CITATION: The Children’s Aid Society of Ottawa v. E.P. and T.M. 2016 ONSC 2107
COURT FILE NO.: FC-14-1343
DATE: 2016/03/24
SUPERIOR COURT OF JUSTICE - ONTARIO
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of
RE: The Children’s Aid Society of Ottawa
BEFORE: Madam Justice J. Mackinnon
COUNSEL: Deborah Bennett, Counsel for the Children’s Aid Society of Ottawa Wendy Rogers, Counsel for the Applicant E.P. Stephen Pender, Counsel for the Respondent T.M. Chantel Carvallo, Counsel for the Child I.M.
ENDORSEMENT ON MOTION FOR SUMMARY JUDGMENT
[1] The CAS brought a motion seeking summary judgment as to the finding of need of protection, for a 6 month supervision placement to the mother and for an order that the father’s access be supervised at the CAS’ discretion. All issues except the latter were settled as asked on the return of the motion on March 21, 2016. I heard argument on whether summary judgment should be granted on the issue of the father’s access, and reserved my decision.
[2] For reasons that follow, the motion is granted. The father’s access during the 6 month supervision order shall be supervised at the discretion of the CAS, on these terms:
- The father shall exercise all of the access offered to him by the CAS, or, if he is unable to do so, he shall provide independent documentation to explain why he is not able to.
- The paternal grandparents shall be invited to attend 3 of the father’s access visits, each to extend for 2 hours, so that the CAS can observe the interaction and thereby obtain a further foundation for considering the grandparents future role, if any, in facilitating access.
- Dr. Worenklein should be invited to complete his update report with the participation of Ms. G., Mr. M., and the paternal grandparents, or, as Dr. Worenklein may direct.
[3] The children are I., age 9 ½, and A., age 5 going on 6. Both children have resided with their mother under supervision orders, since June 2014. During that same time frame the father’s access has been supervised by the CAS. His access was suspended by the CAS in December 2014 by reason of aggression towards the access supervisor in the presence of the children. The Ottawa Police were called to end the visit. Access was suspended for one month. In the fall of 2015, the father missed 3 Wednesday visits in a row, resulting in the suspension of further Wednesday visits. He then left for Nova Scotia, and did not see the children for a month until after his return on November 21, 2015.
[4] His Saturday access was suspended after the December 5, 2015 visit and did not resume until after he met with the CAS in February, 2016 and signed a contract regarding expectations for his behavior at access visits. His lawyer advised that some of this passage of time was on account of his trial schedule.
[5] The CAS’ position is that the father’s conduct has resulted in suspended and interrupted access. It submits that he continues to malign the mother such that supervised access is still necessary. And, the CAS relies on Dr. Worenklein’s two reports, dated January 23, 2015 and July 27, 2015, which both recommend continued supervision by reason of the father’s ongoing inappropriate and problematic behaviour.
[6] The father submits that the CAS has acted unreasonably in suspending his access. He says he has successfully completed programming for his self-control and anger issues. He also questions the reliability of the information that Dr. Worenklein relied on in his July report. Much of it came from Ms. G., who had been in a relationship with the father, but had been charged with assaulting him and breaking a no contact release term, and, the father submits, she was motivated to “get back at him”.
[7] Additionally, the father submits that Dr. Worenklein was supposed to have assessed his parents as potential access supervisors, yet did not do so. The father says his parents are ready and able to supervise access. They have deposed an affidavit in support of this.
[8] It is also clear that the children miss their father and would like to see more of him.
[9] On this basis, the father submits there are genuine issues raised for trial as to the form his access should take and that this is not a case where the outcome is so clear, namely that he should only have supervised access in the discretion of the CAS, as to warrant summary judgment.
[10] The CAS has established a prima facie case that the father’s access should continue to be supervised in its discretion over the next 6 months. This is supported by both of Dr. Worenklein’s reports. The CAS voluntarily doubled the father’s access in August 2015, only for him to decline the Wednesday access, leave town for a month such that he did not see them at all in that period, and to denigrate the mother, the CAS, the children and generally engage in non-child focused visits on October 3, November 21 and December 5, 2015.
[11] The father makes three main submissions in response to this prima facie case. First, he says that the CAS being in control of his access has resulted in interruptions and suspension of his access to his children, which is contrary to their best interests and not what they want. However, the father does not explain in his affidavit why he could not arrange his work schedule and visit the girls on Wednesdays, why he left town for a month in lieu of visiting his children, or why he did not contact the CAS between December 5, 2015 and February 4, 2016 to seek to reinstate access. Nor does he address the CAS offer to provide weekday access, when it suspended his attendance in the Saturday access program. The Saturday program is staffed mainly by volunteers and is intended for low risk parents for that reason. The father’s conduct caused the CAS to conclude the father was not in the low risk category. Weekday access is staffed by professionals and was thought to be more appropriate for the father at that time.
[12] The father does provide evidence of many positive visits and he highlights his strengths that have been observed during access. He does not answer the observations made of his short comings and misconduct in the visits of October 3, November 21 or December 5, 2015.
[13] The father’s second submission is that the reliability of an important source of information relied upon by Dr. Worenklein is in doubt, namely from Ms. G. In his affidavit he deposes his belief that she was motivated to try and hurt him at that time because she had been charged with assaulting him and with breach of a release condition not to contact him. But he does not address or deny any of the specific allegations Ms. G. made against him, or reported on by Dr. Worenklein.
[14] In that report, Dr. Worenklein also noted that he had heard the father and Ms. G. had reconciled. He wanted them both to come back to see him to resolve these issues, but was told efforts to reach them were unsuccessful. In fact, Dr. Worenklein stated at p.16 of that report: “Consequently, the undersigned would recommend that the present arrangements with respect to the children remain in effect until the report can be completed with the cooperation of Mr. M. and Ms. G.”.
[15] There is no evidence tendered to show that the father made any effort to re-attend with Dr. Worenklein to complete the report.
[16] The father’s third point is that his parents are ready and available to supervise his access and that neither the CAS nor Dr. Worenklein made a sufficient inquiry into their fitness to do so. The CAS did meet the grandparents and make inquiries of them. The CAS declined to approve them as access supervisors for two main reasons. The first was that the grandparents did not believe the children’s statements describing the domestic violence they had witnessed by the father. Second, the CAS had not had the opportunity to observe the grandparents with their son and the children, and was concerned whether they would intervene with their son if required.
[17] The CAS described two events, one in December 2014 and the other in June 2015 when it had contacted his parents for access and to participate in the assessment. On both occasions the father specifically told the CAS in no uncertain terms not to contact his parents, saying “they had nothing to do with this”. The father does not address the apparent conflict between those instructions to the CAS and his current complaint that since the CAS application, contact between the children and his parents has been limited.
[18] The father has established that the children would like to see more of him, that many of his access visits have been positive and that he has many strengths as an access parent. What the affidavit evidence he tendered does not do is meet the evidentiary burden, shifted to him by virtue of the CAS’ prima facie case. In the result, I find the CAS has established that there is no genuine issue requiring a trial as to the access order to be in place during the 6 month supervision order.
___________________________ Madam Justice J. Mackinnon
DATE: March 24, 2016
CITATION: The Children’s Aid Society of Ottawa v. E.P. and T.M. 2016 ONSC 2107
COURT FILE NO.: FC-14-1343
DATE: 2016/03/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Children’s Aid Society of Ottawa v. E.P. and T.M.
BEFORE: Madam Justice Mackinnon
COUNSEL: Deborah Bennett, Counsel for the Children’s Aid Society of Ottawa Wendy Rogers, Counsel for the Applicant E.P. Stephen Pender, Counsel for the Respondent T.M. Chantel Carvallo, Counsel for the Child I.M.
________________________________________________________ ENDORSEMENT ON MOTION FOR SUMMARY JUDGMENT ________________________________________________________
J. Mackinnon J.
DATE: March 24, 2016