Ontario Court of Justice
Date: October 4, 2024 Court File No.: Brampton FO- 23-171
Between:
ICCIS CORRIS ARTISHA PROVO Applicant
— AND —
WENDY ROSE PROVO Respondent
— AND —
KALANDRA CAIN Respondent
— AND —
COREEN CAIN Respondent
— AND —
OFFICE OF THE CHILDREN’S LAWYER Respondent
Before: Justice J. Beasley
Heard on: August 21, 2024 Decision released on: October 4, 2024
Counsel: Dimithri Anthony, counsel for the Applicant Barbara A. Barnett, counsel for the Respondent Wendy Rose Provo Samir C Patel, counsel for the Respondent Kalandra Cain Sheri Hirschberg, counsel for the Respondent Coreen Cain Jane Long, Counsel – Office of the Children’s Lawyer
BEASLEY, J.:
[1] The Motions on this matter were heard on August 21, 2024.
[2] This is an unfortunate situation. Four generations of this family are dealing with their grief at the loss of Tishaye, who died in March of 2022 at the age of 24. Tishaye was a much-loved and missed mother, sister, daughter and granddaughter. The parenting arrangements for her three sisters and son are the subject of these motions.
The Parties
[3] The children are:
Itiel Callan Torris Provo born in 2018 – age 6
And his maternal aunts, the children of Iccis Provo and her husband, Anthony Patrick Provo:
Synclaira Antisha Janet Provo born in 2012 (also known as Claira) – age 12
Jatisha Sydella Rose Provo born in 2011 (also known as Jati) – age 13
Elmaly Patisha Deb Provo born in 2010 – age 14
[4] The parties participated in the Child and Youth Informed Mediation (CYIM) Pilot Project, which is available in Brampton. Jane Long was the OCL Counsel for the CYIM and was then appointed in the litigation. She had the benefit of a clinical assist from Roy Reid.
[5] The OCL advised that Elmaly presents as a mature, intelligent, well-spoken, fourteen-year-old with firmly held views that are her own and based on her life experience.
[6] Elmaly is excited to attend an arts program at St. Elizabeth Catholic High School this September. She is a talented artist and loves to draw.
[7] Jatisha is a bright and friendly teen. She is well-spoken, and her views are similar to Elmaly's.
[8] Synclaira (Claira) presents as friendly, although somewhat shy. She smiles readily but does not make a lot of eye contact. She is on an Individual Education Plan (IEP) at school without a specific diagnosis. The OCL acknowledged that the assessment delay is likely a result of her changing school boards and long waiting lists. There was sadness and tears when she talked about her family situation.
[9] Itiel is a very bright six-year-old boy who loves his family and feels loved by all. He is aware that he is caught in the middle of a conflict.
[10] Iccis Provo is the maternal grandmother of Itiel and, the mother of the three girls, and Itiel’s mother, Tishaye, who is deceased. Anthony Patrick Provo (known as Patrick and Anthony and referred to as Patrick in this decision) is her husband, father of the three girls, and grandfather to Itiel.
[11] Wendy Rose Provo is Iccis’ mother, the great-grandmother of Itiel and the grandmother of the three daughters. Synclair Dennis Provo (known as Dennis) is her husband and Iccis's adoptive father.
[12] Coreen Cain is an extended family member of Iccis and Wendy Provo. Kalandra Cain is the daughter of Coreen Cain. Elmaly and Jatisha refer to Coreen and Kalandra Cain as "Aunty Coreen" and "Godmother Kalandra."
[13] Iccis, Wendy, Dennis Provo, Coreen, and Kalandra Cain are from the same community in Nova Scotia. They all identify as Black and Metis.
[14] The Newmarket case between Iccis Provo and Coreen Cain, Newmarket file FC-23-1419, has been transferred to Brampton OCJ by Order of Justice G.A. McPherson dated March 25, 2024.
Agreed Upon Facts
[15] Tishaye Provo died suddenly on March 29, 2022. She had been admitted to the hospital with a ruptured appendix. She was Itiel’s mother and sister to the three girls. There is no known father of Itiel.
[16] Before Tishaye's death, Tishaye and Itiel lived with her mother, Iccis Provo, stepfather, Patrick Morris, and her three sisters, Elmaly, Jatisha and Claira, in Brampton.
[17] Immediately following Tishaye's death, the children went to stay with family members, including a "cousin" named Santana.
[18] The Children's Aid Society of Peel Region became involved because of concerns about the state of the family home and because Iccis Provo admitted to drinking and suffering from mental health problems which she attributed to her grief following Tishaye's death.
[19] In April 2022, Wendy and Dennis Provo removed Itiel from Santana's care and took him to live with them.
[20] Iccis Provo subsequently signed a kinship care agreement allowing Itiel to remain with Wendy Provo.
[21] In May 2022, after two or three placements, Elmaly, Jatisha and Claira were placed by the Peel CAS with Coreen Cain in Richmond Hill under a kinship care agreement. Kalandra Cain assisted her mother with the care of the girls.
[22] In March 2023, Claira voluntarily returned to live with her parents, Iccis and Patrick.
[23] Elmaly and Jatisha have refused to return to their parents' care even though the kinship care agreement expired in June 2023.
[24] On July 8, 2023, Iccis refused to return Itiel to Wendy's care following an access visit.
[25] Itiel has lived with Iccis, Patrick and Claira since July 2023.
[26] Elmaly and Jatisha resided with Coreen Cain and have lived with her daughter Kalandra Cain since May 2024.
[27] Currently, Elmaly and Jatisha see their parents once per month for an hour in a food court. All four children are together for a further hour. Elmaly and Jatisha have video calls with Claira and Itiel for a half hour on Saturday mornings and Sunday evenings.
Consents
[28] The parties are commended for entering into three consents for temporary orders on the morning of the motions. The Order shall include the consent terms, specifically:
a) The Applicant, Iccis Corris Artisha Provo, shall forthwith relinquish to the Respondent, Kalandra Cain, all government-issued documentation and immunization records held in the children's name in her possession.
b) The Respondent, Kalandra Cain, and the Applicant mother, Iccis Corris Attisha Provo, shall share information and exchange communications about the children, either via counsel or through the family messaging application AppClose.
c) Exchanges for any parenting time and/or sibling contact for the four (4) children, Itiel Callan Torris Provo (born in 2018), Synclaira (Clara) Antisha Janet Provo (born in 2012), Elmaly Patisha Deb Provo (born in 2010) and Jatisha Sydella Rose Provo (born in 2011) shall be carried out within the area of Highway 7 and Weston, unless otherwise mutually agreed to between the parties. Where the parties are unable to agree, the Respondent, Kalandra Cain, shall have the final say.
d) The Respondent, Wendy Rose Provo, shall be granted access to all information concerning the child namely, Itiel Callan Torris Provo (born in 2018), from third parties inclusive of Itiel's teachers, doctors, dentists, and all other third parties who are involved in his care.
e) The Respondent, Wendy Rose Provo, shall have parenting time with the children namely, Elmaly Patisha Deb Provo (born in 2010) and Jatisha Sydella Rose Provo (born in 2011) on dates and times as may be agreed keeping in mind their views and preferences.
f) The Respondent, Kalandra Cain, shall have primary residence for two (2) children namely, Elmaly Patisha Deb Provo (born in 2010) and Jatisha Sydella Rose Provo (born in 2011).
The Motions
[29] The balance of the motion relief sought is:
a) The Respondent Wendy Rose Provo brings a motion for equal shared parenting time with Itiel on an alternate week on week off basis such that the parenting time will start on Friday, after school, with the exchange taking place from the school, if there is no school, the parenting time shall start at 3:30 p.m. at an agreed upon location to the following Friday at 3:30 p.m.. The shared parenting time motion relief is without prejudice to the Respondent's claim for primary residence of Itiel.
b) The Respondent Kalandra Cain brings a motion for sole decision-making authority of Elmaly and Jatisha.
c) The Applicant Iccis Provo brings a motion for:
(a) sole decision-making responsibility for Itiel;
(b) for increased parenting time with Elmaly and Jatisha;
(c) counselling in the form of therapeutic Reunification Therapy (TRT) for Iccis Provo, Patrick Provo, and their biological children Elmaly and Jatisha
Motion Materials
[30] I reviewed all of the motion materials, which included:
a) Iccis Provo’s Notice of Motion dated May 24, 2024 and her affidavits sworn May 24, 2024, June 21, 2024, June 28, 2024 and July 12, 2024
b) Wendy Provo’s Notice of Motion dated May 21, 2024, and her affidavits sworn May 21, 2024, June 28, 2024, and July 11, 2024
c) Kalandra Cain’s Notice of Motion dated affidavit sworn May 23, 2024, and her affidavits sworn May 23, 2024, June 26, 2024, and July 12, 2024, her 35.1 affidavits sworn November 7, 2023
d) Shiatori Willis’ affidavit sworn July 11, 2024
e) Dennison Provo’s affidavit sworn June 27, 2024
f) Lesley-Anne Raymer’s affidavit sworn June 25, 2024
g) Affidavit of Roy Reid, OCL Clinician, sworn July 26, 2024
Issues:
[31] The issues to be determined are:
a) What parenting schedule and decision-making arrangements are in Itiel’s best interests?
b) Who should have decision-making authority for Elmaly and Jatisha?
c) What should the contact be between the children and with their parents?
d) Should reunification therapy be ordered for Iccis Provo, Patrick Morris, Elmaly and Jatisha?
What Parenting Schedule and Decision-Making Arrangements are in Itiel’s Best Interests?
[32] I have determined that it is in Itiel’s best interests for Iccis and Wendy to have a temporary shared parenting schedule on a week-on-week-off basis with shared decision-making responsibility.
[33] On behalf of Itiel, the OCL takes the position that he should continue to have meaningful relationships with his grandparents, great-grandparents and aunts, but that the determination of what parenting and decision-making arrangements are in his best interests should not be placed on his young shoulders. I agree.
[34] Itiel resides with Iccis Provo, his maternal grandmother. The household includes Patrick Morris and Claira.
[35] Itiel is spending alternate weekends with Wendy Provo. The household includes Dennis Provo.
[36] Iccis Provo wants to have sole decision-making for Itiel and wants his primary residence to be with her.
[37] Wendy Provo wants to have sole decision-making for Itiel and wants his primary residence to be with her. On an interim basis, she seeks joint decision-making and week-about parenting time.
[38] Itiel is aware of the conflict between his family members, including his grandmother and great-grandmother and between his grandparents and, Coreen and Kalandra Cain.
[39] Itiel says that he is loved by all of his family members (grandparents, great-grandparents and aunts) and he loves them. He would like them all to live together, although he recognized that his grandparents and great-grandparents would not live in the same house. He did not want to say where he wanted to live. He does not want to be the one to choose between his grandparents, Iccis and Patrick or his great-grandparents, Wendy and Dennis.
[40] Itiel had been in the care of Wendy since April 2022 under a CAS kin agreement. He has been in the care of Iccis since July 2023. Iccis did not return Itiel to her mother’s care after an access visit on July 8, 2023. Counsel for Iccis asserted that the status quo is in Iccis’ favour as Itiel has resided with her since July 2023. I disagree. Iccis did not return Itiel to Wendy’s care after an access visit. This was wrong and not in the child’s best interest. It had to be very confusing to him that he was residing in one home, went to visit his grandmother for an afternoon, and “moved.”
[41] Iccis is opposed to a shared parenting week on/off schedule. She argues that this would provide instability and inconsistency for Itiel, who would be exposed to different parenting styles and rules in the households.
[42] Iccis asserts there is a potential for increased conflict, as there is a history of poor communication. In Wendy’s affidavit dated May 21st, 2024, she states at paragraph 58, "Iccis and I do not communicate at this stage given the volatility of her relationship with me and Dennis, and the allegations that she continues to make, I do not believe that Iccis and I can communicate in any form in Itiel's best interests" in support of her proposal for a parallel week on/off schedule.
[43] Iccis puts forward that she has been Itiel’s primary caregiver for over 80% of his life. He resided in her home for 5 of his six years. She relies on Tishaye working at Roots Canada and Aero Sports and leaving Itiel in her care to support this position. I disagree. While Tishaye was alive, she was Itiel’s primary caregiver, and Iccis’ role as a parent to her daughters and grandson was deficient.
[44] Iccis has been sober since November 2022. Iccis is commended for her efforts to deal with her alcohol addiction. The Peel CAS was satisfied that she had made sufficient improvements to the home's condition to enable the children to return by mid-2023.
[45] I also commend Iccis for placing Itiel and the three girls in the care of her cousin after Tishaye’s death. She recognized the need for alternate care while she dealt with addiction issues and mental health.
[46] Iccis asserts that Itiel was in Wendy’s care because of Wendy’s self-help as she took Itiel from Santana’s care on April 22, 2022. The placement of Itiel was ultimately through a kinship placement. I disagree with Iccis’ assertion. Also, two self-helps do not make a right. The focus is on Itiel’s best interests. I find the July 8, 2023 unilateral “move” to be contrary to Itiel’s best interests.
[47] Iccis’ evidence is that her negligence after Tishaye’s death has caused the separation of her family. She was suffering from the death of her oldest child. She feels she was doing her best for her other children by voluntarily admitting herself into CAMH and letting them stay with a relative (Santana) until she felt emotionally ready and capable of caring for them. She thought the children would be returned once she obtained sobriety and her house was habitable.
[48] Iccis’ brother, Dennison Provo, provided an affidavit supporting Wendy Provo. His evidence is that he has resided with his sister and the children in the past. He confirms that Iccis and her partner spent the majority of evenings drinking in the basement and sleeping in late. The children were left to fend for themselves for meals and getting ready for school. He confirms that the bulk of responsibility fell to Tishaye.
[49] Iccis’s position is that once CAS approved her situation, all children should have been returned to her care. I will address the CAS involvement later. Iccis’s position ignores that children are people, not possessions, and the children’s views, preferences and best interests matter.
[50] Wendy takes issue with Iccis’ care of Itiel since July 2023 and his care before Tishaye’s death.
[51] Itiel had not started school when he was in Wendy’s care in April 2022. He had just turned 4. When he was in Wendy’s care, she arranged for Itiel’s immunizations. Iccis denies that the children were not getting their proper immunizations and states that they would not have been able to be in school without them. Itiel had not started school and did not have his immunizations.
[52] When Itiel was placed in the care of Wendy Provo under the CAS kinship, Iccis had four visits with Itiel, the first one in January 2023 at the CAS building. It is important to note that the CAS played a role in determining Iccis’ contact with the children during the kinship agreement in light of the child protection concerns.
[53] Iccis removed Itiel from Wendy’s care on July 8, 2023, and allowed no contact until the October 2023 case conference. This shows a complete disregard for Itiel’s best interests. Wendy cared for him for over a year and is his great-grandmother. Itiel allowed her animus with her mother to impact Itiel. At the case conference, she would only allow one hour as that was what she had been granted during the kinship time. There were no issues with Wendy’s ability to care for a child.
[54] Iccis then refused to allow the parenting time to occur as Wendy Provo brought Dennis Provo to the exchanges, contrary to the consent order arrangements. Itiel resumed seeing Wendy in March 2024, and Iccis provided a week of parenting time in May 2024 to make up for the lost visits. The impact on Itiel is what is important. His confusion about who can be part of his life is heartbreaking.
[55] Wendy is currently having care of Itiel on alternate weekends.
[56] Temporarily, Wendy seeks a shared parenting schedule of week on/off and shared decision-making responsibility. The families reside close to each other.
[57] Wendy asserts that she can provide Itiel with a stable environment. Itiel thrived in the care of his maternal great-grandparents.
[58] Wendy asserts that Itiel wears dirty clothes, has poor hygiene and his hair is not groomed in Iccis’ care. Itiel’s hair appears unchanged between her alternate weekend visits. Iccis denies that Itiel had poor hygiene or has been in dirty clothing, other than everyday grime for a 6-year-old boy, after a school day, which she says can be seen in the photograph placed in evidence by Wendy. The picture is of little assistance. It is a black and white photocopy.
[59] Itiel’s lack of appropriate care concerns his sisters and the school.
[60] He was enrolled in Junior Kindergarten at Harold H. Loughlin Public School down the street from Wendy’s home. While in Wendy's care, Itiel was enrolled in activities such as soccer and summer camps. He was aware of similar plans for the summer of 2023 when Iccis took him from their care. He was enrolled in play therapy to assist him in navigating the changes in his life.
[61] Wendy and her husband support Itiel’s relationship with his maternal aunts and extended family.
[62] Iccis is content to share information about Itiel with her mother, Wendy, but asserts primary care should remain with her.
[63] This is a motion for temporary parenting arrangements for Itiel. Given the depth of conflict, a trial is likely. It is tempting to return Itiel to Wendy’s care primarily and determine when he should have parenting time with Iccis. Wendy demonstrated the capacity to parent a child. I have concerns about Iccis’ ability to parent a child on a day-to-day basis and her ability to put a child’s interests before her own. I have chosen a shared parenting schedule so there is no further drastic upheaval in Itiel’s living arrangements. He lost his mother. He had a short period with Santana. He then lived with Wendy for about 14 months. He was uprooted with no notice or organized transition to Iccis’ care. He has had periods with no contact with Wendy since then. This is a shame.
[64] The legal test is the child’s best interests, as set out in the Children’s Law Reform Act. Section 24(2) provides:
In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
Itiel thrived in Wendy’s care and has been in Iccis’ care for just over a year. However, his school report, especially late days, and his appearance at school are concerning.
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
I find that a shared parenting arrangement will allow Itiel to continue his bond with his grandparents and great-grandparents. He needs the stability of continued relationships and the freedom to care for the people who care about him without interference.
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
The parties consented to the use of AppClose. More effort needs to be made concerning civil and child-focused communication and information sharing.
(d) the history of care of the child;
Since his mother’s death, Itiel has been in the care of both Wendy and Iccis.
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
Itiel is caught in the middle of the conflict. He wisely states no preference.
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
Both parties are of similar heritage.
(g) any plans for the child’s care;
Wendy’s plan of care is more specific and child-focused.
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
I have concerns about Iccis’ ability to care for Itiel on a day-to-day basis. Itiel cannot raise himself as his maternal aunts had to do in the past. The hygiene concerns are troubling for the child’s self-esteem and peer interaction.
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
This is a temporary order. It will allow Itiel to benefit from his relationship with his grandparents and great-grandparents. A trial court will be able to review the use of AppClose and the parties’ ability and willingness to communicate.
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
Iccis asserted that her stepfather sexually assaulted her and was physically abused by her mother. There were no specifics provided. There are no allegations respecting the four children involved.
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
None
[65] I do not accept that Iccis’ parenting issues arose after Tishaye’s death. She had not been parenting Tishaye, Elmaly, Jatisha, Claira, or Itiel before then.
[66] In Iccis’ care, the home environment for the children was deplorable. CAS notes indicate that the children were exposed to too many hazards and concerns. The state of the home was inadequate. Bugs were crawling all over the rooms' floor, walls and ceilings. Clutter, garbage, and animal feces were observed throughout the house. Iccis was consuming alcohol daily in the basement. The children were left to fend for themselves, with Tishaye being the most responsible.
[67] A cousin of Tishaye’s provided an affidavit and spoke about the conditions in the home while Tishaye was alive. Tishaye was the de facto mother of her three siblings and Itiel. If Tishaye did not ensure the children were fed, bathed, and had clean clothes, they would go for days without proper food and no hygiene routine. Tishaye could not leave Itiel with Iccis for even a few hours as she knew upon her return, she would find Itiel in dirty diapers and unfed and left on his own or in the care of his young aunts.
[68] Counsel for Iccis urges the Court to focus on her non-consumption of alcohol and the improvement in the home conditions. He argues that past conduct is not to be considered. I disagree. The Children’s Law Reform Act section 24(5) provides that in determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. (emphasis added).
[69] Jatisha and Elmaly’s experience of the poor parenting cannot be ignored. It informs their mistrust of their parents.
[70] Elmaly is 14 years of age. She is entering high school. She last lived with her parents in March of 2022 when she was 11. Elmaly describes life at home before Tishaye died as one in which her mother was barely present, mostly staying in the basement and drinking, with her father there sometimes. She says that she and her sister, Tishaye, were primarily responsible for caring for and feeding her younger sisters and Itiel. As a result, Elmaly continues to be vigilant about the environment in her parents' home and the care being provided to Claira and Itiel.
[71] Elmaly described the house as dirty and messy when she lived at home. It took over a year for CAS to consider the house adequate. Elmaly feels robbed of her childhood. When she resided with her parents, she did not know any different. Both her parents spent time in the basement drinking alcohol and left them upstairs. Her Mom, Iccis, rarely cooked or cleaned; sometimes Patrick, Dada, cooked but often it was Tishaye or her. Mostly, she and her sisters, including Tishaye, cleaned. The girls were raising themselves and Itiel in a filthy, roach-infested home.
[72] Tishaye worked outside the home, cared for Itiel, and cared for her sisters, including feeding and cleaning the house. When Tishaye was working, Elmaly had to look after Itiel because Mommy (Iccis) was drinking in the basement.
[73] Elmaly and Jatisha have chosen to reside with Kalandra. They will not return to their parents’ care.
[74] Understandably, Elmaly and Jatisha's rejection of their parents is very painful and likely devastating for Iccis and Patrick. They think they have taken the necessary steps to have their family reunited. Unfortunately, Elmaly and Jatisha felt it was too little or too late. It took close to a year to get the house into a condition that the CAS felt was safe. Iccis did not start alcohol treatment until December 2022. They do not trust that things will be different if they return home.
[75] The OCL clinician spoke to Simone Johnson, the principal at Northwood Public School. Counsel for Iccis asks that little weight be given to the information from the principal. He was not cross-examined, and he asserts that the principal would not have such personal knowledge of a student. I agree that the information has not been tested by cross-examination. However, I find the level of detail demonstrates that the principal is aware of Itiel as a student in the school.
[76] Itiel was in the care of Iccis during the 2023-2024 school year. He missed 13.5 days of school. He was late 50 times, most occurring near the end of the school year. Itiel sometimes smelled of smoke, had body odour and sometimes wore oversized clothing. He had more outbursts and appeared to be anxious. He yelled at his peers, and the staff noticed he used more adult language. He seemed to be more tired.
[77] Itiel was in Wendy's care during the 2022-2023 school year. He did not present as angry or upset. He was clean, wore clothing that fit him and did not smell of smoke.
[78] I find that Iccis’ lack of parenting capacity demonstrated in her raising of Jatisha, Elmaly and Claira while Tishaye and Itiel were residing in her home is relevant to her ability to care for Itiel now.
[79] Itiel is six years of age. He feels loved by many yet is also impacted by being in the middle of the conflict. While in the care of Wendy, he had a stable home life. It is not clear if he is receiving appropriate parental care by Iccis. He deserves to be able to enjoy a relationship with all of his family and to attend school with reasonable hygiene. Temporarily, I find that a shared parenting schedule is best for Itiel.
[80] I also find that a shared decision-making responsibility is in Itiel’s best interests. The parties will use AppClose. While no specific decisions were identified for Itiel at this time, there will be doctor appointments, activities, events, etc. I am seized of this matter, and if an issue arises concerning a decision for Itiel on notice, it may be dealt with on a 14B motion or at a scheduled court date.
Who Should Have Decision-Making Authority for Elmaly and Jatisha?
[81] I find that Kalandra Cain shall have sole decision-making responsibility and authority with respect to Elmaly and Jatisha.
[82] On behalf of Elmaly, Jatisha and Claira, the OCL takes the position that their voices should be heard and given significant weight. I agree. The girls want Kalandra to be responsible for making decisions.
[83] Kalandra Cain, supported by Coreen Cain, wishes to have sole decision-making responsibility for and the primary residence of Elmaly and Jatisha. She supports ongoing parenting time between Elmaly, Jatisha and their parents in accordance with the girls' wishes.
[84] If Elmaly and/or Jatisha wished to return to live with their parents and Claira, Kalandra and Coreen Cain would support that decision.
[85] Iccis opposes Kalandra having decision-making authority for Jatisha and Elmaly. She feels that Kalandra has not shared information with her. At times, Kalandra has blocked Iccis’ communications. She feels that if sole decision-making responsibility is granted to Kalandra, the Court will sever her last connection with her daughters.
[86] Iccis asserts that Kalandra is unwilling to communicate with her and should not be the decision-maker. She also states that an order for decision-making is not needed temporarily. All significant decisions, such as school enrolment, have already been made. She argues that past decisions have been made collaboratively. Kalandra admits to blocking Iccis’ communications earlier this year when she felt Iccis was harassing her and being disrespectful rather than focusing on the girls. She also said she is willing to have child-focused communications that would benefit the girls with Iccis.
[87] A recent decision that needed to be made was Elmaly’s high school. She was accepted into a high school for the arts. The parties could not agree on who could register her, so she had not been able to take the placement. On March 27, 2024, I ordered that Coreen Cain had the authority to register Elmaly for school.
[88] Elmaly chose not to have her parents at her grade 8 graduation.
[89] Iccis is concerned that if she is not a decision-maker for the children, that further distance will be created. I find it is more important that decisions are made without conflict for the two teens and that they have the stability of knowing decisions will be made with their input from their day-to-day care provider.
What Contact Should the Children Have with Each Other and Their Parents?
[90] I find that:
a) Elmaly, Jatisha, Claira and Itiel may have in-person contact at the home of either Kalandra or Coreen Cain, a minimum of one Saturday per month for at least six hours with the understanding that it can include overnight visits if the children agree;
b) The visit weekend shall alternate from the second weekend that Itiel is in the care of Iccis Provo one month and the second weekend that Itiel is in the care of Wendy Provo the next month;
c) Elmaly, Jatisha, Claira and Itiel shall have private video calls without the presence of any adults each Sunday from 7:30 to 8:00 p.m. except on weekends when they see each other in person for the six-hour or more period,
d) Elmaly and Jatisha shall see their parents, Claira and Itiel, in person on the first Saturday of each month, with one hour to be spent with the parents, Claira and Itiel and one hour with just Claira and Itiel;
e) The parenting time shall be at the discretion of Elmaly, Jatisha and Claira
f) The visits can occur at Kalandra Cain's or Coreen Cain's home or in the community near the exchange location.
[91] Currently, Elmaly and Jatisha see their parents, Claira and Itiel, in person on the first Saturday of each month for up to two hours, with one hour to be spent with the parents, Claira and Itiel and one hour with just Claira and Itiel. They have video calls with Claira and Itiel on Saturday mornings from 10:30 to 11:00 a.m. and Sunday evenings from 7:30 to 8:00 p.m.
[92] Itiel is a very bright and articulate six-year old and seems to be aware that he cannot please everyone he loves if he takes a position about where he wants to live or how he wishes to divide his time.
[93] He was willing to share with the OCL that he misses his aunts, Elmaly and Jatisha, and is always happy to spend time with them. He would be willing to spend time with them at Kalandra (or Coreen's) and at Nan's (Wendy’s) home.
[94] Elmaly and Jatisha shall have parenting time with their parents, Iccis Provo and Patrick Morris, only in accordance with their wishes.
[95] Elmaly and Jatisha do not wish to have parenting time with their parents.
[96] I am mindful that recently, Claira indicated that she was no longer willing to go to Coreen or Kalandra Cain's for visits and wanted visits in the community. She was not sure about seeing her sisters at Wendy’s house.
[97] Claira does not think her mother will support her visiting her grandmother's home.
[98] Claira did say she would spend time with her sisters if there were no arguments.
[99] As of July 25, 2024, Claira's position with respect to access was that she wants it to be with the whole family at the Bramalea City Centre or another location.
[100] Elmaly would like to see Claira and Itiel at Nan's and Gramps' (Wendy’s) house but not at her parents' home.
[101] The video calls need to be between the girls. They are ages 11, 12 and 13.
[102] Iccis has been involved in some video calls and accused Elmaly and Jatisha of disrespect. Constant yelling has occurred. There have also been disagreements between the siblings on the issues of returning home, seeing their parents, etc. Some of the conflicts during the calls have included Itiel and Patrick.
[103] Elmaly believed her parents were influencing Claira and Itiel and making Claira say rude things to them.
[104] The gist of the arguments centers around Iccis and Patrick saying that Elmaly and Jatisha need to come home and the girls refusing.
[105] The children need time to spend with each other. A visit in a public place is artificial. They need to be able to relax and spend time together.
[106] Iccis seeks reunification therapy to heal the estrangement but does not acknowledge the harm of having yelling arguments with Jatisha and Elmaly, not listening to their views and preferences about not returning home, etc.. The situation is unfortunate for all of the children.
Should Reunification Therapy be Ordered for Iccis Provo, Dennis Provo, Itiel, Elmaly and Jatisha?
[107] I decline to make an order for reunification therapy.
[108] Iccis Provo and Patrick Morris want Elmaly and Jatisha to return and live with them permanently. In the interim, they would like to spend more time with Elmaly and Jatisha and are seeking an order for the family to engage in reunification counselling.
[109] Iccis relies on Testani v Haughton, 2016 ONSC 5827 for the authority that the Court has jurisdiction to order reunification therapy. I agree that jurisdiction exists and that it should be made sparingly when there is compelling evidence that the therapy will be beneficial. I disagree that it would be beneficial for this family at this time.
[110] Elmaly and Jatisha have already been involved with individual therapy and do not wish to participate in reunification or family therapy. Currently, the individual therapy is on hold due to a staffing change.
[111] Iccis asserts that reunification therapy is needed due to the growing emotional distance and disconnection.
[112] I find that if Elmaly and Jatisha wanted to spend more time with their parents and/or wanted to attend counselling with them, it would occur. I am confident that Kalandra Cain would support the children’s wishes.
[113] I was directed to several cases, such as Ferreira v Ferreira, 2015 ONSC 3602, in which one parent’s animosity towards the other frustrated the child’s relationship with that parent. In this case, the girls' lived experience with their parents has informed their position.
[114] Iccis proposes that Helen Yack from Rise Up Counseling be the counsellor for reunification therapy. She has completed the retainer and, with the help of family and community, can pay the cost for the family to participate. Ms. Yack is located in Richmond Hill/Vaughan, near the children. The process is a five-stage approach involving individual sessions, estranged parent and child sessions, group sessions and follow-up sessions.
[115] Iccis asserts that reunification therapy is essential. It is in the children's best interest to have a stronger relationship with their biological parents and their youngest sibling and nephew. Her focus is on the children’s overall well-being. She feels that her two-parent household meets the girls’ needs. She asserts that once-per-month parenting time is insufficient to health the family and will weaken the family bond over time.
[116] Counsel addressed the issue of Jatisha and Elmaly's consent to any counselling, their capacity to consent under the Health Care Consent Act, etc. I am declining to make the order for reunification therapy and will not address the children’s capacity to consent under the Health Care Consent Act. The views and preferences of Jatisha and Elmaly must be respected.
[117] I disagree that reunification therapy is the best option to heal the family. There are four generations involved in this litigation. There is considerable dysfunction. The video calls have involved arguments between Iccis, Patrick and their children. The children’s ongoing interactions can be fraught with disagreements.
[118] Some good interactions have occurred. On Wednesday, July 10, 2024, Iccis and her partner celebrated Claira’s birthday at Dave and Buster’s with Itiel, Elmaly and Jatisha. Iccis appreciated the family time and the children’s interaction that day.
[119] I urge Iccis and Patrick to participate in therapy and parenting classes. Iccis asserts that Patrick “is in complete confusion why the children don't want to see him as he was never expressly told why they feel this way. When we request clarity from the OCL they do not provide us with any reasonable reason why the children don't want us involved in major milestones in their life”. This statement is incredible. The OCL affidavit sets out the girls’ perspective on their lives with their parents. The saddest comment is that their childhood was robbed. Iccis and Patrick should share the OCL affidavit with any counsellor.
[120] The last time Iccis and Patrick spent extended time with Elmaly and Jatisha was in December of 2022. In Iccis’ view, the girls went from eagerly wanting to spend weekends at home and returning home to not wanting to reside at home or have their parents involved in their major milestones, such as graduation. Iccis’ narrative that the home issues started after Tishaye’s death is not true and shows a lack of insight as to the impact of her negligent care of the children.
Children Caught in the Middle of Adult Conflict
[121] Itiel still feels a lot of pressure from everyone in his family, including the adults and his aunts, to share with the OCL what they want him to say. He resisted doing so. He is six and should not be caught in the middle.
[122] Itiel lost his mother when he was four years old, but there is no shortage of family members who love him and appear to want what is best for him. The adults must allow all four children, particularly Itiel, to be children and not be caught in the middle of the adult issues.
[123] There are many examples of the children being exposed to the adult conflict. Wendy has shown pictures of Itiel with bugs on his back and messy hair. Itiel told the OCL that "my other two aunts" live with "Coreen," who he described as a "bad person." Itiel shared with the OCL that it is true that Grammy (Iccis), Dada (Patrick), Nans (Wendy), Claira, Jati and Elmaly all talk to him about where he should live. Itiel feels "annoyed" when people ask him where he should live.
[124] Iccis asserts that while Elmaly and Jatisha are aware of the litigation and adult issues, she shields Itiel and Claira from adult conflicts. This is not true, as the video call arguments show.
[125] In August of 2023, after Itiel was in Iccis’ care, he advised CAS that he could not hug Wendy as Iccis had told him it could be a trap.
[126] Itiel is very aware that there are disputes about where he should live. Shortly after his mother died, after a brief stay with Santana and her family, he went to live with Wendy and Dennis Provo. In July 2023, Iccis Provo unilaterally decided that she would not return him from what was scheduled to be a day visit.
Other Allegations
[127] Iccis has accused her adoptive father (Dennis) of sexually abusing her when she was a teenager. This information was shared with the CAS. They were unable to verify concerns and were satisfied that Itiel could be placed in Wendy and Dennis's home under a kinship agreement.
[128] While Claira was staying with Coreen Cain, she disclosed that Santana's husband had sexually abused her. The Society was unable to verify these statements, which Claira later recanted. The Society records also indicate that on April 24, 2022, an anonymous source reported concerns that Claira had been sexually abused. This was before Claira went to live with Coreen Cain. A police officer’s email indicated that Claira confirmed that she had lied about the sexual abuse and said that Iccis told her to lie.
[129] These allegations are noted as they are serious and also inform the generational conflict the children live with.
CAS Involvement with This Family
[130] I would be remiss if I did not address my dismay about the CAS withdrawal of involvement with this family.
[131] The CAS did not adequately support the family and appeared too focused on the physical side of rehabilitating the neglect.
[132] The April 4, 2023 CAS note states that the family must reunite, that Iccis has made many changes to get back to a healthier place for herself and for her children and that the children are hesitant about reuniting with their mother as her alcoholism had caused her to neglect them and their home.
[133] The CAS failed to properly consider children’s views and preferences.
[134] Elmaly told CAS that she was adamant that she did not wish to return to her parents. She shared her concerns about her home life with the CAS.
[135] The CAS failed to recognize the significance of the emotional impact on the children and their relationships.
[136] This family was left in limbo when the kin agreement expired, and Iccis exercised self-help and retained Itiel after an afternoon visit in July of 2023. Given the reported concerns of Elmaly and Jatisha about the lack of parenting by Iccis and Patrick before Tishaye’s death, CAS’ withdrawal from these children’s lives is inexcusable.
[137] On August 21, 2023, after staying with Iccis and Patrick for over a month, the worker noted: "Itiel says things are good at grandmother's house and he likes living there. He says he doesn't want to return to live with Nans and Gramps (Wendy’s). He said he would like to conduct visits at the visiting centre like he used to have with Grammy and Dadda. I asked how he felt about Nans and Gramps and he said if he were walking and ran to them to give them a hug it might be a trap-says Grammy told him this... Says he would visit Nans and Gramps at their home as long as it is not a school day."
[138] On August 30, 2023, Iccis shared with CAS a recording of Itiel stating that he wanted to call Nans and Gramps weekly. He stated in the recording he “wanted to teach them a lesson' not to take other people's kids."
[139] At a minimum, a supervision order application to ensure that Iccis was doing the day-to-day parenting, maintaining the house in a reasonable condition, and not consuming alcohol was needed. The lack of parenting did not start after the death of Tishaye which was when the CAS became involved. The CAS did not address this issue during the kin agreement and did not ensure that Claira and Itiel received parental care.
[140] The CAS failed to recognize the negative impact of the child’s exposure to high conflict within the family, or if they did, they did not focus any of the remedial or supportive work towards addressing this type of harm. They appear to have categorized the source of much of the children’s difficulties as a “custody-access” issue.
[141] In March of 2023, Iccis advised the CAS that if Elmaly refused to go home with her, "she will be calling the police to compel her to go and she says she will ask them to take her to the hospital because she is clearly having a mental health episode." The CAS notes that Iccis was planning on removing the children, and this situation “can/will likely get ugly.”
[142] In May 2023, the CAS notes provide the following information:
a) Iccis was hurt because Itiel wanted to live with Nans and Gramps (Wendy) forever."
b) Itiel privately said he would like to spend some time together again and go to a park with Grammy (Iccis), Dedda (Patrick), and the aunties. He also said he wanted to live with Wendy and Dennis and did not want to live with Iccis and Patrick.
c) Itiel was missing Synclaira and questioned why she would return home when the other girls did not want to return.
d) Itiel asked if the house was cleaner and if there were any bugs in the house.
e) Itiel told CAS that Coreen was bad and should not steal people’s kids.
[143] The CAS failed to recognize and support the children in addressing the emotional impact of having cared for themselves for so long.
[144] Iccis told CAS that she sees it as her job to “build her children’s skills and competencies and prepare them for the world: and that they would definitely have responsibilities if they returned home”. On the record before me, no parenting classes or individual therapy was expected for Iccis. There does not seem to be any exploration of her stated parenting role and her abdication of parenting responsibilities when the children lived with her.
[145] The CAS was informed of the children’s concerns throughout 2022 and 2023 and was steadfast in reuniting the family without paying attention to the children raising themselves.
[146] In kin scenarios, the CAS should more carefully consider whether the framework of the legal case is better addressed in the courts under the CYFSA rather than leave the family members on their own to seek legal structure and authority for their parenting time and decision-making. Also, parties to kin agreements in court are more likely to have legal advice or representation.
[147] The July 12, 2023 letter from the CAS to Wendy and Dennis Provo confirmed the kinship agreement period from May 2022 to July 2023. It commended them for their care of Itiel. It included: “Our final visit was June 15, 2023, with the understanding that Itiel would remain in your care while you wait for a decision by the courts on final guardianship.” (emphasis added). When Iccis took Itiel, CAS failed to address Itiel’s living arrangements and the emotional impact on him.
[148] The Society declined involvement and labelled the family issues as parenting time disputes.
[149] Working collaboratively may be optimal when CAS learns of a child protection risk, and the family is prepared to work cooperatively with CAS to address the concerns. Here, it took more than a year for the home’s cleanliness to be deemed adequate. Tishaye died in March of 2022, and the four children left the house immediately. Iccis started alcohol counselling in December of 2022 and completed it in July 2023.
[150] To classify the issues for this 4-generation dysfunctional family merely as a parenting time dispute does not apply the child protection lens at all.
[151] I feel that the CAS let this family down. Elmaly and Jatisha refused to return home, but their concerns about the lack of parenting and the conditions in the home were ignored. Itiel’s life and routine changed without notice or any transition planning on July 8, 2023, and Iccis’ conduct was ignored.
[152] There are benefits of court intervention, including accountability by oversight by the court, the enforcement options when temporary/final orders are not followed, and the availability of independent legal representation for the children.
[153] At the motion date, two court dates were chosen: October 10, 2024 at 2:15 p.m. and November 5, 2024 at 2:15 p.m.. On October 10, 2024, parties can address next steps. If all parties are in agreement that October 10, 2024 should be adjourned to November 5, 2024 a 17F confirmation can be filed.
Order
[154] The Applicant Iccis Provo and the Respondent Wendy Provo shall share decision-making responsibility for Itiel Callan Torris Provo born in 2018. If a decision needs to be made for Itiel, notice shall be given to the other and a response shall be provided within 10 days. If a joint decision is not agreed upon, on a temporary basis, the matter shall be referred to the Court on notice through a 14B motion or at the next scheduled court date.
[155] The Applicant Iccis Provo and the Respondent, Wendy Rose Provo, shall be granted access to all information concerning the child namely, Itiel Callan Torris Provo (born in 2018), from third parties inclusive of Itiel's teachers, doctors, dentists, and all other third parties who are involved in his care.
[156] The parenting schedule for Itiel Callan Torris Provo born in 2018 shall be shared between Iccis Provo and Wendy Provo on a week-on-week-off basis with exchange on Fridays after school or at 4:00 p.m. on a non-school day.
[157] Kalandra Cain shall have sole decision-making responsibility and authority for Jatisha Sydella Rose Provo born in 2011 and Elmaly Patisha Deb Provo born in 2010.
[158] Jatisha Sydella Rose Provo born in 2011, Elmaly Patisha Deb Provo born in 2010, Synclaira Antisha Janet Provo born in 2012 and Itiel Callan Torris Provo born in 2018 may have in-person contact at the home of either Kalandra or Coreen Cain, a minimum of one Saturday per month for at least six hours with the understanding that it can include overnight visits if the children agree. The visit weekend shall alternate from the second weekend that Itiel is in the care of Iccis Provo one month and the second weekend that Itiel is in the care of Wendy Provo the next month.
[159] Jatisha Sydella Rose Provo born in 2011, Elmaly Patisha Deb Provo born in 2010, Synclaira Antisha Janet Provo born in 2012 and Itiel Callan Torris Provo born in 2018 shall have private video calls without the presence of any adults each Sunday from 7:30 to 8:00 p.m. except on weekends when they see each other in person for the six-hour or more period;
[160] Jatisha Sydella Rose Provo born in 2011 and Elmaly Patisha Deb Provo born in 2010 shall:
a) have parenting time with Synclaira Antisha Janet Provo born in 2012 and Itiel Callan Torris Provo born in 2018, in person on the first Saturday of each month, with one hour to be spent with the parents, Claira and Itiel and one hour with just Claira and Itiel;
b) The parenting time shall be at the discretion of Elmaly, Jatisha and Claira;
c) The visits can occur at or near the exchange location or other location as agreed upon;
[161] Exchanges for any parenting time and/or sibling contact for the four (4) children, Itiel Callan Torris Provo (born in 2018), Synclaira (Clara) Antisha Janet Provo (born in 2012), Elmaly Patisha Deb Provo (born in 2010) and Jatisha Sydella Rose Provo (born in 2011) shall be carried out within the area of Highway 7 and Weston, unless otherwise mutually agreed to between the parties. Where the parties are unable to agree, the Respondent, Kalandra Cain, shall have the final say.
[162] The claim for reunification therapy is dismissed at this time.
[163] The Applicant, Iccis Corris Artisha Provo, shall forthwith relinquish to the Respondent, Kalandra Cain, all government-issued documentation and immunization records held in the children's name in her possession.
[164] The Respondent, Kalandra Cain, and the Applicant mother, Iccis Corris Attisha Provo, shall share information and exchange communications about the children, either via counsel or through the family messaging application AppClose.
[165] The Respondent, Wendy Rose Provo, shall have parenting time with the children namely, Elmaly Patisha Deb Provo (born in 2010) and Jatisha Sydella Rose Provo (born in 2011) on dates and times as may be agreed keeping in mind their views and preferences.
[166] The Respondent, Kalandra Cain, shall have primary residence for two (2) children namely, Elmaly Patisha Deb Provo (born in 2010) and Jatisha Sydella Rose Provo (born in 2011).
[167] This matter is adjourned to October 10, 2024 at 2:15 p.m. courtroom #210 in person or zoom and November 5, 2024 at 2:15 p.m. courtroom #208 in person.
[168] CA shall send a copy of this decision to the Peel Children’s Aid Society.
[169] Costs reserved to October 10, 2024 or next court date.
Justice Joanne Beasley