Children’s Aid Society of Dufferin County v. A.T., 2011 ONCJ 52

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. Orangeville Registry No: 203/2010 DATE: 2011·II·01 CITATION: Children’s Aid Society of Dufferin County v. A.T. , 2011 ONCJ 52 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF THE COUNTY OF DUFFERIN, Applicant, — AND — AMBER T. and SCOTT S., Respondents. Before Justice Bruce E. Pugsley Heard on 26 January 2011 Reasons for Judgment released on 1 February 2011

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], clause 51(2) (

c) and subsection 51(3) . Kathleen E. O’Grady ...................................................................... counsel for the applicant society Mark E. Skursky ....................................................... counsel for the respondent mother, Amber T. Larry W. Haskell ........................................................... counsel for the respondent father, Scott S. [ 1 ] JUSTICE B.E. PUGSLEY:— The respondents have a single child, Noah T., male, born on 17 February 2006.

The respondents separated shortly before the birth of their son and have been litigating about his care for nearly all of his short life. [ 2 ] The respondent mother commenced an application for sole custody of Noah T., and supervised access by the respondent father in May of 2006, when Noah T. was three months old. She stated in her material that the Children’s Aid Society of Dufferin County supported her claim for sole custody and restricted access. These claims were based upon allegations that the respondent father was abusive to her during their relationship, had a bad anger problem and abused illicit drugs.

The respondent father had been charged criminally after the birth of Noah T. with respect to threats that the mother alleged he made to her after Noah T.’s birth. [ 3 ] Access was the focus of the following four years of litigation between the parents. In that time, the respondent father was consistently represented by Mr. Haskell. The respondent mother was represented by three different counsel over that time and also represented herself from time to time.

The matter had periodic adjournments on the basis that the parties were doing well with the access that was in place then. [ 4 ] On 17 March 2010, the parties attended before Justice Douglas B. Maund of this court with comprehensive final minutes of settlement on the majority of the issues between them, including access by the respondent father to Noah T. The parties were not in agreement on two issues: joint custody and police enforcement of the final access order. [ 5 ] By reasons released the following day, Justice Maund determined that: (

a) there had been a high degree of conflict between the parties for an extended period; (

b) such conflict interfered with the ability of the parties to communicate such that joint custody was not feasible, and (

c) building in police enforcement had the potential to emotionally traumatize Noah T. [ 6 ] Justice Maund noted that the parties had a comprehensive agreement regarding access and that the respondent father had avenues of enforcement available to him should the respondent mother interfere with access and he declined to order police enforcement of his access order. [ 7 ] Unfortunately, events soon after March of 2010 have lead to a renewal of the past litigation involving these respondents through the involvement of the local children’s aid society.

These events have at their root the very issue of access and alleged interference with access that caused four years of litigation in the domestic file. [ 8 ] Even before Justice Maund’s final order of March 2010, the applicant society had become involved in the life of Noah T.

The affidavit of Jennifer Taylor, child protection worker with the applicant, sets out the history of the agency’s involvement with the family as early as January, 2010, when the respondent mother contacted the agency for help stating that the respondent father had been granted day access and was seeking overnight access, and that Noah T. (then not yet four) was stating he did not want to see his father. Children’s aid society services were continued in April, May, June, July, August, September, October and November of 2010, on a more or less continuing basis.

The agency became increasingly concerned over this time that the actions of the respondent mother had started to become obvious sources of emotional abuse to the child. [ 9 ] In the course of the agency’s involvement pre-dating this application, the agency and the Orangeville Police Service conducted two full investigations of alleged physical abuse of Noah T. by the respondent father.

On both occasions, no abuse could be verified and the circumstances of the reporting suggested that the child was being actively alienated from his father. [ 10 ] During the agency’s involvement on several occasions, the society’s workers noted obvious signs that the child was being coached to report abuse by his father. When taken to the agency’s office by his mother, Noah T. when interviewed repeatedly described in the same words being punched by his father and that he did not wish to see his father, but showed no signs of such violence and, when questioned about details, could not sustain the lie.

When seen in the company of his father by society staff, Noah T. was seen to be happy and natural with his father.

On each occasion, Noah T. was the subject of questioning concerning the alleged events. [ 11 ] On one occasion of alleged abuse, the respondent mother took the child to be seen at a hospital out of the county and far away from either parent’s home, starting an investigation with another agency. [ 12 ] The respondent mother accused the society workers and the Orangeville Police Service of bias against her. [ 13 ] The respondent mother had also established or acquiesced in the child’s calling her father (Noah T.’s grandfather) “daddy” and the respondent father was “Scott”. [ 14 ] Further, on several occasions (indeed, pervasively), the respondent mother wilfully changed, cancelled or otherwise interfered with the child’s access to the respondent father, breaching the order made by Justice Maund on many occasions. [ 15 ] The respondent mother has failed to support Noah T.’s access to his father such that the child exhibits anxiety and emotional turmoil before access visits.

[ 16 ] The respondent mother and her family has repeatedly become involved in loud, verbally abusive, and confrontational incidents with the respondent father in Noah T.’s presence. [ 17 ] The respondent mother has been slow to follow through with society recommendations concerning Noah T.’s developmental and emotional needs made over the last year. [ 18 ] In December 2010, the applicant determined that the respondent mother was not able to see the emotional harm that she was causing to her son in spite of the efforts of the agency to draw its concerns to her attention.

It commenced this application and sought an order that the child be placed temporarily in the care of the respondent father under the terms of a supervision order. [ 19 ] The society’s motion was returnable before Justice Maund in Orangeville on 22 December 2010, the last sitting day of this court before Christmas. The parents had been served ten days earlier but neither had served or filed any responding material. The respondent mother sought an adjournment that was not granted by the court, with Justice Maund noting that there were serious child protection concerns that should be dealt with that day.

The matter was held down while the respondent mother created an affidavit with the help of duty counsel, and the society’s motion for temporary care and custody was argued. Justice Maund decided that he would make an order pending a full argument of the motion on 12 January 2011. His temporary ruling noted that, if established in the evidence, the agency’s material disclosed disturbing actions of parental alienation on the part of the mother and that, if established, such conduct “may well limit the right and ability of the mother to continue to parent the child”.

Justice Maund agreed that, on the basis of the interim materials, there were reasonable grounds to believe there was a risk of emotional harm to the child but, for the purpose of the short adjournment only over Christmas, he was of the view that the child could be adequately protected by a supervision order supervising the child in the temporary care of the respondent mother until 12 January 2011, when the motion would be fully heard. [ 20 ] Justice Maund stipulated in sub-paragraphs 1(

c) and 1 (

d) of his order that the respondent mother co-operate with the society and follow the society’s reasonable recommendations and meet with the society, as requested, at mutually agreed upon times, at her home or at the society’s office. [ 21 ] Justice Maund ordered that the respondent mother file her responding material no later than Monday, 10 January 2011, at 12 noon. [ 22 ] On 12 January 2011, the motion came before me for argument. At that time, Mr. Skursky was representing the mother and Mr. Haskell the father. The respondent mother did not file material in compliance with Justice Maund’s order. Mr.

Skursky had been recently retained and the respondent mother was apparently ill part of the time before the return of the motion. Mr. Haskell had also been recently retained on behalf of the respondent father and had served material upon the society but not upon the respondent mother before court. [ 23 ] The respondent mother sought an adjournment until March to prepare and serve proper responding material, with the child to remain in her care until then under Justice Maund’s order. The adjournment request was opposed by the applicant and the respondent father.

The agency position was that the child was being actively harmed by the actions of his mother and that, between Justice Maund’s order of 22 December 2010, and the return of the motion on 12 January 2011, the respondent mother had in fact breached Justice Maund’s order by failing to co-operate in the supervision of Noah T. in her care. [ 24 ] I granted the respondent mother’s requested adjournment until 2 p.m. on 26 January 2011, an already closed court date, on the basis that, even though she had had two opportunities to file material, fairness required that the court extend the time that she needed to respond to the very serious allegations of the society.

The time of the return of the matter was scheduled to accommodate the availability of the respondent mother’s counsel. The adjournment was on strict terms of access and supervision and required that the respondent mother prepare, serve, and file her material on or before 21 January 2011, at 4:30 p.m. Her counsel confirmed, on the record, that this time frame was adequate. [ 25 ] On 26 January 2011, the matter returned before me for the argument of the temporary care and custody motion. The respondent father filed his answering material as required.

The respondent mother had filed no material whatsoever in response to the adjournment that she had requested, notwithstanding that she had expert and experienced counsel. Counsel advised that the respondent mother had had transportation problems in attending at his office and sought leave to file her material (much apparently created without his assistance or knowledge since he himself had independently created a stop-gap affidavit as court neared) in court and just before arguing the motion. [ 26 ] For reasons already endorsed, I did not grant the leave sought by the mother.

I note only that, although his counsel had been “served” via a lengthy unsolicited fax transmission after hours, the respondent father had not even seen the respondent mother’s affidavits by the time that the motion to adjourn was argued, such that a further adjournment to answer that material was inevitable and, I found, entirely against the best interests of the child. [ 27 ] By her own acts of omission and negligence, the respondent mother was therefore placed in the position of having her counsel argue the motion based on the record largely created by the other parties. [ 28 ] In my view, even given the fact that the respondent mother has not been permitted to file recent material here, the evidence of her continued acts of parental alienation and contempt for the orders of the court is incontrovertible and continuous up until the hearing of the motion here. [ 29 ] Even after being told in the plainest of judicial language by Justice Maund of the jeopardy in which her own acts have placed her continued day-to-day care of Noah T., the respondent mother nonetheless determined that she would decide when and where to see the society worker (her supervisor under Justice Maund’s order) or allow contact with Noah T.

This simply illustrates the view of the mother, apparent in the society material, that she and she alone makes decisions with respect to her son, regardless of the orders of the court and the advice of the society on how to avoid the looming disaster everyone but the mother could see was going to happen. [ 30 ] Signs of the looming emotional harm to Noah T. in the care of the mother are clearly seen in the antecedent file in the

domestic action, as well as in the society’s role, which commenced even before that action was completed. [ 31 ] Within a month of the final order for access made with her consent in the domestic action, the respondent mother was taking it upon herself to question whether she needed to follow that order. Allegations of abuse by the father upon Noah T. were obviously trumped up by the respondent mother in order to stop contact between the child and his father. Noah T.’s statements, when interviewed, were blatantly coached by others as was apparent to the agency and the police.

Failing to get the message that this conduct was abusive to her son, a second investigation was required with obvious coaching apparent again. Noah T. was allowed, if not required, to call his grandfather “daddy” to cut the respondent father out of this role. The mother repeatedly determined on her own when and where to cut off access, and made or allowed to be made, verbally abusive and denigrating scenes in the presence of the child.

The mother’s overall view of her care of her son was that she, and she alone, was the arbiter of when and where others will see her son. [ 32 ] The respondent father was obviously concerned about this when the motion of 17 March 2010 was argued. His fears were obviously well-founded in retrospect. [ 33 ] The mother obviously has the physical ability to care for the day-to-day basic needs of her son as a skilled and loving mother. To an uninformed bystander viewing her care of Noah T. outside of his contact with the father, she would likely be seen as a good mother to her son.

What they do not see however is the giant blind spot in the mother’s vision occupied by the father of her child. It may well be that the father’s past history of abuse directed at her is the basis for this blind spot. That it has a rational root does not excuse the irrational application of that blindness over the last four plus years and the obvious harm it has the potential to cause to the son whom she loves. [ 34 ] Clearly after nearly five years of battle, nothing that the father can do will ever eliminate from her mind the fact that, to her, he is a pervasive and constant threat to her child.

In the respondent mother’s mind, judging by her actions and her admitted words, the father represents such a threat to Noah T. that she must disobey the law and the recommendations of the agency charged with safeguarding the well-being of children in this county in order to protect her son. [ 35 ] The harm to Noah T. is equally clear to this court. As a general rule, children need to know both parents as much as possible and in as normal a way as possible, in order to grow and mature normally. As is obvious from the evidence here, from the start, the mother has acted wilfully to break this rule.

Indeed, clearly in her mind, Noah T. would be better off if he had never met his father. Every item of information that has been related to the mother that suggests that Noah T. might actually benefit from contact with his dad has either not been absorbed by the mother or has been ignored by her. Even when access was taking place the mother maintained an internecine conflict with the father through the child to frustrate that contact or to seek a smoking gun to justify her ending the access.

The effects on Noah T., sought at times to be parlayed into reasons for no access, only illustrated the harm to Noah T. that was taking place: for example, bed-wetting and soiling himself around access visits, and repeating the mother pleasing mantra that he has repeated since he was three: “I don’t want to see [Scott S.]”. [ 36 ] Nothing seems to have penetrated the mother’s view of the father even to the eve of this motion: the society made its concerns known to the mother for nearly a year before acting, concerns set out clearly in its material.

The reaction of the mother has been to deny, to blame others and to accuse the society and the police of pro-father bias. Twice, the mother heard musings from the court about the serious concerns raised by the material about the potential harm that her acts were causing Noah T. What has she done, even while the matter was before the court? She failed to follow the order of Justice Maund with respect to society supervision — the very order that she urges I continue now.

After I stipulated the nature and extent of her contact with the agency and required visits with Noah T. outside her presence, Noah T. was as late as 17 January 2011, immediately upon seeing the worker in private and without any prompting stating to the worker that: “That guy [Scott S.], he is mean”, “he punches my face”, “he shoots me”, “he won’t let me go home”, “he’s not my daddy”, he is a “robber” and “steals cats and dogs”. The mother denied any coaching.

If Noah T. was not coached on that occasion, then his statements reflect how deep his current brainwashing has gone and that his mother is oblivious to or unconcerned about how this has harmed her son. [ 37 ] The respondent mother has resisted the counselling that she needs in order to understand the harm that she is doing to Noah T. and how she can stop that harm: not physical harm but obvious emotional harm. Rather, she believes that it is everyone else, not her, who has created the problem with access. It is true that Noah T. may suffer short-term harm if his day-to-day care is transferred to the father.

Some harm to Noah T. seems inevitable regardless of the order I make here.

I am convinced, however, that the respondent mother has simply not understood nor accepted that her relentless attack on the father’s access is harmful to her son and that, unless the court actively and drastically intervenes now, Noah T. will be so alienated from his father that the alienation will be irreversible. [ 38 ] My order will probably be seen by the mother and her family and friends (family and friends whose active support for the mother’s acts have, I fear, contributed to the need for this order) as a draconian solution to a small problem not of her making.

I speak to these persons through this decision to emphasize the serious and obvious harm that their actions are visiting upon the child whom they all love. Perhaps the drastic effect of this order will, finally, underline to the mother the need for her to stop, now, her endless and abusive attack upon the father’s access using Noah T. as her weapon.

If it does not do so, a court may need to consider whether she and her family should have any contact with her son in the near future. [ 39 ] Agencies such as the Children’s Aid Society of Dufferin County are understandably reluctant to intervene in custody and access disputes. The mass of evidence relied upon by the agency here makes it clear that the society would have breached its duty to Noah T. if it did not act. [ 40 ] The respondent mother has clearly demonstrated by her own actions that Noah T. cannot be protected by an order that he remain in her care under society supervision.

The agency cannot be there day by day to be assured that the mother and her supporters are not continuing to actively undermine Noah T.’s relationship with the father and I am convinced that such undermining will continue if Noah T. is in her care and the status quo is allowed to continue. Nor do I believe that Noah T. can be properly counselled if in the day- to-day care of the mother. [ 41 ] Under subsection 51(3) of the Child and Family Services Act , R.S.O. 1990, c. C-11 (as amended), before an order may be

made under clause 51(2) (

c) placing the child with the father under society supervision, the onus is upon the applicant to demonstrate that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be adequately protected by a return to the mother, even under supervision. The onus is by its nature not a difficult onus for the agency to meet since the standard of proof is made low by the very wording of the Act: “reasonable” grounds, a “risk”, and “likely” harm, and “adequate” protection for the child.

This illustrates that the order sought is intended to be a temporary order while the matter moves through the courts and the focus is on protecting Noah T. in that short term. In my view, there is no doubt at all that the applicant has met that onus — indeed more than done so — on the evidence before me. The society’s evidence establishes that the mother has, by negligence or design, actively taken steps or at the least allowed them to happen, including breaches of court orders, that prevent Noah T. from having the relationship that he has a right to have with his father.

She cannot, at this time, be trusted to act properly to redress this harm and so the applicant must be entrusted with this task until and unless the mother changes her philosophy and actions. [ 42 ] The temporary order shall be as follows: • First: order to go as asked in paragraph 1 of the applicant’s motion dated 9 December 2010, including all sub- paragraphs. • Second: this order replaces any preceding temporary orders made herein. • Third: in order to give effect to this order, the child, Noah T., male, born on 17 February 2006, shall be transferred by the party then having the care of him into the care of Catherine Hunter, or her designate, at or before 3:30 p.m.

EST on 1 February 2011. • Fourth: if necessary to give effect to this order, the Orangeville Police Service, the O.P.P and all other peace officers are directed, authorized and required to enter any place, including a dwelling house, without a warrant, to secure the said child and transfer his care to the applicant as set out herein. • Fifth: adjourned to 23 February 2011, at 2:00 p.m., as previously ordered, to be spoken to.