development and emotional well-being.

Those deficiencies will be factors in cases concerning custody of and access to a child, but they will not always form the basis for a finding that a child is in need of protection. Such a finding is a recognition that the parent has fallen below the minimum acceptable standards of parenting in our society. The finding justifies government intrusion into the family and, in some cases, removal of a child from a parent’s care.

The legislature recognized that, in order for such intrusion to be justified, a child must suffer from or be at likely risk of suffering from a serious emotional, psychological, or developmental problem as a result of impugned parental action. [ 134 ] Case law has recognized that, in most cases, expert evidence must be adduced to ground such a finding. [4] [ 135 ] A society is not required to establish that a parent has (or likely will) cause serious harm.

It is sufficient to prove that there are “reasonable grounds” to reach this conclusion, a standard that requires less than proof on a balance of probabilities. [5] [ 136 ] A society is not required to establish that a parent intended to cause emotional harm before a finding is made. It is the effect of a parent’s action, not his or her intention, that is relevant. [6] [ 137 ] Expert evidence from Dr.

Morris’, evidence which I accept, establishes the following: • D. is suffering from anxiety, anxiety that in his opinion is “concerning”. • The anxiety results from the internal conflict that D. suffers as a result of the contrast between her generally positive experience with father and mother’s messages to her that this experience is negative and harmful.

This internal conflict may lead D. to have difficulty trusting her own experience in assessing other situations in life as she grows older. • D.’s internal conflict was evident in her interviews with him. • D.’s behaviour in telling “different stories to different people” and in making up stories was indicative of an adjustment disorder. [ 138 ] There are reasonable grounds to think that mother’s actions and attitudes are a cause of the circumstances that have resulted in D.’s anxieties. • Mother’s belief that it is not in D.’s best interests to have a relationship with father is long-standing. Mother told Dr.

Loritz of her worries that contact with father could change D.’s personality for the worse. Mother said to Dr. Morris that it would be better for D. if she never saw father again. • Mother has communicated to D. in some manner her view that father is dangerous and not to be trusted. Mother has never said anything positive about father to the child. Neither has grandmother.

The only time they discuss father with D. is when they believe that he has mistreated the child, and they are ready to detect mistreatment in any ambiguous circumstance. • D. understands that any positive experiences she has with father and his family are distressing to mother. The child has told society workers and Dr. Morris and Ms. J.M. that she knows that mother is unhappy when she sees father. As Dr. Morris found, D. feels that she has a responsibility to please her mother and to alleviate her distress. [ 139 ] Dr.

Morris testified that, because D. and her mother have an inordinately close relationship, D. is exquisitely attuned to mother’s feelings and approval (or disapproval). The only reasonable explanation for D.’s fabrication of allegations of abuse or neglect by father is the child’s need to support her mother’s fixed belief that father cannot treat D. well and that D. cannot possibly enjoy her time with father. If a parent drives a child to such extremes, in my view that behaviour constitutes emotional abuse. I agree with Justice Heather Magee’s analysis of such parental conduct in a similar case: [7] [127] . . .

No child should be required to repudiate a parent in order to alleviate the other parent's distress. No child should be required to bear false witness against a parent in order to vindicate the other parent's fears. [ 140 ] Other evidence supports a finding that D. has over a prolonged period suffered stress, stress that is manifested in anxiety, withdrawal, and even physical illness, stress it is reasonable to think resulted from the pressure of mother’s own anxieties on D.

• From mid-2009 to 2011, D. suffered persistent stomach aches and vomiting. Dr. Loritz’s opinion (echoing a comment by D. herself) was that these conditions were caused by stress. During most of this period, D. did not even see father. At the end of the period, the brief contacts she had with him were positive, according to any objective observers. I attribute the child’s anxiety to mother’s own anxiety at the prospect of visits resuming. • In 2012 after D. was taken into care, she displayed marked facial tics during her visits with mother; Dr.

Morris attributed this to the child’s anxiety about meeting mother’s expectations. • In 2013/14 when D. was placed with father, she displayed marked anxiety and withdrawal after extended contacts with mother in person or on the phone. The child stopped talking, eating, and interacting with others and cried for lengthy periods of time. [ 141 ] There may be — likely are — factors contributing to D.’s serious emotional difficulties other than mother’s actions and attitudes. Dr. Morris acknowledged that D.’s separation from mother could be contributing to her anxiety. I accept this.

In my view, however, it is not required that that the harm or risk of harm contemplated by the Act result only from a parent’s actions. It is sufficient if there are reasonable grounds to believe that the parent’s actions are a significant contributor to the harm. [ 142 ] I am satisfied that a protection finding should issue. D. suffers from serious anxiety and there are reasonable grounds to believe that mother’s actions and attitudes are a significant cause of that anxiety.

There are also reasonable grounds to believe that the risk will continue if D. is in mother’s care. 15: DISPOSITION — THE LAW 15.1: Options on Disposition [ 143 ]

Section 57 of the Act provides that, if a child has been found to be in need of protection and the court is satisfied that a court order is necessary to protect the child in the future, then the court shall make one of the following orders, or an order pursuant to

section 57.1, that is in the child’s best interests: 1. Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months. 2. Society wardship — That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months. 3. Crown wardship — That the child be made a ward of the Crown, until the wardship is terminated under

section 65.2 or expires under subsection 71(1), and be placed in the care of the society. 4. Consecutive orders of society wardship and supervision — That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. [ 144 ] No one argued that, if a protection finding was made, a further order was not required to protect D. 15.2:

Section 70 Time Limit [ 145 ]

Section 70 of the Act limits the available options for disposition in this case.

Section 70 is a statutory recognition that permanency planning is of paramount importance for children. Subsection 70(1) provides as follows: 70. Time limit.—

(1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding, ( a ) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or ( b ) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship. [ 146 ] Subsection 70(4) provides that this period may in the court’s discretion be extended by a period “not to exceed six months if it is in the child’s best interest to do so”. [ 147 ] In calculating the allowable period for a child to be a society ward, the Act provides that any time a child has spent in care under a temporary order shall be counted. [ 148 ] D. has been in the society’s temporary care in excess of 24 months, a period that exceeds the applicable statutory limit. 15.3: Other Considerations on Disposition [ 149 ] Under the Act, the society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the Act, which is to promote the best interests, protection and wellbeing of children.

A court is required, before making a disposition, to consider what efforts a society or other agency has made to assist a parent before making an order that would remove a child from that parent’s care. [8] [ 150 ] Before an order is made removing a child from a person who was caring for her immediately before society intervention, a court is also required to consider whether less disruptive alternatives will serve the child’s best interests and whether it is possible to place the child with a relative or member of the child’s community or extended family. [9] 15.4: Best Interests

[ 151 ] The decision as to disposition must be based on what is in the child’s best interest. Subsection 37(3) of the Act provides that, in determining best interests, the court shall take into consideration the following circumstances that are considered to be relevant : 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. 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. 7. The importance of continuity in the child’s care and possible effect on the child of disruption of that continuity. 8.

The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child’s remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed

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