WARNING The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order, ( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
DATE: November 15, 2021 COURT FILE NO.: C20619/18
ONTARIO COURT OF JUSTICE
B E T W E E N:
CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO APPLICANT
- and -
C.P.I., R.S. and J.A.S.I. RESPONDENTS
COUNSEL: Karen Ksienski, for the Applicant Deborah L. Stewart, for the Respondent, C.P.I. Lauren Israel, counsel for the Respondent, R.S. Aglaia Lowo, for the Respondent, J.A.S.I. Louis Alexiou, for the Office of the Children’s Lawyer, for the child, D.G.G.S.
HEARD: November 9, 2021
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
[1] D.G.G.S. (the child) is 7 years old. He had been living with J.A.S.I. (the maternal grandfather) since April 23, 2018, after being removed from C.P.I.’s (the mother’s) care by the Catholic Children’s Aid Society of Toronto (the society). On October 8, 2021, the maternal grandfather was criminally charged with offences of sexual assault and sexual interference related to the child’s 13-year-old sister (A.). [1]
[2] The maternal grandfather’s criminal release conditions prevent him from caring for the child. [2] He is now out of his home. Since October 8, 2021, the child has lived in the maternal grandfather’s home with the maternal grandfather’s friend (D.) and A. He has also been spending extended time with the mother and R.S. (the father).
[3] The mother and R.S., have each brought motions within this status review application to have the child placed in their temporary care and custody with specified access to the other, to include alternate weekends, Wednesday evenings, and a sharing of the winter holiday school break.
[4] The society’s position is that the child should be placed in the temporary joint care and custody of the mother and father, with a week-about parenting schedule.
[5] The maternal grandfather did not attend at the hearing but put forward his position through his counsel. He supports the father’s motion.
[6] The Office of the Children’s Lawyer (the OCL) on behalf of the child put forward his views and preferences. The child would prefer to stay where he is now and have overnight access with the father and day access with the mother. The child is not aware that the maternal grandfather cannot be in the home with him, or why.
[7] The court read two affidavits from the father, two affidavits from a clinician from the OCL (the clinician), an affidavit from the mother and an affidavit from a society worker.
[8] The parties agreed that the issues for the court to determine on these motions are:
a) What placement order is in the child’s best interests? b) What supervision terms are in the child’s best interests? c) What access orders are in the child’s best interests?
Part Two – Background facts
[9] The child is the last of three of the mother’s children who have been before the court. The child’s two siblings, C., now 18, and A., were previously placed in the custody of the maternal grandfather, pursuant to orders made under section 102 of the Child Youth and Family Services Act, 2017 (the Act). The three children all have different fathers.
[10] The mother had charge of the child and A. prior to society intervention in April 2018. C. was already living with the maternal grandfather.
[11] On April 23, 2018, Justice Robert Spence ordered the three children to be in the temporary care and custody of the maternal grandfather, subject to society supervision. Justice Spence also ordered that the mother’s access be in the society’s discretion.
[12] The major protection concern was that the mother was manipulating her children (including an adult child) into making false sexual abuse allegations against the father and A.’s father. [3] There were also protection concerns arising from conflict between the mother and the two older children.
[13] The mother’s access to the child was initially supervised by the society. It increased to community access by the end of May 2018. However, in September 2018, the visits returned to the society office due to concerns that the mother was undermining the maternal grandfather by speaking negatively about him to the three children.
[14] The father and maternal grandfather have had a good relationship. The father supported the child’s placement with the maternal grandfather. He directly arranged his access with him.
[15] On February 5, 2019, on consent, the child and A. were found to be children in need of protection pursuant to clause 74 (2) (n) of the Act and placed in the care and custody of the maternal grandfather for 6 months, subject to society supervision. This is still the operative placement order for the child.
[16] The final order also set out that the mother’s access to the child was to be as agreed upon between her and the society, taking into account the child’s wishes and that the father’s access with the child shall be as agreed upon between the father and the society, in consultation with the maternal grandfather.
[17] The mother’s supervised visits at the society’s office continued until April 2019, when they increased to community visits, with check-ins at the society office.
[18] In September 2019, the society held a meeting with the parties. It was agreed that the mother’s access would be increased and be fully unsupervised. Exchanges would be conducted directly between the mother and the maternal grandfather.
[19] In February 2020, it was agreed that overnight visits for the mother would begin one night on each weekend once the mother obtained her own self-contained apartment.
[20] The mother obtained new housing and two overnight visits took place on March 6 and March 13, 2020. Then the pandemic started.
[21] The mother initially agreed to restrict her visits to virtual contact with the child once the pandemic began. However, by the end of May 2020, she sought a resumption of her in-person access. The society agreed with her.
[22] The maternal grandfather refused to give the mother in-person access. The father supported this position.
[23] The mother brought a motion to increase her access. This was resisted by the maternal grandfather and the father, who both sought an order that the mother’s access be supervised. On July 2, 2020, the court released its decision on the motion (the July 2020 decision). See: Catholic Children’s Aid Society of Toronto v. C.P.I., 2020 ONCJ 304. The court made the following access order:
a) The mother shall have access with the child each Wednesday from 5 p.m. until 8 p.m. b) The mother shall have access with the child every weekend from Friday at 6 p.m. until Saturday at 6 p.m. c) The mother shall have such further and other access as agreed to by the parties and the maternal grandfather. d) Access exchanges shall take place at Symington and Dupont outside the bakery unless the maternal grandfather and the mother agree to a different location. e) The mother shall not have anyone else in her home during her visits with the child. f) The mother shall not speak in a negative manner to the child about the maternal grandfather, anyone in the maternal grandfather’s home, or the father. g) The mother shall follow government orders and requirements regarding COVID-19.
[24] The court made the following findings of fact regarding the mother that are relevant to this motion:
a) The child loves her and enjoys his time with her. This important relationship needs to be fostered and supported. b) She had successful access for almost one year prior to the pandemic and had consistently exercised it. c) She had made positive gains in stabilizing her life. She had maintained stable employment for over two years, had stable and appropriate housing and had been very cooperative with the society. d) She had followed through on referrals made by the society. She attended a psychological consultation, at the society’s request, early in February 2020 and no concerns were noted about either her thought process or behaviour. She was connected with the Parkdale Queen West program and continued to work with her support worker, who spoke highly about her to the society. e) The access proposed by her best met the child’s emotional and developmental needs to develop a positive relationship with her. Further delay in implementing a meaningful access regime would not in the child’s best interests.
[25] The court expressed the following concerns about the position taken by the maternal grandfather and the father on the motion:
a) They made many unsupported allegations against the mother. b) They never brought a motion to change the mother’s access because of their stated concerns. c) The maternal grandfather had demonstrated poor judgment when it came to the mother. He had made the unilateral decision to breach the access order. He did this instead of bringing the matter back to court. He had resisted the mother having video access with the child. The society expressed concerns that the maternal grandfather and D. were not supportive of the mother’s relationship with the child. The maternal grandfather and the father had taken the extreme position on the motion that the maternal grandfather, alone, should determine the mother’s access and that it should only take place virtually. d) A clear and meaningful access order was required to provide some protection against the child’s relationship with the mother being undermined by persons in the maternal grandfather’s home.
[26] The conflict between the parties continued after this decision. On November 13, 2020, the society advised the court that the father would not engage with its workers.
[27] In February 2021, the parties advised the court that they were all motivated to resolve the case. They agreed to mediation.
[28] On June 1, 2021, on consent, the OCL was appointed for the child. The case was placed on the September 2021 trial sittings.
[29] The parties subsequently agreed to a focused hearing of the status review application to be heard in January 2022. They attended for settlement conferences in front of Justice Debra Paulseth but could not resolve the matter.
[30] The trajectory of the case changed when the maternal grandfather was criminally charged on October 8, 2021 and was required to leave his home.
Part Three – Legal considerations
[31] Subsection 113 (8) of the Act sets out that on a status review application a child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.
[32] Since the maternal grandfather can no longer care for the child, the best interests of the child require a change to the child’s care and custody.
[33] Subsection 74 (3) of the Act sets out that where a court is directed to make an order or determination in the best interests of a child, it shall,
a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and c) consider any other circumstance of the case that the person considers relevant, including, i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, ii) the child’s physical, mental and emotional level of development, iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, iv) the child’s cultural and linguistic heritage, v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, ix) the effects on the child of delay in the disposition of the case, x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
[34] A parent’s willingness to facilitate, and not just accommodate access the other parent’s access is an important best interests factor. See: Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; L.B. v. P.E., 2021 ONCJ 114.
[35] A party’s ability to protect the child from adult conflict is an important best interests consideration. See: A.R. v. M.C., 2021 ONCJ 525.
[36] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:
- There must be evidence of historical communication between the parents and appropriate communication between them.
- It can’t be ordered in the hope that it will improve their communication.
- Just because both parents are fit does not mean that joint custody should be ordered.
- The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
- No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
- The younger the child, the more important communication is.
[37] Mutual trust and respect are basic elements for a joint custody order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511.
[38] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.
[39] Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642, par. 59 for a review of these cases.
[40] Ultimately, the court must determine if a joint custody order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests. The court also has the option, if it is in the child’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.
[41] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: Catholic Children’s Aid Society of Toronto v. A.P., 2020 ONCJ 572, pars. 220 and 221.
Part Four – The society’s position
[42] The society provided helpful evidence and submissions for the court on these motions. It set out that:
a) The mother and father are both capable of caring for the child. b) The mother and father have proposed similar plans to care for the child and both, in its opinion, are suitable plans. c) The mother and father both plan to keep the child in his present school. This will provide him with stability. d) Both the mother and father have suitable housing. The society disagreed with the father’s characterization of the mother as transient. It submitted, and the court agrees, that the mother should be commended for upgrading the quality of her housing. e) Both the mother and father are hard-working and have stable jobs. f) The mother has been very cooperative with the society and has been receptive to services. More recently, the father has also been very cooperative with the society. g) The mother has taken many steps to stabilize her life and improve her parenting. h) The child has a loving and affectionate relationship with both the mother and father. i) The mother has addressed the protection concerns that led to the child being removed from her care in April 2018. j) Supervision terms would be adequate to protect the child from parental conflict in the care of either the mother or father. k) The remaining protection concern is the child’s exposure to adult conflict and the parties’ perceptions of each other. l) The mother, the father, the maternal grandfather and D. have all contributed to exposing the child to adult conflict. The society seeks the right to approve any caregiver for the child. In submissions, the society indicated that it may need to reevaluate D. as being a suitable caregiver if conflict continues. m) The adults make many allegations against the other. Many are fallacies. n) The mother and father both pose the same level of risk to the child.
[43] The society’s position is that an order placing the child in the joint care of the mother and the father with a week-about parenting schedule is in his best interests. It argues that this plan will ensure that the child maintains meaningful relationships with both parents and that this parenting schedule will reduce transitions and opportunities for conflict.
[44] The court agrees with what the society set out in paragraphs 42 above, but disagrees with its recommendation for the following reasons:
a) The parties’ historical communication is far too poor for a joint custody or equal-parenting time order to work effectively for the child. b) There is no evidentiary basis to give the court any confidence that making such orders will improve the communication between the mother and father to the level required to meet the child’s needs. c) The mother and father distrust each other. The father, in particular, intensely distrusts the mother. He views her as a manipulative, dishonest and abusive parent, who poses danger to the child. d) The mother and father had nothing positive to say about each other in their affidavits. They only offered criticisms of the other. e) The mother and father perceive the worst of each other and jump to faulty conclusions. The father described the mother as transient. This is not the case. She has recently upgraded her accommodation. He implied that the mother may have influenced A.’s allegations against the maternal grandfather. There is no evidence to support this. The mother minimized the father’s relationship with the child and said his housing was inappropriate – it isn’t. f) Effective communication between the mother and father is critical for this child. He is young and vulnerable, and has been exposed to considerable adult turmoil. Effective communication is essential to coordinate his academic, medical, social and therapeutic needs. It is not in the child’s best interests that decision-making be paralyzed because of the inability of the mother and father to communicate. g) A week-about parenting schedule is more likely to fuel the tug-of-war between the mother and father than it is to deescalate matters. It sets up the child to be exposed to even more parental conflict.
[45] It is in the best interests of the child that he be placed in the temporary care and custody of either the mother or the father. The court order will be structured to ensure that the non-custodial parent is not marginalized.
Part Five – Comparison of the plans of the mother and father
[46] The court finds that the following factors were neutral in assessing the claims of the mother and father:
a) Both parents love the child and want what is best for him. b) Both parents have consistently exercised access with the child. c) Both parents are hard workers who will financially support the child. d) Both parents have made suitable arrangements to care for the child when they are working. e) Both parents have suitable housing for the child. f) Both parents value the child’s education and will keep him in his present school. g) Both parents support counseling for the child. h) Both parents can meet the instrumental needs of the child (for example: diet, hygiene, proper clothing). i) Both parents have inappropriately exposed the child to adult conflict. Neither parent took responsibility for this or demonstrated any insight into the impact this can have on the child. j) Neither parent has parented the child for any sustained period in over three years. k) Overall, the child is a happy boy who is doing well.
[47] The court finds that the following factors support the father:
a) The child is expressing that he wants to spend overnights with the father and only day visits with the mother. This will be discussed in more detail below. b) The father will be using D. as a caregiver when he is at work. The child has a close relationship with D. that can be maintained if the child is placed with the father. c) The child would have more contact with his 13-year-old sister who lives with D. d) There would be less change for the child if he is placed with the father, since D. is an important part of his plan. e) The father has involved the child in extra-curricular activities, such as soccer. f) The only child protection concerns with the father have been his exposure of the child to adult conflict and his perception of the mother. Although the mother has addressed the society’s original protection concerns, she had a history of problematic parenting. g) There remains a concern that the mother inappropriately tries to influence the child, such as trying to convince him to have overnight visits with her.
[48] Notwithstanding these positive factors, the court finds that placing the child in the temporary care and custody of the mother is in his best interests.
[49] The following factors support this finding:
a) The mother was the pre-intervention caregiver for the child. b) The mother had always been the child’s primary caregiver prior to society intervention. The child never lived primarily with the father. c) The mother is more likely to support the father’s relationship with the child than the father is to support the child’s relationship with her. d) The mother has consistently been highly cooperative with the society and open to its guidance. e) The mother will likely work better with the society and the child’s service providers than the father. The court has more confidence in her than it does the father to organize services for the child and ensure that he attends them. f) The mother has made tremendous gains in the past three years in her parenting. She has done the hard work that was necessary to improve herself by taking a number of programs. She has addressed the society’s original protection concerns. g) The mother has stabilized her life in the past three years. She has maintained steady employment. She exercises all her access time. She attends meetings with the society and has attended at programs. She has upgraded her housing.
[50] The court has a number of concerns about the father that factored into this decision.
[51] The court’s main concern is his deep anger at the mother and the society. This comes out in the court material. At a fundamental level he feels that the mother is manipulative, dishonest and abusive and that the society condones this and does not listen to him.
[52] The father sent an email to the society worker on September 3, 2021, expressing his anger at the society for not listening to his concerns about the child, threatening to take the matter to a higher level and asking it to suspend the mother’s access for the time being.
[53] The father was much more critical of the mother in his affidavits than the mother was of him.
[54] The father has been inappropriately resistant to the mother having a meaningful relationship with the child. He has taken rigid positions regarding her access throughout this case, as set out in the July 2020 decision. He has supported reductions in her access time since that decision. The first time he indicated that he would support maintaining the mother’s current access was in his affidavit material for this motion. However, after having read his affidavits, the court was left with the impression that this position was begrudging – perhaps tactical.
[55] The continued involvement of D. in the father’s plan is a double-edged sword. On the one hand, the child is very close to her, she provides continuity of care and is caring now for the child’s 13-year-old sister. On the other hand, the society and the mother report that D. has played a major role in the adult conflict. This was commented on in the court’s July 2020 decision. The society submitted that it will continue to evaluate whether it should approve D. as a caregiver if the conflict continues.
[56] The court has little doubt that the child is very attuned to the feelings of the father, the maternal grandfather and D. The court is very concerned that if the child is placed in the father’s care at this time, the child’s relationship with the mother will be damaged, perhaps irrevocably – that he will be in an environment that teaches him that the mother is a person to be feared and not trusted. This could have a devastating impact on his emotional development.
[57] Most recently, the father has been cooperative with the society. This is a positive development and the court hopes that this continues. There have been times during this matter when that has not been the case and the father has not been responsive to the society. The court would want to see a longer track record of cooperation from the father before it characterized the ability to cooperate with the society as a neutral factor between the mother and him.
[58] The mother has demonstrated by her actions that she is very committed to caring full-time for the child. While the court commends the father for recently stepping forward to become more involved with the child, he has chosen, until now, to take a peripheral role in this case. Unlike the mother, he has never asked the court for more access or for more parenting responsibility. He works long hours. It remains to be seen whether he will sustain his commitment to parent the child full-time. The court wonders whether he will be sufficiently organized to ensure that the child’s academic needs are met and whether he will be able to consistently attend at parent-teacher meetings and the child’s appointments with his service providers. The court order will include terms to give him the opportunity to show that he can do this.
Part Six – The child’s views and preferences and access schedule
[59] The factor that caused the court some pause about placing the child with the mother was the clinician’s evidence about the child’s views and wishes.
[60] The child does not understand why the maternal grandfather is no longer in the home. He wants to continue to live there. This is not possible at this time.
[61] The child has been telling the clinician that he wants overnight visits with the father and only day visits with the mother since July 20, 2021.
[62] The child has reported to the clinician that:
a) The mother has been pressuring him to say that he wants overnight visits. b) The mother has threatened to send the police to the maternal grandfather’s home. c) The mother said that her lawyer told her that if he told the truth then the maternal grandfather, D. and the father would go to jail with the FBI. d) The mother had told him that D. had kidnapped him and that his mother did not like D. or the father. e) His mother slapped him once on the back of the head. f) He gets scared when he has overnights at the mother’s home.
[63] The mother’s counsel asked the court to completely disregard these statements because the child’s statements are not independent and the clinician’s interview process was seriously flawed.
[64] The court won’t do that. There is a real possibility that the mother has been pressuring the child to have overnight visits with her and is speaking negatively to the child about the father, maternal grandfather and D. She has a history of doing this.
[65] It is also important for the court to consider the child’s stated feelings, whatever the cause.
[66] However, the child’s statements and expressed views and wishes must be looked at in context. After doing so, the court is treating them with considerable caution. The court considered that:
a) The child just turned 7 years old and is stuck in the middle of a complicated family dynamic. b) The child is living in a home where the maternal grandfather and D. have deeply-held negative opinions of the mother. These are shared by the father. c) The child is likely very attuned to these feelings and wants to please the maternal grandfather, father and D. d) The court is very concerned that the child is being taught not to trust the mother. He is being taught to fear her. e) Many of the child’s statements raised concerns about improper influence by the father, maternal grandfather and D. For instance: i) The clinician reported that the child walked into the July 20, 2021 interview and immediately told her that he does not want to go to the mother’s house as she says bad things about D., the maternal grandfather and the father. This is not how one would expect a 6-year-old child to greet the clinician. ii) It raises suspicion of adult influence that the child did this after having previously told the clinician that he wanted overnight visits with the mother – something that the maternal grandfather and the father strongly opposed. iii) In the same interview, when asked why he no longer wanted overnight visits with his mother, the child said “at court, it was 3 versus 1” and he thought that he would have to go and visit with his mom. The court draws the inference that the court case was being discussed in his presence at the maternal grandfather’s home. This is not information a 6-year-old child would otherwise have. iv) The clinician reported that on August 5, 2021, the child stated that D. had helped him figure out the words he wanted to tell her. The words were about the fight and how often he wanted to see his mother. v) During this interview, the child described in detail a fight he had witnessed when he was three years old. The mother was to blame in this story. It is highly unlikely that the child would have remembered this event in such detail. It is more likely that this was a story told to him in the maternal grandfather’s home. vi) The child expressed his fear to the clinician that the mother may send the father, the maternal grandfather or D. to jail. It is very possible that the child was picking up on the fears expressed about the mother in the maternal grandfather’s home.
[67] The court agrees with the mother’s counsel that there are some limitations with the clinician’s evidence. The court was advised by OCL counsel that the clinician focused on the views and wishes of the child. The clinician did not interview the mother or speak to other collateral witnesses (like the school) to obtain more context for the child’s statements. [4]
[68] The society has closely monitored and investigated the multiple allegations made against the mother throughout this case by the father and the maternal grandfather and believe that the child is safe with her.
[69] The society worker recently observed a visit between the mother and the child and observed a loving and affectionate relationship between them. The child did not demonstrate any fear of her and interacted with her normally.
[70] The society’s evidence is independent. The court places considerable weight on it.
[71] The child’s statements, as set out by the clinician, do not persuade the court that the child feels unsafe or is unsafe in the mother’s home. They do inform the court that he is being affected by the parental conflict and has loyalty binds. They also inform the court that he is very afraid to lose his relationships with his maternal grandfather, the father and D. There is a real possibility that he is being given the message by them that the mother is trying to take away these relationships. The unexplained (to him) absence of the maternal grandfather from his home may be reinforcing those fears.
[72] The child’s expressed views and wishes will be given more weight regarding the court’s access order. It is in the child’s best interests to spend more time with the father than was proposed by the mother.
[73] The father shall have temporary access with the child on three out of every four weekends from Fridays at 5 p.m. until Monday morning, when he will be responsible for returning the child to school. The weekend will be extended until Tuesday morning if the Monday is a statutory holiday.
[74] The court agrees with the society that transitions should be limited to reduce the child’s exposure to adult conflict. The court will not order Wednesday visits at this time. It is in the child’s best interests to have longer weekend visits with the father instead. This can be re-assessed once we see how the child and the mother and father adapt to this parenting schedule.
[75] The court will provide the father with additional access during this winter school break and divide Christmas Day between the mother and him.
Part Seven – Other terms to be included in the order
[76] The society provided a draft order with proposed supervision terms. Neither party objected to those terms. The court finds that they are in the child’s best interests. They will be incorporated into the court’s order.
[77] The court also orders the mother and father to engage in counseling to specifically address how to protect the child from parental conflict. The society is asked to assist them in arranging this. Such counseling is essential to helping the mother and father deescalate their conflict and protect the child.
[78] The court, in structuring this order, intends to send a clear message that both the mother and father should be full participants in the child’s life. The court will order the following:
a) The mother is to meaningfully consult with the father before making any major decision regarding the child. b) The mother shall sign any necessary directions or authorizations to permit the father to speak directly to the child’s school, medical caregivers or other service providers. c) The mother shall give the father reasonable notice of any medical or service provider appointments for the child and the father shall be permitted to attend. d) The mother shall give the father reasonable notice of any parent-teacher meetings or special school events and the father shall be permitted to attend.
Part Eight – Conclusion
[79] The court will make a temporary order changing all existing orders as follows:
a) The child shall be placed in the care and custody of the mother, subject to the supervision of the society, as set out in clauses 1 (b) to (m) of the draft order filed by the society, until further order. b) The mother and father are to each attend counseling, as recommended by the society, to specifically address how to protect the child from parental conflict. c) The mother is to meaningfully consult with the father before making any major decision regarding the child. d) The mother shall sign any necessary directions or authorizations to permit the father to speak directly to the child’s school, medical caregivers or other service providers. e) The mother shall give the father reasonable notice of any medical or service provider appointments for the child and the father shall be permitted to attend. f) The mother shall give the father reasonable notice of any parent-teacher meetings or special school events and the father shall be permitted to attend. g) The father shall have access with the child, starting on November 19, 2021, on three out of every four weekends, from Friday at 5 p.m. until he returns the child to school on Monday morning. This will be extended until Tuesday morning if the Monday is a statutory holiday. The father will have the child with him for three consecutive weekends, followed by the child spending one weekend with the mother. h) The winter break schedule shall be as follows: i) The child shall spend December 17, 2021 at 5 p.m. until December 25, 2021 at 3 p.m. with the father. ii) The child shall spend December 25, 2021 at 3 p.m. until January 1, 2022 at 5 p.m. with the mother. iii) The child shall spend January 1, 2022 at 5 p.m. with the father until he returns him to school the morning school begins. i) The winter break schedule shall take priority to the regular access schedule, which will resume once the winter break ends. This means that the father will have the child with him on the weekends starting on January 7, 2022, for three consecutive weeks. j) The regular parenting exchanges shall take place on Fridays at 5 p.m., or whenever the school is closed, at the bakery at Symington and Dupont, or such other location agreed upon by the mother and father. k) The child’s access to the maternal grandfather shall be in the discretion of the society and be subject to his criminal release conditions.
[80] The court wishes to make it very clear to the mother and father that their most important parenting job now is to support one another’s parenting of the child and to protect him from adult conflict. His future welfare will likely depend on how well they can do this. Hopefully, this case will never have to go to trial. But, if it does, the parent who can best support the other and protect the child from conflict will likely be the successful party.
[81] The court thanks all counsel for their very capable presentation of these motions.
Released: November 15, 2021 Justice S.B. Sherr
Notes
[1] A. was also living in the maternal grandfather’s home. [2] The court was advised that the maternal grandfather is not permitted to be with a child under age 18 unless supervised by a parent. [3] The mother has always denied doing this. No finding of fact has ever been made concerning whether she did this. [4] The approach taken by the clinician in this case was similar to the approach that is taken in preparing Voice of the Child Reports in domestic cases. In A.E. v. A.B., 2021 ONSC 7302, at paragraph 64-65, Justice David Jarvis recently set out that while these reports are helpful in resolving disputes, they have limitations when the matter is litigated.
