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 48(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.
45.— (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.
45.— (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.
Court Information
Ontario Court of Justice
Court File No.: Sault Ste. Marie 127/11
Date: 2013-12-17
Between:
Children's Aid Society of Algoma, Applicant
— AND —
C.P. and B.B. and Garden River First Nation, Respondents
Before: Justice John Kukurin
Heard on: December 3, 2013
Reasons for Judgment released on: December 17, 2013
Counsel
- Anthony Marrato — counsel for the applicant society
- C.P. — on her own behalf
- Romuald Kwolek — agent for the respondent B.B.
- Heather Mendes — counsel for the Office of the Children's Lawyer, legal representative for the children
KUKURIN J.:
Legend
- Mother = C.P.
- Father = B.B.
- Male child (age 13) = B.1
- Female child (age 12) = B.2
- Step-mother = J.
[1] Introduction
This is a decision on a motion (at Tab 7, Volume 3) brought in this status review proceeding by the father, B.B., seeking an interim variation of an order dated November 1, 2012 made by Gregson J. This order found the children B.1 and B.2 to be in need of protection and made them wards of the society for nine months. This case is a review of the status of these two children. The society's application seeks an order of crown wardship. It also includes a claim for orders for maternal and paternal access. B.B.'s motion seeks to vary the paternal access provisions in the existing order pending a final determination of this status review.
The claim in B.B.'s motion is for:
"immediate, increased, unsupervised access to the children … including weekend access Friday evenings to Sunday evenings".
THE LAW
[4] Statutory Framework
This access variation claim, in the context of a status review proceeding, is governed by the Child and Family Services Act (the "Act"). It is section 58 of the Act that empowers the child protection court to "make, vary or terminate" an order for access to or by a child in the case. This power of the court is exercisable upon an application being made by virtually anyone. The application may be at any time.
[5] Best Interests Standard
The criterion for making an access order is the best interests of the child. Accordingly, the existing paternal access order of November 1, 2012 is one that was made in the best interests of B.1 and B.2 having regard to circumstances at the time it was made. It continues to be so, unless and until it is shown, by evidence, to the satisfaction of the court, that it no longer is in the best interests of these children.
[6] Change in Circumstances
Although not spelled out in the Act, it is logical that some change in circumstances from the time that the order was made be demonstrated. Whether the change is a "material" change, or something less, is perhaps a semantic distinction. More important from the point of view of the Act is that the change in circumstance be tied to the best interests of the child(ren).
[7] Burden of Proof
The status quo is represented by the existing order. The person who wants to change that order has the onus of demonstrating not only that some change in circumstances has taken place, but also:
(a) that this change in circumstances renders the existing order no longer in the best interests of the child(ren); and
(b) that the new order sought now represents what is in the best interests of the child(ren).
[8] Evidentiary Standards
The change in circumstances and the connection to best interests of the child(ren) must necessarily be made by way of admissible evidence. The standard of proof of such evidence is the balance of probabilities – the civil standard. This applies not only to the father, B.B., but also to the society, and to any other party in the case, whether supporting or opposing the motion, or sitting somewhere in between. Since the vehicle for the motion to vary is a motion, the Family Law Rules applicable to evidence on such motions apply to this motion.
In addition, section 50(1) applies to evidence in any proceeding under Part III of the Act. This present motion to vary falls within Part III.
[10] Interim Variation of Final Order
Finally, and lest it be overlooked, this motion claim is for an interim variation of a final order, where the continuation of that final order has been put in issue by the father's Answer in the status review case before this court.
CHANGE IN CIRCUMSTANCES
[11] Temporal Comparison
Sometimes missed is obvious. The word "change" necessitates a comparison. In a motion such as this, that change is temporal: between then and now. 'Now' is the present. 'Then' is the point in the past at which the existing order was made. That point was November 1, 2012. The change that is relevant is the change in circumstances. "Circumstances" encompass just about anything that is factual, and includes factual history that may predate a particular point in time. For purposes of a motion dealing with paternal access, those circumstances that have some demonstrable connection to paternal access are relevant to such a motion.
[12] Prior Order Context
Regrettably, no transcript of any oral Reasons of the court making the existing paternal access order was produced for the present motion. Perhaps none were given. There is an extensive judicial endorsement, however, which deals with a number of issues that required judicial determinations. The portions of the endorsement that dealt with a father were brief, namely:
(a) references to the father's anger management issues and domestic violence issues, and
(b) mention of the father's contemporaneous involvement in child protection proceedings in Sudbury court involving children of himself and his then partner – which also involved issues of domestic violence.
The context of these references was by way of explanation why B.1 and B.2 were not being placed in the care and custody of their father. Namely, he was "not in a position to care for the children at that time". There was no reference to paternal access in the endorsement, or why that particular paternal access order was made.
[13] Trial Record
The record shows that the order of November 1, 2012 was made at trial. However, that trial involved no viva voce evidence. It is clear from the endorsement in the continuing record that the hearing at trial was "on affidavit evidence", and that the trial judge's decision followed after "… reviewing the entirety of the material in the continuing records, and submissions by all parties …"
[14] Comparison of Circumstances
The fortuitous result is that "circumstances" at the time the existing order was made can be gleaned by this court by examining the evidence filed in the continuing record as of the date of that order. Those circumstances can be compared with the circumstances now which can be determined by evidence filed on the present motion. That comparison should yield a determination of what changes in circumstances, if any, have taken place. This court must first determine if those changes are sufficient to meet the threshold needed before it can embark on whether those changes in circumstances justify the change in the terms of the present order sought by the father.
[15] Secondary Argument
The argument of the father on the present motion has another facet. His argument is also related to change in circumstances, but perhaps in a way that is more subtle. He argues that the current order entitles him to "reasonable access" to B.1 and B.2. Although the order itself does provide some additional judicially imposed terms on such access, the father, B.B.'s, secondary argument is that the society's implementation of paternal access under the order after it was made has not provided him with access that is "reasonable".
BACKGROUND
[16] Family History
There is a convoluted history in this family. B.B. has fathered 13 children:
- three children with his first partner, all now adults;
- B.1 and B.2, with his second partner, C.P.;
- eight other children with his third partner J.
To complicate matters, C.P. had two more children with two different partners after she and B.B. separated, a daughter in 2005 and another daughter in 2012. Accordingly, B.1 and B.2 each have 14 siblings. Of importance is that B.1 and B.2 remained in their father's care following the break-up of B.B. and C.P. in 2002. They remained with him continuously for the next eight years until C.P. was granted custody of them on August 27, 2010 by way of a section 57.1 custody order made by Keast J. in a child protection case in Sudbury. The "family" of which B.1 and B.2 were the two oldest children for most of their lives was the family of B.B. and his third partner (J.) and the eight children born to them through the decade that they remained together.
[17] Importance of Relationships
This family constellation is important as it underlies relationships that B.1 and B.2 have developed with family members. Relationships are very important, and, in fact, are prominent among the mandatory considerations courts must, by statute, take into account when making (not only custody, but also) access decisions.
[18] Children's Upbringing
For B.1 and B.2, their father has been a constant in their lives virtually from birth until August 2010. They were raised in a home where their mother figure was their stepmother J. They were the older brother and older sister to eight siblings that came into their home as newborn infants.
[19] Post-Custody History
Their connection with their biological mother until August 2010 is not well documented in the evidence. After their custody was awarded to their mother, they remained with her for only ten months before they were apprehended by the society and removed from her care. Thereafter they lived with their maternal grandparents for about six months, an arrangement that did not work out so well. They have been in the care of the society now for just under two years.
[20] Geographical Context
There is some geographical background that is of some importance to the issue of paternal access. The home of B.1 and B.2 was in Sudbury. They were moved to Sault Ste. Marie because this is where their mother lived when she was awarded custody of them. The reason that this child protection case is in Sault Ste. Marie is because this is where these two children were apprehended from the care of their mother.
[21] Father's Access Efforts
Despite the three hour distance, the children have managed to maintain their relationship with their father since moving to Sault Ste. Marie. This has not been without difficulty. The father, B.B., has met resistance to his access from the mother C.P. when they were in her care, obstacles to his access from the maternal grandparents when they were in their care, and restrictive conditions imposed by the society since the children have been in the society's care. To be fair, the father has authored many of his own difficulties by getting into trouble in the Sudbury courts, both criminal and family, by his lifestyle, by his attitude and behaviour to others, and by his underdeveloped people skills.
[22] Current Access Arrangement
On a variation of access motion, it is critical to know just what paternal access B.1 and B.2 are having. Currently, this is limited to three hours from 4 p.m. to 7 p.m. every second Friday, at the access centre of the society in Sault Ste. Marie, fully supervised by the society.
[23] Prior Access Arrangement
This is not the way it always was. The children were apprehended in mid-June 2011. By early October 2011, the father's access was amended to include overnight access, subject to advance notice, on alternate weekends, Saturday 10 a.m. to Sunday 7 p.m., so long as he provided all transportation. Clearly this earlier access was not, and was not meant to be supervised.
[24] The March 2, 2012 Incident
What happened? The answer is an incident on March 2, 2012. B.B. apparently struck J. while she was driving the family van in which were ten children including B.1 and B.2. The word "apparently" is not accidental since what actually took place is not only unclear but is in dispute in this case. It is what, in child protection cases, amounts to an "issue", and a rather significant issue. B.B. insists that this incident was an accident. J. is reported to have said otherwise initially, but more recently, seems to question whether B.B.'s assault was accidental. The children, B.1 and B.2, who were eye witnesses also gave an account that suggests that there is some question about whether the incident was accidental. The society's evidence about this incident is completely hearsay. There is no question, however, that the father B.B. was charged with assault, pleaded guilty, was sentenced to imprisonment and placed on probation.
[25] Consequences of the Incident
This incident fractured the Sudbury family. The Sudbury society became involved. J. and the eight children left the home and they all went to live with her parents. The probation order contained a condition of no contact between B.B. and J. or their children. However, by May 2012, J. was voicing a desire to "connect" with B.B. In July 2012, she let him have contact with some of the younger children while camping. The Sudbury society thereupon apprehended all eight children who were farmed out to three maternal 'kin' homes. The father, B.B., was charged with breach of probation and received additional time in custody by way of sentence (possibly intermittent) and a lengthy probation term.
[26] Restrictive Access Conditions
The result of all of these developments is that the father, B.B., was in particularly poor circumstances when the child protection trial involving B.1 and B.2 was heard. He also had no lawyer representing him any longer. The result was inevitable. His alternate weekend and overnight access rights disappeared. The society was given discretion to decide what portion of his access was to be supervised. The society unilaterally set the location, frequency and duration, as well as the location where his access was to take place. In addition, it imposed a condition that he confirm his intention to exercise his access in advance, failing which it would be cancelled. In fact, it was, on a couple of occasions. Moreover, the father was told by the society that he could not attend extracurricular activities (e.g. badminton tournament) in which B.1 or B.2 might participate without society approval. The present foster parents, who appear inclined to facilitate contact between B.B. and these two children were prohibited by the society from doing so any longer. This followed an occasion or two where he had contact with the children with co-operation of these foster parents without the society knowing of it in advance.
[27] Scope of Status Review
What has changed in circumstances? Quite a lot, in fact. The changes should be put in perspective. The reality is that this case is a status review of the status of two children, B.1 and B.2, who are currently temporary wards of the Children's Aid Society. Accordingly, this court is charged with making decisions that are in the best interests, protection and wellbeing of these children. However, this mandate is not limited to their status as children in need of protection. It applies also to determination of access to and/or by these children.
ANALYSIS
[28] Basic Question
The basic question on the present motion is whether the terms of paternal access to B.1 and B.2 contained in the order of Gregson J. dated November 1, 2012 should be changed until the final resolution of the status review application in which this motion has been brought.
[29] Changes in Circumstances – Father's Perspective
I am satisfied that there have been many significant changes in circumstances to warrant a change in the current order. For the father, these include:
(a) The father has been sentenced on both the assault and on the breach of probation charges. He has completed his (intermittent) imprisonment sentences on these convictions.
(b) The father has been bound by probation order terms since March 2012. He has been reporting to his probation supervisor (Mr. J.L. Roy) and continues to do so. His initial order has expired.
(c) The father complied with the referral by his probation officer for a psychological assessment. He was assessed by Dr. P. Valliant whose report is dated June 25, 2012.
(d) The father attended a stress/anger management program which he completed successfully with a score of 96 percent. He then attended for a further seven counselling sessions requested by himself.
(e) The father, B.B., and J., whom he was convicted of assaulting, and who was integrally involved in his breach of his probation condition, are separated. They are not only separated in a conjugal sense; they are geographically separated since J. relocated to Sault Ste. Marie approximately 300 kilometres from Sudbury where the father continues to reside.
(f) The father's initial responses to society interventions in both Sudbury and Sault Ste. Marie have toned down considerably. He has replaced poorly controlled ranting and discourteously accusatory language with much more acceptable and relatively more consistent methods of communication. He has obtained (if not yet fully retained) the assistance of counsel for this motion.
(g) The father has become quite consistent in exercising access with B.1 and B.2. His visits have been almost uniformly incident free of incidents, his behaviour has been appropriate, and his visits have been enjoyed by the children.
[30] Changes in Circumstances – Children's Perspective
From the perspective of the children, B.1 and B.2:
(a) Their residence with their mother following the maternal custody order of August 27, 2010 was neither a happy time for them, and, in hindsight, this placement was unsuccessful from a best interests point of view.
(b) Their residence with their maternal grandparents, while a reasonable interim placement, was also unsuccessful, and the children had to be moved.
(c) Their academic and social behaviours descended to alarmingly poor levels after being moved to Sault Ste. Marie and continued until their fairly recent placement with their present (Nog-da-win-da-min) foster placement.
(d) The present foster parents appear to be providing not only competent care for these two children, but are on amicable terms with their father, and have (or had) been amenable to facilitating contact between him and the children.
(e) Whatever fear of their father the society alleged these children may have had in times past (which remains an unproven allegation), there is no evidence of any fear of him now. They wish to have more contact with him and they wish that contact to be qualitatively different than it has been, or is at present (fully supervised at the society access centre).
(f) Passage of time can be a change in circumstance. However, its importance has to be gauged with reference to the children. In this case, the children are just approaching their teen years, a very distinct period in their personal lives. Their ages are such that what they want in terms of paternal access deserves increased consideration. Also, they become less vulnerable as they mature. But time has not stood still for B.1 and B.2. They now have extracurricular activities which are important to them and which they do not want to miss, even, perhaps, for a visit with dad.
(g) The disintegration of their former family unit has exacerbated the drastic reduction in contact they had with their younger (half) siblings when they were moved to Sault Ste. Marie. B.1 and B.2 miss their siblings and want more frequent and longer sibling contact.
[31] Additional Changes in Circumstances
From a less specific perspective, there have been the following additional developments by way of changes in circumstances:
(a) The Sudbury society has apparently obtained a section 80 order against the father, but the evidence is conflicting as to what it actually restrains and whether it is still in effect.
(b) The mother of B.1 and B.2 has lost custody as a result of the society's apprehension. Her circumstances have changed primarily in that she now has access rather than custody. She had not done well to address her problems, and then fell victim to a brain cyst or tumor that she fortunately survived, but which hospitalized her for a long time, and affected her in ways still unknown.
(c) The society has claimed Crown wardship of B.1 and B.2 in the present status review, with access to both parents, but with no mention of any claim for sibling access to, or by them, or for access to, or by their former (step)mother, J.
(d) The society has prohibited the present foster parents to permit the father to have contact with B.1 and B.2 without prior society approval.
(e) The father still cannot legally drive. His reliance on J. for transportation for access visits in Sault Ste. Marie is ended. His adult daughter, Rhya, is supportive, but apparently cannot substitute fully as a replacement chauffeur. The father's alternate proposed driver (Ms. Emma Martin) was put forward only recently, and without prior notice to the society, that she was also being proffered as a supervisor for his access.
(f) The father's residence in Sudbury is, according to the actual evidence available on this motion, totally unsuitable for exercise of paternal access in Sudbury. I presume, but am unsure if this is the former family home. At the hearing of this motion, the father proposed a new residential address for the site of such access. This is a location about which nothing is known by the court (or apparently by the society).
(g) Finally, the father is a regular and chronic user of marijuana. This has not changed. What has developed is that his intentions to stop using, and efforts to quit, have been unsuccessful. He has provided a hair follicle sample testing positive for cannabis at a level interpreted to be consistent with smoking three to five marijuana joints per week (as of August 2013). The evidence does not support any inference that he uses or abuses any other drugs. However, he has not obtained a drug/alcohol assessment which the society recommended that he do.
[32] Society's Unilateral Implementation
The only other, and possibly the main development, since the existing order was made, has been the unilateral decision of the society to set the parameters of paternal access (as described in paragraph [26], supra). Other than with respect to location (which was limited to Sault Ste. Marie and subject to approval of the society), the order of November 1, 2012 made no mention of times, frequency or duration. The order provided that the access was to be "reasonable", and "on reasonable notice", presumably to the society by the father. It contained no provisions for advance confirmation of access for any visits, and no provision for cancellation or suspension of access by the society.
[33] Threshold Crossed
The change in circumstances threshold is clearly crossed. What changes should be made to paternal access?
[34] Judicial Guidance
There is judicial guidance for this in the Act. It is the words of section 37(3); the circumstances the court must consider when directed to make an order in the best interests of a child. This provision is more helpful in deciding whether there should be access between a child and someone else. It is much less helpful in deciding what form that access should take.
[35] Society's Position
In the present case, the society opposes the father's motion claim to vary his access. It argues that the present paternal access order should continue unchanged. Implicit in the society's position is the suggestion that the society should be given the maximum discretion to determine the parameters of this access, and to adjust those parameters if and when circumstances change over time to warrant some adjustment.
[36] Society's Arguments
The society argues, in fact, that there has not been the change in circumstances that justifies changing the order on any basis, interim or otherwise. It points to expectations of the society set out in its plan of care filed in the child protection proceeding in which the existing paternal access order was made. The father, it argues, has not complied with the society's expectations in a society plan of care. In particular, it argues, he has not completed a drug/alcohol assessment, he has not completed a domestic violence (Partner Assault Response – PAR) program; he has not attended for any mental health assessment with a psychiatrist, and perhaps his greatest deficiency is his ongoing refusal to acknowledge that he assaulted J.
[37] Court's Assessment of Society's Position
I have some difficulty with the society's stance on paternal access. Firstly, the society can include whatever expectations it wishes in its plan of care. Just because it lists a number of expectations of a person does not mean that such person is under any obligation to comply with such expectations. In fact, the only thing the statute requires of the society's plan of care is that it be in writing, that it be filed, and that the court consider it before making any final order.
[38] Plan of Care Evidence
Secondly, there is no actual plan of care from the prior proceeding filed in the present status review. There is some society evidence as to society expectations of the father. However, it is unclear if these come from a plan of care in this court, or from one in a case in the Sudbury court.
[39] Father's Compliance Efforts
Thirdly, the father has done some things that address some of the protection concerns he presented. He has provided hair follicle samples to the society for analysis (which has, in fact, been done). He did have an assessment with Dr. Valliant, a psychologist. It is not particularly important that he did so by way of a referral from his probation officer. It is more important that he did it at all, and that the report is available to this court. It is equally unimportant that he was not assessed by a psychiatrist. There was no indication of a psychiatric condition affecting the father, and no mention of any in the psychological report filed. If the society wanted him to be assessed by a psychiatrist, it should have told him so explicitly. Perhaps it should have sought an order under section 54 of the Act if it felt so strongly about the state of his mental health. The father also had one-to-one counselling with psychologist to address stress and anger management in lieu of a domestic violence program. This was apparently with approval of his probation officer. The society's evidence suggests that he had attended a PAR Program several years ago.
[40] Addressing Prior Concerns
Clearly the three issues relating to the father mentioned by Gregson J. when she made the existing paternal access order have been addressed. The anger management by assessment and counselling; the domestic violence by stress/anger management counselling, and the fact that the father is no longer living in a domestic relationship with any partner. Finally, the Sudbury child protection proceeding is apparently concluded, and all criminal court involvement is over. The father appears to be complying with probation conditions and exercising access regularly and without incident with all of his children.
[41] Reasonableness of Access
I agree with the father that the society's unilateral decisions with respect to his access do not permit him to have "reasonable access" to B.1 and B.2. While there may have been more justification in imposing tighter restrictions on his access in the past, this is no longer the case. In fact, some of these are to the point of being unfair, not only to the father, but also to those children.
[42] Global Review
A global review of the case involving B.1 and B.2 starts with their apprehension. This was from the care of their mother and was in Sault Ste. Marie. The father lived three hours away. They were not, and had not, been in his care and custody for almost a year. He had become an access parent to B.1 and B.2. There was no particularly significant problem with his access with them. The evidence in this case is largely about the mother, and the child protection concerns that emanated from her and her circumstances. It is not clear that the finding of B.1 and B.2 to be children in need of protection in the order of November 1, 2012 had much, if anything, to do with their father.
[43] Ongoing Parental Access
The present status review is for Crown wardship, but also seeks an order for parental access by both mother and father. Accordingly, parental access is expected to be ongoing in the lives of B.1 and B.2, even following a final resolution of this status review case. This is a consideration on the question of access between the present and the final resolution.
[44] Factors Impacting Access
Before dealing with what changes should be made to the paternal access order, the court must necessarily look at the factors that impact on such access. These are:
(a) the children are in school and have extracurricular interests;
(b) the father resides 300 kilometers away from the children;
(c) the father relies on others for transportation;
(d) the mother is also a parent with access rights;
(e) the society's intent is to supervise all paternal access;
(f) the father has no evidence of a satisfactory home in Sudbury.
[45] Christmas Travel Plans
These limitations constrain what access the father can actually exercise. An additional factor is a plan for travel with the foster parents for Christmas 2013 to San Francisco, a plan that I do not wish to disrupt by any order that I make.
[46] Extracurricular Activities
Society prohibition of the father from attending extracurricular activities of either B.1 or B.2 I find highly questionable. The father should be able to attend any venue that the general public can attend. The society is given some say in "access" that the father exercises. This is not "access", and the society has no business prohibiting his attendance at his children's public activities.
[47] Maximization of Contact Principle
There is a principle that promotes the maximization of a child's contact with that child's non-custodial parent. This principle is often cited in domestic family law cases but is equally appropriate in the context of a child protection case and does provide "best interests of the child" as a guide.
[48] Current Implementation Not in Best Interests
The result is that the society's current and proposed implementation of the paternal access order presently in force results in a situation that is not in the best interests of these children. It fails to promote adequately the parent-child relationship of B.B. with B.1 and B.2. It does not acknowledge the maximum contact principle. It is over-controlling in its effect. It does not sufficiently acknowledge the preferences of these two children. The society also minimizes changes that have taken place since the order was made that call out for expansion of paternal access. The risk of harm during paternal access is not as significant a factor as it was a year ago.
[49] Practical Considerations
The practical problem still remains of what specific paternal access terms are appropriate to make. One change that is needed is some specification of times, frequency and duration as the society is not moving away from three hours bi-weekly otherwise. Another is with respect to location. Restriction to a supervised access centre is no longer justifiable having regard to the multitude of changes listed previously in these Reasons. The father has not provided satisfactory evidence of a suitable location in Sudbury. Nor am I satisfied that he has suitable and reliable transportation arrangements in place. Accordingly, his access visits will necessarily have to continue in Sault Ste. Marie. They do not, however, have to be restricted to the society's access facility. The children do not want this any longer and it is not necessary from a child protection view point that it be restricted to this location.
[50] Daytime Access with Progressive Increases
My inclination is to permit daytime access for progressively increasing durations, starting in early 2014, with a proviso that the father will provide a detailed itinerary of his proposed access in advance of each visit. This can start at three hours increasing by one hour each visit to a maximum of eight hours. If he has a cell phone, I would include an access condition that he and/or the children be reasonably accessible by the society by telephone during periods of paternal access.
[51] Frequency of Access
Frequency of paternal access visits poses a problem which I cannot address. It requires more information from the mother, the children, the father and the society. For the time being, I would continue paternal access visits at a minimum on a bi-weekly schedule. I would recommend mediation on this aspect of paternal access if the parties cannot agree.
[52] Foster Parents' Role
I see absolutely no reason why the foster parents of the children cannot assist in the implementation of paternal access in any way in which they are comfortable, either in Sault Ste. Marie or in Sudbury, even in the role of access supervisors of some or all of the father's access.
[53] Other Forms of Contact
In today's world, I see no reason (except financial) to prevent other contacts between father and children. By this, I mean by telephone or e-mail or letter. Frankly, I do not see what risk of harm this form of access might present on the evidence in this case. There would have to be some reasonable limits considered since the children live in a foster home and attend classes at school.
[54] Supervision of Access
Supervision of paternal access with these two children presents somewhat of a problem. Supervision of parental access is not intended to be long term unless there is a good reason otherwise. This applies to access in child protection cases as much as in domestic family cases. The supervised access notes show no incident causing any great concern in the father's visits with B.1 and B.2 to date. This argues more for reduction in supervision than for arguing that it was supervision that led to lack of incidents. Otherwise, supervision would continue perpetually.
[55] Discretionary Supervision
There are some aspects of the father's conduct not only towards domestic partners (at times in the presence of children) but also towards children themselves that may justify some degree of supervision. This makes me reluctant to make all paternal access supervised. I would be comfortable with permitting the society to supervise whatever portion of paternal access it may wish to supervise at whatever level of supervision it feels advisable. This might involve an access supervisor attending with the father and children in various places in the community, perhaps difficult, but not impossible with a detailed itinerary.
[56] Overnight Access
Finally, I would permit overnight access only with the approval of the society. The father would have to present a much better and more detailed plan to persuade the court to order overnight visits.
[57] Parties to Reach Agreement
The children are travelling over the Christmas season with their foster parents. My expectation of the parties is that they will arrive at mutually agreeable terms of paternal access by the new year. Should they be unable to do so, I will make an order for interim paternal access based on the current evidence available.
Released: December 17, 2013
Justice John Kukurin, Ontario Court of Justice
Footnotes
[1] Written child protection decisions are subject to editing prior to being reported. Ostensibly, this is done to protect the child or children who are the subjects of the case from being identified. Perhaps, also for protection of the privacy interests of the parties. Unfortunately, the manner usually chosen to implement these objectives is to substitute initials for names. This makes the decision awkward to read, sometimes confusing, and, in the view of this writer, irritating to the reader. To maintain the objectives of protecting the child or children and any privacy interests, while preserve some literary integrity and still communicating what is intended to be communicated, pseudonyms are substituted where other editors might use initials. In other words, the names of the characters (except the society) are made up names.
[2] J. and B.B. were never legally married but lived in a common-law relationship for about ten years and have eight children together.
[3] S. 58(1) The court may, in the child's best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
[4] S. 58(2) Where a child is in a society's care and custody or supervision,
(a) the child;
(b) any other person, including, where the child is an Indian or a native person, a representative chosen by the child's band or native community; or
(c) the society,
may apply to the court at any time for an order under subsection (1).
[5] In the domestic family context, the Children's Law Reform Act (CLRA) requires in its section 29, as a prerequisite for a variation of a custody or an access order, a material change in circumstances that affects or is likely to affect the best interests of the child.
S. 29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
[6] In particular the following subrules:
R. 14(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.
R. 14(19) The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.
[7] S. 50(1) Despite anything in the Evidence Act, in any proceeding under this Part,
(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and
(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.
[8] S. 37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
[9] Unknown is what order for paternal access was made by Keast J. when he made a s.57.1 custody order in favour of the mother C.P. on August 27, 2010. It is almost inconceivable that no paternal access order would have been made contemporaneously with the custody order. Although considerable documentary material from Sudbury has managed to find its way into the continuing record in this case, no one has produced to this court a copy of this fairly important order, much less the Reasons for it. From the evidence that is filed, it seems a fair inference that the father, B.B., exercised some access to B.1 and B.2 before they were apprehended, and that this access was not supervised.
[10] S. 1(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.
[11] This order is mentioned in the evidence of the society but no copy of this order is produced.
[12] At Tab 10, paragraph 30.
[13] Divorce Act S. 16(10)
[14] For example, getting angry at his child whom he allowed to steer a car in motion, following a collision.