Case Summary

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