Catholic Children’s Aid Society of Toronto v. E.S., 2016 ONCJ 279

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

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

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

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

(8) 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. ONTARIO COURT OF JUSTICE CITATION: Catholic Children’s Aid Society of Toronto v. E.S. , 2016 ONCJ 279 DATE: 2016·05·09 COURT FILE No.: Toronto CFO 16 14064 BETWEEN: Catholic Children’s Aid Society of Toronto, Applicant, — AND — E. S. and F. S., Respondents.

Before Justice E. B. Murray Heard on April 13 & 28, 2016 Reasons for Judgment released on May 9, 2016 Ms. Mei Chen ....................................................................... counsel for the applicant society Ms. Stephanie Giannandrea .......................................... counsel for the respondent mother Ms. Alexandra Seaton and Ms. Christina Doris ............ counsel for the respondent father Ms. Julia Tremain ...................................... counsel for the Office of the Children’s Lawyer, legal representative for the children MURRAY, E. B. J.: [ 1 ] E. and F.

S. are the parents of three children, N., aged 16, M., aged 13, and A., aged 11. They separated on November 10, 2011, when F. was charged with several counts of domestic violence; he was ultimately acquitted on all counts. They have been engaged in lengthy legal proceedings involving the children in Superior Court, and then in private mediation/arbitration. Until approximately June, 2015, F. had no access or only supervised access to the children.

On December 24, 2015, F. and E. signed a final agreement providing for F. to have unsupervised access to the children. [ 2 ] The Catholic Children’s Aid Society of Toronto commenced a protection application on March 11, 2016, alleging that M. has suffered serious emotional harm and that M. and A. are at risk of such harm due to F.’s behaviour.

The Society brought a motion first returnable on March 17, 2016, requesting a temporary order placing the children in E. ’s care pursuant to Society supervision, and subject to the following conditions: • E. to allow the Society to conduct announced and unannounced visits; • Both parents to sign releases of information as requested by the Society; • F. to participate in an anger management program and parenting program, and to follow reasonable recommendations made by the program facilitators . [ 3 ] The Society also sought a temporary order that F.’s access be at its discretion and “in accordance with the children’s wishes”.

Counsel advised that the Society intended, at least initially, to supervise F.’s access. [ 4 ] F. requested a brief adjournment to file materials. Pending that adjournment, the parties agreed that M., who all agree has special vulnerabilities, would have access to F. based on his wishes, and that A.’s access (as well as M.’s access, if he chose to attend), would be subject to supervision by either B. L., F.’s common-law partner, or the paternal grandmother G. S..

I made an order in the terms of this consent, and also ordered legal representation for the children. [ 5 ] F. responded with materials opposing Society’s motion, and brought a motion asking that the protection application be dismissed. 1. Positions of the parties [ 6 ] F.’s lawyer advances three grounds for his motion asking for dismissal of the protection application. 1. The Society has failed to establish on the balance of probabilities that that the children are in need of protection, and will be harmed by reason of contact with F..

Counsel says that Section 51(2) of the Child and Family Services Act requires that the Society prove now that: • the emotional harm alleged is harm described in

section 37(

f) of the Act (anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development); • the harm is “serious”; and • there is a causal connection between that harm and F.’s actions. [ 7 ] She submits that the Society has failed to do so. 2. This application involves a re-hearing of issues that were before the Superior court and satisfactorily dealt with in a mediation/arbitration process that resulted in the agreement of December 24, 2015. The application is tantamount to an abuse of process. 3. There is no genuine issue for trial raised by the Society’s materials. Thus, the application should be dismissed in a

summary manner pursuant to Rule 16 of the Family Law Rules.

[ 8 ] The Society opposes F.’s motion. E. takes no position on the motion. [ 9 ] With respect to its motion, the Society argues that the temporary orders it requests are based on an apprehension of risk to the children by reason of contact with F. which is reasonable at this early stage of the proceeding. [ 10 ] F. disagrees that any temporary supervisory order should issue.

He says that if there is a temporary order made, that his access to the children should not be restricted; if there is any concern as to M.’s contact with him, then E. should be ordered to ensure the child receives therapy at George Hull Centre. [ 11 ] E. takes no position on Society’s motion, except to say that she opposes any order restricting her ability to make decisions about treatment for the children. [ 12 ] Ms. Tremain, the lawyer assigned by the Office of the Children’s Lawyer, took no position on either motion, as there was insufficient time to meet with the children.

When the court inquired as to whether an adjournment was required to permit her to do so, she advised that, given the extensive involvement the children had already had with legal and mental health professionals since their parents’ separation, she thought it advisable to await the court’s decision on F.’s motion to dismiss the application before meeting with them. [ 13 ] I advised that I would hear submissions on both F.’s dismissal motion and Society’s motion. If F. was successful, that would decide the matter.

If not, then I would decide what temporary order should be made. [ 14 ] The motion material I considered consisted of the following [1] . • From the Society, affidavits from child protection workers Christabelle Leitch (2) and Linda Harrington • From F., affidavits from himself (2), his parents, his sister, a family friend, his partner, B. L., social worker Julie Freedman, and a law clerk from his lawyer’s office. • From E. , her affidavit . [ 15 ] Included as exhibits to the affidavits were reports from psychologists Dr. Irwin Butkowsky and Dr.

Peter Jaffee, psychological assessments of N. and M., reports of supervised visits from Brayden Supervision Services, some correspondence, agreements between the parents, and court orders from their domestic litigation. 2. Background facts [ 16 ] It is important to understand the history predating the Society’s application. These background facts are set out in the evidence filed by the parties on these motions. [ 17 ] 1. E. and F. were married on April 10, 1999 following two years of cohabitation. 2. F. is 48 years of age and is the senior partner in a major accounting firm. E. is 44 years of age.

During the marriage she was a stay- at-home parent, and continues to be so. 3. E. suffered from anxiety and panic attacks during the marriage. 4. M. had serious behavioural difficulties starting in Grade One, where he had emotional “meltdowns” and would scream and throw things. 5. At six years of age M. had psychological and psychiatric assessments. Those assessments found that he is “extremely complex”, a bright child who, however, is not engaged in school, a child who has a history of severe anxiety and who has difficulty with transitions.

The psychiatrist noted that M. has an extreme sensitivity to loud noises, bright lights and strong smells. 6. Conflict developed in the marriage when E. discovered that F. was carrying on affairs with other women. Separation 7. E. and F. separated on November 10, 2011, when F. was arrested and removed from the matrimonial home on assault charges. 8. The terms of F.’s recognizance provided that he was not to have contact with E. and to have communication with the children only as authorized by a family court . F. begins family action

9. F. commenced an action in Superior Court. The parties retained counsel, and negotiated an interim agreement with respect to F.’s access, which they presented to the court, requesting an interim order for supervised access. 10. Justice Victor Paisley declined to make the order without further evidence. He noted the allegations in E. ’s material and in the Crown synopsis of serious domestic violence, violence involving physical injuries resulting in hospital treatment and witnessed “on numerous occasions” by the children. 11.

Justice Paisley required that the parties produce evidence from “an independent qualified individual” who was aware of the allegations and who had interviewed the children as to whether contact or communication between F. and the children would be appropriate. Assessment by Dr. Butkowsky - March 21, 2012 12. The parties retained psychologist Dr. Irwin Butkowsky to perform a “brief, focussed assessment”. 13. Dr. Butkowsky found as follows : a. N. was then 12 years old.

N. was ‘likely suffering from symptoms of Post-traumatic Stress Disorder”, as she apparently has been “directly exposed to incidents of domestic violence”. N. was ambivalent about contact with F., but anticipated that it would occur. She preferred that this contact be brief and supervised by a neutral third party professional. Dr. Butkowsky found that N.’s wishes appeared to be genuine and based entirely on her own experience. b. M. was then 9 years old.

M. at first indicated that he did not wish to see F., but later said that he would be comfortable if contact was brief and supervised by a neutral third party professional. M. acknowledged “awareness and/or exposure to serious parental conflict” associated with feelings of “sadness, anger and fearfulness”. Dr. Butkowsky noted that the child has a L. standing history of difficulty in coping with emotional regulation and control. The possibility that M. suffers from the symptoms of Post-traumatic Stress Disorder was not ruled out. c. A. was then 7 years old.

A.’s demeanour and “apparent need to please others is suggestive of underlying struggles with emotional conflicts and concerns that are likely associated with perceptions of parental conflict.” A. indicated that she wanted to see F., and said that she would be most comfortable if that contact took place in the presence of a third person. Her wishes appeared to be “genuine and sincere”. 14. Dr. Butkowsky opined that “termination of contact between children and biological parents is well known... to increase the probability of both short and L. term emotional and behavioural difficulties in children”.

He found that the proposal contained in the draft order presented to the court was “appropriate”, adding that, at least initially, contact should be in a neutral environment. Child Development Institute 15. At about the same time as the Butkowsky assessment, E. and the children attended “Here to Help”, a program at the Child Development Institute for women and children who have experienced domestic violence. a. N. talked about witnessing in attacks on E. and once attempting to intervene in an attack. b. M. was reluctant to talk about violence at home; he did discuss his anger and fighting at school. c.

A. reported being afraid when she heard her parents yelling, and said that when she was worried she got headaches and stomach aches. 16. All three children reported that E. was their “safe person”.

George Hull Assessments-2102 17. In October 2012 N. and M. were referred to George Hull Centre, a children’s mental health centre, by the family doctor to “assess the effect of parental disruption” on them. Child psychiatrist Chetana Kulkarni diagnosed both children as suffering from Anxiety Disorder, with reference to “parental separation, history of conflict in the home” as a psycho-social factor contributing to the diagnosis. Dr. Kulkarni also diagnosed M. as having a Learning Disorder, and flagged ADHD and Sensory Integration Disorder as disorders meriting further examination. 18. Dr.

Kulkarni recommended a more thorough trauma assessment for each child. I understand that these assessments did occur, but no party presented evidence of the resulting reports. I was advised that this was the result of an agreement between the parents not to present evidence of the trauma assessment or any treatment resulting from that assessment at George Hull because of concern that disclosure would hamper the children’s progress in treatment. Supervised access begins April 2012 19. Access between F. and the children began in April 2012 pursuant to a consent court order.

The access was supervised by Brayden Supervision Services, and lasted until August 2014. After that, at F.’s choice, he had only 4 visits until April 2015. 20. Initially the visits were for three hours at the Brayden facility. Gradually the duration and frequency of the visits extended to full day visits on weekends and some mid-week brief after-school visits. As will be seen below, the visits generally went well, except for two incidents. Assessment by Dr. Jaffee- January 29, 2013 21. E. brought a motion requesting a s. 30 assessment by Dr. Peter Jaffee.

This assessment was ordered on consent on June 26, 2012. 22. The parties agreed that Dr. Jaffee is an eminent authority in the field of domestic violence, the impact of domestic violence on children, and child custody and access disputes. In this assessment, Dr. Jaffee worked with a senior social worker, Maureen Reid, a retired senior manager at a children’s aid society who had specialized in services related to domestic violence. 23.

The assessment was extensive and involved multiple interviews with the children and the parents, psychological testing, and interviews with collaterals, including workers from the Society that had previously been involved with the family because of reports of domestic violence, and the children’s teachers. 24. F., under instructions from his criminal lawyer, did not discuss the allegations of domestic violence during the assessment process, except to say that the allegations were contrived or involved instances of him acting in self-defence. 25.

N. described in detail incidents in which F. assaulted E. , including on the day of separation, when N. called police. 26. N. reported one incident in November 2012 when F. “exploded “at M. in the car during a supervised visit, telling him to go ahead and “report him” if he was afraid of him. That incident was also described by the supervisor, who said it began when M. did not want to participate in a group picture. F. told Dr. Jaffee that he had been under stress that day. 27. N. said that she felt that F. “tried harder” when a supervisor was present, and worried that he would yell more if unsupervised. 28. Dr.

Jaffee noted that M. had L. standing problems with anxiety. M.’s teacher reported to Dr. Jaffee that the child could not tolerate any yelling, and that she had to adjust her voice so that he would not react badly to a louder tone. The teacher reported that M. has to “complete tasks perfectly and has a struggle with transitions…M. can explode and become very aggressive” when anxious. 29. A. reported that she likes to visit F., and enjoys her time with him. She thinks that the supervisor is present so that he will not yell at them. 30. The results of personality testing conducted by Dr.

Jaffee on the parents indicated as follows: • F.’s results indicate an interpersonal style that is “domineering and over-controlling…he is easily angered, has difficulty controlling expression of his anger, and is perceived by others as having a hostile, angry temperament”. • E. ’s results suggest that she suffers from “many symptoms of post-traumatic stress disorder….Although she is quite distressed and acutely aware of her need for help, her low energy level, passivity, and withdrawal may make her difficult to engage in consistent treatment….(her) self-description indicates significant suspiciousness and hostility in her relations with others”. 31.

Dr. Jaffee released his report on January 29, 2013. He said that research indicates that children exposed to domestic violence are more likely than other children to be aggressive and have behavioural and emotional problems. His description of the major clinical

issues in the S. family is summarized below. a. The children have a closer and more comfortable bond with their mother than with their father. They see their father as having a bad temper, which they consider attributable to stress from work.

They also see him as the primary perpetrator of violence in the home. b. “Irrespective of the outcome of the criminal court proceedings, there is a strong foundation from a clinical perspective …. to make a finding of fact about a significant history of violence….There is an overwhelming pattern of behaviour that has been reported from multiple sources that would concern any mental health professional…. Ms. S. and the children have a genuine fear of Mr. S. based on their experience with him.” c.

In order to engage in any future planning about his contact with the children, F. has to “acknowledge the abuse, take responsibility, show remorse and engage in meaningful rehabilitation for this previous violent and abusive behaviour.” d. M. and N. have many clinical symptoms related to their exposure to domestic violence. They both require counselling, and both will be attending a trauma group at George Hull. A. seems to have been most protected from the experience of violence, and is the best adjusted. 32. Dr.

Jaffee recommended that E. have custody of the children and that F. have supervised access until such time as he could acknowledge his responsibility for the violence in the home and its impact on the children, and engage in a meaningful program of rehabilitation . 33. Dr. Jaffee also worried about the pressure on the children because everything they have said to various professionals has been put “under a legal microscope”. He recommended that the confidentiality of what they said in therapy be protected from disclosure . Criminal trial and appeal 34.

Six of the criminal charges facing F. were withdrawn by the Crown before trial. The trial began October 7, 2013, and continued sporadically over an 8 day period, ending on January 24 2014. Both E. and F. gave evidence. 35. In describing the onus faced by the Crown to prove its case beyond a reasonable doubt, Justice Lloyd Budzinski, the trial judge, observed that it approached “absolute certainty”, a very high standard. 36. Justice Budzinski observed that because of their “marital difficulties”, each parent had a motive or bias which coloured their evidence.

In dealing with the assault charge related to the date of separation, he said that he was unable to make findings of credibility and fact that would support a conviction “without further evidence”. 37. Justice Budzinski convicted F. on the second count of assault, alleged to have taken place on September 14, 2011. He imposed a 12- month conditional discharge, with terms to keep the peace and not to possess a weapon. 38. F. appealed this conviction, and it was set aside on April 13, 2015.

Justice Gary Trotter noted a lack of clarity in the trial judge’s articulation of the standard of proof with respect to this charge, in that he at one point referred to proof on the balance of probabilities and at another to proof beyond a reasonable doubt. F.’s counselling with Julie Freedman 39. After Dr. Jaffee’s report, F. began counselling with social worker Julie Freedman, meeting with her between November 12, 2013 and March 31, 2014. Ms. Freedman did not meet with the children or observe F. with the children. 40. Ms.

Freedman has had 16 years’ experience working with the Ministry in conducting Partner Assault Response programs ((PAR), and has extensive experience working with clients on issues such a domestic violence, anger management, and parenting. 41. In her report dated April 7, 2014, Ms. Freedman stated that F. was involved in counselling with her about domestic violence, parenting, and anger management. She said that he actively participated in the counselling, engaged in “meaningful self-examination”, and expressed sincere regret about the effect of witnessing domestic conflict had on the children.

She noted that the resolution of his criminal charges facilitated this process. She reported that F. worked on developing approaches and strategies to avoid family conflict “without psychological or physical aggression” . George Hull Assessment – October 23, 2014 42. In October 2014 M. was seen by Dr. Kulkarni at George Hull for a further psychiatric assessment. The assessment was prompted by a recurrence of incidents of aggressive behaviour at school that occurred in the winter and late spring of that year. The incidents involved M. hitting and punching classmates; two of those attacked were girls.

43. There had been such incidents before, but none had been reported for about a year. M. had been engaged in therapy with a social worker at George Hull since the 2012 assessment. 44. Dr. Kulkarni in her assessment noted that for M. there are “significant themes of anxiety as well as family conflict”. Her primary diagnosis remained anxiety disorder. She noted that there could be “separation symptoms as well as perhaps post-traumatic symptoms”. She found that M. was certainly doing better at “the present time” than at the beginning of 2014. 45. Dr.

Kulkarni referred the child to group therapy at the anxiety clinic and closed her psychiatric file. M.’s treatment- 2015 46. M. continued treatment at the anxiety clinic at George Hull. That treatment was suspended by E. at the end of summer 2015. She says she did so because of M.’s anxiety about his father accessing reports from that treatment (since he is entitled to do so under the parenting plan) and his reaction to what M. may say to the therapist. F. says this is ridiculous, that he has never discussed the contents of M.’s therapy with him. 47.

M. has been meeting regularly with the Catherine Lisle, the school social worker, this year. Ms. Lisle also worked with the child during the 2013/14 school year. Her observations are set out further below. March 6, 2015 separation agreement 48. On March 6, 2015 E. and F. entered into a separation agreement which was final as to property and child and spousal support. 49. The agreement also provided as follows. a.

F. would consent to a permanent restraining order that provided that he would not communicate with E. except for communication about the children that was permitted by any court order or parenting agreement, and that F. would not attend within 100 metres of any place where E. lives, works, or is known to be. b. E. would have final custody of the children, and they would reside primarily with her. 50. The agreement set out a plan to gradually transition F.’s time with the children from a supervised regime to an unsupervised arrangement.

For this process the parents entered into a mediation/arbitration agreement with Alfred Mamo, a respected senior family law lawyer. They agreed that Dr. Jaffee would be in touch with the children and the parents at each phase of the process, and that he had the discretion to delay moving to the next phase if he felt it was not in the children’s best interests. 51. The phases of the transition process were described as follows: a. Phase I was devoted to a “Truth and Reconciliation Process”. The terms were set out in a separate confidential agreement.

Counsel agree that the object of this phase was to allow F. communicate to the children that he took responsibility for his actions. b. Phase II involved enhanced parenting time under the informal supervision of a person approved by Dr. Jaffee. This person was Ms. L., F.’s partner. Parenting time was scheduled for each Wednesday from after school to 8:30 p.m., and each Saturday from 11 a.m. to 8 p.m. c. Phase III entailed a progression to more parenting time during the day, unsupervised. d. Phase IV entailed a progression to overnight stays.

The children were with F. alternate weekends from Saturday at 11 a.m. to Sunday at 6 p.m., in addition to Wednesdays after school until 8:30 p.m. e. Phase V was to involve transition to a “full and final parenting agreement”, with a L.-term residential

schedule and times for vacations and holidays. Each parent was to submit his/her proposed plan to Dr. Jaffee, who would make a recommendation, with any ultimate disagreement to be arbitrated by Mr. Mamo. 52. The agreement provided for F. and E. to retain a Parenting Coordinator to provide a means of communication between them about the children and to settle minor disputes. 53. The agreement envisioned the possibly that F. might take the children on a trip to Croatia in the summer of 2015. Subsequently, E. agreed to the children going on this trip.

The children are reported to have had positive experiences on the trip. Dr. Jaffee’s report of November 17, 2015 54. By November 2015, Phase IV of the parenting plan had been completed, and the issue was whether F.’s parenting time should be further expanded. Dr. Jaffee met with the children and each parent.

55. Dr. Jaffee reported as follows. “The conflict from the ongoing litigation and the impact on the children seems unabated. The same emotions of anger and fear are present as if it is still 201 3…. Any progress in treatment that the parents made in the past for their problems around the marriage, their emotional regulation and parenting is questionable and a significant relapse has occurred for each of them….

The children have a clear wish not to extend the time with their father on a routine basis but would rather have the flexibility to ask for more time that they feel is appropriate… N. has growing independence ·and can make her own arrangements…. M. has special needs and has greater reluctance to leave his home-some of his issues are beyond the custody and access disputes and his father per se. He is very distressed in speaking about his relationship with his father and sees him as a source of criticism and conflict rather than support…. A. is closely attached to her siblings and has more ambivalence.” 56. Dr.

Jaffee found that it was not in the children’s best interests to move beyond the

schedule set out at Phase IV of the agreement. He recommended that Phase IV

schedule continue, with the addition of scheduled holiday/vacation time. 57. As for efforts to facilitate communication between the parents, Dr. Jaffee said: “There is limited value in any communication between the parents. The experience with the parent coordinator and family wizard added to the conflict and there are diminishing benefits from any such efforts.” 58. E. said (in reports to Society later) that after F. read what the children had said to Dr.Jaffee, he berated them for a prolonged period of time, and they were very distressed. A. confirmed this in speaking to Society worker Ms.

Leitch after this action commenced. 59. F. denies any angry discussion or yelling with the children about Dr. Jaffee’s report. He says that he told them that he was sad that they did not want to spend more time with him, but understood the pressure they were under from the separation. Agreement of December 24, 2015 60. On December 24, 2015 F. and E. entered into a final parenting agreement. The agreement provided for parenting time for F. that was a modest expansion of the

schedule in Phase IV. The children were to be with him on alternate weekends from Friday after school to Sunday at 6, and alternate Wednesdays from after school until 9 p.m., as well as scheduled time for holidays and vacations. Pick-ups and drop-offs of the children were to be at least 100 meters from E. ’s home. 61. The parties agreed to retain Andrea Himel to facilitate communication between them about the children. They agreed that Mr. Mamo would mediate and if required arbitrate any disputes. 62. The Superior Court action was concluded.

The parents' current parenting arrangements were not incorporated into a court order. 3. Evidence on these motions 3.1 Evidence from the Society Call to Society [ 18 ] The catalyst for the Society’s involvement in this matter was a called received on December 10, 2015 from psychiatrist Dr. Marijana Drandic, who is treating E. for Post-Traumatic Stress Disorder. Dr.

Drandic was concerned about what E. said to her. • Things were not going well for the children since access became unsupervised. • The school had concerns that A. might be at risk to herself, that she has become depressed. • After receipt of the psychiatrist’s report that said the children did not want to see him, F. had berated the children, screaming and throwing things, and that the children were very upset. A. had begun throwing up after this incident. [ 19 ] Dr.

Drandric advised E. that she was going to report her concerns to the Society; E. asked her not to, saying that she was afraid of what F. would do when contacted by the Society about her complaints.

Family history with Society [ 20 ] The Society had a history with the S. family. [ 21 ] 2008 . In 2008 the Society investigated because M., then 6 years old, told a social worker at school that he was afraid to get into trouble at home because his father would hit him with a belt. The parents denied using objects to discipline M.. F. said that he had once threatened to hit the child with a belt, but had not done so, spanking him instead. The Society noted that the parents were getting help to deal with M.’s “difficult behaviours”. The file was closed. [ 22 ] 2010 .

In the spring of 2010 M. reported violence between his parents to a school social worker. In the Society investigation F. and E. said that there had been a lot of conflict and verbal arguments recently, but denied any physical violence. They said that they were getting professional help for M.’s emotional problems. The file was closed. [ 23 ] 2011 . Police contacted the Society after being called on November 10, 2011 in response to a report of domestic assault. During interviews by a Society worker with the children, N. reported that she had seen F. throw E. to the ground and kick her in the face.

N. tried to get him to stop. N. said that M. was in his room during the assault, but that when she went to check on him, he was crying; he had heard the arguing. [ 24 ] The Society stayed involved with the family until March 24, 2014 in order to ensure that the children and E. were receiving adequate services.

Their records note the following. • During this period, the children had disturbed sleep, M.‘s aggressive behaviour increased, and N. felt unsafe in the home. • F. denied any assault on E. . • The children continued to express worry about the prospect of unsupervised access with F.. [ 25 ] The file was closed because the Society was satisfied that the issue of access was before the courts and that E. was “an ally for the children” and was accessing appropriate support services. Society’s investigation [ 26 ] After receiving Dr. Drandic’s call, the Society investigated.

They first contacted E. on January 7, 2016 (after the parenting agreement was executed). They then spoke with the children and M.’s teacher and the social workers at his school. [ 27 ] The Society says it did not speak to F. until the day it issued the protection application, because it was concerned about his reaction upon discovering that the children said negative things about him to its workers. The Society’s evidence, contained in the affidavits of Ms. Leitch and Ms. Harrington, is summarized below. [ 28 ] E. . The Society met initially with E. .

She described the litigation and the mediation, advised of the final agreement to access on December 24 2015, and said that she was afraid that F. would react negatively to Society’s involvement, and would blame the children if they said anything negative about him. E. is reported to have said as follows. • She does not believe that F. has controlled his anger. During mediation, she could hear him screaming in the adjoining room. The children have reported incidents in which he is angry with them, and their worries about his anger. • She is particularly worried about M..

M. had been very aggressive; this behaviour changed for the better when F. stopped his visits. When visits resumed and became unsupervised, M. became quite withdrawn, to the point where the school worries that he may be suicidal. • The children are worried about Society’s involvement. After Dr.

Jaffee released his report, F. berated the children for a proL.ed period about the negative things they said about him. [ 29 ] In a later interview with Society after the protection application was begun, E. said as follows. • She did not believe that the protection action would resolve any of the problems which the children had, saying that F. would get the “top lawyers” and nothing would change. • When Ms.

Harrington advised that she was worried about M.’s mental state, E. said that she did not have any concerns that M. would hurt himself, despite the concerns from his school about his mental health. • She had discussed the issue with the family doctor and with the psychiatrist who had treated M. at George Hull. They did not recommend medication. [ 30 ] The children . Each of the children was interviewed privately. N. and M. were interviewed once, and A. twice. [ 31 ] N. cried throughout her meeting with Ms. Leitch. N. says she does not like her father and does not want to spend time with him. He makes her angry.

She saw him assault her mother. He has never admitted what he did, or apologized. Her father has never been physically violent to her or M. or A., but he is angry over many things, and yells at them. She does not have a good relationship with him. He does not pay attention to her, except to focus on her school work.

[ 32 ] A. . A. started crying in her first interview as soon as Ms. Leitch explained the Society’s role. The child said that the last time she spoke with someone about her feelings about visits about her father, she still had to go on visits and he was angry at them for what they had said. A. said that her father scares her when he is angry. He is usually angry with M..

A. worries that when her father yells that he will hurt someone, but he has never been violent to her or M. or N.. [ 33 ] A. would not be comfortable going to her father’s house if N. and M. were not there. [ 34 ] In a second interview (after F. had been served with the application and the matter was first before the court), A. told Ms. Harrington that she did not like to visit with her father. When she learned that M. had chosen not to go on the upcoming visit, she cried and said that she did not want to go. When asked why, A. didn’t give a reason, simply asserting that she didn’t want to go.

When asked what the “worst thing” she could remember that happened on a visit, A. said that her father yells at them; she could not remember when this had last happened. [ 35 ] Reports from M.’s school. Before the Society was able to interview M., Ms. Leitch received calls from Sandy Zaph, M.’s teacher for the current school year, and Catherine Lisle, the school social worker. Ms.Zaph’s call followed a meeting about M. which involved herself, the vice-principal, a special education consultant, and E. . Ms.

Zaph expressed the following concerns. • M. was quiet and withdrawn, not engaged, “his head down on the desk and does nothing.” He had a history test, and didn’t write a single thing. • This is a big change from his behaviour last year in Grade 7, when he was doing well. Although M. had been aggressive and violent in Grade 6, those problems seemed to have resolved themselves in Grade 7. • When M. is asked if he enjoys seeing his father, he says “No”. Ms. Lisle had begun working with M. regularly. She did not see the child last school year, but had the year before. Ms.

Lisle reported as follows. • She is worried about M.’s mental and emotional well-being if he is going to visits with his father. • M. is “terrified” of his father. What he says about his father’s behaviour – the yelling–doesn’t sound “that bad”, but yelling sends M. “into a tailspin”. • M. saw his father’s violence to his mother. He knows that yelling means “get in line” or else. • M. “absolutely hates” visiting his father.

He would do anything to avoid going. • She meets with M. before visits to strategize how to cope, and checks in with him after visits to see how he is coping. • When M. wasn’t visiting his father, his emotional state was much better. • M. is afraid to say anything now because he worries about what will happen if his father finds out. • School staff had discussed creating a “fake” report card so that F. will not get upset at M.’s poor performance. • She had spoken with F. in the past, and found him intimidating. He wanted to know what M. said in counselling sessions, and she told him it was confidential.

F. was unhappy with that response. [ 36 ] M.. M. would not speak with Ms. Leitch when she first came to the home. [ 37 ] After the Society received reports from the school, M. agreed to talk with Ms. Harrington in a private interview.

M. said as follows. • He does not like visits with his father and does not want to go to them. • When he is at his father’s, usually nothing happens but he constantly worries that things will escalate and that his father will get angry and yell at him. • He could not think of anything good about visits with his father. • He worries, sometimes for days, before he goes there, and worries the whole time he is there. • When asked by Ms.

Harrington what adults could do to help him, M. said he didn’t think anything “will change how much I worry about it”. [ 38 ] M. gave an example of a recent clash with his father that occurred on a visit over the Christmas holiday. • He, A., and his father were playing a game, Pictionary. M. became frustrated with the game, and decided to give up. • His father began yelling at him. He can’t remember what his father said, but at one point he said to go to your room, and he did. • His father followed him, closed the door and started yelling again. He (M.) began crying.

His father kept yelling. • B. (L.) came to the door, but his father wouldn’t let her in. N. came to the door, yelling for his father to stop.

[ 39 ] M.’s account of this incident was corroborated by N.. A. remembered the initial argument between M. and his father, but did not recall anything more. [ 40 ] M. was visibly upset and cried during the meeting with Ms. Harrington. When questioned by her, he initially stated that he had thoughts of hurting of hurting himself or others, but then quickly said “no”, and said he didn’t want to talk about it anymore. [ 41 ] Society workers have met with and spoken to M. to facilitate him visiting with F..

They have suggested different options, such as going for part of a visit, or going to his paternal grandparents’ home for a family meal when F. would be there. E. has suggested the same options. Initially M. appeared ready to try the latter option, but then decided that he did not want to go. [ 42 ] F.’s family. Ms. Harrington spoke with G. S., the children’s paternal grandmother, and Ms. L., both of whom had the responsibility to supervise F.’s access during the adjournment period, to review their responsibilities as supervisors. [ 43 ] Mrs.

S. said she had never had any concerns when F. was with the children, but that if she did see him getting angry or out of control, that she would intervene. Ms. L. said that what she read in the Society’s affidavits was “not close to the truth”. She advised that when issues have arisen between F. and M. in the past, she has stepped in and told M. to go to his room and F. to go to the basement to “cool down”. [ 44 ] Ms. Freedman. After the case was first in court, the Society obtained consents from F. to contact Ms. Freedman and Dr. Jaffee. Ms.

Freedman advised that the counselling F. participated in with her was a positive experience for him, and that she had communicated with Dr. Jaffee and Ms. Reid during the process. F. was sincere, engaged, and took criticism well. She said that she had been unable to discuss any of the allegations of domestic violence with F., but she understood that he had apologized to the children in Dr. Jaffee’s presence. She did not know the particulars of what he said. [ 45 ] Dr.Jaffee . Ms. Leitch later spoke to Dr.

Jaffee, and reports that he expressed the following. • All of the children had been reluctant to agree to unsupervised access, and had been ambivalent at each phase of the process • The case was very high conflict, stressful for both parents, and especially for F.. • When Ms. Leitch expressed her concern that the process continued despite the children’s continued ambivalence, especially since the children are concerned about saying anything for fear of upsetting their father, Dr. Jaffee agreed that this was “a valid concern”.

He said that the Society’s involvement in the current situation is “positive”. [ 46 ] F. . Ms. Leitch spoke to F. on the day that the application was issued, and Ms. Harrington spoke with him March 24, 2016. In both conversations, F. expressed his frustration that the Society had received the referral in December but not contacted him until now. He said as follows. • He has spent much time and money dealing with this issue, that the children were lying, and that access was “fantastic”. • M. has had L.-standing problems.

F. referred to one occasion in which he got angry with the children and M.’s reaction, saying that M. “overdramatized” things. • When Ms. Leitch said that the Society was concerned about the effect on the children of domestic violence and conflict in the home, F. became very upset, and said that the children never saw him doing anything to E. . • It was E. who assaulted him.

She is manipulative, and is influencing the children. 3.2 Evidence from E. [ 47 ] As will be seen below, F. believes that E. engineered reports to the Society and that at the time she signed the final parenting agreement on December 24, 2015, she was concealing the fact that the Society had commenced an investigation that might imperil the access set out in that agreement. [ 48 ] In her affidavit of April 8, 2016, E. says that she did “not want this litigation” because she was afraid of F.’s reaction.

She acknowledges that she knew that both her psychiatrist and M.’s teacher had advised her in December and November of 2015 that they felt obliged to contact the Society. She says that she asked them both to wait to see if the situation improved, and that she had no knowledge that a report had actually been made or that an investigation was begun until the Society contacted her on January 7, 2016. [ 49 ] As set out above, E. takes no position on whether F.’s

summary judgment motion should succeed, or, if it is dismissed, as to whether the children’s access to F. should be supervised. E. says that she wants the children to have a relationship with F. and wants them to have “as safe and comfortable as possible” during their time with him. The December 24, 2015 agreement was in her view “not a perfect solution for the children”, but represents a balancing of those two interests.

E. is of “two minds” as to whether the Society involvement would be good for the children, saying that perhaps the Society supervision might make F. ”more mindful” of his behaviour on visit, or perhaps the stress of litigation will make it more difficult for him to control his temper. [ 50 ] E. reports that N. and A. did not disclose any “angry outbursts” by F. on the two visits which took place after this case commenced, visits which were supervised by Ms. L. or Mrs.

S.. [ 51 ] E. says that she experienced “chronic and severe domestic violence” during her relationship with F., violence to which the children were exposed. She attaches an early affidavit from the Superior Court proceeding giving particulars, in order to provide context to the children’s fear of what she describes as F.’s “tantrums”. The abuse described, if accurate, is severe, and the injuries reported are alarming, including split lips, black eyes, a concussion, and a fractured finger. In her descriptions of alleged abuse, E. states that “F.

demanded that the children continuously achieve and excel in school and their extra-curricular activities. If they did not, F. exploded in anger towards me and the children”. [ 52 ] E. states as follows. • F. has had many visits during which he is calm. Despite this, the children are still alert to and afraid of the possibility of another outburst. • She had reported concerns about both M.’s and A.’s behaviour in relation to unsupervised visits to her psychiatrist and to Ms. Leitch [2] . • In November 2015 A. began exhibiting problems at night, waking up, vomiting and wanting to come into E. ’s bed.

This behaviour was more frequent in January and February 2016, and has not happened recently. • Over the years the children’s symptoms appear to have worsened when exposed to F.’s angry outbursts, but she does not know that those outbursts are the cause of their symptoms. • There was an improvement in M.’s behaviour during the period that F. suspended his access, July 2014-April 2015. Prior to that time (when F. was having visits with M.), the child was suspended three times for physical violence. When access resumed, she noted deterioration in his emotional state; he became more withdrawn and sad.

This was discussed with her by Ms.Zapf and M.’s teacher from the previous year, Ms. Schaub. • Despite that deterioration, M.’s ability to regulate his emotions has improved from last year, in that there have been no further reports of him attacking other children. 3.3 Evidence from F. F. [ 53 ] F. says that all the issues raised in the Society’s application were raised and dealt with satisfactorily in the mediation process which resulted in the agreement of December 24, 2015. [ 54 ] F. alleges that E. is using the protection application to unjustifiably restrict his access to the children.

In that regard, he says the following. • E. apparently did not give the Society copies of Dr. Jaffee’s reports or Ms. Freedman’s letter before they commenced this application. • E. has lied in her allegations that he physically abused her, and, in fact, it was she who abused him. The judge in the criminal trial said that her evidence was not to be believed. • E. used the allegations of abuse to resist “normalizing” his access. She insisted on supervised access. He had hundreds of supervised visits which were positive, and spent $80,000 to pay for supervision. • He suspended visits starting July 2014 because Dr.

Jaffee advised him that supervision was not a L.-term solution, and he expected mediation to resolve the issue quickly. • E. dragged her heels in resolving the issue of access until they had a final financial settlement. [ 55 ] F. says that since April 2015, when the process to phase in “normal “access began, visits have “gone beautifully”. • The times the children have with him are “relaxed and fun”. • Visits “have been excellent… the home environment is loving, calm and healthy for the children”. • His parents, sister, and Ms.

L. in their affidavit evidence all report that “our home has a relaxed and wonderful atmosphere. They all report that the children have never expressed fear of me.” [ 56 ] It is “inexplicable” to F. that either M. or A. would have said that they do not want to visit with him. • He and A. have a close, affectionate relationship. A. is a playful and bright child who “consistently achieves straight A’s at school”. • M. has always had a problem with anxiety. Choice is a problem for the child---if given the choice to do nothing, M. will do nothing, just “sit in his room and play video games”.

E. allows him to do this, while when M. is with him, he sets appropriate limits. • Visits with M. have always been “excellent”. He does not believe that M. worries about coming to see him. In reference to the scene described in the Society’s evidence in which F. “exploded” at M. when he did not want to continue the Pictionary game, F. says that he did not yell at the child; he “parented”, and corrected him firmly but calmly. [ 57 ] F. takes issue with the suggestion that his relationship with M. has caused problems in the child’s behaviour and emotional functioning.

He says that the child’s marks now are not uniformly down—some are good, some not so good. He says that in fact M.’s best year academically was the year before the separation, when he was spending a lot of time helping the child with homework. He says

that M.’s marks plummeted in the five months after separation when he had no contact with him. He says that he believes that the children, and particularly M., were hurt because he was not permitted to have a normal relationship with them after the separation. Brayden reports [ 58 ] Brayden reports for F.’s supervised visits were attached as an exhibit to his affidavit. The sample reports that I reviewed all showed positive interactions with the children. [ 59 ] Two exceptions were drawn to my attention.

On was the clash with M. over the Pictionary game, referred to above. [3] The other was an incident during a visit on December 8, 2013, which lasted over 1 ½ hours, from 4:30-6 p.m., and is described below by the supervisor. • F. becomes angry at N. because she was unable to complete math problems which he thought were within her ability. • N. becomes frustrated, and “raised her voice” about not knowing what to do. F. said he would not tell her the answer.

N. begins to cry. • F. begins yelling at the child, berating her for not knowing how to do the problems. • This continues on and off for over an hour, in front of M. and A.. M. kept his headphones on. A. began to cry. • F. shouts at N. that she hasn’t apologized to him for her actions. N. apologizes. • F. says that he doesn’t accept her apology, and that she should stop crying. • The supervisor suggests to F. that he should take a minute to “cool down”. F. “becomes outraged”, jumps out of his chair and tells her not to talk to him again. • The supervisor tries to contact the Brayden service director.

F. leaves the room. • When he returns, he talks to N. about “what she did to make him angry”. He asks the supervisor who she is talking to, and is told that she is getting advice about the situation. • F. “begins to yell at the kids again”, and leaves the house, saying that he’s “sick and tired of everyone yelling at him”. • After a few minutes F. returns, and yells at N. again, saying that she thinks she can act like this because a supervisor is there. • N. is playing cards with A.. F. tells her to return to her math problems. She does, and begins crying again.

F. tells her that there is no reason to cry. • By 6 p.m., N. has finished the problems. She goes to the couch and goes to sleep. The rest of the evening is uneventful. Julie Freedman [ 60 ] Ms. Freedman in her affidavit stated that she did not have authorization from F. to discuss the contents of any of their counselling sessions; she was making her affidavit because she wished to comment on what she perceived to be hostility towards F. shown by Society worker Ms. Leitch. [ 61 ] Ms. Freedman says the following about two telephone conversations with Ms. Leitch. • Ms.

Leitch questioned her about whether F. had admitted violence to E. in his counselling process or the Truth and Reconciliation process. • Ms. Freedman explained that F. was unable to discuss “specific details” in their counselling because of his criminal lawyer’s advice. She advised Ms. Leitch that in her view, this did not prevent F. from “doing meaningful counselling where the focus was taking responsibility, understanding domestic violence and the impact of domestic violence on child witnesses”. • Ms.

Freedman did not understand why the Society was so “focused on old allegations of domestic violence”, and did not question her about F.’s parenting or the Truth and Reconciliation process. She suggested that Ms. Leitch discuss this process with Dr. Jaffee. F.’s family members [ 62 ] Ms. L., F.’s partner since 2012, says that she has been present for every visit and has never observed any abusive behaviour by F. to the children. She describes visits as busy and happy, with “no angry confrontations” and says that the children are “extremely well-adjusted and happy in our home”. Ms.

L. recalls seeing “N. cry once, but it was about a math question, and came out of the blue because it seemed like an over-reaction. We worked it out”. [ 63 ] With respect to the alleged berating of the children by F. (after he read in Dr. Jaffee’s report that the children did not want more time with him), Ms. L. says that F. was not “abusive” but “intense” and “sad”. He had a “frank discussion” with the children about

his dismay, and then they moved on to a happy weekend. [ 64 ] With respect to M., Ms. L. says that the child is often “shut down” for the first hour after he comes to their home, but then he rebounds and is “back again”. She does not recall any problems in his interaction with F.. For example, she does not mention any conflict about the Pictionary game this past Christmas, or her separating F. and M. during other conflicts. [ 65 ] F.’s parents, G. and H. S., say that they observe him with the children frequently, at his home or theirs.

Neither describe observing any problems in his relationship with any of the children. They describe the relationship as wonderful, and have observed no signs of fear by the children of their father. H. says that he is concerned that E. is being “revengeful”, that she has not been able to “put things into the past and move forward in a positive way”. [ 66 ] F.’s sister K. D. and a family friend, J. N., have similar positive views about F.’s time with the children. 3.4 Dr.

Jaffee’s letter of April 10, 2016 [ 67 ] In response to questions raised by the court as to some observations contained in his report of November 17, 2015, counsel contacted Dr. Jaffee with questions to which he replied by letter of April 10, 2016. His response is summarized below. 1. What did you mean in your report of November 17, 2015 when you stated: "The conflict from the ongoing litigation and the impact on the children seems unabated. The same emotions of anger and fear are present as if it is still 2013.

Any progress in treatment that the parents made in the past for their problems around the marriage, their emotional regulation and parenting is questionable and a significant relapse has occurred for each of them." [ 68 ] Dr. Jaffee says that during his work with the family there were periods of calm, but “the ongoing legal proceedings seemed to inflame the conflict. There were repeated cycles of calm followed by Mr. S. becoming angry and frustrated with the progress in these matters and Ms. S. becoming more distressed and protective of the children.” He noted that F. started therapy with Ms.

Freedman, but despite the fact that he “was making gains, the protracted legal processes were negating some of the benefits he was making in therapy.” [ 69 ] Dr. Jaffee explained that the process developed in mediation to work towards unsupervised access had “safeguards”, such as F.’s counselling with Ms. Freedman and his periodic meetings with the children. [ 70 ] Dr. Jaffee said: “My comments in my letter to counsel in November 2015 were indicating that I found that Mr. S. was as angry as when we started in 2012 and Ms. S. was as anxious as she appeared at our initial interviews.

The children were always ambivalent about unsupervised access although there had been some positive experiences with their father including a trip to Croatia in August 2015. I referred to the lack of overall progress as a significant relapse and raised cautions for both counsel as to the children's thoughts and feelings about the matter.” 4. In light of your comments set out in paragraph 1 above, how or why did you make your recommendations for Phase V? [ 71 ] Dr.

Jaffee said: “I hoped that the children could move into Phase V based on the progress made to date as well as their ages and increasing ability to express any concerns. I hoped that there might be a normalcy in the

schedule and the situation would improve without the pressure of the court and the arbitration scheduled Phases. In spite of any concerns, Mr. S. seemed to be a committed parent and demonstrated times of positive engagement with the children……. I believed that N. could express her wishes and negotiate times when she was free. I did worry about her sense of responsibility for her younger siblings. I always worried about M. but hoped he could manage with counselling at school and at a children's mental health centre.

A. had seemed most flexible over the years but was starting to express some of her own concerns.” 5. Given the allegations (concern about the children's expressed fear of their father, reluctance to go on visits and M.'s reported problems ) reported, which are disputed, are you able to address if these are issues you have dealt with in the past and if you have any child protection concerns, or do these allegations raise any new concerns? [ 72 ] Dr. Jaffee said: “The concerns are ongoing and consistent with what I had heard from the children since the outset of my involvement 4 years ago.

Even during periods of calm or a positive experience, the children still worried about their father's anger or disapproval. I had explained to Mr. S. that their trust would take time to re-build because the children had been traumatized (more N. and M. than A.) and could be triggered by any negative events (e.g. an argument about homework or school marks). Mr. S. apologized to the children for his past conduct as well as to their mother.

It was heartfelt at the time but the ongoing litigation and slow pace of progress in his mind, contributed to ongoing tensions and relapses in anger and anxiety in the family system……. I am very concerned about the children's expressed views at this point. At 11, 14 and 17 years of age, these views need to be taken seriously . [4] ” [ 73 ] Responding to the suggestion of possible alienating behaviour from E. , Dr. Jaffee said: “Throughout my involvement I believed that the children came to their views based on their own experiences with their father.

Although their mother's anxiety would have contributed to some of their feelings, they had independent views and recollections. Due to my experience in the field and Mr. S.'s expressed concerns, I was alert to the possibility of alienating behaviours by Ms. S. but found her to be encouraging access and trying to get to a more normal routine. In my view, she genuinely wanted the children to feel safe and enjoy their father's company. I repeatedly expressed that opinion to Mr. S. but he was always quick to blame her or the legal system for his predicament.”

The law: temporary custody hearing under s. 51 of the Act [ 74 ] F. relies upon s. 51(2) of the Act in arguing that Society’s application should be dismissed because the Society has not established that the children are in need of protection. [ 75 ] Section 51(2), set out below, requires that, pending a hearing to determine whether a child is in need of protection, the court shall make a temporary order for “care and custody” of the child. [ 76 ] The Act presumes that, pending a hearing as to whether a child is in need of protection, the child should be returned to the person who had “charge” of him immediately before Society intervention, unless there is a likely risk of harm to the child that cannot be managed by a supervision order with appropriate conditions.

The court must make an order that is the least disruptive or intrusive and consistent with adequate protection of the child. [5] [ 77 ] “Person in charge” is not defined by the Act. Caselaw makes clear that if a person has legal custody and physical care of a child at the time a protection application is commenced, then he or she is the “person in charge” of the child for the purpose of this

section of the Act. [6] 51.--

(1) The court shall not adjourn a hearing for more than thirty days, (

a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or (

b) if the court is aware that a party who is not present at the hearing objects to the L.er adjournment. Custody during adjournment

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, (

a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; (

b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; (

c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or (

d) remain or be placed in the care and custody of the society, but not be placed in, (

i) a place of secure custody as defined in

Part IV (Youth Justice), or (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety. Criteria

(3) The court shall not make an order under clause (2) (

c) or (

d) unless the court is satisfied 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 protected adequately by an order under clause (2) (

a) or (b). Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (

c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community. Terms and conditions in order

(3.2) A temporary order for care and custody of a child under clause (2) (

b) or (

c) 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 to purchase any goods or services. Application of s. 62

(4) Where the court makes an order under clause (2) (d),

section 62 (parental consents) applies with necessary modifications. Access

(5) An order made under clause (2) (

c) or (

d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate. Power to vary

(6) The court may at any time vary or terminate an order made under subsection (2). Evidence on adjournments

(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstance. 5.

The law: abuse of process [ 78 ] The common law doctrine of abuse of process engages the inherent power of the court to “prevent misuse of its procedure, in a way that would…. bring the administration of justice into disrepute” [7] . [ 79 ] The doctrine is flexible, and unencumbered by the specific requirements of concepts such as issue estoppel”. [8] [ 80 ] The doctrine may be used to prevent “relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”. [9] [ 81 ] The Supreme Court of Canada [10] has made observations as to why relitigation [11] of an issue is to be avoided as a matter of public policy: There can be no assumption that relitigation will yield a more accurate result than the original proceeding; Relitigation is a waste of judicial resources.

An inconsistent result in the subsequent proceeding “in and of itself will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality”. 6. The law:

summary judgement [ 82 ] Rule 16 of the Family Law Rules (FLR) sets out provisions for

summary judgment motions. The Rule was amended in 2015 to broaden the court’s powers on such motions, to include powers which had been exercised under Rule 20 of the Rules of Civil Procedure (RCP) since January 1, 2010.

WHEN AVAILABLE 16.

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for

summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for

summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. NO ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: • 1. Weighing the evidence. • 2. Evaluating the credibility of a deponent. • 3. Drawing any reasonable inference from the evidence. ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2), • (

a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise); • (

b) give directions; and • (

c) impose conditions (for example, require a party to pay money into court as security, or limit [ 83 ] The enhanced powers of the court in hearing

summary judgment motions are evident in the new Rules 6.1 and 6.2. • Courts hearing

summary judgment motions are now able to do what the Court of Appeal had previously directed them not to do— weigh evidence, draw reasonable inferences from that evidence, and evaluate the credibility of a witness— “ unless it is in the interest of justice for such powers to be exercised only at a trial”. • Courts hearing

summary judgment motions may hold an oral “mini-hearing” in the exercise of these enhanced powers. [ 84 ] In Hryniak v. Mauldin (2014) 1. S.C.R. 87, the Supreme Court of Canada considered Rule 20 of the RCP. Justice Andromache Karakatsanis provided a road map for a judge conducting a

summary judgment motion that is equally relevant for motions

made under Rule 16 of the FLR. The roadmap is summarized below: First, “determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-findingpowers”. If the court finds using this approach that there is no genuine issue of material fact requiring a trial, then the court must makean order for

summary judgment. Second, if there appears to be a genuine issue requiring a trial, the judge should determine if the need for a trial can be avoided by usingthe new powers—powers to weigh evidence, evaluate credibility, draw inferences, and possibly receive oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice.

Their use will not be against theinterests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in lightof the litigation as a whole. [85] The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issuerequiring a trial. [86] Caselaw predating the amendments to Rule 16 still offers guidance as to principles applicable on a

summary judgmentmotion. • On a motion for

summary judgment, the court is required to take a hard look at the merits of the case to determine if there is agenuine issue for trial. The onus is on the society to show that there is no genuine issue for trial. (Children’s Aid Society of Hamilton v.M.N. (ON SC), [2007] O.J. No. 1526 (SCJ) ) • Not every disputed fact or question of credibility gives rise to a genuine issue for trial. The fact must be material. (Children's AidSociety of Toronto v. T. (K.) (ON CJ), [2000] O.J. No. 4736 (Ont. C.J.). • The responding party, faced with a prima facie case for

summary judgment, must provide evidence of specific facts showing thatthere is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific fact showingthat there is a genuine issue for trial must be insufficient to defeat a claim for

summary judgment. (Children's Aid Society ofMetropolitan Toronto v. A. (M.), (ON CJ), [2002] O.J. No. 2371 (Ont. C.J.). • “No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant.” (Children’s Aid Society of the Niagara Region v. S.C., (ON SC), [2008] O.J. No. 3969 (Sup. Ct.) at para. 43) [87] Rule 16 allows either an Applicant or a Respondent to bring a

summary judgment motion. The motion is allowed as soon asthe date when a Respondent has filed an Answer or when the time for such filing has expired. F.’s motion was premature, as he has notfiled an Answer and the time for him to file had not yet expired when his motion was brought. The Society did not raise this issue, and Ido not rely upon it to deal with the motion. It is clear that, even if he was required to wait a few days, F. would have brought the motionas soon as possible. [88] The onus is on F. to demonstrate that there is no genuine issue of material fact or credibility requiring a trial. 7. The law: protection finding [89] At a

summary judgment motion brought by a respondent, the applicant Society is not required to establish that the childrenare in need of protection. If the moving party establishes a prima facie case, the Society will be required to demonstrate that there is agenuine issue requiring a trial for its resolution. That being said, it is helpful to review the law as to what is required to establish that achild is in need of protection pursuant to s. 37(2) (

f) and (g), the grounds pled by the Society in its protection application, set out below. [90] A child is in need of protection where, • (

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

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

• (

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

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

v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child; [ 91 ] In this case, to be successful on the application asking for a finding under s. 37(2)(g), the Society will ultimately be required to establish on the balance of probabilities that : • M. and A. are at likely risk of emotional harm; • The harm entails a serious form of one of the behaviours referred to in s. 37(2) (f); • There is a causal connection between the harm and F.’s actions or behaviour. [ 92 ] There is no requirement that a parent’s behaviour be the only cause of a risk of emotional harm. [ 93 ] With respect to its allegation under s. 37(2) (f), the Society must demonstrate that M. actually has suffered such harm, caused by F.’s actions. [ 94 ] In order to establish serious emotional harm, courts do not require a clinical diagnosis, but expert evidence is usually required [12] .

Sometimes, however, the evidence of a child’s distressed reactions to parental behaviour is sufficiently clear that a finding can be made without the opinion of an expert. [13] [ 95 ] Justice Stanley Sherr in Jewish Child and Family Services of Toronto v. K.R ., 2008 ONCJ 774 , noted the many ways in which a child’s exposure to domestic violence creates a risk of emotional harm. [14] 8.

Analysis 8.1 Does S. 51(2) provide a basis for a dismissal of the application? [ 96 ] F. argues that section 51(2) of the Act requires that Society must establish now that it is “more probable than not that the children will suffer emotional harm” if “returned to their father ….and that the evidence establish that such harm is directly linked to their father”.

He says that if Society fails in this regard, that the protection application should be immediately dismissed. [ 97 ] Section 51(2) deals with the question as to whether, pending a protection hearing , a child should be returned to the “person in charge” prior to the Society’s application or placed elsewhere. If a child is placed in the custody of someone other than the “person in charge” or with Society, then the court may also make a temporary access order pursuant to s. 51(5) of the Act.

If the child is kept in the care of the “person in charge”, then the jurisdiction to make a temporary access order is contained in s. 58 of the Act . [ 98 ] The presumptions against removal of a child from a parent’s care pending an adjournment apply to the “person in charge”. In this case, the person who “had charge” of M. and A. at the time the Society commenced its action is E. . Pursuant to the parties’ parenting agreement, she had (and has) legal custody of them and the children are residing primarily with her.

F. was not a “person in charge” as contemplated by s. 51(2) of the Act. [ 99 ] No one questions that the children should remain in E. ’s care. [ 100 ] Section 51(2) of the Act does not provide a basis for a motion for

summary dismissal of a protection application. The Act does not require the Society at this stage of a proceeding to establish on the balance of probabilities that a child is in need of protection. The Family Law Rules require that a hearing be held to determine that issue within 120 days of the date the proceeding was commenced. That timeline may be extended if it is in a child’s best interests. [ 101 ] If a respondent wishes to obtain the dismissal of a protection application prior to the date of a protection hearing, he may bring a

summary judgment motion. 8.2 Abuse of process? [ 102 ] F. argues that the issues before this court on the protection application are the same issues which were before the Superior Court, issues which were finally resolved in the mediation/arbitration process with Mr. Mamo. F. says:

• The parties agreed that the parenting plan set out in the December 24, 2015 agreement was in the children’s best interests. • Dr. Jaffee approved that agreement. • There has been no material change since the December 24, 2015 agreement was signed. • The protection application essentially involves a re-hearing of the issues that were before the Superior Court and Mr. Mamo, and there is no basis for such re-hearing. [ 103 ] In making that argument, F. relies on the decision of Justice Marvin Kurz in V. F. v. Halton Children’s Aid Society , 2016 O.J. 1085 (O.C.J.) .

Justice Kurz dismissed a protection application brought by a teenaged child, seeking a finding that visits with her father constituted a risk of emotional harm to her and asking that she not be required to attend visits. The application was begun by the child immediately bef

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