Jewish Family and Child Service of Greater Toronto v. A.W., 2017 ONCJ 962

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: Jewish Family and Child Service of Greater Toronto v. A.W. , 2017 ONCJ 962 DATE: December 4, 2017 COURT FILE No.: Toronto C91687/16 BETWEEN: JEWISH FAMILY AND CHILD SERVICE OF GREATER TORONTO Applicant, — AND — A.W. J.N. Respondents

Before Justice Roselyn Zisman Heard on November 9, 10 and 17, 2017 Reasons for Judgment released on November 30, 2017 Amended Reasons released December 4, 2017 Sara Westreich ............................................................... counsel for the applicant society Nancy Iadeluca............................................................. counsel for the respondent father Margarida Pacheco............................. counsel for the Office of the Children’s Lawyer, legal representative for the child R.N.

Gary Gottlieb......................................... counsel for the Office of the Children’s Lawyer, legal representative for the child J.N. Zisman J.: 1. Introduction and Background [ 1 ] This is a temporary care and custody motion pursuant to subsection 51 (3) of the Child and Family Services Act (“CFSA”) with respect to the children, R.N. (“R.”) who is 15 years old and J.N. (“J.”) who is 10 years old. [ 2 ] The Respondents are the parents of the R. and N. who are the children before the court.

They are also the parents of B.N. (“B.”) who is 16 years old and is therefore not the subject of the Protection Application before the court. B. resides full-time with the father and has been estranged from the mother for several years. [ 3 ] The parents separated briefly in November 2012, reconciled and separated permanently in February 2013 although they continued to reside under the same roof until November of 2013. The parties were involved in litigation in the Superior Court of Justice with respect to property and child support issues.

In September 2015 they entered into a temporary parenting plan with a parent co- ordinator. They agreed that R. reside primarily with the mother, B. reside primarily with the father and that J. reside equally with both parents. [ 4 ] The Jewish Family and Child Service of Greater Toronto (“the society”) seeks an order continuing the without prejudice order made on October 13, 2016 that placed J. in the temporary care of his father and the without prejudice order made on June 15, 2017 that placed R. in the temporary care of the V.-J. family.

The society also seeks a continuation of the without prejudice order that access to the children by the parents or other community members be in the discretion of the society. [ 5 ] Based on the submissions of counsel the mother seeks an order placing R. in her care immediately, although the motion filed on behalf of the mother only seeks a transition plan with declining supervised access and involving therapy.

The mother also seeks an order that the cost of supervised access to be shared between the mother and an order that J. be placed in her care and the care of the father equally. [ 6 ] The father supports the society’s position with respect to both children. [ 7 ] Counsel for R. seeks an order placing her in the care and custody of her mother in accordance with R.’s views and preferences or in the alternative, with expanded access including unsupervised access to the mother. [ 8 ] Counsel for J. supports the society’s position for his continued placement with his father and with access to the mother at the discretion of the society. [ 9 ] Despite the Protection Application being commenced in October 2016, the hearing of this temporary care and custody motion was significantly delayed as all parties agreed that a risk assessment of the mother, conducted pursuant to subsection 54 of the Child and Family Services Act (“section 54 assessment”), was necessary before a resolution was possible.

The mother now having derailed the subsection 54 assessment, the temporary care and custody motion has been brought forward to be dealt with on its merits. [ 10 ] The temporary care and custody motion was argued before me on November 9, 10 and 17, 2017.

I read and relied upon the affidavits filed on behalf of the society namely, the affidavit of Nicole Khaitman sworn October 13, 2016, the affidavits of Marice Hart sworn November 7, November 9 and December 19, 2016, the affidavits of Liana Ansell sworn August 23 and November 6, 2017, the affidavit of the mother sworn October 30, 2017 and the affidavits of the father sworn August 30 and November 2, 2017. I also read and relied upon the transcripts of the questioning of the society workers and the father on their sworn affidavits. 2.

Historical involvement of the society [ 11 ] The society became involved with the family in 2012 and worked voluntarily with the family until the most recent opening in

2015. The historic concerns included the following:

a) The mother’s alleged abuse of prescription medications specifically Oxycotin;

b) The parents were involved in high conflict separation and divorce proceedings that sometimes involved the children;

c) Aggressive and assaultive behaviour by the mother against members of the family and the destruction of personal property within the home;

d) The father’s inappropriate physical discipline of the older son B.;

e) Concerns about the mother’s mental health that led to instances of involun​tarily hospitalizations;

f) Concerns that the mother might harm herself;

g) Concerns that the children were not functioning well; and

h) Concerns about B.’s physical aggression with his parents. [ 12 ] Although the police were often called throughout those years, no charges were ever laid against family members. A review of the police records reflected a difficult history between the parents during the period prior to the separation. [ 13 ] There were 2 concerning incidents between the mother and B. On November 11, 2012 the police had to attend the home 3 separate times with respect to an allegation that the mother assaulted her older son B. and because the mother was hysterical and yelling and screaming at the other children.

The police report refers to the mother as “an emotionally disturbed person” and describe her condition as “aggressive, chronic victim, confused, mentally ill, nervous upset and hysterically crying”. The mother was apprehended under the Mental Health Act and taken to the hospital but left before she was assessed. She later returned to the home, yelling, screaming, and waking up the children. She then left but later again returned to the home and was assaulting B.

The mother was re-apprehended and taken to the hospital but was subsequently released. [ 14 ] Another violent episode was documented by the police on October 20, 2013. The parents were involved in an argument and then both R. and B. became involved and the mother was alleged to have pushed B. at which point B. put her in a headlock but he let her go a few seconds later and the mother then called the police. The mother confirmed the details of the incident except that she denied pushing B. The police concluded that there were no threats, assaults or allegations thereof between the parents.

The children left to stay with their grandparents and the father also left the home but returned for the sake of the children a few days later. The father permanently left the home shortly after this incident as he reported that the mother again began to show signs of instability and she was making accusations against him and threatening to ruin his life. 3.

Events leading to commencement of the Protection Application [ 15 ] In January 2015, the society investigated concerns reported by the mother’s sister in law about the mother’s mental health and the physical and emotional well-being of R. who was living full-time with the mother. [ 16 ] Nicole Khaitman, who was assigned to the investigation, spoke to B. who called his mother “crazy” and spoke of the physical and emotional abuse he had endured over the years. B. shared text messages he had received from the mother that read as very long paragraphs about random topics.

J. who was going back and forth between his parents only reported that his mother cried a lot. R. did not disclose any concerns about her the mother’s mental health and described her father as being very mean to her and at the time she had chosen not to have access to him. [ 17 ] Ms Khaitman met with the mother who appeared to her to be anxious and on medications. The mother showed her texts from her son B. that said he wanted her dead and called her nasty names. The mother informed Ms Khaitman that she was being treated by a psychiatrist but refused to sign a consent permitting her to exchange information.

The mother also seemed more focussed on who made the reports as opposed to the actual concerns. [ 18 ] Ms Khaitman verified concerns about the mother’s mental health and the negative impact the parents’ conflict was having on the children. Ms Khaitman was also concerned that the mother’s focus on who was making the reports was interfering with her ability to see the severity of the child protection issues.

The file was then transferred for ongoing services. [ 19 ] Over the next several months there were ongoing reports by professionals and community members about the father’s inability to supervise B., the mother having mental health issues and the mother constantly yelling and swearing at the children. The mother confirmed that R. had assaulted her and had destroyed property in the home.

R. disclosed fear of being hurt and the mother confirmed that J. who was present during the altercations between herself and R. was also fearful. [ 20 ] On November 21, 2015, R. was apprehended under the Mental Health Act , taken to the hospital and then released. On November 23, 2015 the police reported that they attended at the home due to a neighbour’s complaint about screaming. The police found both R. and her mother fighting.

Both R. and the mother were apprehended to and taken to the hospital for a psychiatrist assessment. [ 21 ] On November 28, 2015 the mother reported that R. assaulted her. [ 22 ] On January 10, 2016, Marice Hart, who was the worker assigned to the family, was copied on an email exchange between the mother and father in which the mother reported that R. was out of control, assaulting her and that J. had witnessed everything. The next day the mother told Ms Hart that R. had been hitting her and had run away to her father.

Later the mother left a message for Ms Hart saying it is “too much”. [ 23 ] On January 13, 2016 Ms Hart was copied on another email exchange, in which the mother told the father about another incident

in which R. had been violent towards her. Several days later, the mother showed Ms Hart photos of her bruises, scratches to J. and photos of destruction of property allegedly caused by R. [ 24 ] Ms Hart spoke to R.’s therapist who confirmed that R. did not have any underlying psychiatric issues and that the issues were all behavioral.

R. admitted that she would get angry and physical with her mother and she knew that getting physical was not the way to handle things. [ 25 ] On January 22, 2016 Ms Hart met with the parents and their parent co-ordinator and expressed concerns about J.’s exposure to R.’s violent outbursts and to the fights between R. and the mother.

It was agreed that at times of escalation that R. would go to her father’s home in order to decompress. [ 26 ] On February 22, 2016 Ms Hart was forwarded an email by the father from R. in which R. reported that her mother was acting “crazy” and kicked her out of the home. [ 27 ] On February 23, 2106 the mother emailed Ms Hart to report that R. was attacking her. On the same day, the police attended at the home and R. reported that she did know what happened as her mother woke her up and started yelling and calling her bad names and she locked herself in a room and the mother forced her way into the room.

R. ended up going to her father’s but told Ms Hart she wanted to stay with her mother as her belongings were there and she was more comfortable being there. [ 28 ] On February 24, 2016 the mother reported that R. and J. were fighting and when she went to see what was wrong R. pushed J. down the stairs and punched him.

The mother reported that she was afraid that the father was trying to take her children away from her and she was “hanging on by a thread”. [ 29 ] On February 25, 2015 R. reported that her mother starts a lot of the fights but does not realize it. [ 30 ] During the months of March to June 2016 there were further reports from the mother, the father and R. reporting conflict and physical altercations with R.

At times J. was also hurt and other times he was a witness to the violent episodes. [ 31 ] On June12, 2016 Ms Hart received a report from the police due to another physical altercation between R. and her mother. The police reported that the mother sounded quite intoxicated.

When Ms Hart went to the home to investigate the police allegations, R. and her mother had an argument in front of Ms Hart. [ 32 ] On June 20, 2016 the mother reported to Ms Hart that the police were at the mother’s house again as R. was totally out of control. [ 33 ] The society assessed the risk as very high as neither the mother nor R. has shown any ability to regulate themselves when arguments occur and the mother in particular seemed very fragile.

However, the society deemed the situation as safe as R. did not express any fear of the mother, R. had willingly returned home and maintained her long-held position that she wanted to live with her mother and be at her mother’s home.

R. and the mother continued to attend therapy at the North York General Hospital to work on managing their conflict, R. was going away to camp for 6-8 weeks which would allow time for the society to work with the mother on her coping skills, a referral had been discussed to Blue Hills Intensive Family Resource Consultation and the mother said she would call the police if she felt things escalated to a point of imminent risks to safety. [ 34 ] However, after the summer, the same patterns of conflict and physical altercations between the mother and R. continued.

On September 12 th , the police called the society to report another disturbance at the mother’s home that started because R. was not cleaning the kitchen to the mother’s liking. R. reported that her mother called her names such as “cunt” and “bitch” and that her mother squeezed her cheeks and pulled her hair. The police advised that the mother did not seem to be “holding it together”. The police noted that there were marks around R.’s neck but both the mother and R. reported that the fighting was mutual and no charges were laid. The society verified caregiver conflict but not physical abuse.

The mother subsequently advised Ms Hart that J. had been present during these incidents. [ 35 ] On September 15 th the mother called the society several times to report that nothing had changed, R. was defiant, she did not know what to do as J. was in the home and she felt R. should stay with her father when J. was at her home. She called back and reported that R. had pushed her, threw her phone at her and that J. had witnessed everything. The mother stated that R. needed to leave.

Ms Hart spoke to R. the next day and told her that she needed to stay with her father because of what had happened the night before in front of J. R. agreed to stay at her father’s for the week-end. [ 36 ] On September 27 th , the mother emailed Ms Hart several photos of physical injuries to her body and property destruction that she reported had been caused by R. She titled the email in the subject line “enough” and in another “I need her out”. [ 37 ] On the same day the mother called to report that R. had cut her during an altercation.

Several minutes later the mother left a voicemail that R. was out of control throwing things at her, she needed help and that Ms Hart should call the police. Moments later R. called and reported that she and the mother were fighting because her mother would not drive her as R. had asked. R. said that she did not feel safe and reported that she hurt her mother and her mother hurt her as well.

R. said that she did not know if her mother meant to give her a nosebleed but her mother sat on her to contain her and that her mother also pushed her and she fell to the ground. [ 38 ] R. stayed with her father for several days but then returned to the mother’s home on October 2 nd to spend the Jewish New Year with her mother. [ 39 ] On October 3 rd the mother reached out to both the father and Ms Hart stating that R. had been violent again, she was clearly out of control and posed a health and safety risk to herself and J.

The mother reported that R. could not stay at her home anymore and that R. had gone after J. as well and in an effort to be protective, she would not allow J. to be around R.

[ 40 ] On October 5 th , the society recommended that R. needed to leave the mother’s home immediately given the events of the last few days. However, R. stayed at the mother’s home and the mother reported that R. was showing some remorse and that she hoped to build on that with therapy. [ 41 ] On October 7 th , the father reported that R. had walked to his home without her belongings as the mother kicked her out.

But R. then reported that her father kicked her out in the middle of the night. [ 42 ] On October 11 th , a Group Planning Session was held with various society workers in attendance as well as the parents. The purpose of the meeting was to identify a safe living situation for R. that would minimize the conflict between R. and the mother as well as J.’s exposure to the physical outbursts and conflict.

Additionally, treatment and therapeutic options were discussed. [ 43 ] Both parents wished a peaceful shared parenting arrangement with all of the children but recognized that at this time the focus needed to be on R. Although the conflict between the parents had decreased, they barely communicated and if they did, it was over email. There was still a high level of animosity between them but the children were not involved. [ 44 ] The situation between R. and the mother had deteriorated significantly over the past several months.

The mother described her situation with R. as one of an abuser (R.) and abused (the mother). The mother explained that R.’s rage explodes without notice and with little if any provocation. She reported that she had been badly hurt in violent attacks by R. The mother explained that these attacks are inevitably followed by R. apologizing, swearing it will never happen again and then hugging and kissing. The police were often called due to the escalation.

Although the plan had been for R. to go to her father’s, grandparents’ or a friend’s home, frequently R. refused to leave as it was the opinion of the society workers that she is very aligned with her mother and R. felt that if she goes to her father’s this may impact negatively on her mother in court. The mother vacillated between kicking R. out of the house and wanting her to live with her.

The mother was torn as she already lost a son, B. who refused to speak to her and she had not had a relationship with him for a couple of years. [ 45 ] The society was concerned about J. as although he appeared to be functioning fairly well on the surface, he had witnessed a lot of arguments and he was struggling to hold himself together and without a more peaceful environment to live in, his situation was tenuous and in need of attention. Both parents agreed with this assessment.

On the several occasions when Ms Hart met with J., he refused to speak to her or simply said “hi” and then shut down and would not answer any questions. [ 46 ] It was also noted while R. displayed violent and aggressive behaviours at her mother’s home, she did not display similar behaviour towards her father, others or herself while residing with him.

The society had not received any concerning reports about R. from her father or outside community resources such as her school or camp. [ 47 ] At the meeting, it was the society’s position that due to safety risks neither R. nor J. could continue to reside with the mother. It was proposed that R. reside with her father for an indefinite period of time and that access would be arranged between R. and the mother. It was noted at the meeting that the mother presented as hazy and was slurring her words and there was a concern about her overall presentation. [ 48 ] The father agreed that R. and J. reside with him.

However, the mother did not agree that R. should reside primarily with the father. The mother stated that she believed that her own safety was at risk not that R.’s safety was at risk.

The mother believed that she could provide a safe and secure placement for R. within her own home. [ 49 ] As a result of the mother’s refusal to the safety plan being proposed by the society, it was explained to both parents that a Protection Application would be commenced to place both R. and J. in the care of the father for 6 months subject to the supervision of the society and that it would be the expectation that therapy and treatment would be pursued by all family members. [ 50 ] From November 21, 2015 to September 13, 2016 the police were involved as a result of altercations between the mother and R. on 8 separate occasions and at times with multiple involvements on the same day and with concerns that resulted in apprehensions pursuant to the Mental Health Act. [ 51 ] There were only 3 reports about conflict between the father and B.

On January 15, 2015 the nanny called the police as the father and B. were fighting as the father was trying to get B. to a psychiatrist appointment. The police attended and the father reported that B. had suffered from psychotic episode for the last few months. B. was apprehended under the Mental Health Act, taken to the hospital and then released a few days later. [ 52 ] In February 2015 B.’s psychiatrist reported a conflictual relationship between the father and B. and that the heard the father being verbally abusive.

As the society was already involved with the family no further investigation was conducted with respect to this referral. [ 53 ] On September 26, 2015 the father reported to police that he had been assaulted by B. B. was cautioned by the police. B. apologized and committed to not acting this way again. No charges were laid. [ 54 ] The

summary of the police records [1] in addition to noting the physical altercations between R. and the mother contains several observations by the police with respect to the mother’s statements and concerns about the mother’s presentation with the mother being referred to as an “emotionally disturbed person”, “addled”, “credibility in doubt,” “paranoid delusions” and “prattled on in length” and on one occasion that the mother sounded like she had been drinking.

The mother expressed to the police that she was “overwhelmed with R.’s behaviour” and deprived because the society was taking a more active interest in R. than in her. Regarding the most recent incident on September 12, 2016 the police noted that in their follow up with the mother on September 13 th she was “repetitive and had difficulty focusing on the topic at hand” and spoke about her separation as opposed to the incident with her daughter. [ 55 ] In addition to the police reports, there were reports from the school, family members and community members.

In total there were at least 30 reports of incidents of concerns with respect to the relationship between R. and the mother and with many of the reports

being made by the mother herself. [ 56 ] The society also obtained the records from a number of service providers who were involved with providing care to the mother. The records confirm that the mother was being treated from 2005 to 2013 at the Centre for Addiction and Mental Health for generalized anxiety disorder, chronic pain relief, migraines and insomnia. She was prescribed Oxycotin for pain and recorded as reporting a childhood history of sexual, physical and emotional, psychological abuse. [ 57 ] In March 2012 the mother was identified as having an Oxycotin addiction.

The records confirm that there was a treatment plan agreed upon, between the mother’s criminal counsel and the police, to address the issue of the mother improperly acquiring prescription pads from 2 different doctor’s office and been improperly augmenting her supply of Oxycotin for a few years. Treatment recommendations were made with respect to the mother’s drug abuse and her major mental disorder.

Additional records including results from the mother’s testing for opiate dependency as well as the progress notes from her drug screening appointments confirm that she has been drug-free of Oxycotin since about 2012 or 2013. [ 58 ] Prior to the commencement of the Protection Application, R. had been seen by Dr. Lisa Weiser for individual therapy in July 2015 to address the self-regulation problems and the relationship issues with her mother.

The Toronto Mediation Centre was involved in November 2015, R. and the mother also saw a social worker at the North York General Hospital in June 2016 and the Youthdale Mobile Crisis Team was involved in April 2016. In addition, the mother was attending regularly with her psychiatrist. But despite the interventions of psychiatrists, counsellors, a parent co-ordinator, social workers and the police the situation did not improve. The society took the position that placing both R. and J. with the father was the least disruptive placement that would be protective of the children. 4.

History of court proceedings and events subsequent to commencement of Protection Application [ 59 ] In view of some of the evidentiary issues that arose and to understand the context of the current motion, it is important to review the history of the court proceedings. [ 60 ] The Protection Application was issued on October 14, 2016 with a Notice of Motion for a temporary order placing both R. and J. in the care of the father subject to terms of supervision and with access by the mother to be in the discretion of the society.

The order as requested was made on a temporary without prejudice order basis. [ 61 ] On November 7, 2016 the society filed a Notice of Motion for R. to be placed into the care of the society as her placement with the father had broken down. R. had returned to her mother’s home as she reported that B. had told her that he will “do anything to get me out of here.” R. also reported that B. was rude to her, that he did not want her living there and that her father and B. spoke poorly of her mother in R.’s presence. R. then disclosed an incident of B. touching her in a sexual manner.

Although several family members offered to care for R. but as she only wished to return to live with her mother, the society obtained an order that R. be placed in their care on a temporary without prejudice order basis. [ 62 ] On November 16, 2016 an order on consent was made for the production of police records including occurrences reports with respect to the mother and the father. The temporary care and custody motion was scheduled for December 22, 2016. [ 63 ] On December 22, 2016 all counsel agreed to proceed with a case conference instead of the temporary care and custody motion.

The society indicated that it would be seeking an assessment of both the mother and R. The parents agreed that the society could explore a placement for R. with family members and community members. The parties agreed to return for a further case conference but leave was given to bring a motion on any issues not on consent. [ 64 ] On March 8, 2017 a further case conference was held. All counsel agreed to a

section 54 psychiatric risk assessment of the mother to include psychological testing. It was agreed that Dr. Maurice Siu and Dr. Angela Carter would conduct the assessment. On a without prejudice order basis, the mother agreed to pay the cost and on that undertaking the society indicated it would not pursue a payment from her for retroactive support for R. The father and the society agreed to pay for the cost of R.’s psychological assessment and the father agreed to pay for R.’s counselling. [ 65 ] The formal endorsement and order for the

section 54 assessment was submitted by Form 14B and was made on April 6 th . The endorsement included the issues to be addressed, the contextual background information, the records and court documents to be reviewed and suggested people to be interviewed. It was agreed that the assessment would be completed by June 2017. [ 66 ] The society was ordered to circulate a draft Statement of Agreed Facts to determine if a consent finding of need for protection could be made and counsel were to provide their input by April 19 th . [ 67 ] At the same court attendance, the mother’s psychiatrist Dr.

Karl Farcnik attended pursuant to a summons. He was questioned about his record keeping and the issue of the mother’s request to make changes to her medical records and how the records might have been affected. Dr. Farcnik had revealed that he had provided the mother with a copy of his notes as she wished to review and annotate the notes before they were be released to the society. Dr. Farcnik stated that he did this as an exercise in rapport-building with his patient. The mother had been provided with a copy of all of her records and she had made about 170 comments and footnotes to the original records.

During the questioning it was agreed that society counsel would arrange for an independent third party printer to attend at the doctor’s office for the purpose of reproducing all of his records. [ 68 ] On April 25, 2017 only counsel for the society attended to advise the court that Dr. Siu had reviewed the

section 54 assessment questions and felt some of the questions were not within his expertise and the society was waiting for further clarification from him. The court was also advised that R. was testing out a placement that she had proposed with a friend’s family. Society counsel also advised that a draft Statement of Agreed Facts with respect to a finding had been sent to all counsel in accordance with the order of March 8 th but counsel had still not responded. Counsel for the parents were ordered to provide their response to the draft Statement of Agreed Facts within 7 days.

[ 69 ] On May 11, 2017 counsel for the mother was given leave to bring a motion to be removed as solicitor of record. However, the issue was resolved and the mother signed a Notice of Change in Representation and retained her current counsel Edwin Flak. [ 70 ] On May 19, 2017 a form 14B was submitted to advise the court that the

section 54 endorsement had been amended as requested by Drs. Siu and Carter to conform with their areas of expertise namely, forensic risk assessment, by removing questions that dealt too closely with the question of parenting capacity. All counsel except the mother agreed to the changes but the mother advised that due to her impending change in representation she was not prepared to consent to the modifications until her new lawyer who at the time was not identified had reviewed the endorsement.

The society counsel had advised the doctors of the delay and was unable to confirm if the doctors were still available to conduct the assessment beyond the May-June timeline originally set. [ 71 ] On June 13, 2017 the parties were short served by counsel for the mother with a motion returnable on June 15 th seeking an order to set aside the order of April 25 th for a

section 54 assessment and another motion to appoint the mother’s step-father as the access supervisor, if necessary and to place the children with the maternal grandparents with the mother living at their residence. These motions had not been filed with the court but counsel advised the court about the motions at the June 15 th court attendance that had been scheduled for a case conference. [ 72 ] On the basis that mother’s counsel had not sought leave of the court to

schedule a motion and due to the short service, the motion was adjourned to be argued on its merits. A motion date of July 19 th was set for argument on the motion to set aside the

section 54 assessment and a further date of September 7 th , 2017 was set for the temporary care and custody motion. Timelines were set for the serving and filing of materials for both motions. [ 73 ] Also on June 15, 2017 a consent temporary without prejudice order was made placing R. in the home of the V.-J. family. R. had been living with the V.-J. family since early April on an extended visit and although all other parties agreed to a formal order placing her there, the mother had not previously agreed.

At the court attendance, the mother stipulated that she agreed to the order as it was on a without prejudice basis and subject to arguments on its merits. It was the mother’s position that she wished R. placed in her care with her parents as supervisors. [ 74 ] On July 10, 2017 an Amended Notice of Motion [2] returnable July 19 th was filed by mother’s counsel seeking an order to set aside the

section 54 assessment. The grounds it had been made based on mistakes of science thought to be facts, relied on the expertise of Dr. Siu and Dr. Carter who were unqualified, uses unclear and confused language and that the assessment unfairly subjects the mother and not the father or the children to the assessment despite the fact that the whole family had been negatively impacted by the father’s knocking out the mother’s teeth with a phone, choking her and physically hurting R. and J. and exposing them to his violence against their mother. The Notice of Motion also sought costs and that if the court considers it appropriate that the

section 54 assessment be amended by means that include accurately stating the mother’s position on the issues. [ 75 ] On July 10 th , mother’s counsel also filed another Amended Notice of Motion [3] returnable on September 7 th , for an order pursuant to FLR 42 (8) to change the order made on April 25, 2017 to set aside the

section 54 assessment order made on April 25, 2017 and for an order that that the mother’s step-father be appointed as an access supervisor and that R. and J. be placed with him and his wife with the mother residing in their home. [ 76 ] A flurry of Form 14B’s were received by the court dealing with counsel for the mother’s request to vacate the motion date of July 19 th regarding his motion to set aside the

section 54 assessment on the basis that a consent had been reached with the society which was disputed by the society. The motion was ordered to proceed unless a written consent was filed and mother’s counsel was not permitted to file any further motion materials except in accordance with the previous timetable. On July 18 th a further request for an adjournment was requested and was again denied. All counsel were required to attend court. [ 77 ] On July 19 th , on the consent of all parties an amended

section 54 endorsement was filed and another order made for a

section 54 assessment. The Amended Notice of Motion to set aside the April 25 th order was therefore not argued. An order was made that only society counsel would be permitted to contact Dr. Siu and Dr. Carter to arrange to reschedule the assessment. Counsel for the mother did not pursue his motion for the step-grandfather to be an access supervisor or that the children be placed in the care of him and his wife with the mother residing on their home. [ 78 ] The court was advised that the Statement of Agreed Facts regarding the finding had been signed by the father with counsel for the children taking no position.

Mother had still not responded. The society was ordered to send the Statement of Agreed Facts to mother’s counsel again and the mother was given a further 21 days from receipt to provide her response. Counsel for the mother raised the issue of production of the notes of the supervised access visits and was given leave to bring a motion for production if this was an issue as society counsel assured the court that production of the notes was not an issue.

Mother’s counsel did not bring such a motion but during submissions argued that the society had only given him disclosure about a month ago. [ 79 ] A Form 14B was submitted by society counsel for an extension to file its updated affidavit for the temporary care and custody motion scheduled for September 7 th . It was explained that the extension was required as counsel had been dealing with the issues regarding the

section 54 assessment. All counsel, except mother’s counsel, agreed to the extension. In granting the extension, I indicated in the endorsement that it was vital for the court to have all of the evidence before making a decision with respect to placement of R. and/or J. The endorsement further noted that the delay in moving forward had been as a result of the mother changing counsel and refusing to agree to the

section 54 assessment that was consented to in April and that then needed to be “renegotiated” over the last several months. [ 80 ] On September 6 th , 2017 a form 14B was filed indicating that mother’s counsel was unexpectedly out of the province due to a personal matter with no details being provided. The court and other counsel had no option but to consent to a new date for the temporary care and custody motion. The endorsement also indicated that as November 9 th was the first available date when all counsel could

attend, the temporary care and custody motion would proceed unless the mother consented to R. remaining in the care of her current caregivers. Further, the endorsement stated that if questioning was desired it should be arranged between counsel. Counsel were also advised that if a Statement of Agreed Facts was not filed either before or on the return date that the court would set a date for a focused hearing or a

summary judgement motion for the finding. Counsel were also prohibited from filing any further motion materials without leave of the court. [ 81 ] On September 27 th , a Form 14B was submitted by the society seeking that the court set time limits for questioning as mother’s counsel was seeking to question Ms Khaitman and Ms Ansell for 8.5 hours and Ms Hart for 4 hours. Despite an endorsement sent to mother’s counsel and a follow-up telephone call by court staff, no submissions were received from mother’s counsel by the deadline set by the court.

There was urgency to release an order as the society was closing for religious holidays on September 29 th at noon and the first questioning was scheduled for October 2 nd . [ 82 ] An order was made limiting the times for questioning in accordance with the objective of FLR 2(2) for the need to deal with cases justly including saving expenses and time and in dealing with a case in ways that are appropriate to its importance and complexity and pursuant to FLR 1 (7.2) (

e) that specifically permits the court to set such limits. Time limits of 2.5 hours were set for mother’s counsel to question each of the society workers and the father. Further all questioning was to be limited to the issues relating to the temporary care and custody motion. [ 83 ] Counsel for the mother also insisted that the society produce an Affidavit of Documents prior to his questioning of the society workers. Counsel for the society also sought clarification in the society’s Form 14B that pursuant to FLR 19 (1.1) the society is exempt from providing an affidavit of documents.

An endorsement to this effect was also made by the court. [ 84 ] Mother’s counsel filed a further Notice of Motion returnable on November 9, 2017 (the Amended Notice of Motion returnable on September 7 th was not withdrawn) seeking on a “temporary, but ideally, finally [final] basis” that R. live with the mother full-time on terms that supervised access be decreased gradually and that the mother and the society share the cost of supervision.

The Notice of Motion also requested that a hearing be set in March 2018 and if the court is satisfied that R.’s experience since November has been satisfactory free of safety situations that the society would withdraw its Application and there be no costs payable by anyone.

The Notice of Motion also provided that R. would continue to see her therapist, that the mother would continue to see her psychiatrist and that R. and the mother would engage with Marci Goldhar in mother-daughter therapy. [ 85 ] The temporary care and custody motion was finally heard on its merits over 3 half days on November 9, 10 and 17, 2017. 5.

Legal considerations and applicable Law [ 86 ] As there appears to be some confusion as to the nature and issues to be determined on this motion I will briefly review the relevant legislation and case law. [ 87 ] Temporary care and custody hearings are determined pursuant to s. 51(2), (3), (3.1), and (3.2) of the CFSA. The relevant portions which state as follows: Custody during adjournment 51

(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.

(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 . 2006, c. 5, s. 8 (3) . [ 88 ] The onus is on the society on a temporary care and custody hearing to establish, on credible and trustworthy evidence, that there are reasonable and probable grounds to believe that there is a real possibility that if the children are placed in the care of their pre- apprehension caregiver that it is more probable than not that the children will suffer harm.

Further, the onus is on the society to establish that the children cannot be adequately protected by terms of conditions of an interim supervision order. [4] [ 89 ] The court must make an order that is the least disruptive placement consistent with adequate protection of a child in accordance with subsection 1(2) of the CFSA. [5] [ 90 ] The degree of intrusiveness of the society’s intervention and the temporary protection ordered by the court should be proportional to the degree of risk. [6] [ 91 ] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children. [7] [ 92 ] Subsection 51 (7) of the CFSA permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances.

In determining what evidence the court considers to be credible and trustworthy, the evidence must be viewed together. Evidence that may appear not to be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. [8] [ 93 ] A society seeking an order at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the children that justifies society intervention [9] .

The burden on the society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the children in their caregivers’ care. [10] [ 94 ] The onus of proof or criteria are the same when the society is requesting a non-removal order pursuant to clause 51 (2) (

b) of the CFSA or a removal order pursuant to clauses 51 (2) (

c) and (

d) of the CFSA. The issue to be determined in making the non-removal order under clause 51 (2) (

b) is whether or not the society has reasonable grounds to believe that there is a probable risk that the children will suffer harm if reasonable terms and conditions of a supervision order are not imposed. [11] [ 95 ] Subsection 51 (5) of the CFSA provides that where an order is made under clause 2 (

c) or (

d) of subsection 51 (2), the court may order access on any terms that it considers appropriate. In determining what order is appropriate, the court should consider the paramount purpose of the CFSA, as set out in subsections 1 (1) and (2) namely, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children. In assessing best interests, the court should consider the relevant factors set out in subsection 37 (3) of the CFSA. [12] 6. Evidentiary issues

a) Scope of the temporary care and custody motion [ 96 ] At the commencement of the temporary care and custody motion, Mr. Flak on behalf of the mother submitted that it was his understanding that the temporary care and custody motion only pertained to R. and that a separate date should be set for a temporary care and custody motion for J.

He submitted that in his out of court questioning of the society witnesses and the father he confined his questioning to issues pertaining only to R. and the mother would be prejudiced if the motion proceeded with respect to both children. [ 97 ] As outlined in brief oral reasons, the society’s Notice of Motion for a temporary care and custody order was returnable October 13, 2016 at which time a without prejudice order was made. Despite the passage of time it is still that motion that needed to be adjudicated.

Most of the subsequent endorsements refer to the fact that a temporary care and custody motion had not been scheduled. It is possible that as a result of counsel for the mother filing another motion with respect to only seeking that R. be returned to the mother’s care that counsel somehow felt that it was his option to proceed in such a bifurcated manner.

However, the court and all other counsel correctly understood that the temporary care and custody motion related to both children. [ 98 ] The court must also consider that the primary objective of FLR 2(2) is to deal with cases justly which includes saving time and expense and dealing with a case in ways that are appropriate to its importance and expense. It would be a waste of the court’s resources to permit a temporary care and custody motion for each child to be argued separately.

Although much of the focus has been on R., it is the effect on J. of the verbal conflict and physical altercations between R. and the mother that underlie the risk of harm to him. Further, contrary to the submissions of mother’s counsel, he asked questions that related to J. of the society workers and in particular of the father.

The questions pertained to potential risk factors and the ability of the father to parent J. in a safe environment. [ 99 ] Accordingly, I find that the temporary care and custody motion pertains to both R. and J. and there is no prejudice to the mother in proceeding with respect to both children.

b) Objections to hearsay [ 100 ] Counsel for the mother spent a great deal of time submitting that there was impermissible hearsay in the affidavit of Ms Khaitman sworn October 13, 2016 in support of the temporary care and custody motion. Ms Khaitman deposed that she was the first worker to investigate the most recent opening of the case on January 12, 2015 and as the current worker Marice Hart was out of town she was overseeing the file. She deposed that Ms Hart provided her with an overview of the case and that she reviewed the relevant case material. She further deposed that the information in her affidavit is either based on her direct knowledge or that contained in the society

file which she verily believed was true and when she received information from a third party which was Ms Hart she deposed that she believed that information to be true. In reviewing her affidavit I note that the third parties from whom the society received information are named. [ 101 ] Counsel for the mother cites the case of Children’s Aid Society of Toronto v. A.M. and S.T. [13] a decision of Justice Katarynch where she found that the society’s evidence in that case did not rise to the level of being “credible and trustworthy” evidence and some of it was not even evidence.

She stated at paragraph 16 that an investigation is seldom complete at the time of the motion hearing and that, “What appears to be credible and trustworthy at an early stage in the investigation may be found, on closer scrutiny, to be speculation, innuendo, conjecture or simply mean-spirited gossip.” [ 102 ] However, in that case, the temporary care and custody motion was heard within a month of the apprehension of a new born baby and the society relied on an affidavit with case notes of a shelter worker where the mother had resided and the affidavit did not identify the source of the third party information or that the affiant believed that information to be true.

Although the general proposition of the quality of evidence that should be presented on a temporary care and custody motion is a standard that the court would adopt, I fail to see the applicability of that proposition to the affidavit material filed by the society in this case. [ 103 ] Counsel for the mother objected specifically to the background information as outlined in Ms Khaitman’s affidavit. However, information taken from a society’s records that are kept in the ordinary course of business are prima facie reliable.

It would be impractical to have each worker involved in the events that pre-dated the society’s current involvement to swear affidavits with respect to a temporary care and custody motion.

Further, it would focus undue attention on the past events as opposed to the current issues that resulted in the society commencing this Protection Application. [ 104 ] Unlike other temporary care and custody motions that proceed shortly after a child is apprehended, on this motion there is a great deal of information before the court due to the passage of time and the fact that the information has been tested due to the questioning of the deponents.

In this case, Ms Hart who subsequently swore several affidavits relied upon on this motion repeated the background information outlined in Ms Khaitman’s affidavit and both Ms Khaitman and Ms Hart were questioned by mother’s counsel. I find that the background information and third party information as outlined in both Ms Khaitman and Ms Hart’s affidavits has not been discredited. Almost all of the background information was also corroborated in the police records, the medical and counselling records that were also produced.

Nor does the mother in her affidavit disagree with any specific background information as outlined by the society workers. [ 105 ] Counsel for the mother made the same arguments with respect to background information and third party information contained in the affidavits of Ms Hart and Ms Ansell. For the same reasons I find no merit in these submissions.

I find that the evidence in the affidavits of the society workers to be credible and trustworthy for the purpose of this motion and can be relied upon by the court. [ 106 ] Counsel for the mother did not object to the background information outlined in the father’s affidavit. In the father’s affidavit of August 30, 2017 he outlines and attached as corroboration copies of medical and other reports and also an affidavit of the family nanny.

I find any of the third party information in the father’s affidavit to also be credible and trustworthy for the purpose of this motion and can be relied upon by the court. [ 107 ] It should be remembered that this is not a trial and the onus is only on the society to prove on credible and trustworthy evidence that there are reasonable and probable grounds to believe that there is a protection risk to the children. The burden at this stage is not as high as on a balance of probabilities to prove that there is an actual risk.

c) Inferences to be drawn from the

section 54 assessment not proceeding [ 108 ] Subsection 54 (6) of the CFSA permits the society to draw an inference from a party’s refusal to participate in a

section 54 assessment. [ 109 ] In this case, on April 6, 2017 there was an order made on consent for a

section 54 forensic psychiatric risk assessment of the mother. At the time the mother was represented by Steven Codas, an experienced counsel in child protection proceedings. It was the position of the society that in order to assist in planning for the return of R. to the care of the mother the society needed to assess if the mother suffered from a mental health disorder and, if so, what supports could be put in place to support her and her children.

It was hoped that the assessment would help shed light on the root cause of the violent pattern of conduct between the mother and her two older children. [ 110 ] The assessment was ready to proceed with some minor refinements to the issues to be assessed. All counsel were agreeable to the changes and the assessors were ready to arrange appointments for May and June. [ 111 ] However, in June 2017, the mother retained new counsel, Edwin Flak who brought a motion to set aside the order for the assessment. [ 112 ] The motion to set aside the

section 54 assessment did not proceed as counsel were able to negotiate changes to the background information and the questions to be asked of the assessors. A new order for a

section 54 assessment was then made on July 19, 2017. [ 113 ] However, with the passage of time and the summer holidays that intervened, the assessors advised that they were not longer able to undertake the assessment. [ 114 ] The society immediately proposed the name of another qualified psychiatrist, Dr. Hy Bloom, who was available to conduct the assessment and to start in November. All counsel, except for the mother, agreed that society counsel could share information with Dr. Bloom. Counsel for the mother advised during submissions that he had a conflict with Dr. Bloom.

The nature of the conflict except a vague reference that it involved another case was not explained. The society subsequently advised Dr. Bloom that the assessment would not be proceeding.

[ 115 ] It is submitted by mother’s counsel that the mother has not refused to participate in the assessment but that there has simply been a set of unfortunate circumstances that prevented it from proceeding. [ 116 ] However, in the mother’s affidavit she deposes that her former lawyer never explained the assessment to her so she did not know what she was consenting to. But then she does not explain why she consented a second time to the amended order for the assessment with her current counsel. The mother deposes that there is a problem with the assessment only being conducted on her rather than both parents.

She further deposes that she has been “saved” as she has conducted her own research into the gold standard of assessment known as meta-analysis, which she deposes that Drs. Siu and Carter could not have known about when they accepted the case and may still not know about. For 5 pages of her affidavit, the mother discusses her concerns with risk assessments and deposes that she has read multiple articles and based on her research there are serious concerns about the validity of risk assessments. I place no weight on either the mother’s own “research” or the articles she attaches to her affidavit.

Such evidence might be relevant to the weight that the court may have attached to the assessment or could have been a proper area for cross-examination of the assessors. But as the assessment did not proceed, the mother’s justifications for not proceeding with the assessment based on their general unreliability are not relevant. [ 117 ] It is submitted by mother’s counsel that no negative inference should be drawn from the fact that the

section 54 assessment did not proceed and although the mother was responsible for some delay there were other factors that contributed to the delay. [ 118 ] However, I find based on the mother’s own affidavit that she was not prepared to participate in the assessment as she has outlined various excuses for not doing so. I find that the mother has derailed the assessment process. Although there is no outright refusal, the mother by her actions and statements has effectively refused to participate.

As a result there is a lack of information as to the issues that prevent the mother from effectively and safely parenting her children and what treatment is necessary to assist her so that the children can be placed in her care. [ 119 ] I agree with the submissions of counsel for the society and counsel for J. that inferences should be drawn as a result of the mother’s effective refusal to participate in the

section 54 assessment. I accept the submissions of society counsel that an examination of the issues that the assessors were asked to explore should be the basis for the types of inferences to be drawn from the mother’s refusal. If no inferences were drawn then a party could simply ignore the court order with no consequences. As this is a child protection proceeding and the court is mandated to consider the best interests of children, section 54 (7) is an appropriate potential sanction if a parent refuses to participate in an assessment. [14] The mother’s refusal in this case is especially egregious as the mother consented twice to participate in the

section 54 assessment that had been amended in accordance with her insistence. [ 120 ] I find that this is a proper case where negative inferences should be drawn from the mother’s effective refusal to participate in the

section 54 assessment. [ 121 ] I draw the following inferences:

a) The mother feared that the results of the risk assessment would raise concerns about her present mental health and the risk of current or future violent or anti-social behaviour;

b) The mother has a lack of respect for court orders;

c) The mother wishes to conceal the true state of her mental health;

d) The mother is unable to take ownership and responsibility for her own conduct;

e) The mother is unable to recognize the deleterious effect of her behaviour on others;

f) The mother is unable to show empathy for others;

g) The mother’s self-reporting is not reliable as she refused to have her version of events scrutinized; and

h) The mother will not be a reliable or co-operative partner with the society in a supervision order. 7.

Summary of relevant evidence with respect to R . [ 122 ] Since the break-down of R.’s placement with her father, R. has been consistent that her first preference was to be returned to the home of her mother. She was more comfortable in her mother’s home and was embarrassed to tell her friends that she could not live at home. [ 123 ] The society arranged for a psycho-educational assessment of R. by Dr. Larry Danilewich that was conducted in February and March of 2017.

The referral was made to determine R.’s social-emotional resources, intellectual capacity and range of academic skills and to ascertain what treatment and placement options should be considered for her. The background information was obtained from the society workers, the parents and R.

The foster parents also provided information about R.’s functioning in the foster home. [ 124 ] R.’s academic skills were found to be average or above average but there were some concerns about her weak listening and comprehension skills and recommendations were made for some accommodations by the school board and specific educational strategies. [ 125 ] It was the clinical opinion of Dr. Danilewitz that R. continues to display signs of being emotionally distressed.

Although not overwhelmed by symptoms of anxiety or depression which interfere with her daily functioning, R. continues to cope with the aftermath of the family’s breakup, the separation from her primary caregiver and her younger brother as well as the impact of the traumatic experiences (domestic violence, physical abuse, possible sexual interferences [15] ) that took place over the years prior to her being placed in foster care.

Further, although R. has unwanted thoughts and memories about past adverse-traumatic experiences in the family, her daily functioning is not impaired by these negative thoughts and the diagnosis of post-traumatic stress disorder did not apply. But Dr.

Danilewitz found that R. is preoccupied with anxious thoughts regarding her future and her wish to be reunited with her mother and younger brother. [ 126 ] In her interviews R. disclosed a traumatic history of physical conflict in her home. She disclosed memories of physical aggression by her father and consistently took on the blame and responsibility for the physical altercations with her mother. R. did not rate herself as being a verbally or physically aggressive person. But she recognized that at times she lost control of her temper.

She acknowledged that prior to November 2016, little things triggered her episodes of aggression directed at her mother. It was Dr. Danilewitz’s opinion that within the context of the family’s history of domestic violence, and the mother’s mental health problems, the mother-daughter roles may have been reversed and this likely led to R. feeling entitled to her wishes being granted from her mother without out delay. [ 127 ] It was Dr. Danilewitz belief that R.’s perception of the family’s functioning prior to her separation from her mother and J. in 2016 was “quite skewed”.

He states as follows: She appears to idolize her mother, a caregiver whom she perceives to be caring, protective and responsible. It is questioned whether her inability to control her anger directed at her mother was also influenced by the blurring of roles in the family prior to foster placement. This refers to the dual role adapted by R., which included protecting the mother and at the same time expecting the mother to provide her with a safe and emotionally secure experience at home.

The role confusion, coupled with the allegiance to the mother, likely made it very difficult for her to be parented by the same caregiver. This would have been evident when the mother attempted to set limits and was experienced as the withholding parent . R.’s inability to separate from her mother must be seen within the context of a history of family based trauma. Whereas the mother is perceived to be the protector and, at the same time, the caregiver in need of emotional support, the father is viewed as the aggressor and the parent responsible for the break-up of the family.

Although R. has acknowledged being sexually interfered with by a male figure, she was unwilling during the assessment period to discuss this matter. [ 128 ] Dr. Danilewitz concluded that: Placement in the home of the mother needs to be considered at a later stage once the emotional needs of both the mother and the daughter have been addressed in their respective individual therapies. R.’s placement in the home of a trusted friend is supported as an interim step in the direction of her returning to her mother’s home once certain conditions have been met.

This will be influenced by her commitment to individual therapy, as well as the progress made by both the mother and daughter in the relationship based therapy. This may need to follow the individual work or take place concurrently once both persons are ready to commence with this therapeutic step. [ 129 ] Based on his assessment, Dr.

Danilewitz recommended that relationship therapy between the mother and daughter was necessary and should be a step before placement in the mother’s home. [ 130 ] He further recommended that R. enter individual therapy to strengthen her emotion regulations skills, explore her relationships with both caregivers and work through her traumatic experiences of her past and to address the relationship with her older brother who she perceives to be an aggressive and abusive person. [ 131 ] Dr.

Danilewitz stated that the mother’s individual therapy will give her an opportunity to become emotionally attuned to her daughter’s needs and learn to balance this with creating a secure structure in the home that sets limits and respect. [ 132 ] He recommended that group therapy be considered for teens exposed to traumatic family experiences and/or parents with mental health issues.

He also recommended that a psychiatric consultation to be considered if R.’s adaptive functioning decreases and she displays symptoms of a mood or anxiety disorder and that involvement in pro-social activities should be encouraged. [ 133 ] On April 26, 2017 a feedback session was held with R. and her child care worker Dr.

Danilewitz explained that both R. and her mother needed to work on their individual issues in therapy before they could consider living together and he tried to help R. understand that some of the interactions that happened in her family and between herself and her mother were not normal. [ 134 ] The society followed up on the recommendations. In April 2017, R. began to attend individual therapy sessions with a society counsellor, Sari Goldman. R. was offered but was not interested in group therapy. The school was advised of the assessment recommendations regarding R.’s school programming.

R. was participating in activities and she has continued to function fairly well. During the questioning of Ms Hart she testified that R. functioned well at school and “did not act out in the foster home in any way shape or form and attended camp successfully.” She testified that R. was holding it together despite being unhappy. [ 135 ] Instead of the mother addressing the issues raised in the assessment and beginning to focus on the parenting issues, counsel for the mother expressed concerns that R.’s disclosures, as set out in Dr.

Danilewitz’s report, about verbal and physical aggression towards her and the mother by the father prior to the 2012 separation had not been properly reported by the society pursuant to subsection 72.1 (1) of the CFSA. That

section requires a society that obtains information that a child in its care may be or may have suffered abuse report the information to a Director. [ 136 ] Ms Ansell followed up and it was determined that since the society first became involved with the family in 2012, none of the concerns regarding the father’s use of physical force prior to the society’s involvement were verified. [ 137 ] Further, based on the society’s files, on April 29, 2015 the then family service worker, Sheldon Howard met with the mother and R. as R. discussed similar allegations pertaining to her father.

R. disclosed that for her “entire childhood” her father had severely and routinely beat her, including punching her and banging her head on the floor, as well as her mother and her two brothers. Given the inconsistencies in her stories, the allegations were not verified. It was believed that R.’s allegations were disingenuous and consistent with her ongoing hostility towards her father at the time. [ 138 ] R. also disclosed an incident that she said occurred on Good Friday 2014 at which time she had a “huge fight” with her father at

his home, was thrown down the stairs and was aggressively thrown out of the car and almost run over. This was the first such disclosure by R. and no disclosures had been made by the mother, B. or J. When Mr. Howard asked specific questions about individual incidents, R. gave conflicting or otherwise difficult to comprehend responses such as sitting in the back seat of the car and yet her father was able to reach back and throw her out of the car. [ 139 ] Mr. Howard spoke to the father who denied the allegations. Mr. Howard also noted R.’s extreme hostility to her father.

There was no corroboration and no reports of these disclosures to other adults, nor did anyone report any bruising which would have been expected from beatings as severe as reported by R. The allegations of physical abuse were not verified. As these historic allegations had already been investigated, the society advised that no further steps would be taken to investigate and no further reporting was required. 8.

Summary of relevant evidence and findings with respect to mother since with the commencement of the Protection Application [ 140 ] Based on the evidence of the mother’s conduct since the commencement of this Protection Application, I find the following issues to be a significant concern in considering the viability of the mother’s plan for the care of the children:

a) Lack of support to R. regarding a family or kin placement: [ 141 ] When R.’s placement with her father broke down in October 2016, the society was prepared to place R. with a family member namely, her step aunt and uncle or her maternal grandparents. However, R. was resistant as she expressed that it was her belief that her mother would be displeased if she proceeded with a kin plan. But within weeks, there are numerous incidents of R. yelling and screaming at her mother and crying hysterically that if she could not go home, she wanted to stay with the family or friends.

The mother did not appear to agree with R.’s request but only said that she would speak to her lawyer. [ 142 ] Several weeks later, R. met with a society worker to discuss a kin plan and she was agreeable if she could not go home. However, the society learnt about a text message written by R. to her mother expressing a serious sense of depression and suicidal ideation. In the text R. remarked that her mother had told her “to act depressed” but that she no longer needed to act as she was depressed.

Despite concerns about R.’s mental health and her unhappiness in foster care, the mother never gave R. permission to go stay with family or friends. R. stated that her mother did not want her to going so she was prepared to choose her mother’s happiness over her own. In late November and December 2016 there were other access visits in which R. continued to cry and ask her mother why she could not go home. R. then explained that she was fine staying in foster care as the lawyers had told her that this “would only be four months and only one more month, so she may as well make her mother happy”.

R. did not identify which lawyers told her this. [ 143 ] Finally in April 2017, R. identified a friend that she would be willing to stay with and began a trial period of staying there. Instead of readily agreeing to the placement, it was not until a case conference in June and with some pressure being placed on the mother that she finally agreed to a formal order that R. reside with the V.-J. family. [ 144 ] Recently, the mother has made serious allegations about R.’s placement with the V.-J. family based on statements she alleges were made by R.

The society has investigated those concerns and although it confirms that R. is unhappy staying with the V.-J. family, no safety concerns were verified. [ 145 ] There is reason to question the mother’s credibility as for example, she stated that R. is forced to sleep on the floor whereas there is evidence that the father purchased a bed for her when she moved to the V.-J. home.

This appears to be another attempt by the mother to disrupt R.’s placement as she early attempted to do when she told R. to “act depressed” while in foster care. [ 146 ] I find that after R.’s placement with the father broke down, instead of positively supporting R., to be placed with family or a friend, the mother put her own needs and her own agenda before R.’s needs and as a result R. remained in foster care for many months that was entirely unnecessary.

b) Concerns related to the reports of the mother’s improvements as a result of treatment for her mental health issues [ 147 ] The mother has been under the care of her psychiatrist Dr. Farcnik since 2012 and sees him weekly. In his earliest report dated November 23, 2013 he concluded that the mother did not have post-traumatic stress disorder but suffered from major depressive disorders, generalized anxiety disorder, attention deficit disorder, unresolved personal family issues, problems with self-perception and anger.

At the time he was not aware that the mother had stolen prescription pads and written prescriptions for Oxycotin. Nor had the mother reported to him the incident at the cottage in July 2012. [ 148 ] In Dr. Farcnik’s report dated August 23, 2016 [16] written to the mother’s previous counsel he describes the mother as having major depressive disorder, significant generalized anxiety disorder with panic attacks, post-traumatic stress disorder, mild attention deficit disorder, as well as problems with self-esteem, self-confidence, self-perception and anger. Dr.

Farcnik identified that the trauma in the mother’s marriage and divorce as the cause of her instability and outlined several incidents that the mother reported serious violence to herself by the father. He described the mother as being “in crisis” and that “given the current psychiatric conditions in conjunction with an unpredictable family environment, it is my opinion that at this time Mrs. N. is unable to work either in a part-time or full- time.” [17] [ 149 ] In the updated report of June 8, 2017 Dr.

Farcnik describes his efforts to “to help [the mother] ameliorate her hyper-alert, depressed and anxious symptoms”. He describes improvements in the mother’s emotional self-regulation and stress tolerance as a result of weekly therapy sessions and also over 20 sessions where she participated in a Mindfulness Mediation course. He also notes that she is using a post-traumatic stress disorder coach.

He states that it is now his opinion that the most significant diagnoses would be made under the umbrella of post-traumatic stress disorder that is related to childhood trauma and the physical and emotional abuse she suffered during the marriage. [ 150 ] He attributes the great improvement by the mother to the pro-active involvement of her parents and credits the mother with reading books to augment her therapy. He recommends the maternal step-grandfather as an “excellent” supervisor and that his

management strategies to deal with managing R.’s most difficult moments are impressive. He further opines that the mother has developed a better understanding of her children’s personalities and needs and that the quality of her relationship has improved greatly over the last 6 months. [ 151 ] However, Dr. Farcnik does not reconcile or discuss the long standing history of chronic conflict and dysfunctional relationship between the mother and her mother and step-father and how or why that relationship has now changed. On November 18, 2016 Ms Hart reported that Dr.

Farcnik told her that the mother functioning as a parent could be improved if the external stresses were removed and she had a more supportive family. At that time Dr.

Farcnik seemed to be indicating the step-grandfather and grandmother were not supportive. [ 152 ] He also does not discuss nor did he ever report to the society the serious concerns expressed by both the step-grandfather who reported that the mother was “terrorizing the children” and the maternal grandmother who is a psychologist about her concerns regarding the mother’s overall unacceptable behaviour, her yelling at R. and demanding obedience from her, R.’s fears of being physically punished and the overall chaotic and stressful home environment. [ 153 ] I find that despite the mother being under the care of her psychiatrist since 2012, concerns about her emotional stability, self- regulation, and mental health did not improve and certainly her relationship with R. decreased significantly. [ 154 ] I agree with the concerns expressed by Ms Ansell in her affidavit of August 23, 2017 with respect to the June 8 th , 2017 report of Dr.

Farcnik with respect

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