Court File and Parties

Ontario Court of Justice

Date: August 14, 2020

Court File No.: Brantford F 88/20

Between:

Brittany Miller Applicant

— And —

Jonathan Jonathan Respondent

Before: Justice A.D. Hilliard

Heard on: August 12, 2020

Reasons for Judgment released on: August 14, 2020

Counsel:

• E. Van Looyen – counsel for the applicant(s)
• S. DeGroot – counsel for the respondent(s)

Reasons for Judgment

Hilliard J.:

Overview

[1] The Respondent father, Mr. Jonathan, brought a motion seeking graduated access supervised, on a temporary without prejudice basis, by his mother, Kathy Slavin.

[2] The Applicant mother, Ms. Miller, opposes Mr. Jonathan's request for access and seeks an order for temporary custody and for Mr. Jonathan to have supervised access virtually and at Dalhousie Place – a supervised access centre.

[3] The subject child, Maple, will be 1 year old on […].

Access

[4] Ms. Miller does not agree to Ms. Slavin supervising Mr. Jonathan's access as Ms. Miller believes that Ms. Slavin will not act protectively in the interests of Maple should Mr. Jonathan act inappropriately during his access periods. Mr. Jonathan admittedly has struggled with illicit substance misuse. Ms. Miller also alleges that Mr. Jonathan was abusive to her during their relationship. Ms. Miller has reported her concerns to the child protection agency on the Six Nations territory – Ogwadeni:deo, and for a period of time, while an investigation was ongoing, Mr. Jonathan's access to all his children was suspended.[1]

[5] On May 27, 2020, a letter was written co-signed by the Intake Support Team Member, Ashley Morris, and Intake Team Leader, Trevor Johnson, which indicated that Ogwadeni:deo had opened a protection investigation but was approving Kathy Slavin, the paternal grandmother, as a supervisor for Mr. Jonathan's access during the investigation. The letter indicated that "regular scheduled supervised access is to begin immediately." (emphasis in original)

[6] During the course of argument on this motion, I was made aware that a subsequent letter had been sent to Ms. Van Looyen, as counsel for Ms. Miller, by legal counsel for Ogwadeni:deo, Ms. Bulbrook, indicating that the agency's position regarding Mr. Jonathan's access had not changed since the letter of May 27, 2020. Although it was not properly in evidence, I received a copy of that letter on consent. Specifically Ms. Bulbrook indicated, "[Mr. Jonathan] is working with Ogwadeni:deo to address the concerns that have been reported by your client and he has the appropriate accommodations to have access to the child. I have been advised by Support Team Lead Trevor Johnson that Ms. Miller is now withholding access based on her own concerns."

[7] Ms. Miller takes the position that notwithstanding the position of Ogwadeni:deo, the Court should find that Ms. Slavin is not an appropriate access supervisor and that the only in person access that is in Maple's best interests is access at Dalhousie Place. Ms. Miller emphasized that this is not a child protection proceeding but rather a domestic proceeding in which the Court is to consider what is in the best interest of the child. In that regard, Ms. Miller's view is that the position taken by Ogwadeni:deo is minimally adequate to address the protection concerns and the Court should rather look to what is in Maple's best interests rather than abdicate that responsibility to Ogwadeni:deo.

[8] The difficulty with Ms. Miller's position is that it is based upon the assumption that I accept that there are serious child protection concerns in relation to Mr. Jonathan's ability to care for Maple. As this is indeed a matter under the Children's Law Reform Act (CLRA) and not a child protection matter, prior to my making an order for supervised access I must be satisfied that there are protection concerns that warrant such a restrictive order. Under the CLRA, the guiding principle is indeed the best interests of the child, but the caselaw also makes it clear that the maximum contact principle is the starting point for any analysis as to what parenting schedule should be imposed. A court should only impose a schedule that does not reflect the maximum contact principle on the basis of evidence that demonstrates that it is not in the best interests of the children.

[9] Given the ongoing child protection investigation at present, Maple's very young age (not yet 1 year old), and Mr. Jonathan's admitted illicit substance abuse, I am satisfied that some level of supervision is required for Mr. Jonathan to have in person access. However, I am also mindful that access in a supervised access centre is very restrictive.

[10] Although a supervised access centre has the benefit of a neutral third party observer taking notes, the setting itself does not create a sense of normalcy or comfort for either parent or child. Having Maple attend for access with her father at Dalhousie Place would also require her to be, for a brief period of time, at beginning and end of the access visits, with a stranger who is not family. Parents must drop off the child approximately 15 minutes prior to the commencement of access and not return to pick up the child until approximately 15 minutes after the end of the visit. At Maple's tender age, were there to be an issue during access, it may be that she has no one familiar to comfort her in the event she is upset and cannot be soothed by her father.

[11] The evidence provided by Ms. Miller regarding the availability of access visits at Dalhousie Place is somewhat vague. A general email was attached to Ms. Miller's affidavit that indicates that "Dalhousie Place is in the process of resuming 'face to face' services for families over the next six weeks." Should an order issue for Mr. Jonathan to have access only at Dalhousie Place, it may be six weeks or longer before he actually has an access visit. There is also no indication as to how often access visits can be accommodated.

[12] There is also the issue of the COVID-19 pandemic to consider, although not specifically raised by either of the parties. Dalhousie Place, as a supervised access centre, will have many adults and children attending the facility on any given day. I have no evidence that Maple has any diagnoses, other than her cleft palate, that would make her more susceptible to contracting COVID-19, but she is also still a young and vulnerable child. In the email from Dalhousie Place, I note that there is no mention as to what enhanced cleaning procedures have been put in place for the multi-use spaces provided for families to have supervised visits. There is no indication as to whether face coverings will be required throughout the visits.

[13] An order that Ms. Slavin, Maple's paternal grandmother, supervise Mr. Jonathan's access allows Maple to have a family member, who she is familiar with, present during access visits with her father, who she has not seen in person since March 25, 2020. Ms. Slavin being the access supervisor will enable Mr. Jonathan to have access in a home setting where Maple can move around and explore more freely. Access visits in Ms. Slavin's home will also ensure that Maple's exposure to persons outside of Ms. Miller's bubble can be significantly reduced.

[14] I am not satisfied that an order for supervised access at Dalhousie Place is necessary or appropriate. I find that an order for Mr. Jonathan to have access at Ms. Slavin's home, supervised by her, is in the best interests of Maple at this time. However, given the length of time that has passed since Mr. Jonathan last saw Maple, and Maple's very young age, I find that the request for overnight access is premature.

Temporary Custody

[15] Custody orders on a temporary basis should be the exception and not the rule. Granting an order for one parent to have the custodial designation on a temporary basis creates a status quo that is difficult to overcome. A temporary custody order also has the potential to create a power imbalance between the parties, as it allows the parent granted custody to make all custodial decisions without the consent of the other parent.

[16] There is no evidence that Maple has been prevented from receiving essential medical care or support services as a result of Ms. Miller not having a formal custody order. There is also no evidence that Mr. Jonathan has opposed or attempted to prevent Ms. Miller from making medical decisions for Maple, particularly as it relates to care for her cleft palate.

[17] It may be ultimately that it is determined after a trial that a joint custodial regime is not appropriate given the high level of conflict between the parties. Ms. Miller relies on the abusive conduct she alleges Mr. Jonathan engaged in during their relationship as proof of why a joint custody order is not appropriate. However, I have no evidence before me that Mr. Jonathan has been charged with offences related to domestic violence against Ms. Miller. He vehemently denies the allegations made by Ms. Miller. The credibility of Ms. Miller's allegations is almost impossible to assess on the basis of affidavit evidence only.

[18] In my view, a temporary custody order should only be made on consent, or where there is evidence that is accepted by the court that such an order is necessary in the best interests of the children. On the evidence before me on this motion, I am not satisfied that an order granting Ms. Miller temporary custody is either necessary or appropriate.

Conclusion

[19] For the foregoing reasons, a temporary order shall issue as follows:

(1) The Respondent father shall have supervised access to the child, Maple, Monday, Wednesday, and Saturday each week from 1:00 p.m. to 5:00 p.m. or some other 4 hour period as agreed upon in writing between the parties. This schedule will commence Monday, August 17, 2020 and continue for the 4 weeks thereafter.

(2) Commencing Monday September 14, 2020, the Respondent father's visits will be expanded to 11:00 a.m. to 5:00 p.m., or some other 6 hour period as agreed upon in writing between the parties.

(3) All of the Respondent father's visits shall be directly supervised by the paternal grandmother, Kathy Slavin, and shall take place at Ms. Slavin's home or on her property, unless otherwise agreed upon in writing between the parties.

(4) Mr. Jonathan shall not consume illicit substances or prescription medication not prescribed for him during access periods or for the 12 hours prior to an access visit.

(5) The Applicant mother's motion for custody is dismissed.

(6) Counsel may electronically file written submissions on the issue of costs within 30 days.

Released: August 14, 2020

Signed: Justice A.D. Hilliard

[1] Mr. Jonathan has three other children from a previous relationship ages 12, 11, and 8, with whom he was having unsupervised alternate weekend access.