WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

85.— (3) A person who contravenes subsection 45(8) (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 File and Parties

North Bay Court File No.: C324-12 Date: 2012-12-19 Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Nipissing and Parry Sound George Olah for the Applicant

— And —

T.L. Respondent Edward Rae for the Respondent

— And —

B.B. Respondent Joe Sinicrope for the Respondent

— And —

Mattawa/North Bay Algonquin First Nation Respondent

— And —

Office of the Children's Lawyer Respondent Serge Treherne, for the Children

Heard: December 17, 2012

Decision

Klein, J.:

Background and Procedural History

[1] On October 3, 2012, The Children's Aid Society for the Districts of Nipissing and Parry Sound brought an Application alleging that two children of these parents were at risk and likely to suffer physical harm by reason of a pattern of neglect in caring for, supervising or protecting the children under s. 37(2)(b)(ii) of the Child and Family Services Act.

[2] The children, namely: J.R.L.R.M.B., born […], 2007; and C.A.M.B., born […], 2010 were to be placed in the care of their mother, the Respondent, T.L. subject to the supervision of the Society and pursuant to terms and conditions contained in the Application.

[3] The Respondent father, B.B., was to have supervised access to the children as arranged by the Society.

[4] At the return of this Application before this court on October 3, 2012 and in the absence of the Respondent father, a without prejudice Temporary Order was made in the terms as requested by the Society. The matter was adjourned to October 17, 2012 to allow service upon the Respondent who was incarcerated at the time of the Application being brought.

[5] On the October 17, 2012 return date this matter was further adjourned to October 31, 2012 and an order was made requesting the assistance of the Office of the Children's Lawyer.

[6] The temporary order of October 3, 2012 was amended on October 31, 2012 permitting access for the Respondent father to be supervised by the father's sister, C.B.W. if approved by the Society until such time as the Respondent's motion for access could be heard on November 14, 2012.

[7] Again on November 14, 2012 and December 12, 2012 the hearing of the access motion was adjourned on consent until today's date being December 17, 2012 when it was before me.

Prior Related Proceedings

[8] The background to this matter is well known to me as I heard a motion under the Children's Law Reform Act on September 27, 2012 wherein the Applicant mother sought to cancel or restrict the Respondent father's access to the children. This motion was based on similar concerns that were brought in the Child Protection Application dated October 3, 2012. On the CLRA motion I denied the Applicant's request to cancel or restrict the Respondent's access to the children and re-instated the status quo. Before that decision could be prepared for release, the present Application was before the Court. In that written decision I described the relationship of the parties and members of their extended families as being one of "high conflict" and reviewed the law in relation to the making of orders on affidavit evidence alone that would change the status quo in custody and access matters. I determined that "the obvious discord between the parents and their eagerness to bring the misdeeds of each other before the court apparently [knew] no bounds" and urged the constant battling to stop. I made similar comments at the conclusion of the hearing of this motion given the obvious love and affection that these two little girls have for each of their parents. Perhaps on this occasion they will heed my urgings.

Grounds for Protection Concerns

[9] I must look at the reasons for the protection concerns that brought this Application before the court. The Child and Family Services Act requires the Society to set out the grounds on which it relies for a finding that a child or children are in need of protection. The allegations are that the Respondent father physically assaulted his step-son, E.L., and his daughter C.A.M.B.. Criminal charges were laid against the father in July 2012 and he was subsequently released on bail conditions which prevented his having contact with the children, J.R.L.R.M.B. and C.A.M.B., except pursuant to a valid family court order. Thus, I must conclude that the re-instatement of the status quo which existed prior to the bail order of August 7, 2012 triggered the bringing of this Application.

[10] The decision by the Society to return or maintain the children in the mother's home is in accordance with section 53(1) of the CFSA. They continue to supervise the mother and the children as they had done so on an informal basis since the July 2012 investigation of the allegations which form the basis for the Application. Terms and conditions were consented to by the mother and the Society in the absence of the father on October 3, 2012 which restricted his access to the children as it was to be supervised by the Society.

The Father's Motion for Access

[11] On December 17, 2012, the father brought this motion for unsupervised access to reflect the status quo that had existed in the custody and access dispute since the making of the consent order on July 14, 2011 was before this court.

[12] I heard argument from all parties including the mother's counsel, Mr. Rae, father's counsel, Mr. Sinicrope, children's counsel, Mr. Treherne and Mr. Olah for the Society. All focussed on the best interests of the children when urging that access should continue between the father and the children. The dispute centred around what form that access should take given the risks that had been identified by the Society. A number of issues arose from the arguments presented.

Analysis: Supervised vs. Unsupervised Access

[13] The father argued forcefully for a return to the unsupervised access that was the status quo from the time of the consent order of July 14, 2011. He urged that I should be suspicious of the nature of the allegations of July 2012 and the timing of those allegations. All other counsel argued that those allegations should be taken at their face value for the present and that supervised access was the only option available to me given the risks to the physical safety of the children. If those allegations are proven to be true and, in light of other unproven allegations as to the behaviour of the father, supervised access for the father would be the only prudent option available to the court. As I wrote earlier, 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. Supervised access is beneficial for children whose safety may require it in circumstances where access could not occur any other way. The allegations, as I mentioned above, raise sufficient concerns in my mind that to permit unsupervised access by the father at this point would be an unacceptable risk and not in the best interests of these little girls. His history of substance abuse and certain violent episodes in the past should and do lead me to have concerns about his judgment while with his daughters and the risk that such poor judgment puts them under.

[14] Having found that these children require some level of oversight while in the care of their father, I am left with the question as to how that supervision should be accomplished. The other concern that I raised during the hearing was the frequency with which these access visits could occur. Finally, I was left with the task of fashioning reasonable conditions that might provide a level of security for all concerned especially, J.R.L.R.M.B. and C.A.M.B..

Supervision Arrangements

[15] Argument by the father provided an alternative to unsupervised access being access at the house of the paternal grandparents. His mother, R.B., was offered as a suitable supervisor of his visits with the children. In the material before me, Mrs. R.B. admitted to having allowed J.R.L.R.M.B. to produce a drawing with the wording "ma ma Big ulgy (sic) Dummie (sic)" which was intended as a joke. When the Society worker, Kristine Smith, explained the emotional impact such behaviour would have upon young J.R.L.R.M.B., Mrs. R.B. agreed that such behaviour would not happen again. I will take her at her word and will not exclude her as a possible supervisor.

[16] All parties agree that it is in the best interests of the children to have contact with their paternal grandfather, G.B., who is suffering from a terminal illness and where opportunities for the girls to visit with him will be necessarily limited. In a moment that is unfortunately all too rare in these proceedings, the mother offered to have G.B. visit the girls at her home. I am advised that he did take her up on this generous offer on at least one occasion in the recent weeks. I was also advised that as G.B.'s health declines he will not be able to leave his home for such visits.

[17] In answer to my concerns about the frequency and length of the visits proposed to be supervised by the Society, Mr. Olah, in a "Field of Dreams" declaration advised me to order what I saw fit and the Society would therefore provide. As much as I would like to believe that such action would occur, I am not at all confident that the frequency and length of such visits could necessarily be accommodated within the constraints that all agencies operate at present.

Best Interests of the Children

[18] It is very apparent from the information that has been provided to me that J.R.L.R.M.B. cares greatly for her father and wishes to have more contact with him. She is aware of the purpose of access in a supervised setting and the role that a third-party supervisor plays in the access visits. She has expressed no fear or trepidation to the OCL counsel, Mr. Treherne, regarding visits with her father. Her teacher described no discernible change in her behaviour following her access. Frequent and lengthy periods of supervised access with her father would clearly be in her best interests. C.A.M.B. presents a different dilemma as she does not have the verbal ability to express her wants. She was clingy while with her mother during Mr. Treherne's visit. She attends and is comfortable in the supervised access visits to date. There is nothing to suggest that it would not be in her best interests to enjoy frequent and lengthy supervised visits with her father.

Order

[19] The "without prejudice" temporary order made by this court on October 3, 2012 shall remain in effect with the following amendments:

Terms and Conditions for B.B.

1. Supervision and Location

B.B. will have only supervised access to the children at the home of his parents G.B. and R.B. which visits shall be supervised by R.B.

2. Substance Abuse Restrictions

B.B. will not consume alcohol or non-medically prescribed drugs within 24 hours of each scheduled access visit or during such visit.

3. Compliance with Supervisor

B.B. will be amenable to the supervision and control of his mother, R.B., and will follow her directions during each access visit.

Access Schedule

1. Frequency and Duration

There will be supervised access to the children by the father, B.B., which shall be supervised by his mother, R.B., at the following times, bearing in mind the best interests of the children:

• a) Every 2nd Saturday from 10:00 a.m. to 5:00 p.m.
• b) Alternate Sundays from 10:00 a.m. to 5:00 p.m.
• c) Every Wednesday from 4:00 p.m. to 7:00 p.m.

2. Pick-up and Drop-off

The pick-up and drop-off of the children to accommodate these access visits shall be as directed by the Society.

[20] This matter shall be returnable before the Court on January 16, 2013 at 1:30 p.m.

Released: December 19, 2012

Signed: "Justice Lawrence J. Klein"