Court File and Parties

Court File No.: Toronto DFO-20-15412 Date: 2020-07-13 Ontario Court of Justice

Between:

K.L., Applicant Father

— AND —

L.R., Respondent Mother

Before: Justice Alex Finlayson

Heard on: July 8, 2020

Reasons for Decision released on: July 13, 2020

Counsel:

• Dumoluhle Siziba, for the applicant father
• Jorge Cartaya, for the respondent mother

ALEX FINLAYSON J.:

PART I: OVERVIEW

[1] On May 3, 2020, the parties' two children, G.L. (age 2 years, 5 months) and S.L. (age 1 year, 6 months), went to stay with the applicant father for a few weeks, pursuant to an informal, temporary agreement between the parties. The parties had entered into that temporary agreement following an alcohol and cocaine binge, upon which the mother had embarked in late April, 2020, that lasted several days.

[2] On June 8, 2020, the parties agreed to extend the period of time that the children would remain with the father, to June 22, 2020. But then, on June 18, 2020, the father filed a 14B Motion with this Court, seeking leave to bring a motion for temporary custody of the two children, and for an order that the mother have supervised access only. After filing the 14B Motion, he did not return the children to the mother's care, pursuant to their agreement, pending argument.

[3] The mother admits that she has struggled with alcoholism for several years. The evidence before the Court also suggests that there has been a problem with cocaine use, too, and there may be other mental health concerns. Nevertheless, the mother submits that the father tricked her. Even though she was the one who reached out to him for help during her binge in late April, 2020 in the first place, she argues that he set up this situation, took the children into his care, failed to honour their temporary agreement for the children's return, and then started this proceeding while the children were with him.

[4] The mother has filed a cross-motion for sole custody. Alternatively, she argues that there should be no order as to custody at this time. Regardless, she wants the children to be returned to her care, and she proposes various different parenting schedules, should the children's return be ordered. But at these very early stages of this case, and especially in the absence of various objective, third party records, the Court is left concerned that the mother is minimizing the extent of her problems.

[5] The father's 14B Motion of June 18, 2020 for leave to bring a motion, was brought on the basis of urgency. I agreed to hear his motion and the mother's cross-motion in advance of a case conference. By the time the motions were argued, each side filed additional lengthy affidavits, and numerous exhibits.

[6] There are very concerning allegations in the affidavit material. That said, there is also is some common ground across the affidavits, about some of the allegations. In the result, I am satisfied that the Court must intervene at this stage of the case, in the children's best interests, and make an order that the mother's access to the children be supervised.

[7] However, also because this case is in its very early days, because the affidavit material is conflicting in many other respects, and as there are a number of third party records and other evidence that neither party has yet had the opportunity to obtain, consider and place before the Court, I intend only to make a temporary without prejudice order concerning some of the parenting issues, to ensure that the children are safe, while additional steps in this litigation are taken. This will preserve both parents' positions regarding the other issues, including custody.

[8] During argument of the motions, I inquired of counsel whether the Children's Lawyer should be appointed, hopefully to investigate and prepare a report pursuant to section 112 of the Courts of Justice Act. Both parents consented, and so on July 8, 2020, I made an Order appointing the Office of the Children's Lawyer. If the Children's Lawyer accepts this referral for a section 112 report, which I hope it will, that too should very much assist the Court in deciding the custody and access issues, later in the litigation.

[9] Finally, I am also directing that this ruling be sent to both the Children's Aid Society of Toronto ("CAST") and to Native Child and Family Services ("NCFS"). Based on the record before me, not only do I have concerns about the two young children who are the subject of this proceeding, but the mother has an older daughter from a previous relationship, J.G. (now age 12) in her care. Below, I will explain in more detail why I am taking this step, and why I am specifically directing that this ruling be sent to both agencies, even though NCFS has been involved with the mother.

PART II: FACTS

A. Background

[10] In terms of the history of this relationship, it is disputed as to when exactly the parents met each other, and started dating. For the purposes of this motion, that factual dispute does not matter.

[11] The father says that early on in the relationship, he discovered that the mother was "extremely fond" of drinking, whereas he, by contrast, is a social drinker only. He also says he discovered that the mother was prone to having outbursts, and she would become violent and physically attack him during those outbursts.

[12] The mother denies that the father was a social drinker only. She also denies that she was the one who was prone to outbursts. She accuses the father of being controlling, manipulative, jealous and paranoid. For example, she has referred the Court to text messages in which he would belittle her, treat her in a disrespectful manner and call her derogatory names.

[13] Despite these early, problematic indicators, the parties' relationship nevertheless progressed from just dating, to living together. The father moved in with the mother in about August of 2017, after the parties discovered that the mother was pregnant with their first child, G.L.

[14] The father says that upon moving in, he tended to the mother's needs and assumed responsibility over the household during her pregnancy. He also acted as a parental figure to J.G., to alleviate the mother's stress and responsibility during the pregnancy. The mother denies the extent to which the father says he was involved in running the household, or caring for J.G.

[15] G.L. was born in the early part of 2018. Not long after that, the parties discovered that the mother was again pregnant with S.L. S.L. was born a little under one year later, in early 2019.

[16] No one has suggested in the material that the mother was drinking during her pregnancies. The father, however, says he became very disappointed when the mother started drinking regularly again, about two weeks after S.L.'s birth.

[17] According to the father, the mother was supposed to be a stay at home parent, while he worked outside the home. However, he says that she was unable to care for the children. So, they decided to place the children in day care during the week, when the father had to be at work.

[18] The mother agrees that the children went to day care from a very early age. However, she disagrees with the father's characterization of the reason for the involvement of a day care. She disagrees with what the father has said about when the children were at day care during the day, and why there were there.

[19] More particularly, the father says that the mother would only pick the children up from day care, by 6 or 6:30 pm each day. That, he says, was about 1 hour before the father would get home from work. Then, when the father came home from work at night, the mother would frequently excuse herself for the night, and go to bed. The father says that he also stayed home on weekends with the children, too, to permit the mother to go out drinking with her friends. He says that he was the children's main caregiver.

[20] The mother disputes that the father was the main caregiver. She says that she would drop the children off at day care in the mornings, and then pick them up in the afternoons, but not as late in the afternoons, as the father says. And she says that the fact he stayed at home on weekends with the children, had more to do with the fact that he is less social and liked to watch television, than because he wanted to be home to parent the children.

B. The Mother's Alcohol Consumption

[21] The father says that the mother gradually began to increase her alcohol intake after S.L.'s birth. At first, she drank on weekends, but her weekend drinking carried over into the work week. The father says he tried to put rules in place, to disallow drinking during the week. According to him, the mother was resentful about this, and it triggered numerous arguments between them.

[22] The father says that the mother's alcohol use became chronic, to the point that after a heavy night of drinking, she would start the next day off with shots, to help her recover from a hangover. At some point, the father says he asked the mother to stop drinking in the house, hoping that this would limit her alcohol intake, by default. According to the father, this only resulted in the mother going out more frequently, to drink.

[23] The father says he gave up his social life, to care for the children. Meanwhile, the mother's drinking led to more conflict in the relationship. At some point, the father says that the mother warned him not to tell the "Children's Aid Society" about what was going on, because they would become involved and might even apprehend the children. She also disclosed to him that a children's aid society had been involved after J.G.'s birth, because of her alcohol use.

[24] In an attempt to address these issues, the parties went to a few sessions of relationship counselling. The mother started to attend counselling for her mental health, and alcoholics anonymous, on her own. Beginning in November of 2019, the father says he would come home from work early, once per week, to allow the mother to attend her weekly AA meetings. And since the separation and the father's arrest, which I address next, the father is now in individual counselling, too.

[25] The mother admits to having had "struggles with alcoholism". However, she says she has ensured that it has had "little to no impact on [her] parenting skills and abilities". Specifically, she says that she has not left the children unsupervised or alone, when under the influence of alcohol. Since the children's births, she has never driven while intoxicated. She says has not needed to be "rushed to the hospital" as a result of her alcoholism. Nor has she acted in an erratic or violent manner that would "in any way pose my children or anyone life's at risk", according to her.

[26] The fact that these various hypotheticals have not occurred, does not give the Court much comfort. Nor, for the reasons that follow, am I prepared to find at this point that her alcoholism has had "little to no impact on [her] parenting skills and abilities."

C. Incidents of Domestic Violence and the Father's Arrest

[27] The first physical incident between the parents seems to have occurred in about May of 2019. According to the father, the mother wanted him to come home early from work that night, so she could go out with a girlfriend. When the father came home, he discovered the mother in a car, in an adjacent parking lot, with another man. That man happened to be the mother's ex-boyfriend. There is a suggestion in the father's materials, that the mother was being unfaithful.

[28] The mother denies that she was being unfaithful. She says that while she and this man had dated before, he was just an acquaintance at the time. She also says the father became enraged and chased after this man with a "tire iron". The father disputes this, saying the confrontation was verbal only.

[29] Whether the mother was unfaithful, or not, does not matter at this point. I mention this here, because it was the precipitating event for an argument between the parents, which then became the eventual subject matter of a criminal charge against the father.

[30] According to the father, he became upset and told the mother that he wanted to leave the relationship. On his account, the mother then started crying, pushing him and making threats. The father says that despite that he was "extremely dismayed and agitated", when cooler heads prevailed, the parents were able to reconcile and move past the incident.

[31] On the mother's account, the father pushed her against the wall outside the elevator lobby of the building and made a huge hole in the wall of the apartment building.

[32] The second incident occurred in about March, 2020. According to the father, the mother told him that she needed a break from the children. She wanted to go to Cuba on vacation with friends.

[33] The mother denies that she told the father she needed a break from the children. She says she wanted a vacation to get away from the father's "abusive and toxic behaviour".

[34] Regardless, the father agreed to take time off work to care for the children while she was away, a decision he says, he would "soon live to regret".

[35] When the mother returned from her holiday, the father says the mother told him she was feeling unwell. He offered to do her laundry. When he opened up her suitcase, he discovered an empty condom wrapper in it. For a variety of other reasons that he articulates in his affidavit, which I need not repeat or deal with here, the father came to the conclusion that the mother had not actually gone to Cuba with friends, but rather with another man.

[36] The mother denied being unfaithful, once again. Regardless, an argument between the two ensued.

[37] In the result, according to the father, he for the second time told the mother he wanted to separate. He also says he told the mother he would be picking up the children. The father says that the mother then "sprung up" from the bed, and charged at him. To defend himself, he pushed her away. She charged at him a second time, and he pushed away again.

[38] According to the mother's account, she was the one who told the father to leave, he became enraged, and he proceeded to assault her. She says he threw her against the bed, and threatened her by making a fist.

[39] In the end, the father left and went to stay with a friend. About two days later, on March 11 or 12, 2020, he says he was charged with assault, as well as assault with a weapon relating to the May 2019 incident. Since then, there are various restrictions about contact between the parents in place, by virtue of the father's bail. The bail does leave some room for this Court to make orders allowing for communication between the parents, however.

D. Events Following the Arrest

[40] After that, the father tried to pursue access with the children, through third parties. However, he says that the mother started to detach from two such persons in particular, rendering arranging access difficult. The mother denies this, saying that the father did not avail himself of available opportunities to have access. She also says he was able to have video access.

[41] The father says that he started to become very worried about the children, left in the mother's care. It was at this point that he started to undergo counselling, to get help with dealing with the family situation.

[42] The father tells the Court that the mother had been enlisting her daughter, J.G., to care for the two younger children, after his departure. The mother denies this, saying that J.G. only helped out with minor chores. She denied that she had placed J.G. in the role of parenting the two young children.

[43] The father also learned that the mother started a relationship with J.F., an addictions case manager, employed through NCFS, whom had been providing treatment and support for the mother. The father learned about this relationship from J.G. He says that J.G. told him that J.F. moved in on the very day that the father moved out.

[44] But it is not just hearsay from a 12-year old upon which the father relies. It is now admitted, both that J.F. and the mother are in a relationship, and that J.F. had in fact worked the mother in his professional capacity, before this relationship. What is disputed, is whether J.F. is no longer in the employ of NCFS because of this relationship, or for other reasons.

[45] Next, on April 23, 2020, the mother sent the father a number of text messages, starting in the early morning hours. J.F. was not there (nor was he there for the next week when the father was present and during what happened next. It is not clear to me where J.F. went).

[46] In the April 23, 2020 text messages to the father, the mother reported that she was very intoxicated. She asked him to come over. In her responding affidavit of June 29, 2020, the mother explains her state at the time as merely "tipsy", and otherwise that she had a mere "temporary lapse in judgment".

[47] In response to the texts, the father decided to go to the mother's home, despite the term in the bail condition that prohibited contact between the two. His decision to go there, later resulted in him being charged with failure to comply with his bail.

[48] The father says that when he got to the mother's apartment, he found rolled up notes, empty cocaine packets in the washroom, and beer caps in the babies' room, among other things. The house was a mess. He has tendered a number of photographs that he took while there, documenting these things.

[49] The mother says the house was a mess because she had just finished moving furniture around. She accuses the father of "cherry picking" for the purposes of this motion. I do not find this denial to be credible. And as I will explain, she has almost entirely ignored the concerning evidence of her cocaine use, in the responding material.

[50] The father stayed at the mother's home for about a week. The father says that while he was there, the mother binged on alcohol for four straight days, and that she used more cocaine. In particular, the father says that she drank four litres of vodka, plus plenty of beer.

[51] The father tendered receipts from Foodara, a food delivery service, which reveal that vodka and beer had been ordered and delivered to the mother's home. He says that the mother was heavily medicated on clonazepam, too.

[52] The mother admits to consuming alcohol during the time the father was there. However, she says that both she and the father drank it together. While the father may have consumed some of the beer, I find this response, in general, to be deflection by the mother.

[53] The father says that while in the home, he observed the mother allow S.L. to take a sip from her beer can, and to lick the rim of her vodka bottle. The father says he was appalled by this, and admonished the mother never to do such a thing like this again.

[54] In general, the father says that while he was with the mother for the week, he helped her to recover from her alcohol and drug binge that week. He also cared for the children, and cleaned the house.

E. The Two Children Go to Stay with the Father; J.G. Remains With the Mother

[55] The father left the mother's apartment on April 30, 2020. The mother agreed that on May 3, 2020, G.L. and S.L. could go to stay with the father. As set out above, they agreed that father would return the children to the mother on June 8, 2020, but then they subsequently agreed to extend that return date, to June 22, 2020.

[56] In the midst of the extension, the father commenced this proceeding.

F. Prior Legal Proceedings

[57] This motion came before the Court quickly. Upon receipt of the father's 14B Motion dated June 18, 2020, I directed the parties to appear before me by teleconference, on June 23, 2020. On June 23, 2020, the mother had just retained counsel, and she sought an adjournment to prepare responding materials.

[58] This motion was ultimately argued on July 8, 2020. Pending the return of the motion, I ordered that the mother could have supervised, as well as video access to the children, on a strictly without prejudice basis.

[59] At the conclusion of argument on July 8, 2020, I reserved, but ordered that the children were to remain in the father's care pending the release of this decision. As set out above, I also appointed the Children's Lawyer that day.

G. The Father Is Charged With Fail to Comply

[60] In his main affidavit of June 15, 2020, the father reported to the Court that he was worried that he might be charged with breaching his bail. His concern arose out of his attendance at the mother's house in late April 2020. He told the Court that the mother had since threatened to call the police on him, about this. Therefore, the father proactively developed a new release plan, were he to be arrested, so that he would continue to be able to care for the children.

[61] About two days before this motion was argued on July 8, 2020, the mother did in fact report to the police that the father had breached the terms of his March 12, 2020 bail. Consequently, the father has now been charged with fail to comply with his release order. There are similar terms in place in his new bail of July 7, 2020, to those in the original bail. Pursuant to his most recent bail, he resides with his surety, an uncle, in Scarborough.

[62] In my view, what the mother has said about this in her affidavit material reflects very poorly on her. In her July 7, 2020 affidavit, she says, "[i]f the Applicant is in breach of his bail conditions that was as a result of his wilful actions. At no point in time did I force the Applicant to violate his bail conditions".

[63] It appears to the Court that the father's so-called wilful actions, were to go to the mother's house, at her request, to help her out during a crisis, and to care for the children. While orders are of course supposed to be followed, the mother takes no responsibility for the fact that the father was only there in the first place, due to the crisis that the mother herself had caused. Based on the record before me, it is hard to see the mother's action in calling the police, a mere two days before this motion was argued, as anything more than a tactical move, made in bad faith to obtain some kind of advantage in this litigation.

[64] During argument of the motion, the mother complained that she does not know where the children are living. I find this complaint not to be credible. The address of the father's new surety is in the material before the Court. I also accept the father's statement, made in his reply affidavit of July 6, 2020, that he had in fact moved in with his uncle earlier (in mid to late June) in anticipation of this failure to comply charge being launched. At that point, he gave the Officer in Charge of the criminal case the new address information. He also told the address to the mother's sister. It is the father's understanding that she informed the mother of the new address, on the same day.

PART III: ISSUES AND ANALYSIS

A. Applicable Legal Principles

[65] It is well known that the Court must decide the issues raised in the motions based on the children's best interests. Pursuant to section 24(2) of the Children's Law Reform Act, the Court must consider all of the children's needs and circumstances, and in particular, the evidence in light of the list of factors in the section, which are relevant to those needs and circumstances.

B. Analysis Respecting the Allegations of Domestic Violence

[66] I intend first to address the allegations of domestic violence. Pursuant to section 24(3) of the Children's Law Reform Act, the Court shall consider a person's past conduct only, in accordance with section 24(4), or if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

[67] Pursuant to section 24(4) of the Children's Law Reform Act, in assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against his or her spouse, a parent of the children to whom the application relates, a member of the person's household, or any child.

[68] But pursuant to section 24(5) of the Children's Law Reform Act, anything done in self-defence or to protect another person shall not be considered violence or abuse.

[69] The father's explanation of the violence is that it was the mother who charged at him, upon hearing that he intended to separate from her. Otherwise, it was the mother who was prone to outbursts. And the mother's alcoholism has contributed to the problems, from the father's perspective. The father has described some, if not all of his actions, as being in the nature of self-defence.

[70] The mother says that it was the father who was abusive and threatening towards her. She points to the fact that the father has been charged with assault and accuses him of being controlling, manipulating and jealous in the past.

[71] The Court takes these allegations of domestic violence very seriously. I am troubled by the competing allegations of violence in this case. But I decline to make a finding about this either way at this stage. The allegations of domestic violence will have to be dealt with in due course, in part in the criminal court, but also in this Court. There are counselling and child protection records that may shed light on the credibility issues raised by both parents' accounts in this proceeding. The issues will undoubtedly be explored by the Children's Lawyer, if it accepts this Court's referral, or by the parties with more complete evidence at a later date, if the Children's Lawyer declines the referral.

[72] All that said, the concerns about violence will be dealt with for now, in that once an Order of this Court is in place, there should be no more opportunity for the parents to be engaging in conflict of this nature with one another. The father's bail conditions prevent in person contact between the parents, and as the children shall stay with the father, there should be no more late-night calls to the father to come to the mother's aid.

C. Analysis Respecting Temporary Custody

[73] I agree with the mother's alternative position respecting custody. I make no order as to custody at this stage. This case is at its very early stages. Neither counsel provided me with any cogent reason why a temporary custody order needs to be made at this point. Other than some of the questions that the Court has been asked to decide on these motions, I am unaware of any particular decisions that need to be made right now.

[74] Regardless, I must still decide where the children should be living right now. The Court is not bound by the parties' informal agreement that the children should be returned to the mother. Not only was it signed in the absence of legal advice, but even if there had been legal advice, the Court may disregard it. Ultimately, the Court must have regard to the children's best interests.

[75] Again, there is additional evidence that will be fleshed out and adduced in this litigation, and which will be relevant to the question about who should have custody on a more permanent basis. In the mean time, I intend to order that the children shall remain with their father, for now. The father can deal with any day to day issues, or routine or emergency health issues. If there are any other issues that cannot be sorted out between counsel, the I may be contacted.

D. Analysis Respecting Temporary Access

[76] I intend to consider the mother's alcoholism, which is admitted, the evidence regarding her cocaine use, which she has largely failed to address, and the other evidence regarding her mental health, as relevant to her ability to act as a parent at this stage of the case, pursuant to section 24(3) of the Children's Law Reform Act. As I have already indicated, I am unable to accede to the mother's request that these young children should be returned to her care at this point. I agree with counsel for the father that the mother's access to the children should be supervised for now. I say this for the following reasons.

(1) The Relevance of the Mother's Substance Misuse

[77] The mother's statements, mentioned above, that the children are not at risk in her care, despite her drinking, do not give the Court very much comfort at this stage of the case. Nor does the mother's statement that the last time she was intoxicated was in April or May.

[78] The mother says that she has taken various counselling programs through NCFS, and she goes to A.A. To one of her affidavits, she has attached a letter from NCFS dated in January 2020, authored well before the April 2020 incident, outlining the support team that she has in place. I note that one of the signatories to that letter, is J.F.

[79] But apart from telling the Court what services she has in place, the mother has said very little about how she has actually dealt or is dealing with her alcoholism and substance misuse. She has not told the Court much about her past history with alcoholism, other than that she struggles with it. She has not really explained why, in spite of having this support team, she had the relapse, apart from calling it a temporary lapse in judgment. It is also somewhat telling that, in spite of the various supports that she says she has in place via NCFS and otherwise, she reached out to the father for support when she started drinking, in April, 2020.

[80] The information that the father has brought to the Court's attention is serious and concerning. As a result of what happened in late April, 2020, the mother has not been in a caregiving role for the parties' two young children, since May 3, 2020.

[81] The fact that the parties signed the temporary agreement, and then the father came to Court just before the extension of it was about to expire, is a bit of a 'red herring'. I am not prepared to find that the father tricked the mother, as the mother argues. Even if I was prepared to make this finding, the Court still has to decide these motions in the children's best interests. Even if the parties had not agreed to the children going with the father back in early May, let alone to the extension, then I suspect the father would have just commenced this proceeding earlier.

[82] In the end, without more information about the mother's history, her current issues and how exactly she is dealing with them, and whether she is successfully dealing with her addiction, the Court is really unable to predict exactly how the children will be safe in the mother's care going forward.

[83] It is also very concerning to the Court, that the mother has also failed, almost entirely, to address the concerns raised by the father, about her cocaine use. To be clear, she neither denies that there was cocaine in the house in April, nor that she has used it in the past, nor does she even deny the father's allegation that she used cocaine, when he was present with her for that week.

[84] Instead, how the mother has chosen to deal with the cocaine use in her affidavit is as follows. At paragraph 26(b) of her affidavit sworn June 29, 2020, she states, "as noted in the hereto attached drug test, I have not been consuming any illicit drugs or controlled substances". Apparently J.F. also took a drug test as there are suggestions that J.F. too, the addictions case manager, suffers from substance misuse issues.

[85] The drug tests that she attaches appear to have been done on June 23 and 26, 2020. Quite apart from issues about their admissibility on these motions, there is also no admissible evidence before me as to how I should interpret these tests. For example, even if I accepted these tests as proof of their contents, I do not know the period of time that these tests cover. Nor would I rely on the pamphlet from Dynacare lab, that the father has filed, purporting to explain this, as that too would require expert evidence.

[86] The only conclusion I am prepared to draw from these drug tests, is that the mother submitted to them, in the days leading up to this motion being argued. And I note this was done several weeks after the April, 2020 incidents in question, during which the mother binged on cocaine. At this point, the tests tell me nothing about what happened between April and June, 2020.

(2) There Is No Credible Evidence Substance Misuse By the Father

[87] I will briefly address the allegations about the father's drinking, made by the mother. The mother states that the father is more than a social drinker. For example, in response to some of the statements that the father has made about her, the mother says that the father drank too.

[88] However, these motions were not seriously argued as though there is a safety concern with the children remaining in the care of the father, nor that he suffers from any addiction or substance misuse issues, that should cause the Court pause for concern.

[89] Therefore, the mother's evidence about the father's drinking plays little role in my analysis. However, as I am directing the CAST and NCFS to look into this matter further. To the extent that there are such allegations about the father in the material, perhaps these will be explored by either child welfare agency.

(3) The Extent to Which A Child Welfare Agency Has Been Involved With The Mother Is Not Fully Known To The Court

[90] I am also concerned, at this point, that child welfare agencies have been involved with the mother, but I do not fully know why, or whether they are fully aware of what has been going on recently.

[91] In addition, there is a concern about a conflict of interest at NCFS. Clearly, there is a history of the mother being involved with a child welfare agency, perhaps NCFS only, but perhaps others. In any case, the mother's relationship with J.F., from NCFS, is problematic.

[92] J.F. has filed an affidavit with the Court, sworn June 29, 2020, in support of the mother. At paragraph 2 of that affidavit, he says that he was only briefly part of the mother's support team, but since beginning the romantic relationship with the mother, he is no longer part of the support team.

[93] While he admits that he acted as the mother's addiction case manager, J.F. says he just facilitated a healing circle in which the mother participated. He may have also provided her with transportation to A.A. But there is more to this story.

[94] To his reply affidavit of July 6, 2020, the father filed a letter dated March 3, 2020, from NCFS to J.F. The father says he discovered this letter, when he was staying with the mother in April of 2020, and that he took a picture of it.

[95] According to the letter, it appears that J.F. left NCFS on a "sick leave". NCFS then became aware of "inappropriate behaviour as it relates to [his] servicing a client of [NCFS]". While the letter discusses J.F.'s possible eligibility for Short Term Disability, it also says that if he is not eligible, J.F. would be placed on an unpaid leave of absence, until the investigation is completed.

[96] In the same letter, J.F. has been warned by NCFS not to attend any NCFS sites, speak to colleagues about this matter, interact with any clients of the agency, or engage in any social media. It remains to be seen whether by continuing in this relationship with the mother, that is a breach of this term that he not interact with clients of NCFS.

[97] The mother's reply affidavit in respect of this letter is hard to believe. She states that this letter pre-dates her relationship with J.F. She claims that that J.F. actually has no knowledge as to what the inappropriate behaviour is. She claims that J.F. is still on sick leave, as opposed to being on the unpaid leave referred to in the letter.

[98] Yet J.F.'s own affidavit seems to suggest that he was involved in the mother's support team only briefly until the relationship started, and then he stopped being involved in her support team. So if, according to the mother's reply, this "inappropriate behaviour as it relates to [his] servicing a client of [NCFS]" does not pertain to her, then to whom does it pertain? There is no explanation in the material, other than the mother claiming that J.F. does not know. And she did not obtain a further affidavit from J.F., instead choosing to submit hearsay evidence of his not knowing.

[99] Despite claiming to have only had brief professional involvement with the mother, in his affidavit, J.F. goes on to offer a social work opinion to the Court. He says that based on his professional discussions with others at NCFS, there are no child welfare concerns. He says that these children were always well cared for, and the mother's "drinking was always done in a responsible manner". What happened in April 2020 was not responsible drinking.

[100] J.F. reports to the Court that NCFS' protection concerns pertain to domestic violence with the father in this case, and not the mother's substance misuse. If this is true, then the Court is concerned that the full story has been withheld from NCFS.

[101] Finally, J.F. then decided to provide observation evidence about the mother, in his personal capacity as the mother's partner. Yet according to the mother's own evidence, the relationship is no more than 3 months old.

[102] I find J.F.'s affidavit to be incredibly inappropriate. The Court relies on social workers from child welfare agencies to provide, neutral professional evidence. At the same time as he purports to limit the extent of his professional involvement with the mother, J.F. proposes to offer professional social work evidence about the mother's addiction, and then personal evidence as her new partner. He proposes to speak for others at NCFS, while not telling the Court that he received correspondence from NCFS, calling his professional conduct into question.

[103] Indeed, it is equally troubling that while J.F. says he was only briefly involved in the mother's case and that he is no longer part of her support team since commencing the romantic relationship, both he (and the mother initially) failed to report to the Court that he had received this troubling letter from NCFS.

[104] Separately, the father also has reason to believe that J.F. has been involved in substance misuse, with the mother. I do not know whether this is true or not. What I do know is that the mother saw fit to have J.F. undergo a drug test in an attempt to refute this. If, in the result, the mother is now living with her former addictions counsellor, with whom she is using drugs or alcohol, then there is an additional layer of a problem.

[105] At the end of this motion, I am left concerned, based on J.F.'s affidavit (and the father's earlier statement that he was told by the mother in the past not to report anything to a children's aid society), that NCFS may think that any protection concerns in this case are limited to domestic violence between the parents only. During the motion, I was told that the father, or perhaps a doctor on his behalf, may have recently contacted a children's aid society (I'm unclear which one) about this family. I do not know precisely what was reported.

[106] In the end, I do not really know whether anyone at NCFS (or other child welfare agency) is aware of what transpired in April, that the parents' two young children went with the father as a result, that J.G. has remained in the mother's care, notwithstanding what happened, or that J.F. has now moved in. I do not know why J.F. is on a sick leave. I do not know whether these allegations of J.F. participating in substance misuse with the mother are true or not. But this is all concerning.

[107] The safety of the children involved in this case (and of J.G.) must be placed at the forefront here. I am directing that this ruling be sent to both NCFS and the CAST. I am having it sent to CAST, in case there continues to be a conflict of interest at NCFS. These two child protection agencies should coordinate with one another as to how to proceed in light of the above.

[108] Which ever agency it ends up being, I am requesting that one or the other to immediately investigate whether J.G. is at risk right now. Beyond that, either of these agencies should be investigating whether there are other protection concerns pertaining to all three children. It is essential the child welfare agency involved with this family be made aware, fully, of the details that the Court has been told, to the extent that they are not. They should know that there are multiple affidavits before this Court.

(4) The Father's Plan for Supervised Access

[109] The father has been reasonable in his efforts to come up with a plan for supervised access. He thoughtfully reached out to the mother's sister as a potential supervisor, including even for overnight access. He tried to put forth a proposal that would involve family, so that the children could also see their half-sister, J.G., too. I get the impression that the father has a good relationship with J.G., and that he cares for her well-being.

[110] But the mother's sister's husband would not agree to have the mother and the children have supervised visits at their home, based on the number of children that would be present, all at one time.

[111] The father also considered the maternal grandmother. But he is concerned that the maternal grandmother does not acknowledge the mother's problems. He is not confident that she will be able to follow a safety plan.

[112] In the absence of a plan from the mother for supervised access, I have no other alternative but to order aspects of the plan proposed by the father.

[113] The father wants the mother to know that he is willing to have J.G. attend any supervised visits with the children. As J.G. is not subject to this proceeding, I will not make any order for this, but this is something that could be arranged through counsel. It is likely going to be beneficial for J.G. to be able to see her siblings.

(5) The Children's Lawyer

[114] Although the Court declined to deal with temporary custody at this time, the Court will eventually have to decide who is the appropriate custodial parent, among other issues. There are addiction issues, allegations of violence, and child welfare histories in this case, that have to be fleshed out and dealt with. There are also issues about sibling access that need to be addressed.

[115] The Court would find a section 112 report to be very helpful to the resolution of those issues in this case. If the Children's Lawyer accepts the Court's referral of July 8, 2020, (and the Court hopes it will), then through that process, the Children's Lawyer will presumably gather records of the mother's involvement with NCFS and any other child welfare agency, medical and counselling records of both parents, and relevant police records.

[116] If the Children's Lawyer does not accept the referral, then counsel should be prepared at the next case conference to come with a plan as to how that disclosure will be obtained.

(6) Other

[117] There are a host of other incidental claims, by both parents, in their respective motions. I need not deal with who should have the authority to renew government documents, whether police enforcement is required, or many of the other issues raised in these motions, at this time. During submissions, the parents agreed that there shall be a mutual order restraining either from removing the children from Ontario, so I will make that Order.

[118] There are also child support claims made in this proceeding. Neither has yet filed a financial statement. Both parents need to do so.

PART IV: ORDER

[119] I make the following orders:

(a) There shall be no order as to temporary custody of G.L. and S.L. at this stage of the case;

(b) On a temporary without prejudice basis, G.L. and S.L. shall continue to reside with the father;

(c) On a temporary without prejudice basis, the father is empowered to deal with any day to day issues concerning the children, and to deal with any routine or emergency health issues;

(d) If there are any other issues that cannot be sorted out between counsel, then I may be contacted;

(e) On a temporary without prejudice basis, the mother shall have supervised access with the children, each week for three hours. The mother may bring J.G. with her to the supervised visits, if she chooses. The supervisor shall be chosen by the father;

(f) On a temporary without prejudice basis, the mother shall also have video access for up to 30 minutes per day with the children, on the other days that the children do not otherwise have supervised access with her;

(g) The mother shall not be under the influence of alcohol or any other illegal drug during her supervised visits, or during her video access. If she is, then the father or the supervisor may cancel the visit;

(h) Counsel shall initially arrange the logistics of the supervised access and video access, including where it will occur, the times for the access and any other related logistic issues. If there is a dispute, then I should be contacted immediately, and I will arrange a teleconference to make any further orders needed to implement these terms;

(i) Thereafter, the parties are at liberty to communicate with one another via phone, email, text or otherwise electronically, regarding any issues concerning the children, including to arrange supervised access, and regarding video access;

(j) On consent, there shall be an order prohibiting either parent from removing the children from the Province of Ontario, without the other's consent or a court Order. The parties shall file the necessary CPIC Forms;

(k) Counsel should be prepared to address any disclosure issues at the next event in this case, especially if the Children's Lawyer declines the Court's referral;

(l) Both parties shall serve and file a sworn Financial Statement, and any relevant attachments, for the next event in this case;

(m) A copy of this ruling is to be sent to the Office of the Children's Lawyer. This decision should be read in conjunction with the Order of July 8, 2020 requesting the involvement of the Children's Lawyer, and the parents' intake forms;

(n) A copy of this ruling shall also be sent to senior counsel, Yvonne Fiamengo at the Children's Aid Society of Toronto, and to senior counsel, Adit Sommer-Weisglass, at Native Child and Family Services of Toronto. I ask that each of those lawyers direct this ruling to the appropriate person in their respective agencies;

(o) The identifying information of the parents and the children in this decision has been anonymized. When the Court sends this ruling to Ms. Fiamengo and Ms. Sommer-Weisglass, the clerk shall provide them with those details, too;

(p) The Court wishes the CAST and NCFS to be made aware, fully, of the details that the Court has been told. Multiple affidavits have been filed with the Court in this matter already;

(q) In that regard, if any child welfare agency requires them as part of their investigation, counsel for the parents shall provide copies of the pleadings and affidavits which have been filed with the Court;

(r) This matter has been scheduled to return before me to be spoken to, on August 25, 2020 at 9:30 am by teleconference; and

(s) If either parent intends to seek costs, then costs may be dealt with at that time. The parties should exchange and file their Bills of Costs, any Offers to Settle, and any case law which they wish the Court to consider. It is sufficient if this information is filed with the Court 7 days before the return date.

[120] I wish to thank both counsel for their motion materials and their professional presentation.

Released: July 13, 2020

Signed: Justice Alex Finlayson