



WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
    PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives from all
    or a part of a hearing; or

(c) prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

where the court is of the opinion that the presence
    of the media representative or representatives or the publication of the
    report, as the case may be, 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.

45(8)  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 childs parent
    or foster parent or a member of the childs family.

45(9)  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.




COURT OF APPEAL FOR ONTARIO

CITATION: Childrens Aid Society of Ottawa v. A.V., 2016 ONCA
    361

DATE: 20160512

DOCKET: C60959

Rouleau, Pardu and Benotto JJ.A.

BETWEEN

The Childrens Aid Society of Ottawa

Applicant (Respondent)

and

A.V.

Respondent (Respondent)

and

S.M.

Respondent (Appellant)

AND BETWEEN

A.V.

Applicant (Respondent)

and

S.M.

Respondent (Appellant)

Gordon S. Campbell, for the appellant S.M.

Marie-Hélène Godbout and Yanik S. Guilbault, for the
    respondent A.V.

Tracy Engelking, for the respondent the Childrens Aid
    Society of Ottawa

Jennifer Gallagher, for the Officer of the Childrens
    Lawyer

Heard: May 4, 2016

On appeal from the orders of Justice Marc Labrosse of the
    Superior Court of Justice, dated August 7, 2015.

ENDORSEMENT

[1]

The appellant is the father of two girls, now 11 and 13. He appeals an
    order of the Family Court granting the mother (the respondent A.V.) sole
    custody of the girls with supervised access to him and allowing the Childrens
    Aid Society of Ottawa (the respondent CAS) to withdraw its Protection
    Application. The Office of the Childrens Lawyer (OCL) joins the respondents in
    asking that the appeal be dismissed.

[2]

The appellant and A.V. divorced in 2012. The divorce order provided for
    joint custody with a shared parenting arrangement. Ongoing disputes between the
    parents rendered the arrangement unworkable and CAS became involved on December
    5, 2013. CAS commenced a Protection Application and sought a finding that the
    children were in need of protection because of the conflict between the parents
    and the possible exposure of the girls to parental alienation. CAS initially
    sought an order that the children be placed in the care and custody of both
    parents on the same terms as their joint custody order for six months, subject
    to CAS supervision. The OCL was appointed to represent the children.

[3]

During the course of the protection proceedings, the parties consented
    to an assessment under s. 54 of the
Child and Family Services Act
,
    R.S.O. 1990, c. C.11. The assessment was conducted by Dr. Worenklein, who
    issued a report on March 31, 2014. Dr. Worenkleins opinion was that the
    appellant was alienating the children against their mother and that the
    situation was extremely volatile and high-conflict. He recommended that, in the
    event the alienation persists, the mother be granted full custody with
    supervised access to the appellant.

[4]

The appellant refused to accept Dr. Worenkleins recommendations. In
    response to the report and the appellants reaction, CAS sought to amend the Protection
    Application to place the children in the custody of the mother with supervised
    access to the appellant. The mother then brought a motion to change the final
    divorce order to grant her sole custody. The appellant brought a cross-motion
    for sole custody. A temporary order was made on April 16, 2014 placing the
    children in the custody of the mother pending the hearing of the motion to
    change the custody provisions in the divorce order. CAS sought to withdraw the Protection
    Application on the basis that if the mother was granted sole custody and the
    fathers access was supervised, the children would not be in need of protection.

[5]

Labrosse J. seized himself of both the protection and the motion to
    change actions. He presided over a number of case conferences dealing with
    procedural matters. On August 27, 2014, he ordered that the motion to change,
    the cross-motion, and the CAS withdrawal be argued simultaneously. His
    endorsement further said:

I will render my decision on the Motion to Change and Cross-Motion
    and the CAS will then have the opportunity to proceed with the request to
    withdraw or not. If the CAS does not proceed with the request to withdraw, I
    will render a decision on the Temporary Care and Custody Motion.

[6]

No appeal was taken from this order and the parties proceeded to a
    hearing before Labrosse J. over the course of three days between December, 2014
    and June, 2015.

[7]

Labrosse J. concluded that the divorce order should be varied; the
    mother was to have sole custody and the father was to have supervised access to
    the children. He then determined that the children were not in need of
    protection and allowed CAS to withdraw its Protection Application.

[8]

The appellant raises several grounds of appeal:

·

The
    motions judge erred in finding a material change in circumstances warranting a
    variation of the custody arrangement in the divorce order;

·

The
    motions judge erred in ordering the two actions be argued simultaneously;

·

The
    motions judge erred by not holding a hearing in connection with the CAS
    motion to withdraw pursuant to s. 47(1) of the CFSA and then further erred by failing
    to specifically find that the children were not in need of protection;

·

The
    motions judge violated s. 54(8) of the CFSA by considering the evidence of Dr.
    Worenklein on the motion to change.

ANALYSIS

(1)

Material Change in Circumstances and the Variation of the Order

[9]

The test for varying an order under s. 17 of the
Divorce Act,
R.S.C.
    1985, c. 3 (2nd Supp.) was set out by the Supreme Court of Canada in
Gordon
    v. Goertz
, [1996] 2 S.C.R. 27, at para. 13. The judge must be satisfied
    that: (1) there is a change in the condition, means, needs or circumstances of
    the child and/or the ability of the parents to meet the needs of the child; (2)
    the change must materially affect the child; and (3) the change was not
    foreseen or could not have been reasonably contemplated by the judge who made
    the initial order.

[10]

The motions judge made detailed findings in connection with the
    appellants inability to set aside the parental conflict and meet the needs of
    the children. The change materially affected the children and was not
    contemplated when the joint custody order was made, as it was not reasonably
    foreseeable at the time that the relationship between the parties would reach
    the level of dysfunction demonstrated by the evidence.

[11]

The motions judge then proceeded to do a fresh inquiry into the best
    interests of the children. He concluded that the appellant had embarked on a
    campaign to alienate the children from their mother. The detailed findings of
    fact are grounded in the evidence and do not require appellate intervention.

(2)

The Simultaneous Proceedings

[12]

The August 27, 2014 order to hear the child protection and custody
    proceeding simultaneously was not appealed. Even if it had been, we would
    conclude that it was a proper exercise of the motions judges discretion and
    exactly what is contemplated by the
Family Law Rules,
O. Reg. 114/99
.
The Rules impose a duty on the court to deal with cases justly by
    controlling the process of the case and by dealing with as many aspects of the
    case as possible on the same occasion: r. 2(5)(d) and (f); and r. 12(5).

(3)

The Withdrawal of the CAS Protection Application

[13]

The appellant argues that the motions judge did not hold a full hearing
    pursuant to s. 47(1) of the CFSA prior to allowing CAS to withdraw its
    protection application. Section 47(1) of the CFSA states:

47. (1) Where an application is made
    under subsection 40 (1) or a matter is brought before the court to determine
    whether the child is in need of protection, the court shall hold a hearing to
    determine the issue and make an order under s. 57.

[14]

We reject this submission. The law is clear that a hearing in a child
    protection matter may take many forms, depending upon the circumstances. It may
    proceed on consent, take the form of a motion seeking leave to withdraw, a motion
    for summary judgment, or a trial:
Catholic Childrens Aid Society of
    Metropolitan Toronto v. O. (L.M.)
(1997), 149 D.L.R. (4th) 464 (Ont.
    C.A.);
Children and Family Services for York Region v. J.G.S.
(2004),
    246 D.L.R. (4th) 562 (Ont. S.C.);
Children's Aid Society of
    Hamilton-Wentworth v. K.B.,
2002 CanLII 61224 (Ont. S.C.), at para. 35;
    and
Family Law Rules
, r. 16(2).

[15]

During oral submissions, counsel for the appellant acknowledged that the
    hearing may be on affidavit evidence only but submits that the motions judge
    erred in not allowing cross-examination. The motions judge considered and
    rejected the appellants request, having determined that there were no issues
    that could be advanced by cross-examination. The decision to allow questioning
    is within the discretion of the motions judge:
K.B.,
at para. 35; and
Family
    Law Rules
, r. 16. We note as well that the appellant could have questioned
    witnesses before the hearing and did not do so.

[16]

The appellant further submits that a proper hearing was not held because
    the motions judge never made a finding that the children were not in need of
    protection. He argues that once CAS initiates a protection hearing, the court
    before which the proceeding is brought must make a determination as to whether
    a child is or is not in need of protection.

[17]

Contrary to the appellants submission, the motions judge did make a
    finding that the children were not in need of protection. Under the heading,
    Should the Society be permitted to withdraw its Protection Application? the
    motions judge reviewed the evidence and concluded at para. 115: I am satisfied
    that there are no protection concerns, provided that the Mother has sole
    custody and that the Fathers access continues to be supervised.

(4)

The Motions Judges Use of the Evidence of Dr. Worenklein in Considering
    the Motion to Change

[18]

The court may order an assessment in the course of a child protection
    proceeding pursuant to s. 54(1) of the CFSA. Section 54(8), however, precludes
    the use of the assessment report in any other proceeding except in child
    protection proceedings and other limited circumstances, unless on consent. The
    appellant submits that a new hearing is required because evidence from
    Dr. Worenkleins report was considered by the motions judge when he
    determined the change of custody.

[19]

We disagree with this submission for two reasons. First, the motions
    judge took care to separate the findings made on the Protection Application from
    the motion to change. He highlighted in his reasons the abundance of evidence,
    much of which has been provided by the [appellant], that demonstrated the
    indicia of alienation. He based his conclusion that the appellants attempt to
    alienate the children from their mother and his decision to grant the mother
    sole custody on the evidence before him, including affidavits and audio
    recordings, which largely came from the appellant. In any event, he observed
    that the report was not conclusive on the issue of custody.

[20]

Second, in a lengthy affidavit filed in the custody proceeding, the
    appellant himself put many parts of Dr. Worenkleins report into evidence. The
    appellant was critical of the doctors failure to rule out the abuse allegations
    the appellant had previously made against the mother. The appellant cannot now raise
    the issue that the evidence was inadmissible.

DISPOSITION

[21]

The appeal is dismissed with costs payable by the appellant to the
    respondent A.V. in the amount of $12,500, to the CAS in the amount of $6,000,
    and to the OCL in the amount of $2,000. These costs  totalling $20,500 - are
    inclusive of disbursements and HST.

Paul
    Rouleau J.A.

G.
    Pardu J.A.

M.L. Benotto J.A.
    


