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.
87.— (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.
87.— (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: May 25, 2020
Court File No.: 20153/11
Ontario Court of Justice
Applicant: Children's Aid Society of the Region of Peel
Counsel: Ms. G. Williams and s/w Ms. A. Asante-Yirenkyi
Respondents: Ms. G.P. (mother); Ms. J.P. (kin)
Counsel: Mr. G. Cook (mother); Mr. B. Tobin (kin)
Before: Justice A.W.J. Sullivan
Endorsement
Introduction
[1] This is the second part of a final decision in a Summary Judgment motion. This decision is about what form access should occur between G.P., the mother, and her two children, K.S. born […], 2008, and Z.S. born […], 2010.
[2] On April 1, 2020, the parties consented to a final order finding the children in need of protection pursuant to sections 74(2)(b)(i) and 74(2)(b)(ii) of the Child, Youth Family Services Act and a 102(1) granting the custody of the children to J.P. and her partner A.E.
[3] J.P. is the half-sister to the children, and they have been in the care of J.P. and her partner A.E. since July 4, 2018.
Relevant Evidence Reviewed in this Motion
[4] Each party filed affidavits that touch on the issue of access in this Summary Judgment motion.
[5] The PCAS filed six affidavits on May 28, 2019, when the Summary Judgment was originally filed for protection findings, disposition and access. These are found in Volume 12 Tabs 2 to 9 and three reply affidavits at Tabs 12, 13, and 17 of Volume 12 of the Continuing Record.
Positions of the Parties
1. The mother G.P. filed three affidavits at Tab 9 and 18, the last dated April 8, 2020, which specifically focuses on the access issues and outlines the access order that she seeks.
2. J.P. and her partner filed three affidavits at Tabs 10, 11 and a specific affidavit dated April 16, 2020, responding to G.P.'s April 8, 2020, affidavit on the issue of access.
3. The mother G.P. seeks a specified access order of two supervised visits per month with the location to be agreed to between G.P. and J.P. and two Skype/telephone visits every Tuesday and Thursday for 30 minutes at a fixed time. G.P. has in her affidavit regarding access listed some nine other conditions that touch on information sharing, the use of supervised access centre, responsibility for payment and location. She also requests that the supervised access could move to unsupervised (with no details) once she provides six negative urine screens dated after today's date. She also asks for orders that would restrict the children moving outside the GTA and her written permission for the children to vacation out of Ontario whether in or out of Canada.
4. J.P. seeks the following order:
A. Access between the children and their mother shall be supervised at her discretion as to duration and frequency and supervised until either she or a court is able to determine supervision is no longer needed to protect the children until G.P. sufficiently addresses her addiction and mental health.
B. J.P. requests in the alternative several orders as follows:
i. That G.P. should successfully complete an in-patient program for 3 months, then there would be one supervised visit per month at the YWCA in Hamilton.
ii. If this access progresses without incident there would be two visits per month.
iii. Notice if G.P. can't attend and prove why and if two consecutive visits are missed without good reason or five visits in a calendar year are missed, access will be suspended.
iv. Skype/telephone access will depend on J.P. and the children's schedule.
v. That access could increase and be unsupervised with G.P. providing to J.P. four consecutive hair follicles test with J.P. randomly picking the testing dates.
vi. That J.P. be able to confirm that G.P. attended counselling for addiction and her emotional health issues.
Main Evidence Considered
[6] From submissions I understand that all agree that there should be access between the children and their mother. The issue is frequency, form, supervised at the start and for how long and what is required from G.P. to move from this to unsupervised.
[7] The PCAS evidence and submissions support J.P.'s position on how access should commence. The PCAS outlines the work with G.P. from 2017 when the children were brought into care. Over the three years that this matter has remained outstanding, the Society has offered services to G.P. who made attempts to address the protection concerns but has not been able to sustain these for the children's welfare.
[8] CASP argues that G.P. has struggled for years with drug use and self-medication, causing difficulties in maintaining a proper home environment for her children and their lack of attending school.
[9] The affidavit of the child protection worker, Ms. K. ., dated May 28, 2019, reviews the extensive efforts to support G.P. with counselling, community services and access and assessment regarding her strengths. This evidence and that of the other workers that have assisted on this file over the past three years clearly indicates the struggles that G.P. has and still does today on some issues.
[10] Throughout the evidence G.P. has struggled to maintain housing, and an income source.
[11] Addiction counselling has started and stopped and no clear report exists regarding G.P.'s mental health nor her physical health that apparently contributes to her drug use.
[12] As of January 15, 2020, G.P. has secured a one-bedroom apartment through Peel Housing which she worked hard to achieve over the past year.
[13] G.P. provided a letter dated March 30, 2020, from a counselling service in Peel indicating her recent connection to receive services for past trauma as a victim of sexual violence.
[14] G.P. in her evidence does admit to regularly using drugs and states the following:
She started using six months after the children were apprehended and become an addict because of the poor treatment and lies she was subjected to by the PCAS in 2017.
She was on and off the street for a long time and had most of her belongings and documents stolen. She went for months not being able to be in contact as she lost seven cellphones or they were stolen.
She attended a drug rehab program in Toronto in March 2019, but because of its poor programming she left after one week.
She has stopped using street drugs as of December 2019 and is proscribed Effexor and Abilify for depression, Lyrica for fibromyalgia and Nabalon for pain. No professional reports were provided although she stated that she is attending Narcotics Anonymous and attached an email dated March 30, 2020 from her sponsor with a number where the sponsor may be reached.
G.P. did attach a Gains Assessment from Street Outreach and had plans to attend Hope Place in Milton which is a 27 day live-in program for addiction use linked to trauma. She is on their waiting list.
[15] G.P. is seeking specific access as she argues that if this is left to J.P. she will not see her children. She seeks a gradual expansion to every other overnight weekend access and holidays and seeks as much access with the children as possible.
[16] All agree that G.P. has not seen her children since the spring of 2019. She was having two visits per week and that was reduced to one as she was having difficulties coming into Peel from Toronto where she was staying.
[17] G.P. argues that she has asked for visits to resume but her requests were ignored.
[18] G.P. claims that when she had visits that she did not miss nor was she late and the children enjoyed their time and looked forward to visiting with her.
[19] Skype access has restarted in March 2020 after being stopped by J.P. G.P. claims this was done after she had commented that she felt her 10-year-old daughter K. should not be cooking dinner for the family.
[20] J.P. argues and claims in her evidence that G.P. has been inconsistent in visits that had been arranged and that this upsets the children who are disappointed when G.P. cancels at the last moment.
[21] J.P. states that she is sensitive to the children's feelings, she knows they love their mother but that they have often been let down when they believe they will either see or Skype/talk with their mom and it does not happen.
[22] She explains how she has shielded the children when this has happened by arranging other activities for them, but they have been aware more often than not that their mom has not made the visit.
[23] J.P. and the children live in Hamilton and as such that is where she argues the visits should happen and be in a supervised setting. She states she would be prepared to have these at the YWCA or at an Ontario Government sponsored access centre and that if there is a fee for this service it should be paid for by G.P. To make these visits enjoyable, J.P. states she will provide snacks/food for the children.
[24] J.P. is agreeable to Skype and telephone access provided that G.P. not be disrespectful to her, and her partner. J.P. accuses G.P. of denigrating her same-sex relationship with her partner A.E. and also the child K.'s ethnicity.
[25] This, coupled with G.P.'s untreated drug and emotional health issues, is why J.P. argues visits must be supervised for the foreseeable future.
Applicable Law in a Summary Judgment Motion
[26] Below is a summary of the leading authority of the law dealing with summary judgment as summarized by Justice S. Sherr in his Benchbook 2020 that I adopt:
Summary judgment motions are governed by Rule 16 of the Family Law Rules.
The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
Pursuant to subrule 16 (4.1) the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial. See: Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.
Although subrule 16(4.1) sets out the obligation of the respondent to the motion to provide "in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial" this does not shift the ultimate burden of proof. Even if the respondent's evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. See: Kawartha Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, paragraph 2 of paragraph 80.
Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
Subrule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:
- Weighing the evidence
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
Pursuant to subrule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.
Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1) If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact finding powers to decide if a trial is required.
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak - paragraph 49). As the Supreme Court stated, at para. 50 of Hryniak, "the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute." (Kawartha, paragraph 63).
As applied to child protection proceedings, a fair and just determination on the merits must recognize that such proceedings engage Charter rights for a vulnerable segment of our society. Consequently, courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak's principle of reaching a fair and just determination on the merits (Kawartha, paragraph 76).
Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (Kawartha, paragraph 1 of paragraph 80 and paragraph 64).
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. (Kawartha, paragraph 3 of paragraph 80).
The child protection jurisprudence has crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants. The jurisprudence reflects an approach to the genuine issue "for trial" or "requiring trial" analysis that incorporates these considerations. The test of "no genuine issue for trial" has been referred to in a number of ways. It has been equated with "no chance of success" or that is "plain and obvious that the action cannot succeed". The test has also been enunciated as being when the "outcome is foregone conclusion" or where there is "no realistic possibility of an outcome other than that sought by the applicant." (Kawartha, paragraph 72).
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council (Kawartha, paragraph 4 of paragraph 80).
The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children. (Kawartha, paragraph 5 of paragraph 80).
The court in Hryniak also set out the following:
a) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).
b) The Ontario amendments to the summary judgment rule changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).
c) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).
Discussion and Decision
[27] Ms. G.P. did not argue that this process was unfair to her or that I should order a trial or a least provide for some cross-examination of her evidence, in order that I might better evaluate the competing evidence in this matter.
[28] It was argued on J.P.'s behalf that G.P.'s affidavit evidence did not meet the trial worthy evidence standard asked of each party in these proceedings and as such I should not give her evidence much weight. I have taken this into consideration in this decision.
[29] I do find, after I have considered the totality of the evidence filed, that this process was fair to all and that I did not need to extend my inquiry and ask for further evidence or that which was presented be cross-examined. I rule that I can make a final decision through this Summary Judgment process.
Analysis of G.P.'s Evidence and Circumstances
[30] G.P. in her evidence does not contest that she has been struggling for the past several years with health issues, non-prescribed drug use causing her until very recently to be homeless.
[31] She has not provided any assessment in relation to her drug use and claims to have stopped using non-prescribed drugs as of December 2019. She explains she has a better understanding of her triggers but also has not attended any sustained counselling service. She does not attempt to explain those triggers but does mention that she used non-prescribed drugs in response to her children being removed by CASP. This I find is a stressor but a deflection from what is the underlying cause for Ms. G.P.'s years of upheaval such that she lost her housing and stopped attending the supervised visits that the PCAS and J.P. struggled to maintain.
[32] She proposes to attend an in-patient counselling program in Milton for which she is on a waiting list. With the COVID health crisis no times are provided when this can start and how the in-person program will be provided.
[33] She has a Narcotics Anonymous sponsor who has provided a telephone number where to reach her, which up until recently PCAS could not.
[34] G.P. notes a number of prescribed medications she is taking for emotional and physical health issues. These are listed in her affidavit but no medical professional assessment of how she is managing these and how this ties into G.P.'s non-prescribed drug use which she claims she has stopped on her own with minimal professional assistance.
[35] The above is the best evidence that G.P. presents in relation to the protection concerns and how this is connected to access.
[36] G.P. recognizes that at the start access should be supervised.
[37] The main issue is for how long and what is a reasonable formula that would permit access to move to unsupervised. There are equally significant differences between G.P. and J.P. regarding where access is to occur and the cost of such visits.
[38] Given the extent and the quality of the evidence, I find I can resolve these issues by way of this summary motion and without the need to hear from any witnesses that would have reviewed their professional work with G.P. in relation to areas of evidence that I am interested in regarding her emotional health and drug use.
Level of Supervision Required
[39] I find that there is little doubt that for now the access needs to be in a semi-supervised setting.
[40] I say semi-supervised as I do not have any evidence that G.P. has shown up such that she was using drugs at the time making it impossible to care for the children. Although access has not happened for a year.
[41] The evidence is that when G.P. had access she might not have been that attentive of the children and not prepared for access. There is little evidence that she cannot care for them for 2 to 3 hours at a time. Yes, there have been challenges in the supervised setting regarding her engaging the children and keeping their interest.
[42] The issue appears to be the level of supervision and the bigger issue appears to be G.P.'s lack of follow through and consistency regarding access such that the children are hurt by her not appearing for access.
[43] All agree that no direct visits have happened for one year now. I find that contrary to G.P.'s position this was her doing and not as she claims that of CASP or J.P.
[44] G.P. has not provided any convincing evidence of insight into her substance dependency and what, if any, link there might be to her emotional health issues.
[45] She says that she has a better understanding of her triggers but also states that she became an addict because the CASP removed her children from her care.
[46] I do not doubt that this can cause grief and hardship for both the children and a parent. The reasons for this happening are the same that G.P. faces today. Three years have passed and very little substantial work has been done until just recently.
[47] It is very helpful that G.P. now has her own place to live. She has started to connect to local services in Peel that will help her deal with her health and substance dependency. She must, however, follow up with professional help with these issues. Working with Narcotics Anonymous can be of some support but more will be needed now and on an ongoing basis with more rigor and professional assistance.
[48] For G.P. to suggest that access should move relatively quickly to overnight and weekend access after a number of negative tests is not reflective of the evidence and realistic.
Recognition of J.P.'s Role and Responsibilities
[49] J.P. has taken on a major responsibility for her half-siblings and this needs to be recognized by G.P. The daily care and custody of children at times is a lot of heavy lifting that requires the support from others in one's family and the community at large.
[50] I can imagine that it can be frustrating at times for J.P. and her partner A.E. when G.P. is disrespectful and critical to them and inconsistent with access that impacts on the children.
[51] J.P. notes how the children care for and love their mother G.P. and have been disappointed when access has not occurred.
[52] J.P. does support access but struggles in her evidence with how this is to happen and her level of responsibility that she and A.E. will play in this important activity for the children to have a meaningful connection with their mom G.P.
Best Interests of the Child Analysis
[53] Given the evidence provided in this motion and the parties' respective positions, I am left struggling with what order will meet the children's best interest and is manageable and sustainable for the adults, as well as distribute responsibility between the adults for this to happen in a way that is healthy for the children.
[54] In terms of the children's best interests I considered section 74(3) of the Child, Youth Family Services Act.
[55] Specifically, the children's views, the fact that access will permit them to have and maintain a connection with an important member of their family, their mother, and to the extent that access is maintained and expands, know their culture and family ties which are important for them emotionally as they grow.
Key Tensions and Principles
[56] The tension that I find from the respective position and evidence of G.P. and J.P. is the following.
[57] G.P. must take responsibility to commit to the access visits.
[58] This must be one of her top priorities along with maintaining her sobriety and emotional health.
[59] She must set aside the notion that access will rapidly expand to overnight and weekend/holiday access with the production of three or four negative/clean drug tests, whatever test method is employed.
[60] I find that to focus on testing in matters of addiction avoids the hard work and realization about how G.P.'s substance dependency has impacted on her parenting and has been harmful to her children.
[61] The formula for expanded access between G.P. and the children that may lead to overnight weekend/holiday will be through a long period of sustained consistent child focused access visits with her children during which G.P. is sober and child focused. This could mean a year or two. Also G.P.'s willingness to work with J.P. and A.E. needs to grow and improve.
[62] Time will be needed for G.P. to consolidate her recent progress and complete the professional counselling she intends to take.
[63] Information sharing between G.P.'s counsellors and health reports will need to be shared with J.P. This will take time.
[64] Just showing up when arranged and working with J.P. to have happy visits, albeit for three to four hours, will go a long way in developing the needed trust between G.P. and J.P. which is the basis on which any access will expand.
[65] G.P. also needs to set aside some of her limited financial resources for this to happen.
[66] For the children's interest she will need to travel and communicate before with J.P. that she will be attending access. This will mean setting aside money for a GO bus/train and assuring she has her cellphone paid for to call and Skype or FaceTime with her children.
J.P.'s Obligations and Responsibilities
[67] As for J.P. she will need to assist for access to happen as follows:
[68] Some of the children's access should occur in Peel closer and maybe at G.P.'s home after a period of consistent access in Hamilton occurs. It is part of a custodial parent's obligation to actively promote and assist, within reason, for children to have this time with the other parent.
[69] The level of supervision during the initial stage of access should be relaxed such that it could happen in public spaces, a park, mall or the YWCA as J.P. proposed (considering the Ministry of Health COVID recommendations).
[70] The 2017 access observations while Ms. G.P. participated in the Therapeutic Access program listed her strengths and concerns. There is a comment on one occasion that she might be intoxicated and distracted at times, yet no visits were stopped at the time from my review of the evidence.
[71] Two observation notes from March/early April 2019 attached to G.P.'s June 26, 2019 affidavit indicate good visits and interaction between G.P. and her children after which there has been no direct visits for the past year. The gap in time and the reasons for this are concerning to me. From the evidence I conclude it is due to G.P.'s ongoing drug use and homelessness which to some degree from her evidence she agrees was the cause.
[72] Today G.P. claims she has stopped using drugs with little evidence of how she achieved this. Her appearing sober and well for access will be the first point of discussion and engagement between G.P. and any persons permitting access to proceed. J.P.'s proposal for access at the YWCA in Hamilton would not avoid the need for J.P. to evaluate G.P.'s sobriety for access.
Supervision and Monitoring
[73] J.P.'s expectations that all conversation between the children and their mother needs to be monitored is not realistic nor required given the protection issues. I agree that this could change if G.P. is being disrespectful to her and A.E., or inappropriate in her interactions or comments to the children. However, J.P.'s suggestion of the YWCA as a location for access would not provide a level of supervision such that conversations in that location would be overheard.
[74] I do not see the need for restricted access in a supervised setting provided that G.P. arrives and is sober and J.P. can assess how she is doing. This would have been expected within J.P.'s suggestion to use the YWCA or some other public location in any case.
[75] J.P. should feel comfortable and assured that as the person along with A.E. who has custody of the children that if for good reason access should not proceed that is their call. They are the custodial persons to evaluate whether a given situation is healthy and safe for the children. It is open for them to let G.P. know that for good reason access will not proceed. I would hope this does not happen, however, I would not be surprised if on occasion it may. If so, J.P. and G.P. need to talk about what the concerns may be, address these and move forward from there to the next visit.
[76] I recognize that J.P. might wonder if I have ignored her evidence that she cannot be the person to supervise access. I do not expect this as the level supervision does not need to be that rigid from my review of the evidence. G.P. shows up sober and focused on the children, then access can proceed in a public location. If she does not, there is no access that day. Yes J.P. and G.P. will need to chat for a few moments face to face. This should be achievable as I have no substantial evidence before me to suggest that the differences between the adults are such that this level of direct interaction for this short period of time is harmful, difficult yes, but not more than that from the evidence I have been provided.
[77] It is a sustained level of healthy polite interaction along with consistent access and further information sharing that will permit the expansion of access over time, if the parties are able to develop trust coupled with the age of the children and their development.
Support for the Children
[78] I also suggest that it would be helpful for the children to receive some counselling that is age appropriate for them that explores how at times their mother might have setbacks and disappoint them in her work to maintain her emotional health and avoid using non-prescribed drugs.
Testing and Verification
[79] The above contains the ingredients of the formula that needs to be adopted by all going forward. Given the poor level of trust that currently exists between the parties I do not see the value of an order that sets out only certain testing or program criteria as a prerequisite for expanded access in and itself.
Order
Access Schedule
1. The children, K.S., born […], 2008, and Z.S. born […], 2010, shall have access with their mother G.P. as follows:
Stage 1
a. Commencing June 2020 to December 2020 (the next six months) or if need be longer so that six (6) visits occur in Hamilton – once per month on the second Saturday of each month from 1:00 p.m. to 5:00 p.m.
b. This access shall be in a public location in Hamilton, Ontario. The location is to be chosen by J.P. and A.E. and provided to G.P. a week in advance. G.P. and the children are to remain at this public location at all times during this access.
(Given the current and evolving COVID health directives, as set out by the Ontario Ministry of Health, it is expected for now that such visits will be in an outdoor location such as a public park. As such, visits will be dependent on the weather. The parties will need to account for this and also this can be adjusted by J.P. as per the evolving Ministry of Health directives and the Ontario Government's staged reopening of venues/business and other centres in Ontario and/or closures if so directed). J.P. will have the discretion to evaluate this evolving situation and inform G.P. in advance for planning purposes.
c. J.P. / A.E. may remain within the vicinity of the public location of these visits but shall provide distance to G.P. and the children to enjoy their time together.
d. The children may be able to call J.P. and A.E. at any time they wish during these visits.
e. G.P. is not to have any other person accompany her for the direct access with the children. In other words, if G.P. is given a lift to Hamilton by a friend that friend shall not be present at the visits with the children and must wait, if doing so, away from the access location.
f. G.P. will be required to call and speak with J.P. or A.E. before boarding the bus/train or car to travel to Hamilton to confirm that she will be attending.
g. The above access is to assist in re-establishing contact between the children and their mother and the six (6) visits in Hamilton are expected to occur over six months. If any are missed, this timeframe will expand so that six visits happen in this 1st stage.
Stage 2
1. This 2nd stage of access shall start after the 1st stage, the six visits in Hamilton, are complete. The second stage shall be as follows and have as its purpose the following goals:
a. It will run in duration for 12 months from the conclusion of the 1st stage of this order.
b. In stage 2, the children K.S. born […], 2008, and Z.S. born […], 2010, shall have access with their mother G.P. as follows: in a four-week cycle, depending on when stage 1 is completed, every other Saturday, one to be in Peel and the other to be in Hamilton.
c. In this 2nd stage, G.P. is expected to maintain her visits with the children in Hamilton as well as those in Peel. In other words, G.P. should not expect to only visit the children in Peel during this 2nd stage. If the Hamilton visits begin to drop off or are routinely missed without sufficient reason, J.P. is to advise G.P. that all access is to be suspended and a meeting is to be scheduled within 30 days through the mediation services at the court or between them both to discuss this access plan and order with the goal of having it restarted as they can agree to.
d. In the 2nd stage the goal is that G.P. continue her work with professionals to address her emotional health and risk of drug use and provide reports to J.P. and consents to J.P. to talk with the professionals working with G.P.
e. At any time during the 1st or 2nd stage, that G.P. has the ability to attend an in-patient program, as she intends to, she is to accept and attend such a program and advise J.P. of this plan and in-person access would be suspended. The parties will discuss how the access as per this order shall recommence and any phone or video access that can be arranged for the children and G.P. while attending this inpatient program.
f. The Hamilton visits shall be in a location chosen by J.P. and A.E. and be provided to G.P. a week in advance. G.P. and the children are to remain at this public location at all times during this access.
g. J.P./A.E. may remain within the vicinity of the public location of these visits but shall provide distance to G.P. and the children to enjoy their time together.
h. The children may be able to call J.P. and A.E. at any time they wish during these visits.
i. G.P. is not to have any other person accompany her for the direct access with the children. In other words, if G.P. is given a lift to Hamilton by a friend that friend shall not be present at the visits with the children and must wait, if doing so, away from the access location.
j. G.P. will be required to call and speak with J.P. or A.E. before boarding the bus/train or car to travel to Hamilton to confirm that she is in the process of travelling and will be attending access.
k. The other Saturday (the second visit per month) shall occur in the Peel region and may happen at G.P.'s home or in the community from 1:00 p.m. to 5:00 p.m. G.P. will arrange with J.P. where to meet and pick up the children. Prior to any Peel visit, on the day of the visit, G.P. shall call J.P. by 11:00 a.m. to advise that she is prepared to receive the children.
l. If the Peel visits occur at G.P.'s home, no other person shall be present and the children may call J.P. or A.E. at any time as they wish.
Telephone and Video Access
2. Commencing on the date of this order the children and G.P. shall have one telephone/video conference access each week on Tuesday between 5:00 p.m. to 5:30 p.m. J.P. may request this time changed depending on the family's schedule and children's programs.
Pre-Access Communication
3. It is expected that before each access time J.P. or A.E. and G.P. will talk for a few moments privately before the access commences to confirm that access can proceed and each other's expectations.
COVID-19 Compliance
4. All parties must follow the Ontario Ministry of Health COVID-19 directives and each must advise the other if any person in their household has any COVID health symptoms.
Review and Modification
5. At the conclusion of the 2nd stage, which is no less than 12 months (which means at least 24 access visits) from the start of the 2nd stage, depending on how things progress in each stage, G.P. and J.P./ A.E. shall arrange with either the court mediation service and/or with a mutual 3rd party or their respective lawyers to meet as required to negotiate a change to this order if it meets the children's best interest.
Testing and Professional Reports
6. Several months prior to this meeting G.P. should have written reports of her counselling work provided to J.P. and the needed consents for J.P. to speak to the professionals working with her. It is at this stage (several months prior to this meeting) that J.P. may request that G.P. undergo screening for use of non-prescribed drugs and excessive alcohol – a limit of four (4) random tests. It will be at J.P.'s discretion to set the procedure/method for such test and the parties will share the costs. All parties to receive the test results prior to the meeting.
Communication Protocol
1. Both parties are to follow this communication and behaviour protocols as they form part of the terms of this order.
2. The parties shall abide by these principles in their relationship with each other and their contact with the children:
a. They shall refrain absolutely from denigrating each other or members of each other's household or families in the presence or within earshot, of the children;
b. They shall not question the children about the other party's personal life and activities;
c. They shall not video or audio record the children for the purpose of recording statements or discussions about the other party, members of their household or family, or other parenting issues;
d. They shall refrain absolutely from engaging in any disputes with each other in the presence or within earshot of the children and from involving the children in any manner in conflicts which may arise between the parties;
e. They shall not use the children to pass messages or documentation on to each other;
f. They shall encourage the children to have a strong and positive relationship with both parties and shall use all reasonable efforts to foster a meaningful relationship between the children and the other party;
g. Neither party shall discuss with the children, or with another party in the presence of the children, present or past legal proceedings or issues between the parties;
h. The parties shall communicate about the children by telephone/text. Each party will respond promptly by return call or text of the other;
i. Any discussions between the parties at transition times, activities or other special events where the children are present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, she shall simply say "I no longer wish to discuss this," and upon one party saying so, both shall immediately discontinue the conversation and shall take up the issue later by telephone.
3. J.P. shall provide to G.P. copies of the children's school progress reports as they come due and any significant or emergency medical information/treatment the children may require.
May 25, 2020
Justice A.W.J. Sullivan