Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 145

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 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, [1] . . . [2] (

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. CITATION: Children’s Aid Society of Toronto v. G.S. , 2018 ONCJ 145 DATE: March 6, 2018 COURT FILE NO. C80223/15 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) CHILDREN’S AID SOCIETY OF TORONTO KATELYN OSTROPOLEC, for the APPLICANT ) APPLICANT ) ) - and - )

G.S. ) PETER S. CARLISI, for the RESPONDENT RESPONDENT ) GILEAD KAY, on behalf of the OFFICE OF THE CHILDREN’S LAWYER, for the child ) ) ) ) ) HEARD: FEBRUARY 26-28 and MARCH 1-2, 2018 JUSTICE S.B. SHERR REASONS FOR DECISION Part One – Introduction [ 1 ] In this twice-amended status review application, the Children’s Aid Society of Toronto (the society) is seeking an order pursuant to clause 65.2 (1) (

b) of the Child and Family Services Act , to place the child, D.S. (the child), age 12, in the custody of her maternal aunt (the aunt). The society also seeks the following orders:

a) That the aunt may travel with the child outside of Canada without the consent of the respondent, G.S. (the father).

b) That the aunt may obtain or renew passports, health cards, SIN numbers, applications for name changes and birth certificates for the child without the consent of the father.

c) That any access between the child and the father be subject to and in accordance with the child’s wishes and subject to the aunt’s approval. In particular, that the child not be compelled to attend access if it is contrary to her views and wishes.

d) That, subject to the child’s wishes, access take place on the following terms: 1. A minimum of once per month, for 1.5 hours, supervised at Access for Parents and Children in Ontario (APCO). 2. The father shall pay for the costs of APCO. 3. The aunt shall transport the child to and from APCO. 4. The child shall be at liberty to communicate with the father by telephone or social media, as approved by the aunt.

5. The aunt shall advise the father by text or email, at least 24 hours prior to any scheduled access visit, if the child wishes to attend. 6. That the father shall not speak negatively about the aunt during the access visit and shall not do anything, either by words or actions, to undermine the child’s placement with the aunt.

e) That the father cannot bring any motion to change the court order without first obtaining leave of the court. [ 2 ] The Office of the Children’s Lawyer (OCL), on behalf of the child, supports the society’s position. [ 3 ] The father opposes the society’s application. He seeks an order placing the child in his care and custody. In the alternative, he seeks an order for generous unsupervised access with the child, including overnights each weekend and extended holiday and summer time.

He also seeks rights to information about the child, including the right to attend at the child’s school for parent-teacher interviews. Lastly, the father seeks an order restricting the aunt from removing the child from the Province of Ontario. [ 4 ] The child was placed by the society with the aunt on July 29, 2016 and has resided with her since that time. The father presently sees the child once per month, supervised, at the society office. [ 5 ] On December 12, 2016, on consent, the child was made a crown ward (while remaining in the aunt’s home), with specified access to the father (the existing order).

Steps still needed to be taken at that time to regularize the aunt’s immigration status. The parties agreed that once this was done, this status review application would be brought by the society. [ 6 ] The society and the child are seeking restrictive access for the father, alleging that his relationship with the child has seriously deteriorated since the existing order was made.

They attribute this deterioration to the father’s inappropriate conduct towards the child and the aunt. [ 7 ] The father claims that the aunt is alienating the child from him and that it is now in the child’s best interests to live with him. [ 8 ] The trial of this matter was conducted over five days. The society called its Family Service Worker (FSW), Children’s Service Worker (CSW) and the aunt. The father testified, called one collateral witness to give oral evidence on his behalf and had three collateral witnesses file affidavits on his behalf, without cross-examination.

The child did not call any witnesses. [ 9 ] The issues for this court to determine are:

a) What parenting orders are in the child’s best interests? In particular:

i) With whom should the child live? ii) What incidents of custody should be ordered? iii) Should the aunt, if granted custody, be restricted from taking the child outside of the Province of Ontario? iv) What terms of access should be ordered?

b) Should an order be granted requiring the father to obtain leave of the court before starting any further court proceedings, as requested by the society and the child? Part Two – Background facts [ 10 ] The father is 57 years old and lives in Toronto. [ 11 ] The father was born in Greece. He came to live in Canada in 1987. [ 12 ] The father married for the first time in 1978. He has two children from that relationship, who are now 35 and 30 years old. Both of these children live in the Greater Toronto Area.

The older child (L.) has three children. [ 13 ] The father lived with his first wife until 2001 and eventually divorced. [ 14 ] The father married for the second time in 2004 and the father and his wife had the child together in August, 2005. [ 15 ] The father’s second wife , the child’s mother, passed away from cancer in 2008. [ 16 ] In either 2010 or 2011, the father began cohabiting with T.W.

The child lived with them. [ 17 ] The father and T.W. had a child, M., born on […], 2013. [ 18 ] On September 17, 2013, Native Child and Family Service of Toronto (NCFS) commenced a protection application and obtained an order placing M. and the child in the temporary care of L., with access to the father and T.W. to be supervised by NCFS. [ 19 ] The child was placed in the temporary care of NCFS on February 7, 2014, when L. advised NCFS that she could no longer care for her. [ 20 ] On June 26, 2014, on a

summary judgment motion, Justice Brian Weagant found M. to be a child in need of protection pursuant to clauses 37 (2) (a) (actual physical harm) and (b) (risk of physical harm) of the Act. He made M. a crown ward without access. [ 21 ] The father asked the aunt to come from Greece to visit the child. When she arrived in September, 2014, he asked her to help him plan for the child. [ 22 ] The aunt is the sister of the child’s deceased mother. The aunt is 51 years old and single. She has an adult child and a granddaughter who live in Greece.

The aunt deposed that she worked full-time as a gym teacher and part-time as a singer in Greece. She agreed to help the father and began seeing the child. [ 23 ] On January 28, 2015, on a

summary judgment motion, Justice Brian Scully found the child to be in need of protection pursuant to clauses 37 (2) (b) (risk of physical harm) and (g) (risk of emotional harm) of the Act. The child was made a society ward for a period of six months. On the same day, Justice Scully made an order transferring the case to the society and to this court. [1] [ 24 ] In July, 2015, the aunt first expressed to the society a desire to plan for the child. The society commenced a kinship application and on July 21, 2015, it issued a status review application seeking a four-month society wardship order for the child.

[ 25 ] On May 16, 2016, Justice Roselyn Zisman noted the father in default on the status review application. She made an order pursuant to subsection 70 (4) of the Act, making the child a society ward for a further four months. [2] She ordered that access by the father shall be in the society’s discretion as to location, duration and level of supervision. [ 26 ] The society issued its status review application seeking crown wardship, with access to the father in its discretion, on July 27, 2016. [ 27 ] On July 29, 2016, the society placed the child in the aunt’s home.

The father’s access continued to be supervised. [ 28 ] On December 12, 2016, the parties consented to the existing order of crown wardship. The father’s access was at the discretion of the society and in accordance with the child’s wishes. The existing order set out specified access for the father as follows:

a) Saturdays from noon to 6 p.m., in the community, or in the home, once approved by the society.

b) After six successful Saturday visits, the father shall additionally have access Wednesday from after school until 5:30 p.m.

c) Reasonable daily telephone access.

d) Specified holiday access.

e) Access to school and medical records and to meet with the school, professionals and doctors for the child. [ 29 ] The existing order required the father and the aunt not to speak negatively about the other. [ 30 ] The Statement of Agreed Facts filed in support of the order includes the following statements:

a) The child continues to do well in the aunt’s care.

b) The aunt’s home has been approved as a kin in care home. [3]

c) The father presented a plan with his fiancée, who he has separated from. The father does not have a plan to care for the child

d) There has been some concern over negative messaging the father has been giving the child at access, and access had to be fully supervised. On the understanding that the father will not speak about the aunt, or the proceedings, the society agrees to move towards unsupervised access. It is the society’s assessment that once the litigation is over, the access should be more positive.

e) The plan is in the best interests of the child, as the plan is for the child to be placed with the aunt as a crown ward. The aunt is committed to the child, and to caring for her long term. The aunt requires financial assistance, and this order will allow the Society to provide that to her, while her permanent residence application is processed. This order will also ensure that the child has a continuing relationship with her father, with whom she is close. [ 31 ] This order was made on the understanding that once the aunt obtained legal status in Canada, the society would bring a status

review application placing the child in the aunt’s custody, with specified access agreed upon to the father. [ 32 ] Shortly after the existing order was made, the aunt obtained a work permit to remain in Canada. On January 26, 2017, the society issued a status review application to place the child in the aunt’s custody, with specified access to the father. [ 33 ] In February, 2017, the father filed his Answer/Plan of Care. He asked that the society’s application be dismissed and that the child be returned to him.

He indicated in his pleading that the couple he was living with would be his supports. [ 34 ] On April 3, 2017, the child, through her counsel, asked the society to reduce the access

schedule to 1.5 hours on alternate Saturdays. She also asked that the father not bring any of his friends to the visits. Shortly after, the child refused to go on visits with the father. [ 35 ] On May 10, 2017, the society issued its first amended status review application.

It now asked for incidents of custody in favour of the aunt and for the father’s access to be in the aunt’s discretion and in accordance with the child’s wishes. [ 36 ] On May 29, 2017, Justice Zisman made a temporary order changing the father’s access to be at the discretion of the society and in accordance with the child’s wishes. [ 37 ] The father filed an Answer/Plan of Care, dated June 8, 2017, to the first amended status review application.

He had moved from his previous residence and listed a different support, J.G., who was a family friend. [ 38 ] The father did not see the child from April 3, 2017 until June, 2017, when the aunt began to supervise the father’s visits with the child.

She also monitored his telephone calls with the child at the society’s request. [ 39 ] On August 15, 2017, after a contested motion, Justice Zisman ordered temporary access to the father to be in the discretion of the society, and in consideration of the child’s wishes, with the child to be at liberty to communicate with the father by telephone or social media, as approved by the society. [ 40 ] On October 4, 2017, the society suspended the father’s access due to his conduct at visits and on phone calls with the child. [ 41 ] On October 11, 2017, the society issued its second amended status review application.

This is the application that is now before the court. [ 42 ] Since October 17, 2017, the father has exercised fully supervised access to the child at the society’s office, once each month, for 1.5 hours. [ 43 ] The father filed an Answer/Plan of Care, dated December 4, 2017, to the second amended status review application. He had moved his residence again and J.G. was no longer listed as a support for him. He indicated that he lived with C.G. and intended to marry her in April, 2018. [4] [ 44 ] C.G. was not called as a witness at trial.

Part Three – Legal considerations [ 45 ] The society has brought its status review application pursuant to

section 65.1 of the Act. This

section deals with status review applications regarding crown wards and former crown wards.

[ 46 ]

Section 65.2 of the Act sets out the orders that the court can make on a status review application brought pursuant to

section 65.1. Specifically, clause 65.2 (1) (

b) permits the court to make a custody order, with the consent of that person or persons, and subsection 65.2 (2) permits the court, subject to

section 59 of the Act, to vary or terminate an order for access.

Section 65.2 of the Act reads as follows: Court order 65.2

(1) If an application for review of a child’s status is made under

section 65.1, the court may, in the child’s best interests, (

a) 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; (

b) order that custody be granted to one or more persons, including a foster parent, with the consent of the person or persons; (

c) order that the child be made a ward of the Crown until wardship is terminated under this

section or expires under subsection 71 (1); or (

d) terminate or vary any order made under

section 57 or this section. Variation, etc.

(2) When making an order under subsection (1), the court may, subject to

section 59, vary or terminate an order for access or make a further order under

section 58. 2006, c. 5, s. 24 . Same

(3) Any previous order for Crown wardship is terminated if an order described in clause (1) (

a) or (

b) is made in respect of a child. Terms and conditions of supervision order

(4) If the court makes a supervision order described in clause (1) (a), the court may impose, (

a) reasonable terms and conditions relating to the child’s care and supervision; (

b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and (

c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services. Access

(5) Section 59 applies with necessary modifications if the court makes an order described in clause (1) (a), (

b) or (c). Custody proceeding

(6) Where an order is made under this

section or a proceeding is commenced under this Part, 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.

Rights and responsibilities

(7) A person to whom custody of a child is granted by an order under this

section has the rights and responsibilities of a parent in respectof the child and must exercise those rights and responsibilities in the best interests of the child. [47] Subsection 59 (1.2) of the Act specifically deals with the issue of access after a custody order is made under clause 65.2 (1) (b).It reads as follows: Access after supervision order or custody order under s. 65.2 (1)

(1.2) If an order is made for supervision under clause 65.2 (1) (

a) or for custody under clause 65.2 (1) (b), the court shall make an orderfor access by every person who had access before the application for the order was made under

section 65.1, unless the court is satisfiedthat continued contact will not be in the child’s best interests. [48] When a party seeks an order pursuant to subsection 65.2 (1) of the Act, the only test is what order is in the child’s best interests.See: Children’s Aid Society of London and Middlesex v. B.J.T., 2014 ONSC 11; The Children’s Aid Society of the Districts of Sudburyand Manitoulin v. S.S. and J.L., (Ont. SCJ). [49] To ensure that access is in the child's best interests, subsection 58 (1) of the Act provides that a court may impose such terms andconditions that are considered appropriate.

See: Windsor-Essex Children’s Aid Society v. E.W., 2014 ONCJ 562, per: Justice BarryTobin. [50] Subsection 37 (3) of the Act sets out the circumstances to be considered in determining the best interests of a child. It does notprioritize one circumstance over another. See: The Children’s Aid Society of the Districts of Sudbury and Manitoulin v.

S.S. and J.L.,supra, par. 16. [51] Subsection 37 (3) of the Act reads as follows: Best interests of child 37(3)Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take intoconsideration those of the following circumstances of the case that he or she considers 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 by blood or through an adoption order. 7. The importance of continuity in the child’s care and the 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 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 to remain in the care ofa parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance . Part Four – The Child [ 52 ] The child was described positively by everyone at trial. [ 53 ] The CSW testified that the child is a beautiful pre-teenager, with a big smile. She is very verbal and easily shares her thoughts and feelings. She is physically healthy. [ 54 ] The father testified that the child enjoys sports, ballet and electronics. The CSW testified that the child loves to sing and enjoys art. She wants to either become a lawyer or a singer. [ 55 ] The child is described as being proud of her Greek heritage and culture.

She understands and can speak some Greek. [ 56 ] The aunt deposed that the child goes to the Boys and Girls Club every day after school. She gets help with her homework, plays sports, takes art classes and cooks. The child enjoys these programs. [ 57 ] The child is in grade seven and has an individual education plan in place due to a mild specific learning disability. In the 2016/2017 school year, she received one-on-one tutoring from a service funded by the society. The child likes school and has good school attendance. [ 58 ] In 2015, the child was diagnosed by Dr.

Daniel Fitzgerald, a psychologist, with ADHD, Oppositional Defiant Disorder and Anxiety. She was prescribed Biphentin. [5] [ 59 ] The child has been followed by a psychiatrist and a pediatrician through the society’s medical clinic. The medication appears to be effective and has been reduced. [ 60 ] The CSW has noted many improvements in the child since she began living with the aunt. The child sleeps better and longer, eats better, takes better care of her teeth and hygiene, learns seriously and is proud of her marks and school performance. [ 61 ] The CSW deposed that the child has “ups and downs”.

Her behaviour is impacted by her emotional state. [ 62 ] The aunt testified that the child has gradually become more tranquil and happier since the child came to live with her. She said that for the first four months, the child would frequently wake up at night with nightmares. [ 63 ] The child told the CSW that the phone calls with her father caused her a lot of stress and that she has been much calmer since they ended.

She also told the CSW that she asked her aunt to block calls from the father’s family members and she is happy she has stopped receiving messages and pressure from them. [ 64 ] The CSW testified that counseling was attempted with the child in 2015, but she wasn’t ready for it and became extremely unstable. The society stopped the counseling. The child refused to go to counseling again until late 2017, when she went twice.

The child has expressed to the CSW that she does not find counseling helpful and would rather not go. [ 65 ] The evidence indicates that the child is happy, loved and well-settled in the aunt’s home. Part Five – Credibility and reliability 5.1 The society workers [ 66 ] The court found the evidence of the FSW and the CSW (the workers) to be both reliable and credible for the following reasons:

a) The workers have a professional responsibility to accurately and contemporaneously record their interactions with the father, the aunt and the child.

b) The workers confirmed that they made all recordings within 24 hours.

c) The workers had significant independent memory of the events that they deposed to. They both demonstrated considerable insight into the dynamics of the case.

d) The workers are very experienced.

e) The workers are independent from the father and the aunt and had no motivation to misrepresent evidence to the court.

f) The workers provided balanced evidence. They did not hesitate to testify about positive visits that took place between the father and the child. They provided their evidence in a calm and professional manner.

g) The FSW has worked with the father for a long time and described in detail the efforts he has made, to no avail, to assist his relationship with the child.

h) The workers have worked with the aunt for over two years and have the best independent knowledge of her caregiving abilities.

i) The workers provided consistent, positive observations about the aunt’s caregiving skills and the aunt’s efforts to facilitate the child’s relationship with the father.

j) The CSW has worked with the child since January 28, 2015 and was able to provide the court with a detailed description of who the child is – her strengths and challenges.

k) The workers’ observations about the child were consistent, as were their concerns about the father’s conduct and his attempts to undermine the child’s placement with the aunt. 5.2 The aunt [ 67 ] The court also found the aunt’s evidence to be both reliable and credible for the following reasons:

a) She was able to testify with clear and consistent detail about events.

b) She was often precise with dates and time frames.

c) She deposed that she has a good memory – this appeared to be the case.

d) She readily acknowledged when she couldn’t remember something.

e) After redirection about making speeches early in her evidence, she was responsive to all questions and gave direct and focused answers.

f) She did not try to avoid questions.

g) Many aspects of her evidence were supported by the FSW and CSW.

h) Many aspects of her evidence were supported by statements made by the child to the FSW and CSW.

i) She deposed about positive visits that the father had with the child and stated that, at times, the child was excited to see him. If, as the father believed, her intention was to alienate him from the child, it is unlikely that she would have volunteered this evidence.

j) She presented as very child-focused.

k) She has complied with all society requirements respecting access with the father. She has not acted unilaterally. She has not breached court orders. 5.3 The father [ 68 ] The father was not a reliable or credible witness. [ 69 ] The father admitted he has a bad memory of dates. He often confused time frames. [ 70 ] The father gave inconsistent evidence about his relationship with T.W. He initially said that they were together for two and a half to three years. He later changed that to it being an on and off relationship.

He said they broke off their relationship a couple of days before the aunt arrived from Greece in 2014 and then later changed that to two weeks before she arrived. The aunt described how when she arrived from Greece, she was taken to the father’s home, where he and T.W. got into a loud screaming match and the father left, leaving her alone with T.W. The aunt’s version was much more detailed and credible. [ 71 ] The father took no responsibility at trial for the child and M. being apprehended and remaining in care.

He claimed that this was entirely due to T.W.’s heroin use – he had been working long hours as a trucker and was always away. When confronted with the fact that he knew about her heroin use, didn’t inform the society and let T.W. care for the children for a long time on her own, the father claimed that T.W. was never left alone with the children– either he or L. were always present. He claimed to be very involved with the children. His evidence was unconvincing. [ 72 ] The father frequently changed his answers when faced with contradictions.

He would also become avoidant when faced with hard questions and try to deflect the questioning by repeating allegations against the aunt and not answering the question. [ 73 ] One example is the Statement of Agreed Facts he signed in support of the existing order in December, 2016. In this document, he conceded that he could not plan for the child at that time and that the child was doing well with the aunt.

The Statement of Agreed Facts also sets out the concern that he is giving negative messaging to the child. [ 74 ] Instead of just acknowledging his agreement to these facts, the father tried to resile from it, claiming he didn’t have a Greek interpreter when he signed it. However, the court order clearly shows that he had a Greek interpreter at court with him and that he was represented by counsel.

When confronted with this, he claimed that he never said he didn’t understand the agreement. [ 75 ] The father was very evasive when asked questions about his failure to follow the FSW’s instructions (and the court order) to not say anything negative to the child about the aunt. The court finally had to intervene and instruct him to directly answer the question.

The father reluctantly conceded that he did not always follow these instructions – that he sometimes did speak negatively about the aunt to the child. [ 76 ] The father’s evidence about bringing the aunt to Canada revealed a manipulative and dishonest nature. [ 77 ] The aunt testified that the father offered to pay her ticket to come to Canada for a month in 2014 to visit with the child. She was pleased to do this. [ 78 ] The father claimed that the aunt was begging him to come to Canada and wanted him to sponsor her.

However, he also said at another point that he was forced to call the aunt to come to Canada to help him get the child out of care. The court notes that the father’s affidavit filed for the temporary access motion heard before Justice Zisman on August 15, 2017 makes no mention of the aunt begging him to come to Canada. [6]

[ 79 ] The father admitted at trial that he did not tell the aunt that the child was in the society’s care before she came to Canada. He tried to hedge this admission by claiming he was giving the aunt what she wanted by bringing her here. However, he also testified that he didn’t tell the aunt about the child being in society care because he thought she wouldn’t come if she knew about this. [ 80 ] The father was trying, very unsuccessfully, to convince the court that the aunt’s only motivation to come to Canada was to obtain immigration status and that she doesn’t care about the child.

The reality is that the aunt was the father’s last hope at that time. M. had just been made a crown ward without access. He only had supervised access with the child. The child was headed towards the same disposition as M. – crown wardship without access.

The father misrepresented the situation to the aunt and intended to convince her to plan for the child once she arrived in Canada. [ 81 ] The aunt also filed an affidavit, sworn on July 31, 2017, in support of the society’s motion to reduce the father’s access which was heard by Justice Zisman on August 15, 2017. [7] The aunt’s affidavit contains the contents of a telephone call between the father and the child on April 7, 2017, where the father says highly inappropriate things to the child.

The father did not deny most of these statements in his responding August 10, 2017 affidavit – he only clarified a few of them. In that affidavit, the father properly apologized for the telephone call. At trial, he tried to back away from having made these statements. However, after an effective cross-examination by counsel for the society and the child, it was apparent that the father had, in fact, made most of these inappropriate statements to the child. [ 82 ] The father initially claimed at trial that he has not given negative messaging to the child.

Yet, he agreed that this was the case in the Statement of Agreed Facts filed in support of the existing order. He also admitted the negative messaging in his August 10, 2017 affidavit. The father admitted he was often warned not to do this by the FSW. [ 83 ] An allegation was made that the father was asking the child to help him search for women he could date on Facebook. The FSW testified that when he raised this allegation, the father asked him what was wrong about this. The father gave confusing and inconsistent answers about this allegation at trial.

He first denied the allegations, claiming that he doesn’t know how to use Facebook. He then claimed that the aunt set up this account and framed him. Later, he discussed how he has a second Facebook account and he makes sure the child doesn’t access it. The court did not find the father’s explanations to be credible. [ 84 ] The father made many allegations and assertions at trial against the aunt and the society, most with no evidence to support them. [ 85 ] The father claimed that his access has been reduced because the aunt is exacting revenge against him for twice rejecting his marriage proposals.

It is interesting to note that this fact was never mentioned in his August 10, 2017 affidavit. [ 86 ] When the father was confronted with the reality that in the past 16 months he has presented four different plans for the child, at four different residences, with different supports each time and two different plans to marry, the father said that his first plan to marry almost happened, but he learned one week before the wedding that his fiancée was a nun and she went back to the monastery.

He did not accept that his changing plans were evidence of instability. [ 87 ] The father called L.’s mother-in-law (C.M.) as a witness. C.M. was very angry at everyone involved in the case, including the aunt, the society and the child’s lawyer. During cross-examination, she directed her anger at the father. By the end of her testimony, she had the following to say about the father: [8] It was his actions that caused the child to be taken away. He chose to be stubborn as he usually is. He chose T.W. over parenting both of his children.

I told the NCFS worker that he has a long history of domestic violence and I have known him to drink excessive alcohol. The relationship of my family with the father has been very difficult for the past four years.

He has been abusive, that is not a secret. He abused his first wife and L., but not his other adult daughter or the child. I don’t agree with his parenting. I don’t care about him. He is a loudmouth and uneducated. I don’t like him very much. [ 88 ] C.M. also acknowledged sending an email to the FSW on November 22, 2016 where she wrote: I don’t know where to begin with all the problems this man has caused and is causing. I have told you so much about [the father] but I have known him from 1987 and for the last 16 years because L. is with my son I have had the misfortune of being too close to this man’s filth.

Nothing would surprise me where he is concerned….. [ 89 ] Where the father’s statements conflicted with those of the FSW, CSW or the aunt, the court preferred their evidence. Part Six – Child statements 6.1 The voir dires [ 90 ] At a voir dire held at the outset of the trial, the court admitted over 250 statements made by the child to the FSW and CSW for either the child’s state of mind or the truth of their contents. For the latter statements, the court found that the statements had achieved threshold reliability. See: Children’s Aid Society of Toronto v.

G.S. , 2017 ONCJ 124 . [ 91 ] At a subsequent voir dire , the court admitted the child’s statements recorded by the aunt in her July 31, 2017 affidavit about the telephone call between the child and the father that took place on April 7, 2017.

Some statements were admitted for the child’s state of mind, others for the truth of their contents. [ 92 ] The court found that the child’s statements to the aunt that were admitted for the truth of their contents were substantively reliable as the father had substantially admitted these facts in his August 10, 2017 affidavit. [9] [ 93 ] The court also admitted child statements made to the father under the state of mind exception. [ 94 ] The court did not admit child statements made to the father and a child statement made to the aunt, set out in paragraph 4 of the aunt’s July 31, 2017 affidavit, for the truth of their contents. [ 95 ] The court did not admit these statements because there was neither procedural nor substantive reliability.

With respect to the procedural reliability prong in Bradshaw :

a) The aunt and the father are not professional witnesses with the obligation to record accurate notes.

b) Neither the aunt nor the father provided notes of the conversations.

c) Neither the aunt nor the father is a neutral party. They have a vested interest in the outcome. Unlike the other statements made by the child, the statement recorded by the aunt in paragraph 4 of her July 31, 2017 affidavit was not admitted by the father.

d) There were no adequate substitutes for testing this evidence and for the court to be able to rationally evaluate the truth and accuracy of the statements. [ 96 ] There was also no substantive reliability to the excluded statements since the statements weren’t inherently trustworthy.

There were alternate explanations for the statements – the aunt or the father might not be telling the truth. 6.2 – Ultimate reliability [ 97 ] Even though most of the child’s statements proffered for the truth of their contents were admitted as having achieved threshold reliability, the court must still assess if these statements achieve ultimate reliability. [ 98 ] The court finds that the child statements made to the FSW, CSW and the aunt are highly reliable for the following reasons:

a) The statements to the workers were recorded accurately and contemporaneously.

b) The workers are independent professionals with no motivation to fabricate the evidence.

c) The workers are very experienced and have received training in interviewing children.

d) The statements made to the workers were consistent over a lengthy period of time.

e) The workers both testified that the child was open and forthcoming with them.

f) The workers both testified that the child often made spontaneous, unprompted statements about the father to them.

g) Many of the statements were specific and detailed.

h) The statements were consistent with the child’s statements made to the aunt.

i) The statements were consistent with the position taken by the child at trial.

j) The aunt has been found to be a credible and reliable witness with a good memory.

k) The father has been found to be neither a credible nor a reliable witness.

l) The father admitted or did not deny several of the statements he made to the child as set out in the aunt’s July 31, 2017 affidavit.

m) The father admitted that he was directed by the FSW many times not to make negative statements to the child.

n) The child is of an age and maturity where she understands her statements and their importance.

o) The child’s statements have balance to them and include positive statements about the father.

p) The statements were made and recorded close to the events described by the child. This is different from the child statements made to the FSW and CSW that were excluded, for the truth of their contents in the first voir dire , because they related to events that allegedly had occurred while the child lived with the father and T.W. five years ago. Part Seven – The father’s case 7.1 Analysis of the father’s case [ 99 ] The theory of the father’s case is that the aunt has sabotaged his relationship with the child out of revenge because he rejected two of her marriage proposals.

He claims that she has alienated the child against him and that she has manipulated the child to make false statements about him. He does not believe that the child’s expressed desire to all of the professionals to limit her contact with him represents her true wishes. He believes that the child will be better off living with him. [ 100 ] The father provided no credible evidence to support this theory. For example, he claimed that the aunt woke the child up at 6 a.m. to coach her on what to tell her lawyer with no evidence to support this.

The father relies on one taped telephone message from June, 2017 where the child telephoned him, saying “Daddy, hello, hello”, was crying and then hung up. There could be many explanations for the call. [ 101 ] The evidence revealed that the aunt was very tolerant of some very bad behaviour by the father and did her best to support his relationship with the child. She remained in Canada at the father’s request to plan for the child.

She agreed to supervise the father’s community visits with the child after they were restricted in 2017, so he could spend time with the child in the community, instead of the visits taking place in the society’s office. She agreed, when requested by the society, to monitor the father’s telephone calls with the child.

If she could be faulted for anything, the FSW testified, it was for allowing some of the father’s abusive phone calls with the child to go on too long. [ 102 ] The father provided no evidence to contradict the overwhelming evidence that the child is thriving in the aunt’s home and has made significant gains in her care. [ 103 ] Except for a general statement that all the adults are responsible for the breakdown of his relationship with the child, the father took no responsibility for his estrangement from her.

His approach was to deny virtually everything said about him by the society, the aunt and the child, and where possible, blame the aunt and the society for his problems. [ 104 ] The father frequently expressed his belief that his children were wrongly removed from him and that he has always had the ability to care for them. Despite this belief:

a) M. was made a crown ward without access on a

summary judgment motion.

b) The father’s access to the child has been supervised for a significant portion of the past four and a half years.

c) The father was noted in default in the first status review proceeding regarding the child in 2016.

d) The father conceded that he could not plan for the child at the time when the child was made a crown ward in December, 2016 [ 105 ] The FSW testified that he warned the father multiple times that if he did not change his behaviour, the child would want to see him less and less. Sadly, his prediction has come true. The father did not change his conduct, because he felt no need to do so. The father’s lack of insight into his conduct makes him a poor candidate to change it.

[ 106 ] The father did not provide a viable plan to care for the child. The evidence shows that:

a) The father has provided the court with four different plans of care in the past 16 months.

b) The father has had a different residence for each plan of care.

c) The father plans to move again if the child is placed with him, as his current residence would be very small for the child.

d) The father has listed a different support person for each plan of care.

e) The father has provided two different persons he intended to or intends to marry in the plans of care. [10]

f) The father provided no evidence from the woman he intends to marry this summer and who is an important part of his plan.

g) The father showed little understanding of the child’s needs. His plan is to find out about these needs and how to meet them from the society. [ 107 ] The father filed affidavits from three friends. The friends depose that the father has an excellent relationship with the child and is a good father. None of these friends have seen the child with the father for many months. One of the friends is someone the child has bitterly complained about being forced to see at visits by her father.

This evidence had little value. 7.2 – The father’s conduct [ 108 ] The evidence established that the father is the person responsible for the breakdown in his relationship with the child and the deterioration in his relationship with the aunt. [ 109 ] The father has actively attempted to undermine the child’s placement with the aunt. [ 110 ] The father has acted in a manipulative and controlling manner.

At times, he has been emotionally abusive and threatening to the child and the aunt. [ 111 ] The father continually tells the child that she will be returning to his care, despite his agreement not to talk to her about the proceedings. [ 112 ] The father continually tries to scare the child that the aunt plans to take her to Greece forever.

He will tell her that the aunt does not love her and is only caring for her to get immigration status. [ 113 ] The father also inappropriately quizzes the child about what is happening in the aunt’s home. [ 114 ] There have also been several times when the father has become angry and frustrated with the child for her refusing to see him more. He has threatened to disappear from her life. He has told the child that she is “70% your mother and 30% me and when you lose me, you will lose everything”.

[ 115 ] The aunt testified that the father would make inappropriate statements to the child in over half of his visits and telephone calls with her. Like the FSW, the aunt said that the father would ignore her attempts to get him to stop doing this. He would often respond to her with profanity. [ 116 ] The FSW testified that despite his constant redirection and supervision, the father continues to try to whisper messages to the child at visits. The child advised him after her last visit with the father on February 22, 2018, that the father had done it again.

She said that the father whispered in her ear that the aunt planned to take her to Greece and never return her. [ 117 ] The following are some other examples of inappropriate comments or behaviour that the workers testified the child told them about the father: [11]

a) He asked her to tell the society that the aunt had hit her and to back him up as he had told the society that she had disclosed this to him.

b) He told her he is going to get a house and then she could live with him.

c) He often calls the aunt a bitch.

d) He told the child if she speaks like her aunt the bitch, he will not come and see her again.

e) He asked her to go on the internet and look for single Chinese women, because he does not know how to do it.

f) He told her that her two half-sisters do not really love her.

g) He told her, “you know that the person you stay with is bad for you. She will kick you out when she gets her papers”.

h) He continues to pressure her to ask the society for longer and unsupervised visits. He promises to buy her whatever she wants if she will do this.

i) He keeps “pushing her” to return to live with him.

j) He put a lot of pressure on the aunt at the visits she supervised, threatened the aunt and said bad things to her.

k) At the February 16, 2018 visit at the society office, the father showed her a message on his cellphone from L. The message said that the aunt does not want her; is using her to get money from the government and that she will take her to Greece to live forever. [ 118 ] The child has advised the aunt and the workers that the father would often take her on visits in early 2017 and stay at his friend’s home (A.T.) [12] . The child has said that she told the father that she did not like A.T. and did not want to spend time there. She found his residence dirty and full of cockroaches.

The FSW also advised the father about the child’s feelings about A.T. [ 119 ] The father disregarded the child’s feelings about A.T. and continued to take her there on visits. The father minimized this concern at trial, claiming he had no money, it was cold and he had nowhere else to go. He continued to insist that the child likes A.T.

[ 120 ] The child has also complained, and the aunt has observed, that the father would not engage with the child during visits, spending long portions of the visits on his cellphone. [ 121 ] The aunt deposed that the father told the child in January, 2017 that since the child didn’t want to help him, he was going to undo the agreement he had and keep the court matter going. [ 122 ] The aunt testified that the father started threatening her in February, 2017 that he would take the child away from her and have her placed in foster care.

He would threaten the aunt that he would report her to the immigration authorities and have her deported.

She further deposed that the father would frequently swear at her when she supervised his visits. [ 123 ] The aunt deposed that the father set up a Facebook page in her name and posted “dirty pictures” on it. [ 124 ] The aunt said that on April 3, 2017, the father told the child, in her presence, that he hoped, “the person who is putting her up to all of this gets cancer, their kid and grandkid too”. [ 125 ] The aunt testified about the phone call that took place between the father and the child on April 7, 2017 which she monitored. [13] In this call:

a) The father told the child she has killed him with her actions when the child explained to him why she had asked for shorter visits.

b) The child told the father she did not like his friends.

c) The father told the child, “my child prefers strangers over me. This is not your fault anyway; others are to blame”.

d) The father told the child, “when you look for me in the future, you won’t find me. You don’t understand now. I don’t want to say too much because I’m on speaker. I promise you something, but I won’t say it because you made me promise not to. When you get older you will be trying to find me, but it will be too late. You’ll be banging your head one day but it will be too late”.

e) The father told the child, “I hope you’re well but you made the wrong choice, you should know that”.

f) The father threatened that he will do to a “certain someone” what he did to a friend of the aunt’s. He said to the child, “You know Chris? You know how he’s not allowed to come back to Canada? Thanks to me. I’m going to try again”.

g) The father told the child, “I may have lost you, but I won’t let anyone win you. I’ve asked my lawyer to have you go back to the foster home, they’re preparing the paperwork. You have no choice to say yes or no. You have to be 15 or 16 to choose where to live”. [ 126 ] The FSW and CSW both testified that the child often becomes anxious and upset when the father behaves in this manner and becomes more reluctant to see him.

She has told the CSW that she does not trust her father. [ 127 ] The aunt testified that the child would be anxious and have behavioural issues for two to three days after visits with her father. [ 128 ] The child’s behaviour began to decline in the winter of 2017 and she started to demonstrate sexualized behaviour. [ 129 ] The father’s behaviour resulted in requests from the child for the visits to be shorter and fully supervised. At some points, the

child has asked not to see the father. The society fully supported the child’s wishes. Part Eight – Best interest factors [ 130 ] The court will review the relevant best interest factors in subsection 37 (3) of the Act below. The child’s views and preferences, if they can reasonably be ascertained [ 131 ] The child has expressed the following views and preferences:

a) She wishes to live permanently with the aunt. She advised the CSW that she loves her aunt and is calling her Mom. [14] She feels safe and loved by her aunt. She says she is happy there.

b) She wants very limited contact with her father at this time, only once per month, for 1.5 hours. She wants the visits to be supervised. She has told the CSW that she has felt less stressed since the visits have been reduced, is happier and is able to focus better in school.

c) She wants to be able to decide if she goes on the visits with the father.

d) She does not want the father or his family to call her.

e) She wants to be able to call the father, if she chooses.

f) She does not want the father to pressure her to live with him.

g) She does not want the father to say bad things to or threaten the aunt. [ 132 ] The child’s views and preferences have been consistent. They have been expressed to many professionals, including the FSW, the CSW and her lawyer. [ 133 ] The child’s views and preferences are reasonable given the instability she has endured as a result of her parents’ deficiencies, the excellent care she has received from the aunt and the father’s conduct. [ 134 ] Given her age and experiences, the child’s views and preferences will be given considerable respect by the court.

Unfortunately, the father’s inability to give the child’s views and preferences similar respect has damaged his relationship with her. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs The child’s physical, mental and emotional level of development [ 135 ] The aunt is appropriately meeting the physical, mental, emotional and developmental needs of the child. She has worked closely with the society to ensure that the child receives appropriate care. She monitors the child’s medication.

[ 136 ] The aunt has arranged for the child to participate in many activities that have helped her with her physical and social development. [ 137 ] The aunt has also worked closely with the child in improving her hygiene. The aunt and CSW both testified that the child is becoming more independent and starting to take responsibility for her self-care and chores in the home, such as making her own bed and breakfast. [ 138 ] The aunt has met the child’s need to have a safe, secure and loving home. [ 139 ] The father has demonstrated little understanding of the child’s needs.

He testified that he would have to speak to the society and the child’s doctors to understand them. He has been tone deaf to her feelings. [ 140 ] At trial, the father was focused on his own needs. Despite the warnings about his conduct, he has continued to pressure and threaten the child, driving her further away from him. The child’s cultural background [ 141 ] The child, the father and the aunt are all of Greek heritage. Both the aunt and the father encourage the child’s Greek culture. The aunt plans to take the child to Greece for one month this summer.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family The importance of continuity in the child’s care and the possible effect on the child of disruption in that continuity. [ 142 ] The child’s life was very unstable from 2013 to 2016. [ 143 ] The child has finally achieved stability in the aunt’s home. She loves her aunt and feels loved, protected and respected by her. [ 144 ] The child’s stability and overall functioning have improved since boundaries were established and the father’s contact with the child was significantly reduced.

Given the emotional vulnerability of the child, it is important that these boundaries be maintained to ensure her continued stability. [ 145 ] The father has shown that he does not have the insight or judgment to maintain a consistently positive relationship with the child. If given the opportunity, there is a high risk that he will destabilize the child.

The merits of a plan for the child’s care proposed by a society, compared with the merits of the child remaining with or returning to a parent The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent The degree of risk, if any, that justified the finding that the child is in need of protection

[146] The society’s plan for the child to live with the aunt is far superior to the father’s plan. It will provide the child with thepermanency and stability she needs. [147] The aunt has established, for an extended period of time, that she can care for the child in a positive manner. [148] The aunt has demonstrated great commitment to the child. She gave up her life in Greece to care for her. She has withstood thefather’s undermining conduct. She has prioritized the child’s needs to her own. [149] The aunt now has permanent residence status in Canada. [150] The father’s plan for the child is not viable.

He has consistently demonstrated an inability to place the child’s needs ahead of hisown. Removing the child from the security of the aunt’s home and placing her with the father would almost assuredly result in thechild’s emotional and developmental regression. [151] The father’s plans for the child are constantly changing – as are his supports. The father cannot even stabilize his own life, letalone the child’s. [152] The child was found to be in need of protection pursuant to clauses 37 (2) (

b) and (

g) of the Act. The protection concerns have notabated. Unfortunately, the father’s poor conduct and judgment escalated in 2017, causing the child considerable emotional distress. Thechild remains at risk of emotional harm – a risk that increases the more the child is exposed to him. Any other relevant circumstance [153] The father has demonstrated a disdain for court orders in continuing to denigrate the aunt to the child and discussing theproceedings with her.

After this length of time, it is clear that the father will not stop doing this. [154] If the court was to place the child with the father it would be subject to a supervision order. However, for a supervision order tobe made, the court would need to be assured that the father would comply with its terms. See: Windsor-Essex CAS v. L.H., 2004 ONCJ196 , [2004] O.J. No. 3889 (OCJ). There is no evidentiary basis to support a belief that the father would comply with asupervision order.

Part Nine - Custody [155] The evidence is overwhelming that it is in the child’s best interests to make a final custody order in favour of the aunt. [156] Subsection 65.2 (7) of the Act sets out that a person to whom custody of a child is granted by an order under this

section has therights and responsibilities of a parent in respect of the child. This means that all incidents of custody flow to the aunt. [157] It is in the child’s best interests that the aunt be able to obtain or renew all government documentation for the child and travelwith the child, without obstruction from the father. [158] The father has demonstrated that he is prepared to act in a malicious manner. He has tried to undermine the child’s placement withthe aunt. He has attempted to have the child make false allegations of abuse against her. He has threatened that he will have the auntdeported.

He has threatened to have the child placed in foster care. He promised the child and the aunt he would go to court to have themseparated. He went through with this trial, when he had no reasonable prospect of having the child returned to him, undoubtedly causingthe aunt and the child considerable anxiety and distress.[15] If given the opportunity to obstruct the aunt from obtaining importantdocuments for the child or traveling with her, the father would take it.

[ 159 ] The society also included a request that would permit the aunt to bring an application to change the child’s name, without the father’s consent. [16] It is not necessary to make this order. The request to change a child’s name is done administratively through the Office of the Registrar General. It is not done through the court. The custodial parent – the aunt – has the authority to bring such an application.

Only the consent of a parent with rights of custody is required in this administrative process – the father will not have any of those rights. [17] [ 160 ] The father asked for an order preventing the aunt from removing the child from the Province of Ontario. He testified that if the aunt takes the child to Greece, she will not return. [ 161 ] The father provided no evidence that would convince the court that the aunt has any intention to permanently remove the child from the jurisdiction. The father’s evidence also made little sense.

On the one hand, he asked the court to believe that the aunt was only using the child to remain in Canada, and on the other hand he was asking it to believe that she intended to leave with the child permanently to Greece. [ 162 ] The aunt stated that she would not move the child’s home from Canada. She stated that doing so would be harmful for the child – their life is in Canada. The aunt is taking English at an Adult Learning Centre and has trained to become a security guard. [ 163 ] The aunt’s desire to travel to Greece is understandable. She hasn’t been there since 2014.

She has an adult daughter and granddaughter who live there. [ 164 ] It is in the child’s best interests to freely travel with the aunt outside of Canada. It will be an excellent experience for her to travel and it will enrich her development. It will allow the child to meet relatives on her maternal side of the family and learn more about her Greek heritage. [ 165 ] The father’s consent for the child to travel outside of Canada will be dispensed with.

Part Ten – Access [ 166 ] There have been several material changes in circumstances affecting the best interests of the child since the existing order was made, including:

a) The father escalated his attempts to undermine the child’s placement with the aunt.

b) The father has continuously breached the existing order by demeaning the aunt to the child.

c) The father’s relationship with the child seriously deteriorated.

d) The father’s relationship with the aunt seriously deteriorated.

e) The paternal family’s relationship with the aunt seriously deteriorated.

f) The court, on a temporary basis, determined that the father’s access with the child had to be severely curtailed and supervised. [ 167 ] These material changes in circumstances warrant changing the access terms in the existing order.

[ 168 ] The society workers testified that for the most part, the father’s visits with the child have improved since they started taking place monthly at the society offices in October, 2017. The FSW testified that the father is more engaged with the child. The workers both feel that when the father just concentrates on having a good visit with the child, the child enjoys the visits.

However, they deposed that the visits are not without incident due to the father’s efforts to send negative messages to the child. [ 169 ] The workers were adamant that it was essential to the child’s welfare that visits continue to be supervised at this time to control the father’s conduct - conduct which risks destabilizing the child. [ 170 ] The court agrees that clear boundaries have to be established to ensure that the visits are not harmful for the child. Several messages also need to be made clear to the father, such as:

a) This custody order is intended to be permanent. The aunt is not caring for the child until he can put forward a plan to care for her.

b) His conduct has damaged his relationship with the child. This is his fault, no one else’s. If he continues this conduct, he will not have a relationship with her.

c) He needs to focus on the child’s needs and interests and not his own. This means that he should be supporting the child’s placement with the aunt, listening to the child and respecting her wishes. [ 171 ] This has been a fluid and evolving access situation. It is likely that there will continue to be ebbs and flows in the relationship between the child and the father. It is in the best interests of the child to make the access arrangement flexible and to give her the autonomy to decide if she will see her father.

The child is not to be forced to go on visits. [ 172 ] The aunt has always complied with court orders and the society’s expectations for access. There is no reason to believe that she would be non-compliant with the court order. [ 173 ] The aunt demonstrated that she is very child-focused. She expressed a desire that the child’s relationship with the father was better.

While she won’t force the child to go on access, she stated, and the court believes, that she will facilitate access if the child says she wants to see her father. [ 174 ] The court finds that the access conditions proposed jointly by the society and the child are in the child’s best interests. [ 175 ] The aunt testified that she was agreeable to sending the father the child’s school reports. That order will be made. [ 176 ] The father stated that he has been taping all his access visits with the child at the society’s office.

This will not engender the necessary trust required to improve his relationship with her. [18] Further, it is the court’s understanding that taping visits is contrary to APCO’s policies. There will be an additional term in the final order that the father is not to tape or record his visits or telephone calls with the child. Part Eleven – Restricting the father from bringing further court proceedings [ 177 ] The society and the child ask the court to make an order prohibiting the father from bringing any further court proceedings without prior leave of the court. [ 178 ] The father opposes this request.

[ 179 ] The court has the ability to make such an order where there has been significant litigation and conflict and the court feels the need to control needless further proceedings. This authority is discretionary. See: Tiveron v. Collins , 2017 ONCA 462 . Such orders do not preclude a litigant from coming back to court – but the litigant has to first demonstrate that there is a good reason for doing so. [ 180 ] The order sought by the child and the society is not necessary in this case because of the nature of a custody order made pursuant to clause 65.2 (1) (

b) of the Act. [ 181 ] A custody order made under clause 65.2 (1) (

b) of the Act is different than a custody order made under

section 57. 1 of the Act. [19] [ 182 ] A

section 57.1 order is deemed to be an order made under

section 28 of the Children’s Law Reform Act (the CLRA). [20] Any future motions to change that order are brought under the CLRA, not the Act. The society is not a party to a change motion, unless the court orders otherwise when the original order is made. [21] [ 183 ]

Section 65.1 of the Act only applies to children who are crown wards, or who were crown wards and are now subject to a supervision order or were placed with a person under a custody order under clause 65.2 (1) (b). [ 184 ] What this means is that if anyone wishes to change this order in the future, they are required to bring a status review application under

section 65.1 of the Act. This custody order is not deemed to be an order under the CLRA. The society is a party to any status review application. [22] [ 185 ] Subsection 65.1 (7) of the Act already places a limitation on a parent, or other persons set out in subsection 65.1 (4), from bringing a status review application – a restriction that is not contained in the CLRA. This subsection reads as follows: Six-month period

(7) No application shall be made under subsection (4) within six months after the latest of, (

a) the day the order was made under subsection 57 (1) or 65.2 (1), whichever is applicable; (

b) the day the last application by a person under subsection (4) was disposed of; or (

c) the day any appeal from an order referred to in clause (

a) or a disposition referred to in clause (

b) was finally disposed of or abandoned. [ 186 ] Subsection 65.1 (5) creates a further limitation on a parent bringing a status review application that may also be pertinent to this case – another limitation that is not contained in the CLRA. This subsection reads as follows: When leave to apply required

(5) Despite clause (4) (b), a parent of a child shall not make an application under subsection (4) without leave of the court if the child has, immediately before the application, received continuous care for at least two years from the same foster parent or from the same person under a custody order. [ 187 ] The policy reason behind these statutory limitations is clear. Once a child has been made a crown ward, permanency planning becomes a more important consideration. This consideration is not diminished once a crown ward is placed in a person’s custody.

The intention is that this placement will not be lightly interfered with and that the child will not be the subject of continual litigation.

Part Twelve – Conclusion [ 188 ] The court makes a final order on the following terms:

a) The aunt shall have custody of the child.

b) The aunt may obtain or renew all government documentation for the child, including passports, without the father’s consent.

c) The aunt may travel with the child outside of Canada, without the father’s consent.

d) Any access between the child and the father shall be subject to and in accordance with the child’s wishes and subject to the aunt’s approval. In particular, the child shall not be compelled to attend access if it is contrary to her views and wishes.

e) Subject to the child’s wishes, access will take place on the following terms: 1. A minimum of once per month, for 1.5 hours, supervised at Access for Parents and Children in Ontario (APCO). 2. The father shall pay for the costs of APCO. 3. The aunt shall transport the child to and from APCO. 4. The child shall be at liberty to communicate with the father by telephone or social media, as approved by the aunt. 5. The aunt shall advise the father by text or email at least 24 hours prior to any scheduled access visit whether or not the child wishes to attend. 6.

The father shall not speak negatively about the aunt during the access visit and shall not do anything, either by words or actions, to undermine the child’s placement with the aunt. 7. The father is not to tape or record his visits or telephone calls with the child. 8. The aunt shall send the father copies of the school reports upon receipt.

f) The father’s claim for an order prohibiting the aunt from removing the child from Canada is dismissed. [ 189 ] It is this court’s hope that this order will now provide the child with the security she needs. She will get to live permanently with the aunt. She will not be taken away from her to live with her father. She will get to determine when she sees her father. The uncertainty caused by this court proceeding should end. [ 190 ] The aunt will now be able to focus entirely on the child and their life together without the uncertainty and pressure of court proceedings. The court admires what she is doing for the child and wishes her the very best moving forward.

[ 191 ] The court thanks counsel for their presentations. Released: March 6, 2018 Justice S.B. Sherr