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.

ONTARIO COURT OF JUSTICE

CITATION: Children’s Aid Society of Toronto v. R.G., M.L., C.G. and K.L., 2019 ONCJ 169

DATE: March 19, 2019

COURT FILE No.: Toronto C91203/16

BETWEEN:

CHILDREN'S AID SOCIETY OF TORONTO Applicant,

— AND —

R.G.; M.L.; C.G.; K.L. Respondents

Before Justice Roselyn Zisman

Heard on March 14, 2019

Reasons for Judgment released on March 19, 2019

Chithika Withange ......................................................... counsel for the applicant society

G. Elizabeth Gaudet ......................................... counsel for the respondent R.G. (father)

Sheila MacKinnon ............................. counsel for the respondent C.G.(paternal uncle)

M.L. ......................................................................................... not attending, noted in default

Mary P. Reilly .............................. counsel for respondent K.L.(maternal grandmother)

Endorsement on temporary motion

Zisman, J.

Introduction

[1] This is a motion by the Respondent K.L. (“the maternal grandmother”) of the children O.G. who is 3.5 years old and G. who is 2.5 years old (“O.” and “G.” or collectively “the children”) to vary the temporary order of September 4, 2018 with respect to access by the Respondent C.G. (“the paternal uncle”).

[2] The maternal grandmother seeks to change the paternal uncle’s access from overnight to day access only. The motion is supported by the society and opposed by the paternal uncle and the father.

[3] At the conclusion of the motion due to the time of day and the fact that the parties were scheduled to attend assignment court shortly to set a date for trial, I advised counsel that I was granting the maternal grandmother’s motion and gave brief oral reasons and advised that written reasons would be provided. These are my reasons.

Background

[4] The society commenced a Protection Application in July 2016 with respect to the oldest child O. as both parents were addicted to drugs and were unable to parent their child. There were concerns about the father’s home environment, the use of drugs in that home and also concerns that the father had on more than one occasion been unable to follow the society’s expectations that resulted in concerns about the child’s safety. A temporary without prejudice order was made formalizing the placement of O. with the maternal grandmother where he had already been residing.

[5] The mother gave birth to G. on […], 2016 and that child was also placed in the care of the maternal grandmother. Since that time the mother has had limited contact with the children or the society.

[6] Findings of need for protection were made with respect to O. and G. on November 17, 2016 and on February 8, 2017 respectively. On April 19, 2017 on consent the children continued to be placed with the maternal grandmother for 3 months subject to supervision of the society and with access to the parents in the discretion of the society. The mother’s whereabouts were unknown and the father was exercising supervised access albeit on an inconsistent basis.

[7] Between April and July 2017, there was no contact with the mother and the father’s access was supervised once a week at the society’s office. In August 2017, the society agreed that access could take place overnight from Saturday to Sunday at the paternal family’s home as long as the father had clear drug screens.

[8] On September 22, 2017 the society brought a motion to restrict the father’s access due to the father’s positive test results on multiple occasions in August 2017 for amphetamines and methamphetamines. The father admitted that he had relapsed. The society also had concerns about the paternal extended family’s inability to support the father with his substance abuse, their refusal to openly acknowledge or discuss the issue and their failure to recognize the resulting safety concerns for the children. The society’s motion was granted and the father’s access was reduced to once a week to be supervised at the society’s office and access at the paternal family’s home was terminated.

[9] On December 5, 2017 the paternal uncle brought motion to be added as a party as he was now presenting a plan to care for the children. The order was granted giving him limited party status and he was granted access for a few hours once a week to be supervised by the paternal step-grandmother.

[10] There were several incidents where the family service worker Nancy Perkovic deposes that she needed to meet with the paternal uncle and father to warn them that they could not unilaterally change the access terms and needed to abide by those terms.

[11] On unannounced visits on two occasions on January 19th and March 9th, 2018 Ms Perkovic suspected that the father was present at the home of the paternal uncle while the children were present for a scheduled access visit. The father and uncle gave contradictory explanations for the father’s presence. Ms Perkovic was also concerned that the paternal uncle was evasive about the father’s drug use and she had concerns about his ability to control the father. Ms Perkovic questioned if either the father or the paternal uncle had the requisite insights into the safety risks to the children because of the father’s drug use.

[12] Despite these concerns and based on the father agreeing not to attend at the paternal uncle’s home while he was exercising access, the society and the maternal grandmother agreed to an expansion of access.

[13] On September 4, 2018 on consent of all parties, the paternal uncle was granted access every Friday with pick up between 2:00 p.m. to 3:00 p.m. at daycare and drop off at 7:00 p.m. at the maternal grandmother’s home and every Saturday from 8:00 a.m. to 7:00 p.m. with pick up and drop off at the maternal grandmother’s home. As a term of the access, the father was not to be present, except for G.’s birthday party and the paternal uncle was to provide a plan for his access in advance. The society was permitted to make announced and unannounced visits during access. It was further agreed that there would be further access as agreed. This provision was included with the goal of permitting expanded access to occur and to permit the father to be present at access visits without the necessity of a further court order.

[14] The parties scheduled a meeting for October 1st with the purpose of allowing the paternal uncle to expand his access to overnight and for supervised and structured access by the father. On September 14, 2018 the new family service worker, Kanjana Brodie approved the paternal uncle as a supervisor for the father’s access.

[15] However, prior to the October 1st meeting, the father told Ms Brodie that he had moved back into the home of the paternal uncle.

[16] At the all party[^1] meeting on October 1st the paternal uncle clarified that the father had not yet moved in but that the plan was for him to do so and the paternal uncle stated that he was able to supervise his brother’s presence in the home. The society advised that it would not agree to any expansion of access to the paternal uncle if the father was residing in the same residence. The paternal uncle stated that the father would not move back into the home if the society had a problem with it.

[17] After Ms Brodie confirmed that the father obtained his own residence, overnight access for the paternal uncle commenced in about mid-October. The access was from Friday between 2:00 p.m. to 3:00 p.m. pick up at daycare and return on Saturday at 7:00 p.m. to the home of the maternal grandmother.

[18] The parties met again on October 31st, 2018 and it was agreed that the father could be present at the weekend access between the paternal uncle and the children on the following conditions:

1. The paternal uncle supervise the father’s access with the children; and

2. The father not stay overnight in the home when the children were present.

[19] It is this agreement that the maternal grandmother seeks to vary. It is agreed that the parties entered into this agreement pursuant to the terms of the temporary order of September 4, 2018 that permitted the parties to agree to “such further and other access as may be agreed by all parties.”

[20] On September 4, 2018 on consent, an order was also made pursuant to section 102 CYFSA placing the children in the custody of the maternal grandmother. The order also contained provisions incidental to custody with respect to obtaining government documents and travel and terms with respect to the father and the paternal uncle’s being permitted to consult with and obtain information from third parties about the children.

Evidence of allegations of breaches of the agreement

[21] On Saturday December 8, 2018 the children made statements to both of their maternal great nieces, Ms S.L.-F. and Ms. J.L. indicating that they had slept with their father. Both nieces have a close relationship with the children and assist the maternal grandmother in caring for the children.

[22] Ms S. L.-F. deposed that the children were in her care Saturday following their Friday night to Saturday access with the paternal uncle. When she asked the children about the visit, O. said that he had slept with his uncle and G. slept with “Daddy”.

[23] Later on, on the same day, Ms J.L. asked the children about their visit with the paternal uncle and if they both slept with their uncle. O. replied “no” and that baby G. had slept with “Daddy”. Ms J.L. advised the maternal grandmother of these disclosures later that evening.

[24] The children stayed at the home of Ms S.L.-F. and she took them to daycare on Monday December 10, 2108. When the maternal grandmother picked up the children she asked them about their time at daycare and then about their visit with the paternal uncle. Both children said they played with their father. When the maternal grandmother asked who they slept with, G. responded “Daddy’” and O. said he slept with his uncle and that baby G. slept with “Daddy”.

[25] As a result of these disclosures and the maternal grandmother’s concerns that the paternal uncle was yet again not complying with the terms of the agreement that the father not sleep overnight at the home of the paternal uncle while he was having access to the children, she retained the services of a private investigator.

[26] On Friday December 14, 2018, Usman Khan a licensed private investigator was instructed to observe the paternal uncle’s home. He was provided with a picture of the father. According to his affidavit, he arrived at the home at 7:00 p.m. and kept the premises under surveillance until Saturday December 15th at 5:45 a.m. He observed a red Toyota Yaris and a grey Hyundai SUV in the driveway and he also observed an individual resembling the father smoking outside the residence on 4 or 5 occasions. He observed the male resembling the father outside smoking at 9:05 p.m. prior to the arrival of a Toyota Camry and Honda Pilot with 6-9 individuals enter the home. At 11:30 a.m. a dark coloured sedan arrived with 2 males. That car and the male occupants left at 1:50 a.m. The male resembling the father was last seen smoking outside the residence at 1:50 a.m.

[27] Mr. Khan did not observe the male resembling the father leave the home prior to 5:48 a.m. when he ended his surveillance.

[28] According to the maternal grandmother, the red Toyota Yaris is the car she has consistently observed the father driving. The society worker has seen that car parked at the paternal uncle’s home when the father has been present. The paternal uncle confirmed that although the Toyota Yaris is registered to him the father has driven that car in the past. But he deposes that he uses the Toyota Yaris to drive daily back and forth to work and he uses his father’s car a Grey Hyundai Santa Fe when he is transporting the children. He deposed that the father drove a grey Nissan Altima from June 2015 to November 2018 when it was no longer drivable. The father in his affidavit does not address the issue of what car he drives.

[29] As a result of the children’s disclosures and the report of the private investigator, the maternal grandmother reported her concerns to the society.

[30] After hearing about the disclosure, the father sent a rude and abusive email to J.L. the maternal grandmother’s niece.

[31] Both the father and the paternal uncle denied having breached the agreement and denied that the father stayed overnight.

[32] The children had a Christmas visit with the paternal uncle from December 28th to December 30th. Upon their return from their access visit, the maternal grandmother deposes that both children volunteered that that they had slept with their father and spent time alone with him.

[33] In correspondence with the society, through a letter from the paternal uncle’s counsel and an email from the paternal uncle, inconsistent versions of this access weekend and the father’s presence were provided.

[34] Again on returning from a visit on January 25-26, 2019, O. stated that he slept with his father on the visit.

[35] During the weekend of February 1- 2, 2019 the paternal uncle asked the maternal grandmother if he could take the children for a haircut and she agreed. When the children were returned to the home of the maternal great niece, Ms S. L.-F., she asked them about their haircut. When asked if their uncle took them for the haircut, G. replied “No Daddy” and he said that the paternal uncle was not there. G. told the maternal grandmother the same information. During the same conversation, O. said that, “Daddy has a red car” and that he drives in the car with his father. The maternal grandmother then asked if the paternal uncle was also in the car and O. said, “No Uncle C.”

[36] On January 10, 2019 Ms Brodie interviewed the children separately at their daycare. She began by asking questions about what O. did at his uncle’s home. When asked who he slept with, O. stated “Dad, Uncle C.” When he was asked again he only replied, “Uncle C.” and then when Ms Brodie asked if he slept with anyone else he shook his head no. Ms Brodie then stated that she thought she heard him say “Dad”, O. ignored her and continued playing and was then told he could leave. When G. was brought into the room, he did not acknowledge Ms Brodie and walked out of the room.

[37] On January 17, 2019 Ms Brodie attended with her student to the home of the maternal grandmother to again interview the children. The maternal grandmother was asked to leave with room with G. so Ms Brodie could interview O. in private. O. was playing and non-responsive.

[38] Ms Brodie then asked the maternal grandmother to come back into the room with G. Again general questions were asked about what the children did at their uncle’s home. When Ms Brodie asked G. who he slept with at his uncle’s home, he responded, “Daddy”.

[39] When Ms Brodie again attempted to ask O. questions, the maternal grandmother told him to be serious and answer her questions. The maternal grandmother then asked O. who he slept with and he responded C. [the paternal uncle], Aiden [son of the paternal step-brother] and then when asked who else he said “Daddy”.

Evidence of denials of breaches of agreement

[40] Both the father and the paternal uncle deny any breaches of the agreement that the father’s access was to be supervised by the paternal uncle or by the paternal step-brother who had also been approved as a supervisor. They also denied that the father had slept over when the children were at the home.

[41] The paternal uncle deposes that he was present when the children had a haircut and in support of his presence produced a copy of his credit card statement for payment of the haircut.

[42] With respect to the allegations of other breaches on week-ends in December 2018 and January 2019, the father and the paternal uncle deny any breaches and depose that the maternal grandmother and maternal nieces are coaching the children. No details are provided for the activities or times the father was present for those week-ends.

[43] The paternal uncle and the father directed most of their evidence to refuting the allegations that the father was at the paternal uncle’s home overnight on the December 14th to 15th, 2018.

[44] The father deposes that on the evening of December 14th he attended at the home during the dinner hour and helped feed the children and then left and returned to his home in Vaughan. He denies that the male the private investigator saw smoking outside the home was him. He further deposes that is was dark outside and given the position of the front door as noted in the report of the private investigator and his need to remain discrete, he could not have had a good view of anyone outside the home.

[45] The father deposes that it is his routine on Fridays to go to the paternal uncle’s home after work, he feeds and plays with the children and then reads to them, puts them to bed and stays until they are asleep. He returns on Saturday morning between 6-7a.m. and makes breakfast and spends the day with the children under supervision if he is not required to go to work.

[46] The paternal uncle deposes that the father spent a few hours on the evening of December 14th at his home and then left at about 6:00 p.m. and he confirms that the father’s usual routine is as outlined by the father and that the children have a bedtime of 8:30 p.m. Neither the father nor the paternal uncle explain in their affidavits why this usual routine was not followed on this particular evening.[^2]

[47] The paternal uncle confirms that the father sometimes does drive the red Toyota Yaris that is registered in his name. The father in his affidavit does not address this issue nor does he explain what car he drove the evening of December 14th.

[48] There were several affidavits filed with respect to the evening of December 14th. R.G., the step-brother of the father and the paternal uncle, deposed that he was hosting a small pre-Christmas party at the home of the paternal uncle. He, his girlfriend and their son Aiden frequently stay overnight at the paternal uncle’s home. They arrived that evening at about 9:00 p.m. played video games, watched a basketball game, ate some food and watched you-tube videos. The paternal uncle deposed that he drove 2 of his friends home on December 15th at 5:30 a.m.

[49] I.T., the partner of the paternal step-brother confirms that the father was not present on the evening of December 14th. She deposes that she arrived at 9:00 p.m. and helped put the children to sleep and she herself then went to bed. She further deposes that when she has previously slept over the father never slept over but she does not provide any specific dates.

[50] D.D. another friend of the paternal step-brother deposed that he arrived at the paternal uncle’s home on December 14th at 6:30 p.m. and left in the early morning on December 15th. He also confirmed that the father was not present.

[51] C.L. deposed that he arrived at the party at 11:00 p.m. and left between 1:00 -2:00 a.m. He deposed that he went outside to smoke marijuana. He also confirmed that the father was not present.

[52] A.B deposed that he visited the father on December 14th at his home on the evening of December 14th from 8:00 p.m. to 9:30 p.m. and left as the father told him he had to go to work early the next day.

Applicable legal principles

[53] The paramount purpose of the CYFSA is to promote the best interests, protection, and well-being of children. As in any case the focus is on the needs and interests of the children.[^3]

[54] In this case, the outstanding proceeding before the court is a Status Review Application. The maternal grandmother has been granted a final order of custody, pursuant to sec. 102 CYFSA. The case is scheduled for the Assignment Court on April 10th where the issues to be determined relate to access by the father, the paternal uncle and the extended paternal family.

[55] Pending the trial, the maternal grandmother is seeking to change the paternal uncle’s current access arrangements.

[56] The jurisdiction to make a temporary order in the context of a status review application is set out in ss. 94 (2), 113 and 114 of the CYFSA.

[57] S. 104 of the CYFSA provides that the court may, in a child’s best interests, “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.”

[58] The criteria for making an access order is therefore the best interests of the children. The best interests of the children are to be determined taking into consideration the factors enumerated in s. 74(3) of the CYFSA.

[59] I adopt the reasoning of Justice Kukurin in the case of Children's Aid Society of Algoma v. C.P.[^4] that it is logical that some change of circumstances from the time the order was made must be demonstrated and that it is immaterial if that change is a “material” change or something less. What is important is that the change in circumstances should be tied to the best interests of the children.

[60] Pursuant to s. 113 (8) of the CYFSA the maternal grandmother has the onus of satisfying the court that the children’s best interests require a change to the existing order.

[61] The maternal grandmother has the onus of demonstrating not only that some change in circumstances has taken place but also that:

1. the change in circumstances renders the existing order to no longer to be in the children’s best interests; and

2. that the new order sought now represents what is in the children’s best interests.

Admissibility of the children’s statements

[62] Counsel for the paternal uncle sought to strike all of the child’s statements in the various affidavits as they were hearsay.

[63] However, counsel then conceded that pursuant to s. 93(10) of the CYFSA the court may rely on evidence that it considers credible and trustworthy when adjourning a protection application. This is the evidentiary standard commonly applied on temporary care and custody motions and on any motions to change temporary orders in an originating child protection proceeding. There is no basis for the same standard not to be applied on a motion in the context of a status review application.

[64] Further, pursuant to subrule 14 (19) of the Family Law Rules an affidavit on a motion may contain information that the person learned from someone else, but only if the source of the information is identified by name and the affidavit states that the person signing it believes the information is true. Therefore, hearsay evidence consisting of the children’s statements is admissible on a motion as long as the provisions of subrule 14 (19) are complied with.

[65] Counsel for the paternal uncle then submitted that the court should not place any weight on the children’s statements in view of their young age and that the statements were made to the maternal grandmother and her nieces who interrogated the children. It is also submitted that the statement made to the society worker were also as a result of interrogation as the maternal grandmother was also present for the interview. It is further submitted that the maternal grandmother and her nieces are not neutral parties and they have attempted to interfere with the paternal family’s relationship with the children.

[66] I find that I can rely on the children’s statements for the following reasons:

1. the children are very young and it is improbable that they could be coached to make the same allegations to various people over several months;

2. the children have no motive to say their father slept over at their uncle’s home or that he was alone with them when they had a haircut;

3. the children were not interrogated but were simply asked standard questions in a manner that is consistent with their age and stage of development;

4. the children made similar statements to various people including the society worker, their maternal great nieces and the maternal grandmother; it is natural that the children would be more open to speaking to their maternal great nieces with whom they have a good relationship and the maternal grandmother than to a social worker who they do not know well;

5. there is no evidence that the maternal grandmother is trying to interfere with the children’s relationship with their paternal family; the maternal grandmother has recognized that the children have a close attachment to their father and the paternal family; and

6. the maternal grandmother has consistently agreed to increase access to the paternal uncle and agreed to the father being present for access visits.

Analysis

[67] All counsel agree that the agreement reached in October 2018 should be considered to be the order that the maternal grandmother seeks this court to change.

[68] It is the position of the maternal grandmother as supported by the society that the paternal uncle and the father have breached the agreement reached by permitting the father to remain in the paternal uncle’s home overnight while the children were there and has let the father have unsupervised access to the children.

[69] Those conditions were put in place and agreed to by all parties to ensure that the children were safe due to concerns about the father’s drug use and the inability of the paternal family to acknowledge the father’s drug use or control the father.

[70] Counsel for the father and the paternal uncle deny any breaches but also submit that there is no evidence of any harm befell the children.

[71] The issue of whether or not ongoing supervision is necessary for the father is an issue that will be dealt with at the trial.

[72] On this motion it is the maternal grandmother who is seeking to change the paternal uncle’s access. There was no cross-motion filed by the father or the paternal uncle for further access or to change the terms of the outstanding order. Accordingly, they are not opposed to the need for the father’s ongoing access to be supervised and that he not be permitted to stay overnight while the children are in the care of the paternal uncle.

[73] Based on the children’s statements, there is evidence that there were breaches by the paternal uncle and the father regarding the terms of the outstanding agreement. However, it is possible that the children’s statements are subject to interpretation that could support the father and the paternal uncle’s position that the father would put the children to bed and not leave until they were asleep and so the children may then have quite rightly assumed the father spent overnight as he would return before they woke up.

[74] It is also possible that Mr. Khan did not see the father at the home on the evening of December 14th but that it was one of the other males who were at that home especially as there are several witnesses who have sworn affidavits that the father was not present.

[75] However, there are discrepancies in the version of events by the father and the paternal uncle regarding the allegations that the father was present for at least two overnights in December and one occasion in January. Neither the paternal uncle nor the father provide any evidence with respect to those week-ends other than denying any breach. I would have expected some details about what transpired on the week-ends in question in response to the allegations.

[76] Instead the affidavits filed focus on disputing the evidence presented by the maternal grandmother and the private investigator about allegations of the events of December 14th. However there are many unanswered questions about that evening. For example, neither the father nor the paternal uncle provide a plausible explanation as to why the father would have not continued with his usual routine of putting the children to bed before he left ; if as the father alleges that he left after dinnertime because he had to get up early to go to work the next day then why was he socializing with a friend in his own residence from 8:00 to 9:30 p.m. that evening; there is no evidence as to who drove the red Toyota Yaris and why was it in the driveway; there is no evidence as to what vehicle the father drove when leaving the home that evening; there is no explanation why it necessary for the paternal step-brother to have a party at the paternal uncle’s home and not his own home and there is no explanation as to why would the paternal uncle allow the party on the evening when the children were sleeping at his home.

[77] Although the maternal grandmother has the onus of proving that there has been a change of circumstances, once she has provided evidence of such a change as in this case of breaches of the outstanding access arrangement, then the evidentiary burden shifts to the father and the paternal uncle to provide some evidence to dispute her claim. In this case, despite the several affidavits filed I find that there are too many unanswered questions in the denials by the father and the paternal uncle. The issues of the credibility of the various affiants can only be tested at trial.

[78] Further, there are issues with respect to the paternal uncle’s judgment in permitting a party at his home that resulted in several guests not leaving until 5:00 a.m. when such young children were present and issues about what the guests were doing until the early hours of the morning and the possible concerns that may then arise regarding the safety of young children.

[79] It also raises concerns about the suitability of the paternal uncle having overnight access or being a proper supervisor as this is what was witnessed on the one evening that the private investigator happened to be watching the paternal uncle’s home.

[80] This motion is somewhat unusual as the maternal grandmother is the custodial parent pursuant to the final order that was made and the issue is access to a non-parent that is, the paternal uncle.

[81] In this case, the maternal grandmother trusted the paternal uncle and she believes he has now broken that trust by breaching the terms of the generous access order that was made. This lack of trust must also be viewed in the context of previous breaches of the access agreement.

[82] At this stage of the proceedings I have serious concerns that there have been breaches of the conditions imposed on the paternal uncle with respect to the father’s access. Even if at trial it is found that there were no breaches, I find that the paternal uncle has demonstrated a serious lack of judgement in permitting an all-night party while he was caring for two young children.

[83] I find that the maternal grandmother has legitimate concerns about the risk to the children’s safety and their well-being in they remain in the care of the paternal uncle overnight and that he cannot be trusted to abide by the terms of the outstanding access conditions. I also have some concerns about the paternal step-brother being an approved supervisor based on his poor judgment in arranging an all-night party while the children were staying overnight at the paternal uncle’s home.

[84] I find that the maternal grandmother has met the onus on her on a balance of probabilities to prove that there has been a change in circumstances and that the status quo of permitting the paternal uncle to exercise overnight access is no longer in the children’s best interests.

[85] The maternal grandmother is prepared to return to the terms of the September 4, 2018 order that permitted the paternal uncle access for several hours on Fridays and all day on Saturday. She is also agreeable to terms that permit the father to be present for the access as long as he is supervised. I find that such access will ensure that the children continue to spend quality time both with their father and paternal family.

Order as follows:

[86] The motion of K.L. to vary the terms of the order of September 4, 2018 is granted and there shall be a temporary order as follows:

1. The Respondent C.G. shall have access to the children O.G. born […], 2015 and G.L. born […], 2016 on Fridays with pick up between 2:00 p.m. to 3:00 p.m. and drop off at 7:00 p.m. at the residence of the Respondent K.L. and on Saturdays from 8:00 a.m. to 7:00 p.m. with pick up and drop off at the residence of the Respondent K.L.

2. The Respondent R.G. can be present during the access to be fully supervised by the Respondent C.G. or anyone approved of in writing by the society prior to an access visit.

3. The society shall be permitted to make announced and unannounced visits during access.

4. There shall be no overnight access until further order of this court.

[87] At the conclusion of the motion, counsel for the Respondent K.L. advised that she would be seeking costs against the Respondents R.G. and C.G. If the issue of costs cannot be settled, counsel for the Respondent K.L. shall serve and file her cost submissions by April 26, 2019. Counsel for the Respondents R.G. and C.G. shall serve and file responding cost submissions by May 24, 2019. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. If reference is made to any legal authorities a copy of the authority is not necessary, a reference to the citation and page and paragraph number being relied upon is sufficient. The costs submissions should be delivered to the trial coordinator’s office.

Released: March 19, 2019

Signed: Justice Roselyn Zisman

[^1]: The father did not attend although his counsel was present.

[^2]: Although the paternal uncle references a letter sent by his counsel explaining the father left early as he needed to go to work early the next day, the father does not adopt the content of this letter or provide any explanation as to why he left early or provide any proof he was required at work early on December 15th.

[^3]: Section 1 and 1(2)

[^4]: 2013 ONCJ 740, [2013] O.J. 6084 (OCJ) at paras. 4-7