WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
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, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re 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) Prohibition re identifying person charged.
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.
142.— (3) Offences re publication.
A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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
Date: July 2, 2020
Court File No.: C20619/18
Ontario Court of Justice
Between:
Catholic Children's Aid Society of Toronto (Applicant)
Karen Ksienski, for the Applicant
- and -
C.P.I. and R.S. (Respondents)
Deborah L. Stewart, for the Respondent, C.P.I.
Nancy Q. Chaves, counsel for the Respondent, R.S.
J.A.S.I. – Party for the Purpose of This Motion
Margarida Pacheco for J.A.S.I., a party for the purpose of this motion
Heard: June 26, 2020
Justice S.B. Sherr
Endorsement
Part One – Introduction
[1] This is the court's decision regarding motions to change the respondent C.P.I.'s (the mother's) access to her 5-year-old son (the child) on a temporary basis, within this status review application.
[2] The existing access order for the mother, dated February 9, 2019 (the existing order), was reached at the conclusion of the protection application. It sets out that the mother's access to the child will be as agreed to by the society and the mother, taking into consideration the wishes of the child. It also states that upon obtaining a psychiatric evaluation or commencing counseling consistently, the level of supervision, frequency and location of access will be reviewed or subject to court order.
[3] The mother seeks a temporary order that specifies her access with the child. She is seeking unsupervised access a minimum of twice each week, including on Wednesdays from 5 p.m. until 8 p.m. and on Fridays from 6 p.m. until Saturdays at 7 p.m.
[4] The Catholic Children's Aid Society of Toronto (the society) supports the mother's motion.
[5] J.A.S.I. is the mother's father (the maternal grandfather). The child has been living with him since April 23, 2018, subject to orders of society supervision. He opposes the mother's motion and has brought his own cross-motion to change the existing order. He asks that the mother's access now be in his discretion and that at this time it be restricted to virtual contact because of safety concerns arising from the COVID-19 pandemic (the pandemic).
[6] The respondent R.S. is the child's father (the father). He opposes the mother's motion and supports the maternal grandfather's motion.
[7] The motions were heard by teleconference.
[8] The court read two affidavits from the mother, two affidavits from the maternal grandfather, an affidavit from the father and an affidavit from a society worker.
[9] The parties agreed that the existing order is no longer in the child's best interests and needs to be changed. The issue for this court to determine is what access order is now in the child's best interests. In making this determination, the court needs to decide:
a) Should the mother's access be supervised, and if so, who should supervise it?
b) Due to the pandemic, should the mother have in-person access with the child?
c) If so, what access schedule and terms are in the child's best interests?
Part Two – Brief Background
[10] The child is the last of three of the mother's children who have been before the court. The child's two siblings, now ages 17 and 12 (the two older children), have previously been placed in the custody of the maternal grandfather, pursuant to orders made under section 102 of the Child, Youth and Family Services Act, 2017 (the Act). The two older children have different fathers than the child's father.
[11] The mother had charge of the child and her now 12-year-old child prior to society intervention in April 2018. Her now 17-year-old child was already living with the maternal grandfather.
[12] On April 23, 2018, Justice Robert Spence placed the three children in the temporary care of the maternal grandfather, subject to society supervision. Justice Spence also ordered that the mother's access be in the society's discretion.
[13] The major protection concern was that the mother was manipulating her children (including an adult child) into making false sexual abuse allegations against the father and the father of her now 12-year-old child. Both fathers were criminally charged. There were also protection concerns arising from conflict between the mother and the two older children.
[14] The mother's access to the child was initially supervised by the society. It increased to community access by the end of May 2018. However, in September 2018, the visits returned to the society office due to concerns that the mother was undermining the maternal grandfather by speaking negatively about him to the three children.
[15] On February 5, 2019, the child was found to be a child in need of protection and placed in the care and custody of the maternal grandfather for 6 months, subject to society supervision. The existing access order was made. The parties and the maternal grandfather consented to this order.
[16] The mother's supervised visits at the society's office continued until April 2019, when they increased to community visits, with check-ins at the society office.
[17] In September 2019, the society held a meeting with the parties and the maternal grandfather. It was agreed that the mother's access would be increased and be fully unsupervised. Exchanges would be conducted directly between the mother and the maternal grandfather.
[18] At a court appearance on January 14, 2020, the court was advised that the mother's access was progressing well and would be further increased. The case was adjourned to have an all-parties meeting (to include the maternal grandfather).
[19] This meeting took place in February 2020 and it was agreed that overnight visits would begin one night on each weekend once the mother obtained her own self-contained apartment.
[20] The mother obtained new housing and two overnight visits took place on March 6 and March 13, 2020. Then the pandemic started.
[21] The mother initially agreed to restrict her visits to virtual contact with the child once the pandemic began. However, by the end of May 2020, she sought a resumption of her in-person access. The society agreed with her.
[22] The society sent the maternal grandfather a letter on May 29, 2020 stating that the mother's overnight access was to be reinstated as of June 5, 2020. The society set out conditions (that the mother had agreed to) to ensure compliance with COVID-19 health protocols.
[23] On June 4, 2020, counsel for the society sent an email to the maternal grandfather's counsel. This email addressed concerns raised by the maternal grandfather and also set out a clear expectation that overnight visits would begin on June 5, 2020 and that there should also be a weekday visit each week from 6 p.m. to 8 p.m.
[24] The maternal grandfather refused to give the mother in-person access.
[25] The mother moved by Form 14B for leave to bring an urgent motion to change the existing order. This was granted. The maternal grandfather subsequently moved by Form 14B to bring his motion to change the existing order. This was also granted.
Part Three – Positions of the Parties
3.1 The Mother
[26] The mother believes that it is in the child's best interests to restore her access to what had been in place prior to the pandemic. She also feels that a specified access order is required because the maternal grandfather is non-compliant with the existing order.
[27] The mother submits that she has made many gains since April 2019. She has had stable employment and housing and has consistently exercised her access in a positive manner. She has followed through and engaged with service referrals by the society.
[28] The mother states that she has a close relationship with the child that should be fostered. She hopes that the child will eventually live with her again.
[29] The mother expressed her appreciation for the maternal grandfather caring for her three children. She denies that she has criticized him or the father to any of the children since she resumed her community access in April 2019. She believes that the maternal grandfather is often negatively influenced towards her by a woman who is living with him.
[30] The mother states that the father even opposed her having virtual contact with the child and did not permit it until later in May 2020. He only permitted telephone calls.
[31] The mother claims that she is vigilant about compliance with COVID-19 health directives. She believes that the father and the maternal grandfather are using the pandemic as a litigation tactic to reduce her time with the child and undermine her claim to have the child returned to her care.
[32] The mother denied a host of allegations made by the maternal grandfather and the father.
3.2 The Society's Position
[33] The society supports the mother's position.
[34] The society agrees that the mother has made many gains since the spring of 2019. It recognizes that the mother has had positive access with the child and that this relationship is very important for the child.
[35] The society states it is very sensitive to the protection risk of the mother trying to undermine the child's relationship with the father and the maternal grandfather and is satisfied that this has not been taking place since the mother's community access resumed in April 2019.
[36] On the other hand, the society is concerned that the maternal grandfather and the woman living with him are not being supportive of the child's relationship with the mother.
[37] The society states that it has investigated concerns raised by the maternal grandfather and is satisfied that the access proposed by it and the mother should still take place.
[38] The society states that the maternal grandfather is now refusing to meet to discuss the mother's access – he says that he will only deal with this matter in court.
[39] The society submits that it is in the child's best interests to change the existing order to make access specified, foster the child's relationship with the mother and ensure compliance by the maternal grandfather.
[40] The society recognized the valuable role that the maternal grandfather has provided for the three children. However, due to his complicated relationship with the mother, it does not feel he has the perspective or insight to exercise discretion over the mother's access in the child's best interests.
3.3 The Maternal Grandfather's Position
[41] The maternal grandfather feels that the existing order needs to be changed as the society is not exercising its discretion in the child's best interests.
[42] The maternal grandfather feels that he is best suited to determine what access is best for the child. At this time, he feels that the mother's access should be supervised. He states that this position has nothing to do with the pandemic. However, given that there is no one suitable who is available to supervise access during the pandemic, he feels that it must take place virtually.
[43] The maternal grandfather believes that the mother is dishonest and manipulative. He believes that she was making derogatory statements to the child about him and the father when she was exercising access. He fears that the mother will repeat her pattern of putting the child up to making false allegations against them if unsupervised. He does not trust her.
[44] The maternal grandfather believes, based on what the child has told him, that the child has been left alone at visits, stayed out late at restaurants, saw a man sleeping with the mother on an overnight visit, was told bad things about him and the father, and was told not to repeat them to him.
[45] The maternal grandfather believes that the mother does not properly supervise the child, exposes him to strange men and permits the child to play violent video games on his own.
[46] The maternal grandfather has lost confidence in the society. He believes that they have not taken his concerns seriously and that his concerns have not been properly investigated. He believes that the society takes the mother's word over his.
[47] The maternal grandfather submitted that the child's behaviour deteriorates the more he sees the mother and improves the less he sees her. He says that this applies to his behaviour both at home and at school. He fears that the child's behaviour will regress and that he will suffer emotional harm if he has unsupervised access with the mother. The maternal grandfather submitted that the child's distress and behaviour is his way of communicating his concerns about being alone with the mother.
3.4 The Father's Position
[48] The father supports the maternal grandfather's position.
[49] The father says that the child has made statements to him that indicate the mother is maligning him. He worries that the mother will attempt to undermine his relationship with the child and manipulate the child into making false allegations against him.
[50] The father says that he has no confidence that the mother will comply with COVID-19 health directives and that she will put the child at risk of physical harm.
Part Four – Legal Considerations
4.1 Statutory Considerations
[51] The authority to change an access order is contained in subsection 104(1) of the Act. This subsection reads as follows:
Access order
104 (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.
[52] Subsection 74(3) of the Act sets out that where a court is directed to make an order or determination in the best interests of a child, it shall,
(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child's physical, mental and emotional level of development,
(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child's cultural and linguistic heritage,
(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,
(vi) 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,
(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,
(viii) 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,
(ix) the effects on the child of delay in the disposition of the case,
(x) 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, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
4.2 Changing a Final Protection Order on a Temporary Basis in a Status Review Application
[53] Section 104 of the Act (formerly section 58 of the Child and Family Services Act) does not preclude the court from varying a final order for access on an interim basis. See: Children's Aid Society of Algoma v. A.B., 2012 ONCJ 351, (Ont. C.J.), per Justice John Kukurin.
[54] In Children's Aid Society of Algoma v. C.P., 2013 ONCJ 740, the court wrote that there must be a comparison of the current situation to the situation at the time of the original order when changing a final protection order on a temporary basis during a status review application. The change does not necessarily have to be material but there needs to be a change in circumstances based on the best interests of the child. 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).
[55] In Children's Aid Society of Brant v. A.H., 2020 ONCJ 49, Justice Aubrey Hilliard wrote at paragraphs 23 and 24 of her decision:
[23] On a status review application, just as in protection applications, the Court must balance and consider the need to maintain the status quo, for the stability and predictability of the child(ren), while not creating an insurmountable barrier for parents to overcome prior to requesting a review of a temporary order placing children in the care of the Society.
[24] Child protection proceedings are fluid by nature, and courts must recognize and contemplate the potential for parents to make positive changes in order to remediate the protection concerns that resulted in their children being removed from their care.
[56] In Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784, in hearing a motion to change access during a protection application, this court wrote at paragraphs 79 and 80:
[79] In a constructive child protection case, access is constantly being re-evaluated. Where it can safely be done, access should be gradually increased. This not only improves the parent/child bond, but gives the court some basis to assess whether the parent is capable of parenting the child on a full-time basis. In child protection cases, full family reunification is often achieved one hour at a time.
[80] This means that if the level of access is in dispute, the court should be receptive to access change motions. The goal should be to gradually increase a parent's access. Material change or compelling evidence that is necessary for the child to make the change should generally not be required. The Act is remedial legislation. It would be contrary to the purpose of the Act to construct a legal test to change access that is too onerous for parents to meet, discourages them from moving to court to increase their access with the child and sets up more families to fail.
These comments also apply to access issues in status review applications.
4.3 Supervised Access
[57] The principle of maximum contact between a parent and a child, subject to the child's best interests, applies to child protection cases. See: Children's Aid Society of Algoma v. S.P., 2011 ONCJ 93; Catholic Children's Aid Society of Toronto v. Z.Y.J., 2017 ONCJ 353.
[58] In C.A.S. v. C.F., 2020 ONSC 3755, Justice Heather McGee discussed supervised access in the child protection context at paragraphs 32 to 34 as follows:
[32] Access is the right of a child. As stated by Justice Blishen in V.S.J. v. L.J.G., "there is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances."
[33] A child's right to access with a parent invites a further layer of complexity in a child protection proceeding. Court must engage in a careful balancing of the benefit of a parent's care, the specific risk of harm to the child while in that parent's care, and the measures in place for risk reduction.
[34] Supervised access is a critical tool in that engagement. Supervision provides a safer bridging period during which parental deficits can be assessed and whenever possible: repaired. Supervised access is clearly indicated when parenting judgement is impaired, there is a history of violence and other harmful behaviour directed toward the primary caregiver and/or evidence of abuse or neglect of the child.
[59] Supervised access is not intended to be a long-term arrangement for a child. It is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm. See: Najjardizaji v. Mehrjerdi, 2004 ONCJ 374.
[60] In M.A. v. J.D., Justice Robert Spence wrote that the party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction.
4.4 Suspension of In-Person Access During the Pandemic
[61] In CAS v. J.N., 2020 ONSC 2999, Justice Diana Piccoli set out the legal principles that have developed regarding the suspension of in-person contact during the pandemic as follows:
General Legal Principles
[61] It is clear that since COVID-19 the court has found that there is no presumptive authority extended to the Society to suspend all in-person access to parents without formulating some alternative measures. See: DCAS v. Quinn, 2020 ONSC 1761; and Children's Aid Society of Toronto v. T.F., 2020 ONCJ 169, at para. 10.
[62] In Ribeiro v. Wright, 2020 ONSC 1829, Justice Pazaratz set out the following:
a) In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to — including strict social distancing.
b) A blanket policy that children should never leave their primary residence — even to visit their other parent — is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.
c) In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14-day-period as a result of recent travel; personal illness; or exposure to illness).
d) In some cases, a parent's lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child's household) to any COVID-19 risk.
e) The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
f) The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to — including social distancing; use of disinfectants; compliance with public safety directives; etc.
g) Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
h) Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
[63] Although Ribeiro is not a child protection matter, the guidelines are applicable. See: Simcoe Muskoka Child and Youth Family Services v. JH, 2020 ONSC 1941, at para. 6.
[64] In the current exceptional circumstances, the benefit of ongoing in-person contact must be weighed against any risk to the child and to his or her caregivers. See: Children's Aid Society of Toronto and O.O and J.G-L, 2020 ONCJ 179, at para. 69.
[65] The onus is on the party seeking to restrict access to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID 19 protocols and expose the child to risk. See: Tessier v. Rick, 2020 ONSC 1886, at para. 12.
[66] A parent is not permitted to simply engage in self-help, or to interpret public health directives as a license to terminate parenting time. If the parent fears that the current routine may compromise their child's well being, or the health of a person in the home, then the parent must provide specifics and bring a motion to change the order. See: Ahmadi v. Kalashi, 2020 ONSC 2047, at para. 8.
[67] As Justice Sherr states in C.L.B. v A.J.N., 2020 ONCJ 213, at para. 31:
Medical evidence is important on these COVID-19 motions. If someone is seeking to suspend a person's face-to-face contact with a child due to the child's medical vulnerability, a medical report should be provided setting out the child's medical condition, any increased vulnerability the child has with respect to the COVID-19 virus and specific recommendations about additional precautions that are required to protect the child from the virus.
[69] Parents cannot ignore the other parent's inquiries about how they would comply with government directions. All levels of government in Canada, national, provincial and local have issued public health notices dealing with preventing infection, which include guidelines for physical distancing, and, where appropriate, self-isolating. Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. See: Balbontin v. Luwawa, 2020 ONSC 1996, at para. 11.
[62] It is clear that the pandemic, standing alone, is not a reason to suspend parental access, particularly where there is evidence to indicate that appropriate precautions are being taken to avoid exposure to infection. See: Thibert v Thibert.
[63] In Children's Aid Society of Halton v. R.O., 2020 ONCJ 209, Justice Susan Sullivan found that video contact is a poor substitute for in-person access visits for younger children.
[64] In Lee v. Lee, 2020 ONSC 2044, the court stated that in the face of anxious and distressing times, any child will most benefit from the love, connection and support shared with both parents so long as it is all done safely.
Part Five – Child's Statements
[65] In support of their protection concerns, the maternal grandfather and the father heavily relied on the truth of the child's statements they allege were made to them.
[66] The Supreme Court of Canada decision in R. v. Bradshaw, 2017 SCC 35, provided a synthesis and reorganization of the law pertaining to the admissibility of hearsay statements. The court discussed that the dangers of hearsay can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) – Bradshaw at para. 27.
[67] Procedural reliability is established when "there are adequate substitutes for testing the evidence", given that the declarant has not stated the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement – Bradshaw at para. 28.
[68] A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement – Bradshaw at para. 30.
[69] The two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive and "factors relevant to one can complement the other" – Bradshaw at para. 32.
[70] The father and the maternal grandfather did not set out an evidentiary foundation to establish either procedural or substantive reliability for the child's statements as set out in Bradshaw. This evidentiary foundation is essential if the court is going to place any weight on these statements.
[71] While no party asked the court to address the admissibility of the child's statements on the motions, the principles set out in Bradshaw remain important to assess how much weight to place on them. Statements that do not even meet threshold reliability should be given little, if any, weight on a motion. That is the case here. The child's statements do not meet threshold reliability – procedurally, substantively or combined. They are not inherently trustworthy.
[72] With respect to procedural reliability:
a) The child's statements were not made to independent professionals.
b) The father and the maternal grandfather did not take any notes of the statements, let alone contemporaneous notes, as most professionals are required to do.
c) The father did not set out times and dates when the child made the purported statements to him.
d) The father and the maternal grandfather did not set out what questions they asked the child, or what conversations led to the child making the purported statements. Little or no context was provided for these statements. The court has no ability to assess if the child was prompted or asked leading questions.
e) There is no way to assess if the child's statements were spontaneous.
f) There were no adequate substitutes for testing this evidence and for the court to be able to rationally evaluate the truth and accuracy of the statements.
[73] With respect to substantive reliability:
a) The father and the maternal grandfather are not independent and have a vested interest in the outcome of these motions.
b) The father and the maternal grandfather are fearful that the mother may make false allegations about them. They may not have the perspective to properly interpret the child's statements.
c) The child is very young and has behavioural issues. He is likely facing considerable pressure to please the adults in his life. Any statements he makes must be examined in this context. Even if his statements had been made to experienced and independent professionals, the court would be treating his statements with caution.
d) The child's statements aren't inherently trustworthy. There are alternate explanations for the statements – the maternal grandfather or the father might not be telling the truth, or they may be incorrectly interpreting the statements to fit their perception of the mother and narrative of this case.
e) The court is concerned that the father and the maternal grandfather are engaging the child in discussions of this nature.
Part Six – Analysis
6.1 Changing the Existing Order
[74] The parties all agreed (although for very different reasons) that changes in the child's circumstances that have taken place since the existing order was made dictate that it is no longer in the child's best interests and needs to be changed.
[75] The court agrees with the parties. The existing order is no longer in the child's best interests.
[76] The following changes in circumstances warrant changing the existing order:
a) The mother has made many gains in her life since the existing order was made.
b) The mother's access had progressed gradually from fully supervised access to overnight access by March 2020 because of these gains.
c) The overnight access stopped because of the pandemic.
d) The maternal grandfather refused to comply with the existing order when the society directed that overnight access resume as of June 5, 2020.
e) The relationship between the society and the maternal grandfather has broken down.
f) There is a concern that the maternal grandfather is undermining the child's relationship with the mother.
g) A specified access order is required to ensure that positive access takes place in the child's best interests.
6.2 Is Supervision of the Mother's Access in the Child's Best Interests?
[77] The answer to this question is no.
[78] The mother has made significant gains since the existing order was made. In particular:
a) She has maintained stable employment for over two years.
b) She has stable and appropriate housing.
c) She has been very cooperative with the society.
d) She has followed through on referrals made by the society. She attended a psychological consultation, at the society's request, early in February 2020 and no concerns were noted about either her thought process or behaviour. She is connected with the Parkdale Queen West program and continues to work with her support worker, who spoke highly about her to the society.
e) She has consistently exercised the access given to her.
f) She had successful access for almost one year prior to the pandemic.
g) There is no reliable evidence to suggest that she has repeated her behaviour of manipulating the child into making false allegations or that she has been making derogatory statements about the father and the maternal grandfather to the child since community access started again in April 2019.
h) The society worker deposed that the mother consistently expresses her appreciation of the maternal grandfather. She has not seen any evidence of undermining behaviour by the mother since April 2019.
i) The mother placed the child's interests over her own by agreeing to suspend her in-person contact with the child for over two months.
[79] The maternal grandfather and the father did not come close to providing sufficiently reliable evidence to support an order for supervised access.
[80] The concerns set out by the maternal grandfather and the father often lacked detail and clear time frames.
[81] The maternal grandfather and the father provided no independent evidence to support their allegations. The maternal grandfather claimed that the child was struggling more at school whenever he had unsupervised access with the mother, yet he provided no evidence to support this from the school. The society worker spoke to the school. While there are some concerns about the child's behaviours, they were not significant.
[82] The maternal grandfather did not bring a motion to change the existing order until after the mother sought to enforce her access, despite his being actively involved in the case and having been represented throughout by experienced counsel. The father also has not brought a motion to change the mother's access. It makes the court question how serious their concerns are.
[83] Despite the maternal grandfather's allegations of the child having very negative behaviours when having unsupervised access with the mother, he never took any steps to obtain services for the child to address these problems. Again, it makes the court question how serious these concerns are.
[84] The maternal grandfather and the father consented to the mother having overnight access just one month before the pandemic. Many of the concerns expressed by the maternal grandfather in his affidavits pre-dated that consent. The maternal grandfather and the father would not have consented to overnight access if their concerns were serious.
[85] The court recognizes the important role the maternal grandfather has provided for the mother's three children. Without him, the three children would have likely been placed in society care. However, some of his actions cause concern about his judgment when it comes to the mother.
[86] The maternal grandfather made the unilateral choice to breach the existing court order. He did this instead of bringing the matter back to court. He used self-help. He resisted the mother having video access with the child. He is now refusing to meet with the society. The society has expressed concerns that the maternal grandfather and the woman living with him are not supportive of the mother's relationship with the child – he wants to revert to the access that took place 18 months ago, despite the mother's progress. He has taken the extreme position on this motion that he, alone, should determine the mother's access and it should only take place virtually at this time.
[87] The society worker deposed that she has investigated the concerns expressed by the maternal grandfather. In response to the allegation that the child is focused on guns because of playing violent video games at the mother's home, she went through both the mother's phone history and You-Tube history and found no violent games. Instead, she feels that the child's interest in guns is related to the maternal grandfather being a hunter, having taken the child hunting and having hunting guns in his home.
[88] The worker confirmed with the mother that on one occasion, in her old residence, the mother left the child alone in her apartment for five minutes to check on laundry downstairs. The mother assured the worker that this would not happen again. There is no evidence that it has. The mother now has a new apartment and does her laundry at a laundromat.
[89] The maternal grandfather alleged that when the mother picked up the child from him on March 13, 2020 for the overnight visit, there was a man he did not know in the car with her and that this man was also with the mother when the child was picked up on March 14, 2020. The mother denied this. Given reliability issues with both the mother and the maternal grandfather, the court cannot determine which version is true without cross-examinations. This decision does not turn on who is telling the truth about this. The mother agrees to a clause that no other men be present at her home on her visits with the child.
6.3 Should Face-to-Face Contact be Suspended Due to the Pandemic?
[90] The father focused his submissions on this issue. He does not believe that the mother can be trusted to follow government health protocols concerning COVID-19.
[91] Just because the mother is a parent in a child protection case does not mean that she is less likely to follow government health protocols than any other parent. Evidence needs to be provided that the mother is not following these protocols or is unlikely to follow them.
[92] Again, the father and the maternal grandfather fell far short in meeting their onus to establish this. No reliable evidence was provided that the mother is breaching government health protocols.
[93] The mother works in a bakery and she described in detail the enhanced safety protocols she is following: she does not take the TTC; she walks to work; she has no contact with the public in her job; she lives alone.
[94] The society is satisfied with the mother's pandemic precautions. It set out safety conditions for her to follow when access is restored. The mother readily agreed to them. The father and the maternal grandfather did not offer any further terms.
[95] The father and the maternal grandfather provided no medical evidence to support a finding that the child or anyone else in their households has any increased vulnerability to the virus.
[96] The father intimates in his affidavit that the mother is being selfish because she is asking for in-person access. He says that he has only seen the child virtually since the pandemic began. The court does not find the mother's request to be selfish. She was selfless in waiting this long to restore her access. She recognizes that this is a critical time in her relationship with the child. She had been making important progress in that relationship prior to the pandemic, working up from supervised to overnight access. It is important for the child for that positive momentum to continue.
[97] As Justice Susan Sullivan observed in paragraph 52 of Children's Aid Society of Halton v. R.O.:
If the child's access with his parents is relegated to being by video only, for an indefinite period of time, it is very likely that the maintenance and continued development of the parent/child bond will be negatively impacted. See: Children's Aid Society of Toronto v. S.S. and A.I., 2020 ONCJ 170, at para. 157.
[98] The child will benefit from having the comfort and connection with his mother that in-person visits provide during the anxious times of the pandemic.
[99] The court will order in-person access.
6.4 What Access Order is in the Child's Best Interests?
[100] The court finds that the specified access and terms sought by the mother and supported by the society are in the child's best interests for the following reasons:
a) A specified access order will provide clarity about access for the parties and the maternal grandfather.
b) The mother had made positive gains in her own life and in her relationship with the child prior to the pandemic.
c) Everyone agreed that the child loves the mother and enjoys his time with her. This important relationship needs to be fostered and supported.
d) The requested order will meet the objective of maximizing the child's access with the mother in a manner consistent with his best interests.
e) It is important that access not remain static and that access progresses in a safe and positive manner for the child.
f) The access proposed best meets the child's emotional and developmental needs to develop a positive relationship with the mother. Further delay in implementing a meaningful access regime is not in the child's best interests.
g) The court is satisfied that the mother can exercise this access safely.
h) The court is satisfied that the mother will comply with the terms of access that will be set out.
i) The court is satisfied that the mother will cooperate with the society monitoring the access. The society is very attuned to the risk, based on her past behaviour, of the mother trying to undermine the child's relationship with the father and the maternal grandfather.
j) A clear and meaningful access order will provide some protection against the child's relationship with the mother being undermined by persons in the maternal grandfather's home.
k) The access proposed is proportionate to the change in circumstances since the existing order was made.
[101] The court will order that no other person be present in the mother's home during her parenting time with the child, both as a safety precaution and to ensure that the mother's entire focus is on the child.
[102] The court will order the mother to follow all government COVID-19 health protocols.
Part Seven – Conclusion
[103] A temporary order will go changing the terms of access for the mother set out in the court's order dated February 5, 2019 as follows:
a) The terms of the mother's access contained in the February 5, 2019 order are terminated.
b) Starting on Wednesday July 8, 2020, the mother will have access to the child each Wednesday from 5 p.m. until 8 p.m.
c) Starting on Friday July 10, 2020, the mother will have access with the child every weekend from Friday at 6 p.m. until Saturday at 6 p.m.
d) The mother shall have such further and other access as agreed to by the parties and the maternal grandfather.
e) Access exchanges shall take place at Symington and Dupont outside the bakery unless the maternal grandfather and the mother agree to a different location.
f) The mother shall not have anyone else in her home during her visits with the child.
g) The mother shall not speak in a negative manner to the child about the maternal grandfather, anyone in the maternal grandfather's home, or the father.
h) The mother shall follow government orders and requirements as set out and as updated here:
[104] Notwithstanding rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so, and submit materials by Form 14B to the court.
[105] The court thanks counsel for their excellent presentations of the motions.
Released: July 2, 2020
Justice S.B. Sherr