Michelle DiCarlo

The Society brought a motion for temporary care and custody of the child S.H. in kinship placement, with supervised access for the Respondent Mother.

The Mother opposed, seeking the child's return to her care, and challenged the admissibility of photographs taken by the Society, arguing a Charter breach.

The court found a serious Charter infringement regarding the photographs but, applying the R. v. Grant framework, determined that their exclusion would not place the child at risk of harm nor significantly impact the Society's case, as the narrative evidence was sufficient.

Ultimately, the court found the Mother unable to meet parenting responsibilities due to home conditions, mental health, and interaction issues, and ordered the child to remain in kinship care with Society supervision and specific terms for the Mother, while excluding the contested photographs from evidence.

The appellant brought a motion for leave to appeal the order of Carroccia J. dated July 21, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the fixed amount of $3,000.

The Court of Appeal for Ontario dismissed the appellant's appeal and subsequently issued a costs endorsement.

The appellant conceded that the respondent was entitled to costs.

The court determined that this was not an exceptional case warranting full indemnity costs and awarded the respondent $5,000 in costs, inclusive of disbursements and applicable taxes.

The appellant challenged a trial judge's decision that the parties' religious marriage ceremony in Tennessee was a valid marriage under s. 31 of Ontario's Marriage Act.

The appeal raised questions about whether s. 31 applies to marriages solemnized outside Ontario and to purely religious ceremonies where no steps were taken to obtain a licence or register the marriage.

The Court of Appeal dismissed the appeal, affirming that s. 31 can validate marriages solemnized outside Ontario if the parties intended to create a formally binding legal marriage and did not deliberately fail to comply with legal requirements.

The court emphasized the public policy favoring marriage validity and found the parties' subjective belief and subsequent conduct supported the trial judge's finding of intent to comply.

The applicant brought a motion for the immediate sale of the matrimonial home, financial disclosure, and to strike portions of the respondent's affidavit.

The respondent brought a cross-motion for temporary exclusive possession of the home.

The court ordered the respondent to provide a Form 13.1 Financial Statement, noting that financial disclosure is a fundamental and ongoing obligation.

The court declined to strike the affidavit paragraphs, finding them not prejudicial.

Finally, the court ordered the sale of the matrimonial home, finding that the applicant was experiencing financial hardship and the respondent failed to establish that the sale would cause prejudice or that he was entitled to exclusive possession.

This motion concerned supervised access to children amidst allegations of domestic assault against the father.

The father proposed six community members as supervisors, while the mother objected to these individuals and proposed her aunt.

The court, emphasizing the best interests of the children and the temporary nature of supervised access, found the father's proposed supervisors suitable and increased access to twice a week.

The mother's objections regarding familiarity and knowledge of assault details were dismissed, as was her proposal for her aunt as the sole supervisor, due to flexibility and location constraints. interesting_citations_summary: > The decision reiterates the principle from Montgomery v. Montgomery that supervised access is a temporary measure to resolve parental impasses and address safety concerns, not a permanent feature.

It also applies Lewis v. Lewis, affirming that supervised access is for the child's benefit, not merely the custodial parent's comfort, and places the onus on the party seeking to restrict access to demonstrate unsuitability of proposed supervisors. final_judgement: > The father's motion for supervised access with his proposed community supervisors was granted, and access was increased to two two-hour visits per week.

The mother's objections to the proposed supervisors and her counter-proposal were dismissed. winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2020 decision_number: 3807 file_number: "FS-19-19721" source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc3807/2020onsc3807.html" cited_cases: legislation: [] case_law: - title: "Montgomery v. Montgomery (1992), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 CarswellOnt 295 (Ont.

C.A.)" url: "https://www.canlii.org/en/on/onca/doc/1992/1992canlii8642/1992canlii8642.html" - title: "Lewis v. Lewis, 2005 NSSC 256, at para. 25" url: "https://www.canlii.org/en/ns/nssc/doc/2005/2005nssc256/2005nssc256.html" keywords: - Supervised access - Domestic violence - Best interests of the child - Family law - Motion - Parental access - COVID-19 - Supervisor suitability areas_of_law: - Family Law - Child Protection --- # Court File and Parties **Court File No.:** FS-19-19721 **Date:** 2020-06-18 **Ontario Superior Court of Justice** **Between:** Ashley Ann Thibert, Applicant **And:** Gerald Richard Chapman Thibert, Respondent **Counsel:** Michelle DiCarlo, for the Applicant Michael Frank, for the Respondent **Heard:** June 15, 2020 --- # Ruling on Motion for Supervised Access **Pomerance J.:** [1] This is a continuation of an application by father to have supervised access to his children. [2] Father is charged with domestic assault, and his criminal trial is scheduled to take place in 2021.

There are two central concerns in this case.

First, it is important to facilitate an ongoing relationship between the respondent and his children.

At the same time, it is necessary to ensure that any access arrangements reflect the need to protect the safety of all family members.

These joint concerns formed the basis for the requirement in my earlier order that there be access, but that it be supervised. [3] On November 13, 2019, I made an order directing that supervised access take place at the New Beginnings supervised access centre. [4] Since the closure of services during the COVID-19 crisis, New Beginnings is not presently offering that service.

Therefore, the question is whether supervised access can take place in a different setting, with others in the supervisory role. [5] On an earlier occasion, father sought to have access supervised by his mother or his brother.

I ruled that those individuals were not suitable, but indicated that I would consider other individuals who might be proposed.

Father has now proposed six members of the Windsor community, each of which is willing to serve in this fashion.

Mother objects to these individuals on various grounds, proposing instead that access be supervised by her paternal aunt. [6] I have reviewed the transcript of the preliminary hearing, and other case specific information, to determine the nature of the allegations, and the extent to which the children were present or implicated in the alleged activity.

The allegations are serious and, on their face, raise concerns about safety.

At the same time, the court must recognize the presumption of innocence to which father is entitled.

The charges have yet to be tested or proven.

Father has had successful visits with his children at New Beginnings.

One of the children has experienced behavioural issues, but that is not attributable to anything father has done during visits.

He is reported to have acted appropriately throughout the periods of access. [7] Accordingly, it is important to facilitate contact between father and his children to the extent possible, in a safe and supervised setting.

As I put it in my earlier ruling, at paras. 4-6: I have recently received the transcript of the preliminary hearing into father’s charges, and the crown synopsis.

Both documents reveal very serious allegations of domestic violence.

The alleged assaultive conduct is extremely violent and is said to have followed a history of physical and sexual abuse.

Of course, father is presumed innocent of these charges.

He has denied the allegations, but is not wishing to speak about the incidents until his criminal trial.

I understand that position.

Father certainly has a right to remain silent on these issues.

The difficulty is that, apart from a bald denial of the allegations, I have nothing before me to counter the details of the allegations, and the safety concerns that they spawn.

There is no allegation that father assaulted the children.

However, the evidence would indicate that the children were in the home when the alleged assaults occurred and that, on one occasion, father allegedly enlisted one of the children to participate in an event designed to humiliate and degrade mother.

While the charges are serious, they have yet to be tested or proved.

Therefore, it is appropriate, to the extent possible, to facilitate some contact between father and the children.

The Supervised Access Centre was a good location for access visits, as independent supervisors able to ensure that the children were not exposed to any form of harm.

As an ancillary benefit, the supervisors were able to record events at the access visits, allowing for an assessment of how the children have fared.

Several visits took place before the Centre closed.

The reports are largely positive, though one of the children appears to be having some difficulties. [8] The question is what the safe and supervised setting will consist of.

I ruled, at paras. 7-9, that father’s family members were not appropriate supervisors, for the following reasons: I am concerned about the prospect of father’s parents as supervising parties.

According to mother, she disclosed the domestic violence to father’s mother during the marriage, yet she did not take it seriously.

Father’s mother denies this allegation.

I am not in a position to make findings of credibility.

The allegation against father’s mother gives me pause.

If true, it suggests that she may not be in a position to adequately supervise interactions between her son and the children.

There is no such allegation against father’s brother.

He has attested to his willingness to supervise access and make sure that no harm comes to the children.

I have anxiously considered whether his supervision provides enough comfort regarding safety of the children.

I have no doubt that uncle has the best of intentions.

However, I am concerned about the prospect of supervision by a close family member.

Such an individual may feel conflicted about recording or reporting problems during access visits, for fear that it will prejudice father’s position on the criminal charges.

This is not to say that there needs to be a record of every interaction during access.

Visits are not for the purpose of gathering evidence; they are for the purpose of facilitating the parent-child relationship.

However, the supervisor must be in a position to intervene and report on any concerns that might arise from the interactions.

For that reason, it is preferable to have supervision by a more independent party.

I was advised during the last hearing father had proposed four individuals as prospective supervisors to mother.

I was advised that mother did not approve of those individuals.

This issue was not strictly before me on the last appearance, as no materials had been filed about the new individuals.

I did however indicate that I would be willing to consider supervising parties proposed by either father or mother.

I am of the view that, so long as an appropriate supervisor can be identified, it is important to facilitate continued access by father pending re-opening of the Supervised Access Centre. [9] On this motion, father has proposed six members of the Windsor-Essex community, who are his friends or acquaintances, to supervise access.

These individuals offer considerable flexibility in terms of when and where they can carry out these duties. [10] Marion and Drake Reid are friends of father.

They were for a time close to both father and mother, having attended and served as witnesses at their wedding.

Both attested that they do not currently have contact with mother, but they certainly know her.

Ms. Drake works as a personal support worker, though she has been off work during the COVID-19 pandemic.

Mr. Reid is a manager at Motor City Credit Union. [11] Kristen and Gord Laughton are friends of father.

Ms. Laughton works in the drama department of the University of Windsor and Mr. Laughton works from home in sales. [12] Elizabeth Ziriada is an acquaintance of father.

She resides with her parents, David and Joan Ziriada.

David Ziriada practiced family law in Windsor for several years and is now retired.

Elizabeth Ziriada is currently not working and is home on a full-time basis.

Joan Ziriada words as a receptionist at the Kamin Fisher law firm but is currently laid off due to the pandemic. [13] Each of the proposed supervisors have sworn affidavits attesting to the following: a.

They do not have any criminal record or pending criminal charges. b.

They are aware that there are pending criminal charges against the respondent in relation to allegations of domestic violence between he and the applicant. c.

They have no personal knowledge regarding the allegations or the criminal charges. d.

They are willing and able to supervise the respondent’s contact with the children. e.

They understand that, by doing so, they are undertaking a legal obligation and that they would not permit anything inappropriate to happen to the children during the visits. f.

Four of the six proposed supervisors have valid drivers’ licences and are willing to assist with transportation for exchange of the children for visits. g.

They are following COVID-19 public health protocols at home and at work. [14] Mother objects to the proposed sureties on the following grounds. a.

She says that father has put forward misleading information about the proposed supervisors, but does not specify what, if anything, is misleading. b.

She says that she “barely knows these people and cannot leave her children with people she does not know or trust”. c.

The proposed supervisors “know nothing of my current circumstances”. d.

Joan Ziriada was not willing to listen to mother tell her about the details of the domestic abuse allegations, and the five years of hell that she experienced.

Ms. Ziriada cut her off repeatedly, explaining that she did not wish to hear about that.

Mother responded by saying that, as a proposed supervisor, “remaining deliberately uninformed is not a luxury I am willing to permit”. e.

Mother objects to the fact that Joan Ziriada is a friend of her mother-in-law and that “it is clear that her loyalties lie with my mother in law and the respondent rather than the protection and best interest of the children”. f.

Mother objects to an extension of access, and the prospect of multiple supervisors on the basis that it would disrupt consistency and stability. [15] Mother proposes that her aunt, April Kuzniak supervise the access.

Ms. Kuzniak has supervised father’s weekly virtual access.

She has offered to supervise physical access, with appropriate COVID-19 precautions in place, on the same schedule as New Beginnings, namely every Saturday from 1:00 p.m. to 3:00 p.m.

Ms. Kuzniak explained in her affidavit that the children spend a lot of time in her home and are comfortable there. [16] Initially, Ms. Kuzniak was only willing to offer supervision on a limited basis – one 2-hour visit per week.

That is the schedule that was in place at New Beginnings, but father is requesting that access be increased to two visits per week.

In addition, Ms. Kuzniak expressed her preference that father’s family members not attend at access visits, given concerns about COVID-19.

That was of concern to father, as he wishes to have his parents and brother attend some of the visits.

At the hearing of the motion, counsel for mother clarified that Ms. Kuzniak is willing to have father’s family members attend at her house for access visits.

The day after the hearing, counsel advised that Ms. Kuzniak is also willing to supervise two visits per week, if the court so orders.

Finally, mother insisted that father pay the costs for her to transport the children to Ms. Kusniak’s house – some 50 km away - for access visits.

Mother rejected the idea of transport by the proposed supervisors.

As she puts it, “it is not feasible for the respondent or his family to provide transportation because I cannot repeatedly remove and install four car seats for each visit.

That would be time consuming frustrating and difficult”.

During the hearing, father clarified that his supervisors have their own car seats, and that, if necessary, two vehicles would be used to transport the children to ensure use of four, properly placed car seats. ## Analysis [17] The Ontario Court of Appeal, in [Montgomery v. Montgomery (1992)](https://www.canlii.org/en/on/onca/doc/1992/1992canlii8642/1992canlii8642.html), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 CarswellOnt 295 (Ont.

C.A.), stated at p. 360 that: “The purpose of supervised access, far from being a permanent feature of a child’s life is to provide a temporary and time-limited measure designed to resolve a parental impasse over access”.

Here, the supervision is also designed to address potential safety concerns. [18] It in the best interests of the children that they have a continuing relationship with their father.

The criminal charges will not be tried until 2021.

The pandemic has been operating for close to three months.

While virtual visits have taken place, in-person contact is clearly preferable to communication over a computer screen.

There is every indication that all parties, including the proposed supervisors, have been abiding by the health protocols relating to the COVID-19 pandemic, and that the virus itself is not a reason to restrict access. [19] I will begin by examining the suitability of the supervisors proposed by father.

Mother says that she does not know the individuals, or know them well, and does not want to leave her children with strangers.

However, no one is proposing to leave the children with strangers.

The children will be with their father.

The individuals who have come forward will be present to supervise but are not being left to care for the children.

Moreover, the fact that mother is not well acquainted with these individuals does not, itself, make them unsuitable to supervise access. [20] Nor are they unsuitable merely because they do not know, and do not wish to know, the precise details of the allegations of domestic assault.

Each individual is aware that there are allegations of domestic violence.

It is neither necessary nor desirable that these individuals be given a full narrative of the events from mother’s perspective.

It is not clear to me how the details are relevant to the function they are to perform, which is to observe the interactions between father and children, and intervene in the event of inappropriate or harmful contact. [21] Ms. Ziriada quite properly cut mother off when mother began describing “5 years of hell”.

Mother suggests that this reflected a lack of concern or care by the proposed supervisor.

I do not agree.

The proposed supervisors should not be placed in the middle of either the criminal or the matrimonial dispute.

They are not there to decide who is right and who is wrong.

That is a function for the courts.

They are there to supervise access and should not be subject to advocacy on the part of mother or father. [22] Each of the persons proposed by father are well suited to act as supervisors.

These individuals are responsible, contributing members of the community.

They have a clear understanding of the duties they have sworn to discharge.

There is no reason to doubt that they have both good faith intentions and an ability to carry out the duties that would be placed upon them. [23] The law is clear that a party seeking to restrict access has the onus of persuading the court.

It falls to Ms. Thibert to demonstrate that the persons proposed by father are not suitable.

She has failed to discharge this onus.

Mother may be more comfortable with people that she knows, but her comfort level is not the determining factor.

The core issue is the best interests of the children.

As it was put in [Lewis v. Lewis, 2005 NSSC 256, at para. 25](https://www.canlii.org/en/ns/nssc/doc/2005/2005nssc256/2005nssc256.html): Supervised access is not appropriate if its sole purpose is to provide comfort to the custodial parent.

Access is for the benefit of the child and each application is to be determined on its own merits. [24] I will now turn to the supervisor proposed by mother, Ms. Kuzniak.

Ms. Kuzniak is also a perfectly acceptable supervisor.

She has already supervised virtual access visits and appears to be willing and able to act in an independent fashion.

Ms. Kuzniak was not put forward as a supervisor of in-person visits until the very morning of the motion, a few hours before it began. [25] Ms. Kuzniak is only willing to act as a supervisor if access takes place in her home.

The other supervisors are flexible about when and where they can supervise access.

Four of the six can assist with transport of the children.

Father would like the option of having access visits somewhere other than Ms. Kuzniak’s house.

This seems a reasonable option.

It would also alleviate Ms. Kuzniak’s concern about having father’s family members congregating on her property. [26] Father proposes that some visits might take place within the matrimonial home.

This too seems a reasonable option.

This is where the children have spent most of their lives.

Mother objects to that location, suggesting that the children will be traumatized if they return to the location where the domestic violence occurred.

It is not clear what, if anything, this suggestion is based on.

It is equally conceivable that the children would take comfort in returning to a place with which they are familiar.

Certainly, were the children to react negatively to any environment, I would expect that father and/or the supervisor(s) would take immediate steps to leave that place and proceed to a different location. [27] It will be for father to choose which of the supervisors he asks to serve on a given occasion, based on their availability.

Once the arrangements are made, father shall, through the supervisor, provide mother with the details of where the access visit is to occur, as well as the name and phone number of the acting supervisor. [28] The final issue is the frequency with which such visits should occur.

The time has come to increase supervised visits to twice a week.

This is a small transition, but an appropriate one.

The Centre notes report that father interacted with the children in an entirely appropriate manner at the New Beginnings facility.

The children were excited and happy to see him.

While one child began to experience behavioural difficulties, it is not clear what the cause of that was.

He is receiving counselling which will hopefully assist in addressing the core issues.

Certainly, when the visits began, that child was very happy to be in his father’s presence.

Subject to information that may come to light in the future, I see no reason not to incrementally expand father’s time with the children. [29] Therefore, father is entitled to have two-hour access visits twice a week.

Counsel for father suggested that the precise dates and times be left to the parties to determine, to maintain maximum flexibility and I will honour that request. [30] If the parties cannot agree on costs, I will receive written submissions within 10 days of this decision. --- **Renee M. Pomerance** **Justice** **Released:** June 18, 2020

The applicant sought equalization of net family properties, which the respondent contested, asserting they were not married.

The court conducted a trial of an issue to determine the marital status of the parties.

A religious ceremony took place in Memphis, Tennessee, in 1998, after which the parties lived as husband and wife in Ontario for over 16 years, raising three children, despite not obtaining a marriage licence.

The court applied Ontario's Marriage Act, s. 31, finding that the marriage was solemnized in good faith, intended to be in compliance with the law, and followed by cohabitation as a married couple.

Consequently, the marriage was deemed valid under Ontario law, establishing the applicant as a "spouse" for equalization purposes under the Family Law Act.

The moving party father brought a motion for supervised access to his children outside of a supervised access centre, which was closed due to the COVID-19 pandemic.

He proposed that his parents or brother supervise the access.

The responding party mother opposed the motion, citing safety concerns stemming from pending criminal charges against the father for severe domestic violence.

The court dismissed the motion, finding that given the serious nature of the untested allegations, supervision by close family members was inappropriate as they might feel conflicted about reporting problems.

The court held that an independent supervisor was required and allowed the father to propose alternate supervisors.

The father brought a motion to modify a supervised access order, seeking supervision by family members after the designated supervised access centre closed due to the COVID-19 crisis.

The mother opposed, citing safety concerns related to the father's pending criminal charges for assault.

The court, acknowledging the urgency, declined to order family-supervised access without further information regarding the criminal charges.

Instead, the court ordered interim remote access via videoconferencing, facilitated by the mother's aunt, and adjourned the motion for counsel to gather more information about the criminal proceedings and specific safety concerns.

No costs were awarded.

The respondent father brought an urgent motion to vary a supervised access order, as the supervised access facility ceased operations due to the COVID-19 pandemic.

The father sought to have family members supervise access.

The court found that the request presumptively met the test for urgency, balancing the need to facilitate the father-child relationship with the safety concerns arising from a pending criminal trial and a non-association order against the father.

The court directed the applicant mother to file responding materials and scheduled an electronic hearing to address the merits.

The accused was charged with possession of fentanyl for the purpose of trafficking.

He pleaded guilty to simple possession of oxycontin and cocaine, and guilty to simple possession of fentanyl (rejecting the Crown's trafficking charge).

The Crown did not accept the lesser plea and proceeded to trial on the trafficking count.

The case was circumstantial, based primarily on the quantity of fentanyl found (24 patches with a street value of $9,600 to $12,000).

The accused testified he purchased the fentanyl for personal use, claiming he was a severe addict consuming 3-4 patches daily.

The court found the accused's evidence unlikely but not incapable of belief, and determined that possession for personal use remained a reasonably available inference from the circumstantial evidence.

The court acquitted on the trafficking charge but convicted on simple possession of fentanyl and the other drug counts.

The accused entered a guilty plea to trafficking fentanyl under s. 5(1) of the Controlled Drugs and Substances Act.

The Crown sought 30 months imprisonment, while the defence sought a time-served disposition.

The court imposed a time-served sentence (434 days pre-trial custody credited at 1.5:1 ratio = 651 days or 21.75 months), 12 months probation, and ancillary orders under s. 109 and DNA.

The court considered the extreme dangers of fentanyl, the accused's criminal history including prior drug trafficking convictions, but also the mitigating factors of guilty plea and the fact that only one patch was trafficked on one occasion.

The offender pleaded guilty to possession of cocaine for the purpose of trafficking after being caught transporting 253 grams of cocaine, along with marijuana and oxycodone.

He was acting as a courier for financial gain and had no prior criminal record.

The court emphasized general deterrence and denunciation but also considered the offender's rehabilitative prospects.

The offender was sentenced to 14 months in custody, less credit for pre-sentence custody, followed by two years of probation.

The offender pleaded guilty to possession of cocaine for the purpose of trafficking after being arrested with approximately 253 grams of cocaine, additional controlled substances, and cash.

The court considered aggravating factors including the significant quantity of cocaine and the offender’s role as a courier in a commercial trafficking operation.

Mitigating factors included the offender’s guilty plea, lack of prior criminal record, cooperation with police, and rehabilitative prospects.

Balancing denunciation and general deterrence against the offender’s youth and rehabilitation potential, the court imposed a custodial sentence followed by probation.

Additional ancillary orders included forfeiture of seized items and a firearms prohibition, while a DNA order was declined.