Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 10 10 COURT FILE No.: Sault Ste. Marie 15/22

BETWEEN:

D.D. & S.D. Applicants

— AND —

E.L., T.A., M.T., M.S. & A.J. Respondents

Before: Justice H. A. Mendes

Heard on: September 23, 2024 Reasons for Judgment released on: October 10, 2024

Counsel: D.D................................................................ on her own behalf but did not attend motion S.D................................................................. on his own behalf but did not attend motion Kristi Whitfield................................................................... counsel for the respondent E.L. Heather Jordan................................................................ counsel for the respondent T.A. No appearance by or on behalf of M.T., M.S. & A.J., even though served with notice. Lindsay Marshall................................. counsel for the Office of the Children’s Lawyer, legal representative for the children

Mendes J.:

Overview

[1] The respondent, T.A. brought a motion at volume 2 tab 11 of the continuing record seeking to be reintroduced to the child K.A. born […], 2015, and to have re-introductory virtual parenting time with her, supervised through Algoma Family Services Supervised Access Program.

[2] The applicants did not attend at the hearing of the motion. The respondent mother opposed the motion and the Office of the Children’s Lawyer on behalf of the child K.A. did not take a position nor provide any views and preferences on behalf of the child as the child is not aware that T.A. is her biological father.

[3] T.A. initially brought a motion filed at volume 2 tab 3 seeking that his parenting time with K.A. be supervised by Nogdawindamin Child and Family Services (hereinafter “the Agency”). T.A. sought this relief as the Agency is working with E.L. and the family on a voluntary basis and supporting the children with services, including weekly counselling for K.A. The motion filed at volume 2 tab 3 was not served upon the Agency and so it did not proceed at the initial hearing date of July 8, 2024.

[4] T.A. subsequently revised his proposal with respect to re-introductory parenting time with K.A., however as the motion at volume 2 tab 3 was not formally withdrawn, the Agency was present at the hearing of the motion on September 23, 2024 and filed affidavit evidence setting out that while they are not prepared to supervise parenting time as this is not a court child protection file, they are supporting K.A. through weekly counselling services and are prepared to continue to support K.A.

Background

[5] The applicants, D.D. and S.D. commenced this application in February 2022 seeking various relief, including “custody” of their five grandchildren who are the subject children of the application.

[6] E.L. is the biological mother of the five children identified in the application. All the children are in her care. E.L. is in a relationship with A.J. who is the father of the children K.J. born […], 2017 and A.J. born […], 2020.

[7] The father of the child C.L. born […], 2008 is M.S. and the father of the child S.L. born […], 2011 is M.T. Neither M.S., M.T. nor A.J. have participated in these proceedings.

[8] T.A. is the father of the child K.A. T.A. resides in Redwater, Alberta with his partner, N.T. and their son C.A. who is 4 years old, along with his step-daughter J.T. who is 11 years old and his sister-in-law K.T. who is 18 years old.

[9] Presently, T.A. is charged with Criminal Code offences regarding sexual assault and sexual interference involving the children C.L. and S.L. who are siblings of K.A. These charges are presently before the court in Sault Ste. Marie.

Position of the Parties

[10] T.A. submits that it is in the best interest of the child K.A. to be reintroduced to him given the application is far from resolution or being set down for trial. Given the delay with the proceeding thus far, he does not want further time to lapse before he is reintroduced to and has parenting time with K.A.

[11] T.A. is indigenous and a member of Brunswick House First Nation. T.A. submits that he is the only connection that K.A. has to her First Nations heritage. T.A. further submits that he is the parent that is able to provide K.A. with her cultural connection and pass on traditions and invite her into the community.

[12] The mother E.L. opposes the motion and the re-introduction of T.A. to K.A. as there has been no contact for years and K.A. does not even know that T.A. is her father. Further K.A. identifies A.J. as her father. That being said, K.A. is aware of who T.A. is because of the criminal charges he is facing regarding her siblings and K.A. has witnessed outbursts by C.L. and S.L. directed towards T.A.

[13] The Office of the Children’s Lawyer was not able to take a position regarding the motion for parenting time by T.A. as the child is not aware that T.A. is her biological father, as such no views and preferences were obtained nor provided to the court.

Legislation

[14] Section 21 of the Children’s Law Reform Act sets out that a parent of a child may apply to a court for a parenting order respecting decision-making responsibility with respect to the child and parenting time with respect to the child.

[15] Section 24 of the Children’s Law Reform Act sets out the test for best interests of the child when the court is to decide the issue of parenting time. The test is set out as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) 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;

(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;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(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) 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;

(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

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

Analysis

[16] This is a very unfortunate case before the court. T.A. has not been involved in the life of K.A. essentially since her birth such that she identifies another individual, A.J. as her father.

[17] T.A. did not pursue a relationship with K.A. after his separation from E.L. in 2015 as he claimed that she made it difficult for him. Furthermore, T.A. claims that he was young and immature at the time and so he left Ontario and made a new life for himself in Alberta where he is now married and has a family which he would like K.A. to be a part.

[18] T.A. also submitted that he was content with the mother raising K.A. and not pursuing a relationship with her or parenting time, until it was brought to his attention, through these proceedings, the circumstances in which the child was residing with the mother, that being an allegedly volatile household, with adult conflict involving the mother’s current partner, A.J., which warranted the voluntary and seemingly ongoing involvement of the Agency.

[19] T.A. believes that it is in K.A.’s best interests that she be re-introduced to him so that he may start developing a relationship with her. Further T.A. seeks to introduce K.A. to her indigenous community and culture and he wants her to participate and be welcomed in to the traditions and customs associated with their First Nation.

[20] The court acknowledges the principle that a child should have as much time with each parent as is consistent with the best interests of the child, however I find that the lack of contact by T.A. with the child for almost 10 years is as a result of his own inaction.

[21] Also concerning to the court is the recent criminal charges T.A. presently faces involving K.A.’s older siblings. While it is true that these charges arose only after this court proceeding was commenced and T.A. has not been found guilty, these criminal charges are serious and are directly relevant to the safety, security and well-being of K.A.

[22] The court fully supports K.A. learning about her indigenous culture and heritage as well as developing and maintaining a connection to same as this is most certainly in K.A.’s best interests. However, the first step needs to be K.A. learning about who her biological father is as well as her indigenous heritage, before the court may consider if re-introductory parenting time for T.A. is appropriate and in K.A.’s best interests. Further, this will allow the Office of the Children’s Lawyer to determine a position on behalf of K.A. and have her views and preferences put before the court for consideration.

[23] K.A. is still very young as she is 9 years old and so a cautious approach is necessary moving forward so that K.A. is supported in any reunification process.

[24] The court was advised that K.A. is aware of whom T.A. is through her siblings as there was reference to one or both of the siblings having an outburst with K.A. present regarding the outstanding criminal charges involving T.A. The court is concerned about how K.A. will react to learning that T.A. is her biological father knowing that there are outstanding criminal charges against him involving her older siblings.

[25] K.A. is presently attending counselling on a weekly basis which is facilitated through the Agency. While none of the notes and records were provided or an update regarding her progress, the court is concerned about adding another layer of change to K.A.’s life by commencing parenting time with someone she is not aware is her parent.

[26] As such, the court is not prepared to commence re-introductory parenting time for T.A. with the child K.A. at this point in time. It is clear that this matter is likely to proceed to trial and at this stage the court is prepared to order that K.A. be advised that T.A. is her biological father.

[27] This information is to be provided to K.A. through her children’s mental health worker with the support of her mother. K.A. is not to be advised by the mother alone or by any other party to this proceeding without her mental health worker present.

[28] Once K.A. is advised of the information about her biological father and supported for a period of time through her weekly counselling with her mental health worker, the issue of re-introductory parenting time for T.A. with K.A. may be revisited, provided that an update from the mental health worker is submitted with any such motion and the Office of the Children’s Lawyer is able to take a position on behalf of K.A.

Conclusion

[29] Give the above reasons, an order shall issue as follows:

(1) The motions at volume 2 tab 3 and volume 2 tab 11 brought by the respondent T.A. are dismissed.

(2) The child K.A. shall be advised by her children’s mental health worker through Nogdawindamin Child and Family Services, with the support of the respondent mother E.L., that T.A. is her biological father.

(3) The respondent father T.A. shall be entitled to bring a motion for re-introductory parenting time with the child K.A. after at least three months counselling is facilitated through the K.A.’s mental health worker and an update regarding K.A.’s progress regarding this issue.

[30] The application is adjourned to the Family Law List on October 16, 2024 at 2:00 p.m. to set the date for the next step in the matter.

Released: October 10, 2024 Signed: Justice Heather-Ann Mendes Ontario Court of Justice