ONTARIO COURT OF JUSTICE
CITATION: Roy v. Roy, 2021 ONCJ 645
DATE: 2021·12·07
COURT FILE No.: Sudbury File 410/19-001
BETWEEN:
ISABELLE SYLVIE MARIE ROY
Applicant
— AND —
JAMES EDWARD LEO ROY
Respondent
Before Justice John Kukurin
Heard on Nov 23, 2021 and on written Submissions
Reasons for Judgment released on Dec 7, 2021
Craig Ticalo .................................................................................. counsel for the applicant(s)
Jose Rodriguez ........................................................................ counsel for the respondent(s)
KUKURIN J.:
[1] These are my Reasons on motion claims for interim orders made in this proceeding. The claims that are argued and for which orders are sought have been pared down and are set out below. The remaining claims can be, and will be, adjourned to a later date.
[2] By way of overview, this proceeding was started by application of the mother first returnable June 22, 2021. It was prepared when she was self represented and is somewhat convoluted with respect to what claims she is making. Included in these are sole decision making responsibility (DMR), parenting time (PT) and a restraining order. For purposes of the motions before the court this day, these relate to the child C. who is age 9 years.
[3] The father of C. has filed an Answer, also as a self represented litigant, which has equally convoluted claims for interim orders and without prejudice orders, but he clearly seeks equal decision making responsibility (DMR) of C. and parenting time (PT) with C., as well as child support from the mother.
[4] While these are the major claims in the proceeding, they are overshadowed at the present by current circumstances, the more salient of which I summarize:
➢ the father is facing criminal charges of sexual offences against two female children, one of which is C.’s stepsister with whom C. lives;
➢ the father was released on bail conditions that prohibit him from contact or communication with children (under age 18) unless under the constant supervision of his surety. The only exception is C., and then only if first approved by the Children’s Aid Society. The Society refuses to approve or disapprove anything because the Release Order was made in the criminal court with no notice to, or any opportunity for, the society to make any submissions.
➢ the father has not had any contact with C. since April 2021
➢ the father has moved to Caledon which is in southern Ontario
➢ the mother is also a criminal complainant and there is a condition that he not contact/communicate with her except pursuant to a family court order and in the presence of legal counsel.
➢ the mother wants an order that the father have no parenting time with C., at least until the father’s criminal charges are dealt with.
➢ the mother indicates that another female has made allegations against the father which are being investigated by the police and may result in additional charges
➢ to date, the release conditions of the father have not been changed
[5] What is before this court are paternal claims for interim parenting time by the father, and a maternal “denial” of access or supervised paternal access by the mother.
[6] These claims are at an impasse. The father wants to have PT supervised by his brother (R. Chisnel) and his wife. The court knows nothing about them except what little the father discloses which is not all that much. He also wants PT each Saturday for minimum 3 hours at the home of his brother plus virtual PT for 20 minutes on Tuesdays and Thursdays by Zoom. In addition, he wants to take C. to community locations (eg Science North) on giving 48 hours notice although how he would do this in the face of his release conditions is not explained. Nor is the duration of such excursions.
[7] The mother opposes virtual PT because the father would be communicating with C., with his sister K. being in the same residence, aware of this and, according to the mother, being subject to further traumatization. She opposes any access supervised by Mr. Chisnel and has no faith that he would be an effective or trustworthy supervisor. The mother suggests that virtual PT can take place at the home of Carole Brunet, who is the manager co-ordinator at the Jubilee Best Start Hub and who is a professional in the area of child care. The court has no knowledge of Ms. Brunet except what the mother states.
[8] Somewhat lost in this mix is the child C. who is age 9. The father says that he and C. share a strong bond. In addition, he argues that there is a presumption in favour of access by the non custodial parent, unless such parent has behaved in such a way as to disentitle himself to such presumption. There is, in fact, a statutory basis that is found in s. 20 CLRA
S. 20(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4); 2016, c. 23, s. 2 (3).
S. 20(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5); 2016, c. 23, s. 2 (4).
[9] The mother has not satisfied the court that the father has disentitled himself to have parenting time with C.. He is not convicted of his charges, only charged, and has the presumption of innocence. He has not treated C. in such a way as to warrant being derived of contact with him. The issue the is what should that contact be.
[10] I propose that C. and his father spend some time together. In the present circumstances, where and when that takes place is problematic. I do not accept any access supervisor named by the father, nor by the mother. Both are partisan and the court knows too little about their choices. However, It is a prudent precaution that such contact be supervised. It is also desirable that there be some record of these father-son parenting times, and particularly that they be by neutral observers. In addition, there is also the desirability of having some feedback as to C.’ s views and wishes.
[11] Accordingly, I am inclined to order that the father have parenting time at the Sudbury Supervised Access Centre (SAC) once per week for up to 2 hours subject to the availability and the rules of the Centre. This means travel by the father, but as far as I can determine, his relocation was a unilateral decision and he bears the consequences of it. This will enable the parenting time to be exercised without the presence of K. The SAC can determine the date that is most convenient for such PT to take place as well as the hours.
[12] With respect to the application and the balance of the motions at Tab 3 and Tab 8, these can be adjourned to Dec 20, 2022 at 10:00 am to set a date for the next step.
[13] Order to Go:
That the Respondent father shall have interim parenting time with the child C. born […], 2012 at the Sudbury Supervised Access Centre one day each week for up to two hours, and subject to the rules and conditions of the SAC.
That each of the applicant mother and the respondent father shall contact the SAC to inquire of its requirements to put such parenting time in place, and shall forthwith provide to the SAC all information, intake forms or other documentation requested by the SAC.
That the Applicant mother shall be responsible to transport C. to and from the SAC for each such parenting time visit.
The child C. shall be free to initiate contact with the father by virtual means (eg telephone or remote computer programs such as Skype or Facetime) twice per week for durations of 30 minutes each at reasonable times provided that he does not do so from his home when his sister K. is present in the home.
That the Application (Tab 1) and the motions at Tab 3 and Tab 8 are adjourned to Dec 20, 2021 to set a date for the next step thereon.
Released: Dec 7, 2021
Signed: “Justice John Kukurin”