Catholic Children’s Aid Society of Toronto v. A.M.O., 2011 ONCJ 703

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 one or more of 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 conseqences 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) 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) or 76(11) (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 08 11155 00 A2 DATE: 2011·X·19 CITATION: Catholic Children’s Aid Society of Toronto v. A.M.O. , 2011 ONCJ 703 ONTARIO COURT OF JUSTICE BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — A.M.O. and T.W.M., Respondents. Before Justice Ellen B.

Murray Heard on 4 October 2011 Reasons for decision released on 19 October 2011 Lauren Stringer ............................................................................. counsel for the applicant society Respondent mother, A.M.O. ................................................................................ on her own behalf Catherine Hibberd .......................................................... counsel for the respondent father, T.W.M.

[ 1 ] JUSTICE E.B. MURRAY:— On October 4, 2011, the Catholic Children’s Aid Society brought a motion asking for a temporary order providing that the child T.O.M. have an extended period of access — three weeks — to his father, and that he have no contact of any type with his mother during this time. The Society requested police assistance to enforce the order, if necessary. T.O.M. is eight years old. He has not seen his father since November 2009, and has had no regular access since July 2008. The Society seeks this relief to deal with what it describes as a case of parental alienation.

It submits that the order is warranted because all other reasonable measures to re-establish a relationship between T.O.M. and his father have failed. Father supports the motion. Mother is opposed. [ 2 ] This case began almost three years ago, when the Society commenced an application asking that T.O.M. be found to be a child in need of protection pursuant to section 37(2)(

g) of the Act. The application alleged that Mother persisted in making baseless allegations of sexual abuse against Father; that she coached the child to make such allegations; that she was denying the child access to Father; and that “given the young age of this child, Ms. A.M.O.’s beliefs and actions have the potential to impact negatively on T.O.M.’s emotional well-being and his ongoing relationship with his father”. [ 3 ] In its application, the Society requested that a supervision order issue, keeping the child in Mother’s care, with access to Father.

The Society requested that a number of conditions be imposed upon Mother, including conditions that she follow reasonable the Society recommendations, “such as counselling for herself and the child”, and that she comply with any court-ordered access between the child and Father. [ 4 ] No finding has been made that T.O.M. is a child in need of protection.

To obtain a finding under section 37(2)(g), the Society will be required to establish on the balance of probabilities that: • there is a risk that T.O.M. is likely to suffer emotional harm, • demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development, • caused by Mother’s actions or failure to act. [ 5 ] I denied the Society’s on October 4 th , and gave brief oral reasons, with fuller written reasons to follow. These are those reasons. 1: EVIDENCE 1.1: Background [ 6 ] T.O.M.’s parents are Ms. A.M.O. and Mr. T.W.M.

They separated after a brief cohabitation, when T.O.M. was 10 months old. T.O.M. remained in his mother’s primary care. Mother owns an insurance brokerage; T.O.M. is her only child. Father is president of a gold mining company. He has a child from a previous relationship, W., aged 16, who now lives with him. [ 7 ] Prior to this case, there was no court order or written agreement concerning custody of or access to T.O.M. There was no litigation between the parties. There is a paucity of evidence about what access T.O.M. had to his father.

It is clear that there was some access, including overnight access, but that the parties often could not agree on what was appropriate. [ 8 ] In 2007 Mother contacted the Society with allegations that Willa, who saw T.O.M. on visits that he had with Father, suffered from “mental health problems”. The Society investigated, and did not find that there was a protection concern. The Society cautioned Ms. A.M.O. and Mr. T.W.M. about the negative effect their conflict could have on T.O.M. [ 9 ] By 2008, Father had retained a lawyer to assist in establishing a visitation schedule, and that lawyer wrote to Mother.

In July 2008 T.O.M. spent several days with Father at a cottage. Mother had requested that Father return the child on Sunday night; Father disagreed, saying that he would return the child on Monday morning. When T.O.M. was not returned on Sunday night, Mother called the police. Father returned T.O.M. on the Monday morning. 1.2: Allegation of Sexual Abuse [ 10 ] Mother alleges that T.O.M., then 4 years old, told her upon his return from that weekend that he was sexually abused by Father and others at the cottage. She contacted Telehealth to report this concern, and the matter was referred to the Society.

The Society and police conducted a joint investigation, involving interviews with T.O.M., his parents, and Father’s girlfriend. The child was also examined by the SCAN team at the Hospital for Sick Children. T.O.M. did not report to investigators the events as related by Mother. He provided what investigators describe as inconsistent accounts of the July weekend. [ 11 ] The investigation did not confirm sexual abuse. [ 12 ] The file was closed. In early September, 2008 Mother contacted the Society with further allegations of sexual abuse of the child by Father.

Father had not had contact with T.O.M. since the July weekend. Mother had begun taping what she said were T.O.M.’s allegations of abuse. She reported that the child wanted his father “in jail”. Mother advised that she did not intend to allow access. A further police/ Society investigation ensued. Sexual abuse was not confirmed. 1.3: Application commenced [ 13 ] The Society then commenced this application. A motion was made by the Society in November, 2008 requesting a

temporary order that the child have access to Father at the Society’s discretion, and that Mother comply with the order. A temporary supervision order was made, but the issue of access was deferred because Mother had brought a complaint to the Child and Family Service Review Board about the Society’s abuse investigation. While this complaint was pending, the access motion was not heard.

The Society was unable to negotiate any access between T.O.M. and his father during this time, even access fully supervised at Society offices. [ 14 ] As a result of the Review Board complaint, the Society agreed to have a senior supervisor reassess the investigation to determine whether it was conducted in accordance with Society standards. By April, 2009, the review had determined that proper standards were followed in the investigation. 1.4: Temporary Access Order [ 15 ] The case management judge, Justice Brian Weagant, then heard argument on the access motion.

He made an order on May 5, 2009, which allowed access between T.O.M. and Father at the discretion of the Society. In the reasons for his decisions, Justice Weagant reviewed all the evidence Mother presented in support of her submissions that the Society investigation was flawed and that T.O.M. had been sexually abused by his Father. Justice Weagant found that the evidence did not support the conclusion that the child was abused.

He found that the Society had advanced an appropriate plan to re-introduce T.O.M. to Father, a plan that involved supportive family therapy at Thistletown Regional Centre. [ 16 ] Mother appealed the temporary access order, and brought a motion requesting a stay pending the appeal. She offered fresh evidence which she alleged supported her allegation of abuse. Justice Beth Allen of the Superior Court dismissed the motion. She did not agree with Mother’s submission that the case management judge had misapprehended the evidence with respect to the alleged abuse. [ 17 ] Mother subsequently withdrew her appeal.

The Society attempted to implement the access order. Father, although he did not agree that T.O.M. was at risk on visits with him, agreed to cooperate with a program of access supervised by the Society in order to re-establish access in a manner that it was hoped would gain Mother’s cooperation. The commencement of visits was delayed, because Mother wanted a supervisor other than the Society. [ 18 ] Eventually it was agreed that three hour-long visits would take place in August 2009, supervised by Society worker Jacqueline Stone, at Society offices. Mother warned Ms.

Stone that T.O.M. “was not very happy about having to visit his father”. Ms. Stone reported that on the first visit, when T.O.M. saw his father, the child “squealed with delight”. The visit was positive. The child asked Ms. Stone to make sure to tell his mother that “there was not enough time during the visit to talk about his father being bad”. [ 19 ] On the next visit, T.O.M. said that he did not want to see Father, that Father had done “bad things”. On the third visit, T.O.M. completely refused to interact with Father.

He said that he had gained “three points” for refusing to go on the previous visit. [ 20 ] The Society then attempted to facilitate access by holding visits at school, at unscheduled times so that Mother and the child would not know in advance that a visit was to happen. The first visit was generally positive; at first T.O.M. covered his ears and eyes, but he gradually relaxed and talked with Father. He appeared calm throughout the rest of the day, but a few days later he wrote” my dad is bad” in his school agenda. [ 21 ] Two further visits at school were less positive. T.O.M. avoided interaction with Father.

He said that his mother needed a car, but could not afford one because she had spent all her money on court. He said that “everyone has called him and his mother a liar in court, and that he and his mother are a team, and nobody is available to help them”. [ 22 ] Subsequently, T.O.M. told Ms. Stone that he never wanted to see his father. He accused the worker of not being on the side of him and his mother. He accused the worker of being “bad” and “mean”. [ 23 ] By December, 2009, Father advised that he would not continue with the visits at school, as they were upsetting to T.O.M.

The Society then suggested an assessment by a professional under

section 54 of the Act, and an order was made on consent. 1.5: Assessment by Dr. Berman [ 24 ] Psychiatrist Dr. Graham Berman conducted the assessment. He was asked to give his opinion as to why T.O.M. was refusing contact with Father, whether either parent suffered from a condition that would affect his/her ability to provide an ”emotionally healthy atmosphere for the child”, whether T.O.M. or either parent required treatment to promote a healthy relationship between the child and his father, and whether he had recommendations to facilitate access. Dr. Berman reported in August 2009.

I summarize his conclusions below. • T.O.M. is generally developing well, academically, socially and emotionally. However, he has anxiety about seeing his father. • Mother is a generally competent parent, who has provided well for T.O.M.’s needs. However, her own anxieties about Father are so high that she is unable to support T.O.M. in his relationship with Father. • Mother is T.O.M.’s only “attachment parent”. T.O.M. needs his mother, and would not function well without that relationship.

T.O.M.’s relationship to Father, although positive before July 2008, was not strong, more like that of a relationship with an extended family member. • There is nothing in Father’s behaviour that would account for T.O.M.’s phobia about having contact with him.

• Something upsetting to T.O.M. likely occurred during the July 2008 weekend visit with Father. The evidence does not point to sexual abuse. T.O.M. could have been upset about a TV program about an African tribe that involved nudity which was viewed that weekend by those at the cottage, including T.O.M. • Mother and T.O.M. have an unusually close connection, and Mother’s intense negative feelings about Father have likely influenced the child’s recollections and reporting. Mother is also very protective of TO.M.

Mother is unable to consider any other possible explanation for the upset that T.O.M. showed after the July 2008 visit other than abuse by Father. It is likely that Mother, in discussions with the child, developed a scenario of sexual abuse to explain T.O.M.’s reaction after the July 2008 weekend. • Either T.O.M. has picked up on and mirrored Mother’s anxiety about contact with Father, or he has been coached by Mother. The child now has a phobic reaction to Father and to anyone whom he perceives as connected to Father. • Further investigation of this incident is not likely to yield more information.

The events of that weekend have been discussed with T.O.M. too many times. • There are three reasons that it would be beneficial for T.O.M. to have regular access to Father. o As T.O.M. grows older, he will develop a desire to know his missing parent.

If he comes to believe that Mother prevented him from having this relationship, it could damage his relationship with her. o T.O.M. has enjoyed this relationship in the past. o Developmentally, it would be beneficial for T.O.M. to learn that he can control and overcome the phobia he has developed about contact with his father . • In order to re-establish T.O.M.’s relationship with his Father, a program of “desensitization” for the child was recommended in which a therapist would help T.O.M. to gradually develop a more balanced picture of his father, and a “sense of mastery and safety in the face of what has become a frightening situation”.

This de-sensitization would work best in a group program. Father could gradually be re-introduced to T.O.M., initially in the group situation. As T.O.M.’s sense of safety increased, more personal contact could take place. • Dr. Berman cautioned that all other considerations should be subordinate to the maintenance of T.O.M.’s relationship to his mother. If she could not support the access plan, a punitive response should be avoided. • Mother has no major psychiatric disorder.

Treatment would help her to understand the source of her anxiety about Father and the effect her anxiety has upon T.O.M. • Father has no major psychiatric disorder. No treatment was recommended for Father. 1.6: Therapy with Dr. Morris [ 25 ] As a result of Dr. Berman’s report, the parties agreed and Justice Weagant ordered that T.O.M. attend a course of therapy with Dr. Morris, with the goal of preparing him to have access to Father. It was anticipated that Mother and Father would meet with Dr. Morris during the course of this therapy. [ 26 ] By the end of May, 2011, Dr.

Morris reported that he was unable to fulfill his mandate. Dr. Morris stated that in each therapy session T.O.M. “immediately and spontaneously focused on reporting that his father is mean and he does not ever want to see him. He requests assurance that I will inform the judge of his wishes”. In Dr. Morris’ opinion, the reasons that T.O.M. provided for refusing contact lack credibility. The child seems to have forgotten about the sexual abuse allegations, but makes new and inconsistent allegations of maltreatment. [ 27 ] Dr. Morris was not in favour of forcing T.O.M. into a visit supervised by him.

He urged Mother to encourage T.O.M. to attend such a visit. She said that she could not in good conscience do so. Dr. Morris did not think it was beneficial to continue with the therapy. [ 28 ] Mother from time to time has stated that she will agree, albeit reluctantly, to access if it is supervised, with supervision provided by someone other than a Society worker. She has subsequently resiled from this position, stating that no access should take place. In argument before me, Mother again raised the possibility that she might cooperate with some type of supervised access.

Given Mother’s inconsistent positions on this issue, I did not take her comments as a real commitment to a supervised access plan. 1.7: Dr. Goldstein’s Opinion [ 29 ] On the day this motion was heard, Father’s counsel furnished a letter from psychiatrist Dr. Sol Goldstein, indicating that he was ready to assist in helping T.O.M. re-establish his relationship with Father. Dr. Goldstein has had no prior involvement in this case, and has not met T.O.M. or Mother. There was no indication that Dr. Goldstein has reviewed any of the affidavit material, or spoken with Dr. Berman, or Dr. Morris, or the Society’s worker.

In his letter Dr. Goldstein stated : ”In my opinion, if a child is being negatively influenced by one parent against the other to the point of refusing to see that other parent or to speak negatively and unrealistically against that parent, that the child’s mental health is in danger of being permanently damaged. In such cases, it is advisable to begin by removing the child from that parent at the same time as the treatment is initiated.”

2: ANALYSIS 2.1: Importance of a Timely Protection Hearing [30]

Part III of the Child and Family Services Act authorizes state interference in the parent/child relationship if a parent’s carefalls below a minimum standard. A child must be found to be in need of protection before the court can make an order pursuant tosection 57 that is guided by its perception of a child’s best interests. A finding that a child is in need of protection must be grounded inone or more of the causes of the child’s need for protection set out at section 37(2) of the Act. [31] Both the Act and the Family Law Rules contain provisions that signify the importance of a speedy process to determinewhether a child is in need of protection. [32]

Section 52 of the Act provides: • Where an application is made under subsection 40(1) or a matter is brought before the court to determine whether a child is in needof protection and the determination has not been made within three months after the commencement of the proceeding, the court, • (

a) shall by order fix a date for the hearing of the application, and the date may be the earliest date that is compatible with the justdisposition of the application; and • (

b) may give such directions and make such orders with respect to the proceeding as are just. [33] Rule 33 provides that a protection hearing must be completed within 120 days from commencement of the case. Thecourt may lengthen the timeline “only if the best interests of the child require it”. [34] Justice Penny J. Jones in Catholic Children’s Aid Society of Toronto v. Jean L. and Willard R., , 116A.C.W.S. (3d) 541, 16 O.F.L.R. 86, [2002] O.J. No. 3491, 2002 Cars​well​Ont 2968 (Ont.

C.J.), addresses why a timely protectionhearing is crucial: The reason that the protection issue must be resolved at an early stage in the proceeding is obvious — the protection finding is arguablythe most significant ruling in the case. When a court makes a finding that a child is in need of protection, it legitimizes the actions of thestate agency in making, what might otherwise be viewed as, an unwarranted intrusion into the life of the family. Conversely, if noprotection finding is made, the state agency must withdraw.

Section 7 of the Canadian Charter of Rights and Freedoms (being

Part I ofSchedule B to the Canada Act 1982 (U.K.)) guarantees a parent the right to a fair hearing held in a timely fashion whenever the stateattempts to remove his or her children or limit that parent's right to make decisions on behalf of his or her children. See New Brunswick(Minister of Health and Community Services) v. J.G., (SCC), [1999] 3 S.C.R. 46, 244 N.R. 276, 216 N.B.R. (2d) 25,552 A.P.R. 25, 177 D.L.R. (4th) 124, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203, [1999] S.C.J. No. 47, 1999 CarswellNB 305; and WinnipegChild and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48, 260 N.R. 203, 150 Man.

R. (2d) 161, [2001] 1 W.W.R. 1, 230W.A.C. 161, 191 D.L.R. (4th) 1, 10 R.F.L. (5th) 122, [2000] S.C.J. No. 48, 2000 CarswellMan 469. [35] Here, a case has proceeded for almost three years without a finding that T.O.M. is a child in need of protection. The issueof whether the child is in need of protection is hotly contested. The Society has not taken steps to bring the issue to trial, or moved forsummary judgement. Should the Society’s failure to take the necessary steps to have a hearing on whether T.O.M. is a child in need ofprotection have a bearing on my decision on this motion?

In my view, it should. 2.2: Relevant Factors in Motions to Change Temporary Access Orders [36] The Society’s motion requests a change in the current temporary access order, with conditions being imposed on eachparent to facilitate that change.

Section 58 of the Act provides that the court may, “ in the child’s best interests”, make or vary atemporary or final access order. I do not take that to mean, however, that, in cases in which there has been no protection finding, thatbest interests is the only relevant consideration on a motion to determine or vary temporary access. I say that because a court isauthorized to make orders for access only as an adjunct to a protection case, not as a free-standing order. When a variation of a temporaryaccess order is sought, then in my view the factors applicable on a motion to vary an order of temporary care under

section 51 of the Actshould also be considered. This is specially so in this case, where the focus of the Society’s protection case is Mother’s allegedinterference in the father/child relationship. [37]

Section 51 of the Act contains provisions governing adjournments of protection cases, and orders of temporary care thatmay be made pending these adjournments. The scheme of

section 51 is that the court should, pending a hearing, make the least intrusiveorder possible that is consistent with the protection of a child from a risk of likely harm, harm of the type referenced at

section 37 of theAct. [38] Section 51(6) authorizes a court to change a temporary order. Justice Heather L. Katarynych in Catholic Children’s AidSociety of Toronto v. Laura F. and Daniel M., , 119 A.C.W.S. (3d) 605, [2002] O.J. No. 5120, 2002 Cars​well​Ont4513 (Ont. C.J.), considered subsection 51(6), and stated: No statutory criteria are provided for the exercise of the court's power to vary an interim order. It is an exercise of judicial discretion,dependent on a variety of factors, all of which must be brought to bear on the motion evidence to ascertain whether a variation of the"status quo" makes common sense within the statutory scheme provided by

Part III of the Act for child protection. [39] Justice Robert J. Spence recently considered what test should be applied on a motion to change a temporary care order inthe case of Children’s Aid Society of Toronto v. Kerri D. and Richard B., 2011 ONCJ 55, [2011] W.D.F.L. 1872, [2011] O.J. No. 724,

2011 Cars​well​Ont 992 (Ont. C.J.). His reasoning is helpful to me in considering this case. As Justice Spence observed, many courts have found that a material change in circumstances, a change related to the risk alleged, is a necessary pre-condition to success on a motion. Best interests is a consideration, but not the only consideration. Other factors are important.

The court should also consider: • How long has the status quo sought to be disturbed been in place; • How significant is the alleged increase in risk, assessed in relation to the likely time of trial; • Is the order requested proportionate to the change in circumstances. [ 40 ] Although the issue of material change was not addressed squarely by the parties on this motion, it could be argued that there has been such a change, in that the provisions of the prior order aimed at establishing access and directing Mother to facilitate that access have been unsuccessful.

In that sense, the change is risk-related. [ 41 ] Dr. Berman’s evidence establishes that it would be beneficial for T.O.M. to have a relationship with his father.

However, he also cautions against the potential damage to T.O.M.’s relationship to Mother that could result from aggressive efforts to effect access. [ 42 ] My observations about the other factors which are relevant for this decision are as follows: • The status quo has pertained for a lengthy period. • The risk to T.O.M. alleged by the Society has always been the psychological damage he may suffer from Mother’s alleged pressure on him to have no contact with Father, and from the absence of that contact.

Less intrusive means of establishing access between T.O.M. and Father have proved unsuccessful, but it was not argued that this meant that the risk to T.O.M. has increased. No emergency situation exists requiring immediate action to protect T.O.M. from harm. • This matter could have gone to trial long ago. Although no finding has been made, the Society’s position assumes that a protection risk exists, and that the task at hand is disposition. • Is the order requested proportionate to the change? In my view, it is not.

The order sought represents an extreme step, a step that is not in accordance with the recommendations of either Dr. Berman or Dr. Morris, the two professionals who have had contact with T.O.M. [ 43 ] Given these factors, I do not think that it is appropriate for the court to consider granting the relief sought on this motion without the issue of whether T.O.M. is in need of protection being determined.

I dismiss the motion, without prejudice to the Society’s right to renew the motion if it obtains a finding that T.O.M. is a child in need of protection. 2.3: Is the Order Sought in T.O.M.’s Best Interests? [ 44 ] If I am in error, and the only factor which I should consider on this motion is whether the change sought is in T.O.M.’s best interests, based on the evidence currently before me I would still dismiss the motion. [ 45 ] The best evidence on what is in T.O.M.’s best interests comes from Dr. Berman , who saw the parties and T.O.M. and conducted an assessment, and secondarily from Dr.

Morris, who saw T.O.M. for four therapy sessions. [ 46 ] Dr. Berman was of the opinion that it would be beneficial for T.O.M. to see Father, but he was very clear that, as regards T.O.M.’s emotional security and development, maintenance of a secure relationship with Mother had to be the primary objective. He worried that forcing access to Father without Mother’s cooperation would damage the child’s stability. The Society did not solicit Dr. Berman’s views on its proposal to place T.O.M. with Father for three weeks, with no contact with Mother. Society counsel was candid in conceding that, given Dr.

Berman’s views, it is unlikely that he would have thought that this step was in T.O.M.’s best interests. [ 47 ] Dr. Morris did not think that even a supervised visit implemented without Mother’s support was advisable. Clearly, he would not have favoured the course of action proposed by the Society. [ 48 ] Dr. Goldstein appears to believe that a lengthy enforced separation from an “alienating parent” is always in a child’s best interests in cases in which parental alienation is present. I do not agree.

It may be that in the case of some children this approach is in their best interests, but it cannot be said that it is always the best course of action. It must depend upon the individual circumstances and developmental stage of the particular child in question, and each parent’s circumstances. As Dr. Goldstein has not seen T.O.M. and apparently has little familiarity with the facts of this case, I place little reliance upon his opinion. [ 49 ] Based on the evidence which I have heard, I am not of the opinion that the access variation requested would be in T.O.M.’s best interests.

Released: 19 October 2011 Justice Ellen B. Murray