Children’s Aid Society of Algoma v. A.-M.S., 2011 ONCJ 393

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

Part III of the Child and Family Services Act and is subject to subsections 48(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 . . . the 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) Prohibition: 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) 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) Idem. — 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. Sault Ste. Marie Registry No. 116/2010 DATE: 2011·III·04 CITATION: Children’s Aid Society of Algoma v. A.-M.S. , 2011 ONCJ 393 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA, Applicant, — AND — A.-M.S. and T.J.S., Respondents. Before Justice John Kukurin Heard on 25 February 2011 Reasons for Judgment released on 4 March 2011

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subsection 37(2), clause 37(2)(f), clause 37(2)(g), clause 37(2)(h),subsection 38(3), subsection 40(4), subsection 47(1),

section 57.1, subsection 57.1(1), subsection 57.1(6) and

section 57.2. Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended], subsection 112(1). Family Law Rules, O. Reg. 114/99 [as amended], subrule 12(1), subrule 12(3) and subrule 12(4). CASES CITED Catholic Children’s Aid Society of Metropolitan Toronto v. O. (Lisa Marie) and P. (Michael), , 102 O.A.C. 232, 149D.L.R. (4th) 464, 30 R.F.L. (4th) 16, [1997] O.J. No. 3041, 1997 Cars​well​Ont 2742 (Ont. C.A.). Catholic Children’s Aid Society of Toronto v. B. (Diana) and K. (Jozo), , 114 A.C.W.S. (3d) 465, [2002] O.J. No.2318, 2002 Cars​well​Ont 1868 (Ont. C.J.). Chatham-Kent Integrated Children’s Services v.

M.(C.J.) and M.(R.), 2006 ONCJ 26, 145 A.C.W.S. (3d) 639, [2006] O.J. No. 388, 2006Cars​well​Ont 552 (Ont. C.J.). Children and Family Services for York Region v. S.(J.G.) and S.(C.G.), , 246 D.L.R. (4th) 562, 10 R.F.L. (6th) 269,[2004] O.J. No. 4681, [2004] O.T.C. 1013, 2004 Cars​well​Ont 4678 (Ont. Fam. Ct.). Children’s Aid Society of Hamilton-Wentworth v. B. (Kelly), , 117 A.C.W.S. (3d) 578, 16 O.F.L.R. 113, [2002] O.J.No. 4014, [2002] O.T.C. 767, 2002 Cars​well​Ont 3409 (Ont. Fam. Ct.). Children’s Aid Society of Metropolitan Toronto v. F.(M.) and F.(E.M.), , 99 D.L.R. (4th) 378, [1993] O.J.

No. 4164,1993 Cars​well​Ont 3840 (Ont. Div. Ct.). Children’s Aid Society of Metropolitan Toronto v. P. (Jeffrey) and B. (Christina), , 20 A.C.W.S. (3d) 957, [1990]W.D.F.L. 688, 3 F.L.R.R. 135, [1989] O.J. No. 2564, 1989 Cars​well​Ont 2567 (Ont. Prov. Ct., Fam. Div.). Children’s Aid Society of Waterloo Region v. B.-C. (Zeledy) and B.-C. (Jorge), , 67 A.C.W.S. (3d) 522, [1997]W.D.F.L. 315, 10 O.F.L.R. 124, [1996] O.J. No. 4245, 1996 Cars​well​Ont 4670 (Ont. Prov. Div.). Jennifer A. Mealey ........................................................................ counsel for the applicant society Eric D.

McCooeye ......................................................... counsel for the respondent mother, A.-M.S. Heather A. Mendes ............................................................ counsel for the respondent father, T.S.1 For previous proceedings, see Children’s Aid Society of Algoma v. A.-M.S. and T.S.1., 2010 ONCJ 741, [2010] O.J. No. 6101 (Ont. C.J.),per Justice John Kukurin. [1] JUSTICE J.

KUKURIN:— This is a decision with respect to two motions brought in this child protection case whichinvolves three children: • T.S.1, also known as “T.J.” (11 years old), • A.S. (10), and • T.S.2, also known as “T.” (5). [2] The first motion (at tab 3, volume 2 of the continuing record) is brought by the applicant society. It seeks the court’sleave to withdraw its child protection application which was started almost nine months ago. [3] The second motion (at tab 5, volume 2) is brought by the respondent mother. It seeks an order under subsection 38(3)of the Child and Family Services Act, R.S.O. 1990, c.

C-11, as amended (“the Act”), directing that legal representation be provided forall three children in this child protection case. [4] Common sense dictates that the society’s motion be dealt with first since a favourable outcome for the society mayrender moot the mother’s motion claim. 1: MOTION FOR LEAVE TO WITHDRAW CHILDPROTECTION APPLICATION 1.1: Background and Chronology [5] An appreciation of the claim for leave to withdraw is not possible without some review of the past and present

circumstances of the family. [ 6 ] The father was raised in Sault Ste. Marie. The mother was raised in Thunder Bay. They met in 1995 and started a relationship. The mother moved to Sault Ste. Marie in early 1997. Their first son was born in 1999; the second in 2000. In March 2001, the mother and these two children left Sault Ste. Marie without prior notice to the father and relocated to Thunder Bay. There followed a period of about three years during which the parents worked on arrangements whereby these children shared their time between their mother and their father. In March 2004, the parents reconciled.

By September 2004, the mother and these two children had moved back to Sault Ste. Marie. The mother and father then legally married. In April 2005, their youngest son was born. In May 2006, the mother left Sault Ste. Marie with the three children while the father was away on a trip and after having assured him that she would not do so. She returned to Thunder Bay and unilaterally enrolled the older children in school there for the remainder of their 2006 school year. [ 7 ] The father started a court proceeding in the Superior Court of Justice at Sault Ste. Marie that included claims for custody and access.

The mother also advanced such claims in that proceeding. In due course, the mother and the three sons returned to Sault Ste. Marie. A succession of interim orders ended with “week about” access with each parent. The Office of the Children’s Lawyer became involved and prepared a report filed with that court pursuant to subsection 112(1) [1] of the Courts of Justice Act , R.S.O. 1990, c. C-43, as amended. That proceeding was correctly identified as a high-conflict custody-and-access case. It culminated after three years of litigation in a multi-day contested trial in the summer of 2009.

The end result was an order of Justice Edward J. Koke dated 10 August 2009. This order awarded joint custody to the parents with an equal sharing of their parenting time on a “week about” basis, provided that the mother continued to reside in Sault Ste. Marie. If she was to move away, the joint custody was to remain in effect, but the children’s primary residence would be with their father and the mother was to have liberal access. This judgment contained many other provisions relating not only to issues of custody and access but also to issues of support and property division.

It also effected the dissolution of the marriage. Lengthy written reasons were provided in the case. [ 8 ] In the months following this judgment, the mother continued to reside in Sault Ste. Marie. She filed an appeal of Superior Court order of custody, apparently requesting an appellate court to overrule the trial decision, to award her sole custody and to allow her to move the residence of the children to Thunder Bay. During the year following the judgment, the relationship between the parents did not improve; it worsened.

The mother made a number of complaints to the children’s aid society, none of which resulted in any significant action being taken on any child protection basis. [2] [ 9 ] Communication between the parents has been abysmal for several years. It has not improved and has been primarily responsible for various incidents that have only aggravated the animosity between the parents. Many of these incidents have involved various non-family community service providers, the most prominent of which have been medical and counselling professionals, teacher and principals, and society personnel, both in Sault Ste.

Marie as well as in Thunder Bay. [ 10 ] Ultimately, the society started this child protection application in early June 2010 when the mother was still resident in Sault Ste. Marie. The society did not apprehend the children. However, it did ask, by motion (at tab 2, volume 1 of the continuing record) for an order for temporary care and (sole) custody in favour of the father, subject to an interim supervision order with conditions.

It also sought in this same motion, an order for interim access to the mother, supervised in the discretion of the society and subject to a number of conditions of access. [ 11 ] Of considerable significance are the grounds relied up by the society for a finding that these three children are children in need of protection. The society alleges that the grounds in clause 37(2) ( g ) [3] of the Act apply to all three children.

In addition, with respect to the child A.S., the society seeks a judicial finding pursuant to clause 37(2) ( h ). [4] [ 12 ] Of even more interest is the factual basis on which the society relies for such findings. It has to do almost completely with the conduct of the mother. The society assessed the children to be at “high risk of parental alienation” as a result of the mother’s insistence that the children were distressed at not being permitted to relocate with her to Thunder Bay.

The society’s evidence refers to the mother’s seeking of mental health services for the children to support her goals of obtaining sole custody and relocation to Thunder Bay. It describes the mother’s efforts as relentless and obsessive, demonstrating very clearly that she rejects the terms of the custody and access order of the Superior Court of 10 August 2009. [ 13 ] The society does not point a finger at the father as a source of protection concern. Its ultimate claim in this case, in fact, is for the father to have care and sole custody of all three children.

The supervision order conditions that it seeks with respect to the father are rather innocuous. The most intrusive condition is that he keep his mouth shut in the hearing of the children with respect to any details of this case and with respect to any pejorative comments about the mother. [ 14 ] The mother’s answer sought a dismissal of the society’s child protection application. [5] Alternatively, she wanted the children placed in her care subject to a supervision order. In a further alternative, she asks for a

section 57.1 custody order with permission for the children to reside with her in Thunder Bay. [ 15 ] The father’s answer sought an order of sole custody in his favour pursuant to

section 57.1 of the Act . In the alternative, he sought sole care and custody subject to a society supervision order, and an order for access to the mother supervised by, and in the discretion of, the society. [ 16 ] There have been several significant developments since this child protection application started in early June 2010. [ 17 ] First, the society was unsuccessful in obtaining the temporary care and custody and maternal access order for which it was asking in its motion at tab 2.

Instead, a “without prejudice” order was made for joint temporary care and custody to the mother and the father, the terms of which mirror the Superior Court order of 10 August 2009 ( i.e. , “week about” care and control). However, this temporary care and custody order did contain a provision for interim supervision by the society, in its discretion, of the care of the children by either the mother or by the father. [ 18 ] The second significant development was the relocation of the mother to Thunder Bay.

It is difficult to pinpoint precisely when this took place as she straddled the two communities in the summer of 2010. However, I infer that, when she did not return to

reside in Sault Ste. Marie in September 2010, she had effectively relocated to Thunder Bay where she continues to reside. The children have, since early September 2010, lived primarily with their father in Sault Ste. Marie. The mother has had access visits since then. However, it is apparent that there lingers considerable acrimony and animosity between the parents. [ 19 ] There are several other developments of lesser relevance to the issue in this motion.

Among these is the abandonment by the mother of her appeal of the Superior Court custody order and her stated intention of seeking a change in the custody-and-access terms of that order by bringing a variation proceeding based on material changes in circumstances. Of some interest is the fact that the mother entered into a new relationship in mid or late 2006 with a man whom she had known a decade or so previously.

She and he have a child, A., born in May 2007 who has been continuously in her care and custody since birth and who resides with her in Thunder Bay. [ 20 ] The society’s wish for leave to withdraw its application is ostensibly based on a current assessment of the level of risk to the children. It continues to believe that the mother is continuing to alienate the children and is continuing to interfere with the Superior Court order.

However, the risk to the children, it feels, has been attenuated by the fact that they now reside primarily with their father, who the society feels is consistently meeting the needs of these children. In addition, the society has no recent information that the mother is taking the children to medical appointments unnecessarily or that she is showing any signs of mental instability. The “week about” regime has ended and the mother has joint care of the children much less often than when she resided in Sault Ste. Marie.

In all of these circumstances, the society wants to withdraw its application and asks the court’s leave to do so. [ 21 ] The mother, whose first claim in her answer sought a complete dismissal of the society’s protection application, has done a 180-degree turnaround as well. She opposes the society’s motion. She wants this child protection case to continue and objects to its being withdrawn.

Why that is her present position is set out in a rather disjointed responding affidavit (at tab 9, volume 2) with multiple exhibits, few of which seem to be relevant to the issue on this motion, and none of which were specifically referred to in submissions of counsel.

What I infer from what she says is that the children continue to be at risk of emotional harm and abuse, but at the hands of their father , that the society’s continued involvement in the form of this child protection proceeding is imperative and that the children should have independent legal representation that is available to them in a case such as this. [ 22 ] As of the date of hearing of this motion, the mother had not formally started any proceeding seeking to vary the Superior Court of Justice order of Justice Koke dated 10 August 2009. 1.2: The Relevant Law [ 23 ] Before embarking on an examination of the law relevant to the issue of withdrawals of applications by applicants, I feel a comment or two is à propos on the claims made in this case. [ 24 ] Both the mother and the father advance claims for sole custody pursuant to subsection 57.1(1) [6] of the Act .

However, there is a restriction on the making of such custody orders found in subsection 57.1(6). [7] In this case, it appears that both clauses (

a) and (

b) of subsection 57.1(6) apply, thus preventing this court from making the

section 57.1 custody orders sought by either parent. [ 25 ]

Section 57.2 [8] of the Act imposes a stay on any Children’s Law Reform Act proceeding involving the same child as the subject child in an ongoing child protection case. I interpret this as a bar to the variation proceeding that the mother claims she is in the process of starting. She can, however, proceed with such claim should she obtain leave of the court in which her variation claim is brought. Moreover, if her custody variation is under the Divorce Act ,

section 57.2 does not appear to apply. [ 26 ] In civil (which includes family) litigation, a party is entitled unilaterally to withdraw his or her court application. In fact, there exists a specific rule, namely subrule 12(1) of the Family Law Rules , O. Reg. 114/99, as amended, permitting such a withdrawal.

This is subject to possible costs consequences. [9] [ 27 ] Although not specifically excluded from the operation of subrule 12(1) , the child protection application is, on the basis of prevailing judicial authority, one for a withdrawal of which judicial permission or leave is required. [10] This recognition is likely why the society has asked for leave to withdraw by way of motion rather than by simply serving a notice of withdrawal under the rules. [ 28 ] The mandate of a child protection court in which a child protection application is started, or to which a matter is brought to determine whether a child is in need of protection, is to hold a hearing to determine the issue. [11] While the ordinary expectation from a reading of subsection 47(1) is that the “hearing” contemplated by this subsection would be a formal trial with viva voce evidence and all of the formalities attendant on the trial process, this is not necessarily so.

That a “hearing” must take place was unequivocally confirmed by our Divisional Court which ruled that a failure to hold the hearing directed by subsection 47(1) of the Act constituted a violation of a fundamental principle of natural justice. [12] [ 29 ] However, the formal trial is not the only manner in which such a hearing need take place. [13] As expressed by Justice Penny J. Jones: [14] [10] The manner in which the court conducts the necessary inquiry or “hearing” contemplated by

section 47 would depend on a number of factors. A “hearing” might take the form of a

summary judgment motion on affidavit evidence, the admission of an agreed statement of facts or a viva voce trial. Further, in appropriate circumstances, the requirement of a “hearing” might also be satisfied by granting leave to withdraw the application. It seem somewhat unusual to consider the hearing of a motion to withdraw a child protection application as the hearing of the “child in need of protection” issue directed by subsection 47(1) of the Act . [ 30 ] In that decision, Justice Jones identified four factors that might be relevant to a determination that a withdrawal might be an appropriate disposition in a child protection case:

1. whether any continuing protection concerns exist; 2. whether all parties consent to the withdrawal; 3. the reason for the withdrawal; and 4. how the withdrawal would affect the fairness of any other pending custody litigation. These factors were not meant to be determinative of the leave to withdraw issue. They were simply some factors to consider. These do not comprise an exhaustive list. [15] [ 31 ] In the present case, the fact that it is the society that states that there are no continuing protection concerns that justify a finding is considerably more persuasive than if a respondent states the contrary.

For one thing, child protection is precisely what the society’s primary role is in our community. It was the society that started this proceeding and put before the court the issue of whether these children are in need of protection. The society is under continuing obligation to assess its position as more information becomes available, and to adjust its position in its child protection litigation. [16] The society has done so in this case. More importantly, its evidence sets out the factual events that have taken place that have resulted in the change of its position.

The mother, by contrast, has little by way of persuasive evidence that the factual basis for grounds for a finding continue to exist and that there is a continuing need for a protection order. Her initial position in her answer, which she has not amended, is that there was no evidentiary basis for any protection findings under subsection 37(2) of the Act . [ 32 ] The lack of unanimity on the issue of leave to withdraw is not determinative. The society and the father are ad idem on this claim. The mother is the dissenter. Her position warrants some scrutiny. Why does she want this case to continue?

In her evidence, she claims that she wants the society to remain involved so that it will protect the children from risk of emotional harm and abuse from their father. However, the society does not consider him to be a source of risk of harm, and certainly not of abuse. It saw, and continues to see, the mother herself as the basis for protection concern.

This goal of the mother is unrealistic and very unlikely to be realized if this case, as it is presently constituted, continues. [ 33 ] The mother has also suggested that this proceeding must continue so that the society can be held accountable for trying to remove the children from her and for siding with the father. However, a withdrawal of the society’s application now would not necessarily put an end to the things about which she complains. A withdrawal would terminate any child protection orders outstanding.

A child protection case is not intended as a forum to vindicate the mother’s feelings about the society’s actions, or simply “to hold a society accountable”. [ 34 ] I have adverted to the reasons that the society has set out in its evidence as the basis for its claim for leave to withdraw.

Although there is some merit to these reasons, I suspect that there are some other reasons that are more practical and more tactical underlying the desire to discontinue this case. [ 35 ] First of all, its “risk of emotional harm” grounds are very difficult to prove, even to the civil standard of the balance of probabilities. [17] I suspect that a closer look at its evidence might have driven home to the society the practical difficulties that it would encounter in proving this ground, to say nothing of the time and expense. [ 36 ] Second, the society has already lost the first skirmish where it was not successful in obtaining the temporary care and custody and interim maternal access order that it was seeking on the first court date in this case.

That interim “without prejudice” order was made almost nine months ago. The society has taken no steps to

schedule a formal temporary care and custody hearing since that time. Although it was permitted to supervise any or all of the time that the children were in the care of either parent, there is no indication that it has done so.

I suspect that it realizes that supervision of the mother’s contact with the children is much more problematic with the existing order and with the mother’s now living in Thunder Bay. [ 37 ] Perhaps the realization that has the most practical impact on the society is that it is likely to consume an inordinate amount of its resources in bringing this case to a final resolution if it continues.

It is only necessary to look at the three-year litigation in the Superior Court, the multi-day trial, the appeal by the mother, the highly and hotly contested nature of the their custody-and-access proceeding, the substantial filings already made in this child protection case and the mother’s motion to involve counsel from the Office of the Children’s Lawyer to represent the children.

This is enough handwriting on the wall to infer that this will be a long, expensive, adversarial and unpleasant case to litigate with no assurance of victory at the end of the day. [ 38 ] Admittedly, these are just judicial musings as to other factors that may have had some peripheral influence on the society’s decision to seek withdrawal. [ 39 ] Continuation or discontinuance of the child protection case would certainly impact other custody litigation. If this child protection application is withdrawn, the parties remain bound by the provisions of the Superior Court order of 10 August 2009.

There would be no impediment to either parent to seek a change of that order. In fact, this is the mother’s stated intention. Is this a viable or reasonable course of action? I believe it is. After all, the order of 10 August 2009 followed a lengthy trial with plenty of evidence and much testimony tested by cross-examination. It makes much more sense for the court that made the order to rule on whether any change should now be made to that order.

Although a child protection court order does effect changes to any existing custody-and-access order by superseding the terms of that prior order, it is not the primary function of a child protection court to readjust custody and access between competing candidates.

It does so only where the threshold of a finding of a need for protection is crossed and, even then, when such changes in care and custody are found to be in the child’s best interests and to be in accordance with other purposes and principles of the Child and Family Services Act . [ 40 ] A continuation of this child protection case would create a statutory stay of any custody variation proceeding.

Even were that stay to be removed, there would then be parallel and contemporaneous child protection and custody variation cases ongoing — not a very desirable prospect. [ 41 ] There is another alternative, namely, that this child protection case proceeds and no variation is brought in the Superior Court. This has some inherent problems. For one thing, child protection orders are not intended to be forever. Once they terminate, the existing custody-and-access order comes back into play as an order that is once again enforced. There would not be a possibility at the

end of this child protection case for a deemed custody order under

section 57.1 of the Act that would somehow override the existing Superior Court order. [ 42 ] The more concerning aspect of continuing with this child protection case has to do with the reversal of roles. The society, on which falls the onus of justifying a finding, as well as a disposition, and terms of any access order that it is seeking, would have to argue for things that it clearly no longer wants and that it no longer believes are necessary. It would be the mother who would have to satisfy the court and would have to do so in the face of opposition by the society and the father.

To do so in the context of a child protection application commenced by the society in which she is a respondent goes well beyond awkward. [ 43 ] However, as mentioned by Justice Lucy C. Glenn in Chatham-Kent Integrated Children’s Services v. C.J.M. and R.M. , [18] any person may bring an application pursuant to subsection 40(4) [19] of the Act to persuade the court that a hearing be held to determine whether a child is in need of protection. This is certainly an option available to the mother in this case if she is adamant that there is a child protection issue that requires a judicial determination.

In fact, in the circumstances, this is a more appropriate procedure than to continue with the present child protection application of the society. The mother not only wants a child protection case to continue, she necessarily wants findings that the children are in need of protection but as a result of the conduct or misconduct of their father. She also wants a disposition that would address protection concerns based on such findings.

In short, the child protection case that the mother wants is an entirely different child protection case than that started by the society in this court. [ 44 ] In all of the circumstances, I am inclined to grant leave to the society to withdraw its protection application. [20] To do so is an exercise of judicial discretion. The hearing of this motion is, in the somewhat unusual circumstances of this case, tantamount to the hearing mandated by subsection 47(1) of the Act . [ 45 ] Withdrawal, does not, in my view, create any great prejudice to the mother or to the father.

They are effectively restored to pre-society-intervention status. The mother, if she is dissatisfied with the prevailing custody order or arrangements, will have the option to bring a variation proceeding in the Superior Court. If she is serious about obtaining a judicial finding that these children are in need of protection, she has the alternative, or additional option, to proceed under subsection 40(4) of the Act for a judicial determination.

A motion for OCL representation for the children by the Office of the Children’s lawyer can be brought by her in such proceeding as easily as it can in the present child protection case. [ 46 ] It makes little sense to force the society to continue to litigate a case in which it no longer believes, provided that the protection of the children is not compromised unduly by discontinuance. In this case, I do not believe that there will be a significant prejudice to the health or safety of the children. Historically, these children see more health care professionals, and more often, than most children.

This society has historically stayed involved in this family without any need for a child protection order. I suspect that it or the Thunder Bay society will continue to do so, probably at the behest of the mother, or of the father, or of both. [ 47 ] This case is more custody and access than child protection. The court cannot ignore the inordinate demands that child protection makes on judicial resources in this court.

This court does not have the luxury of entertaining such cases, particularly where the custody-and-access issues have already had comprehensive judicial attention elsewhere and whither the parties can return to seek any further changes that may be warranted. 2: LEGAL REPRESENTATION FOR CHILDREN [ 48 ] Because of the decision on the motion of the society, the issue of making an order for legal representation for the children is moot. This motion will necessarily be dismissed. 112. Investigation and report of Children’s Lawyer.—

(1) In a proceeding under the Divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education. R.S.O. 1990, c. C-43, s. 112(1) ; S.O. 1994, c. 27, s. 43(2). (

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

i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (

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

g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause ( f )(i), (ii), (iii), (iv) or (

v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(

h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition; 57.1 Custody order. —

(1) Subject to subsection (6), if a court finds that an order under this

section instead of an order under subsection 57(1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

(6) Conflict of laws. — No order shall be made under this

section if, (

a) an order granting custody of the child has been made under the Divorce Act (Canada); or (

b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court. 57.2 Effect of custody proceedings.— If, under this Part, a proceeding is commenced or an order for the care, custody or supervision of a child is made, any proceeding respecting custody of or access to the same child under the Children’s Law Reform Act is stayed except by leave of the court in the proceeding under that Act . 12. Withdrawing application, answer or reply.—

(1) A party who does not want to continue with all or part of a case may withdraw all or part of the application, answer or reply by serving a notice of withdrawal (Form 12) on every other party and filing it. . . .

(3) Costs payable on withdrawal.— A party who withdraws all or part of an application, answer or reply shall pay the costs of every other party in relation to the withdrawn application, answer, reply or part, up to the date of the withdrawal, unless the court orders or the parties agree otherwise.

(4) Costs on withdrawal by government agency.— Despite subrule (3), if the party is a government agency, costs are in the court’s discretion. 47. Child protection hearing.—

(1) Where an application is made under subsection 40(1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under

section 57. • what is the real battle in the case about and what are the possible outcomes; • at what stage is the litigation, what are the timelines expectations and what demands on judicial resources; • if the withdrawal is opposed, what is the reason for the opposition and what is the evidence to support the reason; and • is there an alternative venue for resolving the issues.

(4) Order to produce or apprehend child.— Where the court is satisfied, on a person’s application upon notice to a society, that there are reasonable and probable grounds to believe that, (

a) a child is in need of protection, the matter has been reported to the society, the society has not made an application under subsection (1), and no child protection worker has sought a warrant under subsection (2) or apprehended the child under subsection (7); and (

b) the child cannot be protected adequately otherwise than by being brought before the court, the court may order, (

c) that the person having charge of the child produce him or her before the court at the time and place named in the order for a hearing under subsection 47(1) to determine whether he or she is in need of protection; or (

d) where the court is satisfied that an order under clause (

c) would not protect the child adequately, that a child protection worker employed by the society bring the child to a place of safety. (

a) that all existing orders are terminated; and (

b) that all existing claims by respondents are stayed.