Court File and Parties
Court File Number: D21645/18
Ontario Court of Justice
Court Office Address: 47 Sheppard Ave. E, Toronto, Ontario
Date: February 11, 2020
Before: Justice M. Sager
Parties
Applicant: Kayla Krane Charbonneau (Present)
Counsel for Applicant: Gary Gottlieb (Present)
Respondent: Gregory Tupac Guzman (Present)
Counsel for Respondent: Self-represented
Order
Order to go in accordance with minutes of settlement or consent filed.
Endorsement
Background and Procedural History
[1] The Applicant (mother) commenced this litigation by way of an urgent ex parte motion on November 7, 2018. On that day, the mother was granted on a temporary without prejudice basis custody of the party's son, Lysander Katari Quacey Guzman Crane (Lysander) born […], 2018 and the Respondent (father) was prohibited from removing the child from the City of Toronto.
[2] The mother's requests for various other relief on the ex parte motion, including an order restricting the father to supervised access at her discretion, was adjourned to November 14, 2018.
[3] On the return of the mother's ex parte motion the parties consented to a temporary order granting the mother custody of Lysander and a temporary without prejudice order granting the father supervised access at a supervised access centre for 2 hours twice per week. The father also consented to an order restraining him from having direct or indirect contact with the mother.
[4] The case was adjourned to December 20, 2018 and both parties were granted leave to bring a motion.
[5] The parties requested an adjournment on consent of the December 20, 2018 court date to February 12, 2019. Between November 14, 2018 and February 12, 2019, the father exercised supervised access to Lysander once per week at Access for Parents and Children (APCO) and once per week supervised by Peel/York Region Supervised Access Program (SEC). The father obtained the observation notes from both APCO and SEC and requested unsupervised access on the basis of the positive observations of his access by the supervisors as documented in the notes. As the parties could not agree on a change to the father's access, the father was permitted to bring a motion on the next court date for unsupervised access.
[6] On February 12, 2018, the parties consented to a temporary order requiring the father to pay the mother child support for Lysander in the amount of $291.00 per month based on an annual income of $33,889.00 and the Child Support Guidelines.
Father's Motion for Expanded Access (April 25, 2019)
[7] The father's motion for expanded access was heard on April 25, 2019. The father requested the following relief:
(a) A total of eight 24 hour visits each month, occurring at least once per week and for two consecutive days at least once per month;
(b) Six hours of unsupervised access each week in addition to the overnight access; and,
(c) Access will be reviewed at a Case Conference in September 2019.
[8] The mother's position was that as the father has been unable to demonstrate that he can meet Lysander's needs during visits, they should remain supervised. She also requested the appointment of the Office of the Children's Lawyer to investigate and report to the court on the issue of the father's access to Lysander. The mother would not consent to the father having any unsupervised access to Lysander, who was 14 months old at the time. In her affidavit evidence, the mother raised and relied upon many of the same allegations contained in her affidavit in support of her ex parte motion in November 2018.
[9] After hearing submissions on April 25, 2019, the father was granted access to Lysander as follows:
Week 1 and every other week thereafter:
a) On Wednesday from 1:00 p.m. until 7:00 p.m. in the presence of the paternal grandmother. The maternal grandmother [with her consent] on behalf of the mother will drop off and pick up Lysander from the paternal great grandfather's home in Pickering at the beginning and end of each visit.
b) On Saturday with pick up and drop off at APCO for 4 hours from 9:00 a.m. to 1:00 p.m., subject to APCO's availability.
Week 2 and every other week thereafter:
a) On Wednesday from 1:00 p.m. until 7:00 p.m. in the presence of the paternal grandmother. The maternal grandmother on behalf of the mother will drop off and pick up Lysander from the paternal great grandfather's home in Pickering at the beginning and end of each visit.
b) On Saturday from 10:00 a.m. to 4:00 p.m. in the presence of the paternal grandmother. The maternal grandmother on behalf of the mother will drop off and pick up Lysander from the paternal great grandfather's home in Pickering at the beginning and end of each visit.
[10] The father's request for expanded unsupervised access, including overnight access was adjourned to July 17, 2019.
Father's Motion for Further Expanded Access (July 25, 2019)
[11] Prior to the return of the father's motion, the mother retained her third lawyer and requested an adjournment of the father's motion so that her new lawyer could become better acquainted with the file. This request was not on consent and was denied. The father's motion proceeded on July 25, 2019. He asked the court to order expanded access including overnight visits. The mother opposed any expansion of the father's access.
[12] In support of her position, the mother served and filed an affidavit sworn July 21, 2019 in which she repeated and relied upon much of the same evidence set out in her affidavit in support of her ex parte motion and her affidavit filed in advance of the father's motion heard on April 25, 2019.
[13] After hearing argument on behalf of the parties on July 25, 2019, the following order was made:
- The Respondent father shall have access to Lysander, on a temporary basis until the next court date as follows:
a) Until August 15, 2019, every Friday from 10:00 a.m. to 4:00 p.m. The pick-up and drop off shall take place at the paternal great grandfather's home. The paternal grandmother will be present and assist the father from 10:00 a.m. until 12:30 p.m. after Lysander has had his lunch. The maternal grandmother on behalf of the mother will drop off and pick up Lysander from the paternal great grandfather's home in Pickering at the beginning and end of each visit.
b) Commencing August 22, 2019, every Wednesday from 10:00 a.m. until 5:45 p.m. The pick-up and drop off shall take place at the paternal great grandfather's home. The paternal grandmother will be present and assist the father from 10:00 a.m. until 12:30 p.m. after Lysander has had his lunch. The father shall provide Lysander with dinner. The maternal grandmother on behalf of the mother will drop off and pick up Lysander from the paternal great grandfather's home in Pickering at the beginning and end of each visit.
c) Every Saturday with pick up and drop off at APCO from 10:00 a.m. to 4:30 p.m., subject to APCO's availability.
d) If APCO is closed, the pick-up and drop off shall take place at the paternal great grandfather's home in Pickering.
e) The father is not to bring Lysander to his residence during his visits.
f) If the paternal grandmother is unavailable to be present during a Wednesday visit the father shall notify mother's counsel but the visit shall still take place. This may only occur on two occasions between the date of this order and the return date. Beyond two visits, the father will have to arrange a mutually agreeable third party with mother's counsel.
g) The father is to adhere to Lysander's schedule and routine as set out by the mother in her email of May 1, 2019, provided to the father by the mother's previous lawyer as much as is possible during his visits.
h) The mother will provide the father with information about Lysander's likes and dislikes in relation to food prior to the next visit.
i) On the return of this motion, the court will consider the father's request for expanded access including overnight access. The parties will attend a case conference prior to the return of the motion prior to which the father shall serve and file the APCO notes.
Case Conference (October 31, 2019)
[14] The next court date that was scheduled for October 31, 2019, for a Case Conference. Prior to return date, the mother requested leave to bring a motion to "address concerns regarding access, parenting issues and procedural matters". As the mother failed to provide affidavit evidence in support of the request, leave was not granted, and the case conference proceeded on October 31, 2019. The parties both filed Case Conference Briefs, which included copies of the observation notes from APCO. The Case Conference briefs contained numerous serious allegations resulting in the following endorsement:
"This is a very high conflict case with many, many allegations being made by both parties. I am concerned that the conflict and stress may end up harming the parties' one year old son who is maybe already showing signs of stress due to extreme constipation that required a hospital visit. I am instructing court staff to send the parties' case conference briefs to the CAST as I am told by mother that due to her reporting concerns to the Child Development Institute, the CAST has been called and the mother has an appointment scheduled to meet with a CAST worker. Parties shall cooperate to obtain CAST records."
[15] The matter was adjourned to December 13, 2019 and both parties were granted leave to bring a motion on the return date and the parties were also granted leave to summons the CAST worker who is conducting the investigation to attend in court on the motion to give oral evidence.
Motion Materials and CAST Investigation (December 13, 2019)
[16] Prior to the December 13, 2019 court date, the father served and filed motion materials seeking an expansion of access to include overnight access while the mother served and filed motion materials in which she requests orders varying the father's access to be fully supervised visits.
[17] On December 13, 2019, Justice Zisman granted the mother's request for an adjournment and noted in her endorsement that the CAST worker was present and that the parties had received disclosure from the society. Justice Zisman's endorsement states, "CAS has an open file – verification completed concerns verified re bruising "inconclusive". Additional concerns risk of child being exposed to ongoing conflict and recommend re ongoing services – this is the 5th time there has been an investigation."
[18] In addition to granting the mother's request for an adjournment, Justice Zisman ordered "neither parent is to video or photograph this child for "litigation purposes" and "mother at liberty to take child to "SCAN" if she is concerned re any injuries to the child." The CAST worker was ordered to attend at court on the next date in order to provide oral evidence if required.
The Motion Argued on February 7, 2020
[19] The parties have filed numerous affidavits in the course of this litigation. The affidavits filed in support of the motions argued on February 7, 2020 after the previous motion date of July 25, 2019 are as follows:
On behalf of the father:
(a) Notice of Motion dated November 29, 2019;
(b) Affidavit sworn October 28, 2019;
(c) Affidavit sworn November 29, 2019;
(d) Affidavit sworn December 11, 2019
On behalf of mother:
(a) Notice of Motion dated November 28, 2019;
(b) Affidavit sworn November 28, 2019;
(c) Affidavit sworn December 4, 2019;
(d) Affidavit sworn January 22, 2020; and,
(e) Affidavit of Dr. Manuel Greenberg sworn January 16, 2020.
[20] On the return of the motion both parties referenced evidence contained in previous affidavits filed in the continuing record. Prior to October 2019, the mother had served and filed 13 affidavits of which she was the deponent of 4 and collaterals were the deponents of 9 while the father served and filed 10 affidavits of which he deposed 7[1] and collaterals deposed 2.
[21] It is fair to say that the affidavit evidence from the mother makes numerous serious allegations regarding the father's conduct and past, his character and his ability to care for Lysander. The father's affidavit evidence responds to the allegations and attempts to counter the mother's claim that he is a danger to his son and that his access must be supervised.
Mother's Allegations and Concerns
[22] On the motion heard on February 7, 2020, the mother argued that with each increase in access, she has "growing concerns in regard to the Respondent's lack of awareness and responsiveness to Lysander's health and dietary needs." The mother argues that even more serious is that Lysander has suffered from unexplained injuries in his father's care including numerous bruises, which she describes on one occasion to be "quite extensive bruising" and he has "continued to return from numerous access visits with significant sunburns, heat rash and signs of heat exhaustion." She claims that on August 17, 2019, Lysander returned from a visit with his father with a "very serious sunburn to his face, and heat rash".
[23] The mother argues that as the father cannot explain these injuries, and in some cases will not even acknowledge them, Lysander is not safe in his father's care and that the only way to protect Lysander from these unexplained injuries is to restrict the father to supervised access. She argues that the father must demonstrate that he can keep Lysander safe and healthy before access should be expanded.
[24] The following is a summary of the mother's evidence to support the allegations and her concerns as set out in her most recent affidavits:
(a) The father did not meet with Lysander's pediatrician to discuss his dietary needs until September 26, 2019 when he was ordered to do so on July 25, 2019. During that time, Lysander suffered from severe and persistent problems with constipation;
(b) Lysander has returned from visits soaked in sweat and lethargic;
(c) Lysander returns from visits with numerous unexplained bruises on his body;
(d) The mother provided photographs of bruising on Lysander's legs and foot following a visit on October 23, 2019 for which the father provided no explanation;
(e) The mother provided photographs of Lysander's ear and face following the visit on August 17, 2019 when the mother claims that Lysander suffered a very serious sunburn and heat rash;
(f) The mother provided photographs of Lysander following visits where his face is flush, and the mother describes his appearance as lethargic;
(g) The mother provided photographs of red marks on Lysander's face and thigh she said were observed following a visit with the father;
(h) The mother provided an affidavit from Lysander's doctor stating that bruising on Lysander's shin was concerning and as the mother had no explanation for how it occurred, he was obliged to report his concerns to the Children's Aid Society;
(i) Elizabeth Savaria of Mothers in Mind program made a referral to the CAST after the mother showed her some of the photographs of the bruises and marks on Lysander;
(j) The CAST has verified that the bruising on Lysander was concerning;
(k) The mother relies on various notes from the CAST file that was provided to the parties; and,
(l) The mother's observations of Lysander after visits with his father raise very serious concerns regarding his care of Lysander during visits.
Father's Position and Evidence
[25] The father's position on the motion is that he has been seeking to expand his access to Lysander to include overnight visits since April 2019. The father's affidavit evidence responds to each and every allegation by the mother and includes his use of sunscreen during visits, his meeting with Lysander's doctor to discuss his health needs, his self-education on anti-constipation diets, and his review of the bruising and marks he has seen on his son during visits. He has also completed a parenting course and fully cooperated with the CAST investigations.
[26] The father describes a happy, healthy and loving relationship with his son and complains that the mother's actions, including taking Lysander to the hospital for a drug test to see if he had drugged Lysander, has resulted in an unnecessary delay in him having extended visits with his son.
[27] The father relies on affidavit evidence from his mother that describes appropriate interaction between him and his son and a loving, close relationship.
[28] The father believes that the mother will go to any extent, even possibly harming Lysander herself and blaming him, to restrict his relationship with his son.
[29] The father relies on the fact that 4 previous referrals to the CAST were investigated without any verification of improper care on his part. The most recent referral has also not corroborated any concerns about his physical care of Lysander. The father summoned the CAST worker to court who gave evidence that she has no concerns about the father's care of or interaction with Lysander and that while the bruising on his leg was concerning, the CAST could not confirm how it occurred. Furthermore, the CAST worker is of the opinion that the real threat to Lysander is emotional harm as a result of the parents' conflict.
[30] The father's position is that the mother is incapable of supporting a relationship between him and Lysander and that he must come to court to obtain court orders for increased access and is prepared to defend himself against the allegations made by the mother to do so.
The Law
[31] The determination of this motion is governed by section 24 of the Children's Law Reform Act (the Act) which requires the court to consider the best interests of the child. Subsection 24(2) of the Act provides a non-exhaustive list of the needs and circumstances of the child the court must consider as part of the best interest analysis. Subsections 24(3) and (4) of the Act require the court to consider any past conduct of a party seeking access in so far as it is relevant to their ability to parent and violence committed by a party seeking access against a spouse, a parent of their child, any child or any member of their household.
[32] In deciding this motion, I have considered all of the applicable factors enumerated in subsection 24(2) of the Act and any past conduct or violence by both parties as required by subsections 24(3) and (4) of the Act.
Discussion of the Evidence
Background Allegations and Criminal Conviction
[33] The mother has resisted unsupervised access since she commenced this proceeding in November 2018. She has provided the court with evidence to support her position that predate the parties' relationship and Lysander's birth; she has served and filed affidavits from her friends and family, former girlfriends of the father, and his former roommate. The mother included as an exhibit to her first affidavit a newspaper article about a woman who fell to her death from the balcony of the father's apartment. She also served and filed an affidavit from the mother of the woman who died questioning why the father did not attend her daughter's funeral[2].
[34] The father has served and filed affidavits from family and other former romantic partners to counter the mother's allegations. He denies being involved in the woman's fall from the balcony and has not been charged with a crime.
[35] The father was also charged with two counts of assault involving the mother. A trial proceeded in January 2019 and both parties gave evidence. The decision was released in January 2020 and the father was convicted of assaulting the mother for lunging at her and grabbing a cell phone out of her hand. He was found not guilty on a more serious charge as the trial Judge found that his argument of self defense created a reasonable doubt.
[36] The father deposes that prior to being charged with assaulting the mother, he has never been charged with a criminal offense.
[37] Clearly the parties' relationship was incredibly tumultuous. Now that their relationship is over, Lysander has become the source of their conflict. There is no doubt that events arising from the termination of this relationship create a significant risk of emotional harm to Lysander, already identified as a risk by the CAST.
Progression of Access Orders
[38] The mother's numerous concerns have been taken very seriously by the court. The father's access to Lysander was fully supervised from approximately November 2018 until April 2019. After approximately 4 months of supervised visits at APCO and SEC which produced only positive observation notes, the court granted the father four hours of unsupervised access every other Saturday with pick up and drop off at APCO. The balance of the father's access was to take place in the presence of the paternal grandmother. The mother was opposed to the father having any unsupervised access.
[39] On July 25, 2019, after 3 months of the father exercising 4 hours of unsupervised access once every other week, the parties argued yet another motion to address the father's request for an expansion of unsupervised access. The father sought an order for overnight access and the mother opposed any increase in access.
[40] Prior to the return of this motion the mother has raised concerns about what the father feeds Lysander during visits, whether he dresses him appropriately for the weather, that the father returns Lysander after visits "exhausted", "dehydrated", "lethargic" and in dirty diapers.
[41] The court considered all of the mother's concerns and the evidence provided in support of those concerns and on July 25, 2019, the court declined to order overnight access but greatly expanded the father's unsupervised day access to include 7 and ¾ hours every Wednesday during which the paternal grandmother would be present to assist the father for 2.5 hours at the beginning of the visit and 6.5 hours every Saturday with pick up and drop off at APCO. At paragraph 6 of the July 25, 2019 order, the court states, "On the return of the motion, the court will consider the father's request for expanded access including overnight access. The parties will attend a case conference prior to the return of the motion prior to which the father shall serve and file the APCO notes.
The APCO Observation Notes
[42] During argument I asked the parties where I can find the APCO observation notes from the father's visits. Neither party was able to refer me to the appropriate place in the Continuing Record where I would find the notes.
[43] A review of the Continuing Record disclosed an affidavit sworn by the father on October 28, 2019 that attaches as exhibits several of the APCO observation notes from visits after the July 25, 2019 order. This exhibit includes the notes from all of the visits following which the mother raised concerns about the father's care of Lysander. Neither party made specific reference to this affidavit in their submissions, which raises a concern for the court whether it is fair to the mother for the court to rely on and reference the observation notes.
Self-Represented Litigants and Procedural Fairness
[44] With the majority of litigants coming before this court being self-represented, the court is faced with a difficult balancing act when one party is self-represented and the other has counsel. That balancing act requires the court to be fair and impartial while doing what is necessary and appropriate to assist a self-represented party.
[45] The Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in the decision of Pintea v. Johns 2017 SCC 23 guides the court in this case. These principles include the following:
Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.
Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case (emphasis mine).
Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.
Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.
[46] The duty of a trial judge to assist self-represented litigants was set out in Dujardin v. Dujardin Estate, 2018 ONCA 597:
"It is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence: Davids v. Davids (1999), 125 O.A.C. 375, at para. 36. However, a trial judge's duty to assist has limits. It does not entail bending the rules of evidence in an attempt to compensate for the lack of representation. The fair trial rights of opposing parties must be respected. As Brown J.A. said in Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 22: "A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented."
[47] In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case: Davids v. Davids (1999), 125 O.A.C. 375, at para. 36; Gionet v. Pingue, 2018 ONCA 1040.
[48] It is very clear from all of my orders that I kept adjourning the father's request for overnight access. On April 25, 2019, the order sets out the father's access "until the next court date". That same order provides at paragraph 3 that on the return of the motion the court will consider the father's request for expanded access.
[49] On July 25, 2019, after hearing the father's request for expanded access including overnight access, I once again ordered specific access "until the next court date" and provided at paragraph 6 of my endorsement that "the court will consider the father's request for expanded access including overnight access" on the return of the motion. The parties were ordered to attend a case conference prior to the return of the motion for which the father was required to obtain and serve and file APCO's observation notes.
[50] The Case Conference was scheduled for and proceeded on October 31, 2019. As there was no agreement to expand the access, the father's motion was adjourned to December 31, 2019.
[51] On October 28, 2019, the father filed an affidavit with the court that contains up to date APCO observation notes. He writes in paragraph 2 of the affidavit, "Since the access is a part of this case conference and all information in the Case Conference Brief dated 28/10/2019 is relevant to this motion, I submit that entire document here as EXHIBIT A so that all the attached facts and notes can be considered in my motion if it must go forward due to case conference impass[e][sic]." The affidavit was served on the mother's former counsel via email in accordance with a previous order of the court.[3]
[52] It is clear from the father's affidavit sworn October 28, 2019, that he intended for the affidavit to be relied upon on the return of his motion for expanded access. That motion was ultimately argued on February 7, 2020.
Confirmations Filed by the Parties Prior to the Motion
[53] I reviewed the confirmations filed by the parties prior to the hearing of this motion as the confirmations direct the parties to set out what documents they will refer the judge to during the motion and where they can be found in the Continuing Record. I did this to determine whether the father noted that he would be relying on his affidavit sworn October 28, 2019 attaching the APCO observation notes.
[54] Despite the high volume of affidavits filed by the parties throughout this proceeding, neither party advised the court which affidavits they intended to refer to in their arguments on the motion. Both parties left this portion of the confirmation blank.
[55] In his submissions, counsel for the mother referenced evidence contained in the mother's affidavits served and filed prior to the last court order for access. Counsel for the mother said it was important for him to be able to reference previous affidavit evidence as it demonstrated a pattern of neglect and mistreatment. Counsel for the father was not prohibited from relying upon evidence contained in affidavits filed with the court prior to November 2019.
[56] A judge hearing a motion has the same obligation to a self-represented party as a trial judge. The father's understanding of the manner in which evidence is put before the court on a motion while noticeably higher than many self-represented litigants does not reach the level of a lawyer. He expected the court to be able to rely on all affidavit evidence filed in the Continuing Record and did not know how to complete the confirmation. Considering that mother's counsel did not list the affidavit evidence the mother intended to rely upon in his confirmation, some leeway must be given to the father on this issue especially given the importance the APCO observation notes to the court when determining what order is in the child's best interests.
[57] I am satisfied that the mother had adequate notice that the father intended to rely upon the APCO observation notes attached as an Exhibit to his October 28, 2019 affidavit on the return of this motion and had ample opportunity to address the inconsistencies in her affidavit evidence. In fact, the affidavit sworn by the mother on November 28, 2019, which contains allegations not supported by the APCO observation notes, was sworn one month after her previous lawyer received the observation notes.
[58] Considering the fact that the father served and filed the affidavit sworn October 28, 2019 in support of his motion well in advance of the date on which the motion was actually argued, I am satisfied that I can rely on the contents of this affidavit in support of my decision on the motion as the mother had sufficient notice that the father was asking me to do so.
Analysis of the Evidence
What Change to Access is Supported by the Evidence?
[59] The court has scrutinized the father's access to Lysander since this case was commenced in November 2019 when Lysander was 10 months old. Lysander is now 2 years old. Six months has passed since the last order was made expanding the father's access to Lysander that was limited to day access only.
[60] The father has complied with each and every order made by the court for the last 15 months. He has produced months and months of observation notes of his visits and/or exchanges from neutral third parties who do not report any serious concerns. The mother takes no comfort in this fact and continues to repeat and rely upon concerns and allegations she first made in November 2018.
[61] The multitude of affidavits filed by the mother throughout this proceeding make it very clear that she is extremely anxious about Lysander being alone with the father. She does not believe that he can protect Lysander and keep him safe during their visits. Positive observation notes from APCO and SEC over a period of 15 months has done nothing to alleviate the mother's concerns. She is paralyzed with fear and cannot move forward.
[62] The mother's fears are so intense that she took Lysander to the hospital on two occasions to have him drug tested as Lysander's previous doctor, Dr. Wiseman, reported to the CAST that the mother was "convinced the child was stoned".[4] The drug tests were negative.
[63] According to the CAST notes included as exhibits to the mother's affidavit sworn December 11, 2019, the mother does not understand why CAST has closed their files after referrals were made regarding Lysander and she is concerned that the court is not reviewing her evidence thoroughly and taking her concerns about the father seriously. From the mother's perspective nothing is being done to alleviate her fears regarding the father.
Analysis of Specific Allegations
Constipation
[64] The bruising on Lysander as reported to the doctor on October 28, 2019, was described by him as concerning. The October 28, 2019 visit to the doctor took place 5 days after Lysander's last visit with his father on October 23, 2019.
[65] The mother did not provide any observation notes from APCO to corroborate her allegations that the concerning bruising (as opposed to "normal" bruising for a two year old child) was noticed by anyone upon the return of the child to the centre.
[66] The mother did not take the child to the doctor immediately following the October 23, 2019 visit which is when the "concerning" bruising is alleged to have been inflicted. There is no evidence to demonstrate that the father has caused the child's bruising through neglect or mistreatment.
[67] In her affidavit sworn November 28, 2019, the mother insinuates that the father's actions contributed to Lysander having "severe and persistent problems with constipation" between July and September 2019. The evidence provided by the mother from Lysander's doctor is that constipation is not unusual in a child of Lysander's age. Furthermore, between July and September 2019, Lysander spent a total of 14.25 hours a week in his father's care out of a total of 168 hours. There is no evidence that the father has done anything to cause the child constipation.
Sunburn Allegations
[68] The mother claims that Lysander "sustained a very serious sunburn to his face, and heat rash" during his August 17, 2019 visit with his father. The mother did not take Lysander to the doctor following the visit or at any time after the visit to have the sunburn treated. In her affidavit the mother states that the APCO staff told the father following the August 17, 2019 visit that he needed to ensure Lysander wore sunscreen and to reapply the sunscreen during the visit. While the mother provided photographs of Lysander looking very flush to corroborate her claim that he had a "very serious sunburn", she did not attach the observation notes from APCO for this visit or a doctor's report/note.
[69] The father's affidavit sworn October 28, 2019, found at tab 2 of volume 4 of the Continuing Record in support of his motion for overnight access attaches a copy of the APCO observation notes from the August 17, 2019 visit. The APCO observation note from this visit states that when Lysander was brought to his father at the beginning of the visit, he reached up from his stroller to give him a hug. On page 3 of the observation note, the writer is asked "were there any difficulties or concerns at the time that the child(ren) was/were exchanged following the visit?" The writer checks the box "no". The staff pushed Lysander in his stroller, where he was sleeping, back to his mother.
[70] The APCO observation notes from August 17, 2019 make no reference to Lysander having a "serious sunburn" or the staff speaking to the father about his use of sunscreen during his visits.
[71] There is no reliable evidence to substantiate the mother's claim that the father allowed the child to suffer a very serious sunburn while in his care. The photograph provided by the mother is not clear evidence of a "serious sunburn".
September 7, 2019 Visit
[72] The mother's affidavit evidence states that on September 7, 2019, Lysander returned from his visit with the father with a "bright red" face and "lethargic from the heat". Once again, the mother did not attach the observation notes from APCO for that visit, but they are attached to the father's affidavit sworn October 28, 2019. The writer of the note from that date observes that when Lysander sees his father at the beginning of the visit, he reaches for him from his stroller. The notes indicate nothing of concern at the time of exchange but that the mother returned to the centre after leaving and asked to speak to the site supervisor. The mother wished to discuss specific issues with the supervisor and for her to relay information to the father about Lysander's nap schedule. The observation notes states that the mother "also told staff that Lysander had a "slight sunburn". Site supervisor observed that Lysander's cheeks were red and the top of his ears were dark red as well."
September 21, 2019 Visit
[73] In her affidavit sworn November 28, 2019, the mother deposes at paragraph 19,
"On September 21, 2019, when Lysander was returned to me following the Respondent's visit, he had multiple bright red marks on his forehead, cheeks and chin. The APCO supervisor told me that the Respondent had noted to her that Lysander had a red mark on his leg because of the humidity. This explanation did not make sense to me, given the appearance of the rash. When I brought this to the attention of the supervisor, she asked the Respondent what had occurred during the visit, and he indicated that the marks on Lysander's face occurred when Lysander had fallen asleep in the stroller, and had leaned forward. I did not find this explanation credible, and the marks lasted for the rest of the late afternoon and evening."
[74] The mother did not attach the observation notes from the visit on September 21, 2019 to her affidavit to corroborate her version of the events, but the father did include a copy as an exhibit to his October 28, 2019 affidavit. Once again, the staff indicated that there were no concerns at the time of Lysander's exchange at the end of the visit except for the following:
"following the exchange, Ms. Krane-Charbonneau and Betty Krane [the maternal grandmother] asked to speak with the site supervisor. Ms. Krane-Charbonneau asked site supervisor if they could ask the other party if Lysander had fallen or bumped his head during the exchange as Ms. Krane-Charbonneau saw marks on Lysander's forehead. Site supervisor observed two circular red marks on Lysander's forehead, one above each eyebrow and another blotchy red mark on Lysander's forehead. Site supervisor told Ms. Krane-Charbonneau that Lysander had his face pressed against his stroller tray when he came in the centre which could be it and staff would ask Mr. Guzman (emphasis mine). Site supervisor went to Mr. Guzman and asked if Lysander had bumped his forehead as there were a few red marks on Lysander's forehead. Mr. Guzman told site supervisor that it was very hot and humid and Lysander had fallen asleep on his stroller tray which might have rubbed his forehead, or it could be from the heat, as Mr. Guzman was outdoors with Lysander."
[75] The observation notes recorded by APCO do not support the mother's version of the events of September 21, 2019. The mother's evidence failed to point out that the site supervisor suggested that the marks were caused by Lysander falling asleep in his stroller with his face on the tray. I find that the mother over reacted in the situation. Furthermore, she is incapable of considering an innocent explanation for the red marks on Lysander's face. She instinctively assumes that the red marks are due to something the father did inappropriately or failed to do properly.
Doctor's Assessment
[76] The affidavit sworn by Lysander's doctor on January 16, 2020 states that the mother brought Lysander in to see the doctor on December 12, 2019 and the doctor deposes that "I noted that bruising on his elbow and forehead was not unusual or concerning for a child of this age."
Overall Assessment of Evidence
[77] The court cannot find based on the evidence that Lysander is not adequately cared for when in his father's care such that he should be limited to supervised access. The evidence provided by the mother does not support the level of concern she is displaying. In other words, her reaction to bruising and sunburn (although I am not convinced that the evidence supports sunburn as opposed to heat rash or other heat related reaction) is disproportionate. Furthermore, the mother has not provided the court with an accurate account of what occurred at APCO and what the APCO staff said to her.
[78] The intensity of mother's fear is inconsistent with the neutral third party evidence from the APCO and SEC supervisors, the CAST and Lysander's doctors. The evidence the mother relies upon does not support an order reducing the father's access and/or returning to supervised access.
[79] The evidence before the court shows a desperation on the mother's part to convince the court that the father is incapable of safely visiting with Lysander on his own without supervision. This desperation has caused her to itemize for the court every single event, whether significant or not, historical or current, that she believes supports her claim. This approach fails to achieve her desired result and conversely highlights for the court what appears to be her irrational view of the father's parenting of Lysander.
[80] The evidence suggests that the mother has displayed an inability throughout these proceedings to rationally consider all of the relevant evidence in relation to the issue of the father's access to Lysander. I cannot say what the cause of this inability is. I urge the mother to obtain the assistance she needs to enable her to support Lysander's relationship with his father so that her anxiety around access does not have a negative impact on Lysander.
[81] I find that the mother's evidence does not support her claims that the father is unable to safely exercise unsupervised access to Lysander. I find that the evidence of the CAST, Lysander's doctor and even some of the mother's own evidence supports the father's claim that he has a loving and healthy relationship with Lysander, and he is able to care for him appropriately. In fact, the APCO observation notes, which now only document the pick-up and drop off of Lysander have continued to be positive. The mother did not point to any entries in the APCO observation notes or the society's evidence to support her claims and concerns.
[82] A consideration of all of the evidence of this case overwhelmingly supports a conclusion that it is time to move the father's access to Lysander towards regular overnight visits. For all of the reasons set out above, the mother's motion is dismissed, and the father's motion is granted.
Temporary Order
This order setting out the Respondent's access to Lysander shall replace all previous orders for access.
The Respondent father shall have access to Lysander, on a temporary basis as follows:
(a) Commencing on Tuesday February 18, 2020 and every week thereafter from 10:00 a.m. until Wednesday at 2:00 p.m.;
(b) Until Saturday February 29, 2020, the father's weekend day visit with Lysander with pick up and drop off at Access for Parents and Children shall continue uninterrupted. Commencing on Saturday February 29, 2020 and every week thereafter from 10:00 a.m. on Saturday until 2:00 p.m. on Sunday with pick up and drop off at Access for Parents and Children; and,
(c) Commencing on Saturday March 28, 2020, every week thereafter from 9:00 a.m. on Saturday until 4:00 p.m. on Sunday with pick up and drop off at Access for Parents and Children.
The father's overnight visits with Lysander shall take place at the father's grandfather's home in Pickering, Ontario, where the father currently resides.
If the maternal grandmother is agreeable to continuing to bring Lysander to his mid-week visit with his father in Pickering that shall continue. If not, the father shall be responsible for the pick-up and drop off of Lysander for the Tuesday overnight visit. The mother shall determine a public place where this exchange shall occur (not at a police station). If there is any conflict about where the exchange shall occur, the mother shall immediately schedule an appearance before me through the trial coordinator's office to address the issue, but she shall continue to be responsible for bringing Lysander to and from the mid-week visit in Pickering until the issue is addressed by the court.
The parties shall communicate about Lysander via Our Family Wizard. Each party shall bear their own cost of using this service.
This matter is adjourned to April 24, 2020 at 10:00 a.m. for a Settlement Conference with Settlement Conference Briefs and Offers to Settle to be served and filed.
A copy of this decision shall be sent to counsel for the mother via email and fax and to the father via email […].
The issue of costs of the motion will be addressed by the court on the next court date. The parties shall come prepared to make submissions on this issue unless settled in advance.
Justice M. Sager
Footnotes
[1] Two of the father's affidavits attached two affidavits from family members as exhibits.
[2] The father provided affidavit evidence in response that he did in fact attend the funeral.
[3] The affidavit of service is found at Tab 1 of Volume 4 of the Continuing Record.
[4] It should be noted that the mother removed Dr. Wiseman as Lysander's doctor after he advised the father of the drug tests.