Court File and Parties

COURT FILE NO.: 511/14 DATE: 03 June 2016 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: A.C. Applicant – and – C.T. Respondent

COUNSEL: Wayne Brooks, for the Applicant Tina Mangiacasale, for the Respondent

HEARD: March 21, 2016

The Honourable Mr. Justice R. J. Nightingale

Reasons for Judgment

[1] The Applicant father, age 31, claims child support from the Respondent mother, age 32, for the child N.I.J.T. born […], 2012.

[2] The mother claims access to the child significantly greater than she has had to date.

Background Facts

[3] The parties never resided together when their child N.I.J.T. was born.

[4] Unfortunately, immediately upon N.I.J.T.’s birth, the Children’s Aid Society of Niagara Region were involved because of their concerns with the mother’s inability to care for the child given her significant past history of a lack of supervision and inability to protect her three other children, now age 9, 10 and 15, from other relationships. Those children were found in need of protection under the Child and Family Services Act in 2006 and 2007 and were placed with another family member and friends with the mother being given supervised access only in the discretion of the CAS through the caregiver’s discretion. The mother did not provide any details of the court Orders or the Orders themselves regarding her restricted access to those children.

[5] A detailed Parenting Capacity Assessment in 2007 confirmed that neither she nor her parents had the capacity to care for the children in the long-term.

[6] When N.I.J.T. was born in July 2012, because of that assessment report, the CAS’s concerns were again that the mother did not have the capacity to parent N.I.J.T.. Given that, they caused N.I.J.T. to be deemed apprehended from the mother’s care and placed him in the father’s care when N.I.J.T. was 10 days old.

[7] The child protection proceedings commenced in the Ontario Court of Justice in Welland resulted in a finding on consent that N.I.J.T. was in need of protection by the CAS. The Society took the position that N.I.J.T. continued to be at risk of harm if he was to be returned to the mother’s care. Her risk of harm was associated by omission not commission and the Society felt strongly that the mother required community oversight during access to reduce the level of risk to the child.

[8] The Society found that there was the absence of sufficient improvement in the mother’s ability to address the identified child protection concerns for N.I.J.T. even after approximately two years of Society involvement when they considered N.I.J.T.’s vulnerability given his age and level of development.

[9] Accordingly, the parties and the father’s parents on June 13, 2014 signed a written consent to a final Order issued by Vyse J in the Ontario Court of Justice on June 18, 2014 that the father and his father P.C. be granted joint custody of N.I.J.T.. The mother also consented to the Order that granted her only 10 hours of access per week to N.I.J.T. to be exercised on each Monday and Thursday between the hours of 9 a.m. and 3 p.m. or at such other dates and times as could be agreed upon.

[10] The consent Order was clear that the mother’s access to N.I.J.T. shall occur in a community setting unless otherwise approved in advance by either the Applicant father or his parents.

[11] When the father commenced his application for child support only in this Court on September 2, 2014, the Respondent mother filed an answer in October requesting a change in her access from that outlined in the consent court Order of June 18, 2014, only four months earlier.

Child Support

[12] The father claims child support retroactive to July 30, 2012, the date the child was placed in his temporary custody by the CAS. On September 4, 2015 an Order was obtained by the father on the consent of the mother that she pay $55 per week in child support to him based on her income of $12,800 as she was working as a hotel housekeeper at the time.

[13] She has never paid anything towards the court ordered support stating she was laid off from her job the fall of 2015 and that she doesn’t have the funds now being in receipt of Ontario Works benefits.

[14] With respect to retroactive child support, the evidence confirms she was on social assistance in 2012 earning $6900 and in 2013 earning $9450. Those incomes are below the minimum amount requiring child support payments under the Child Support Guidelines and there is not sufficient evidence to confirm she was intentionally unemployed or under-employed at the time so as to impute a higher income. No retroactive support is ordered.

[15] The mother decided to go back to school to be trained as a welder in February 2016 and the only income she receives is Ontario Works benefits of $680 per month. She already has a college diploma and does not wish to work as a housekeeper the rest of her life.

[16] Given that her only source of income are these benefits in an amount below the Child Support Guidelines minimum amount for child support, her obligations under the Order of September 4, 2015 shall be suspended as of January 1, 2016.

[17] I have heard no evidence to establish that she now is deliberately not working or unemployed or was provided with other circumstances suggesting her having significant income for purpose of calculating her child support obligations.

[18] Nevertheless given the history of this file, the Respondent mother is ordered to immediately advise the father and shall provide supporting documentation for any change in her income status from her Ontario Works benefits status at present and shall immediately advise him of her obtaining employment, part-time or full-time, and disclose details of the income earned.

Change in Access

[19] It is significant that the Respondent mother recognized her inability to parent N.I.J.T. in her care and the need for her access with him as a minimum to be in a community setting. She signed the written consent to the Order of Vyse J of June 18, 2014.

[20] After an initial dispute between her and the father as to what “community setting” access was, that dispute was resolved in August 2014 and that access continued thereafter with the child being dropped off at the YMCA in St. Catharines. The mother has always exercised her access to N.I.J.T. in a community setting such as at parks, playgrounds and shopping malls but never at her house. The intent of the consent and Order of Vyse J was likely to avoid any risk of harm to the child because of mother’s inability to protect and supervise the young child in the home setting.

[21] The Respondent mother only commenced her application requesting a significant change in her access to N.I.J.T. after she was served with the Respondent father’s application for child support.

[22] She stated that she has completed several parenting classes but no supporting details or documentation were provided to the Court let alone the results of those classes and whether they helped her or improved her ability to place the needs of N.I.J.T. first before her own needs. No witnesses from those programs gave evidence at trial attesting to her successfully completing the programs and her now having sufficient parenting skills suggesting her access to N.I.J.T. could now be exercised by her while alone in her home.

[23] Her evidence at trial was that she takes N.I.J.T. to several community programs such as Early Years and Brighter Futures and although she said no issues regarding her parenting were brought to her attention from those places, she provided no evidence at trial from those agencies either confirming that or that her present parenting abilities for N.I.J.T. had significantly improved since 2014.

[24] She states she is now a good parent capable of having unsupervised access with N.I.J.T. in her own home. She points to the fact that her oldest son, age 16, who was placed with a family member in 2006, is now back residing with her within the last year. However, that family member was not called as a witness to confirm the Respondent’s present parenting abilities for that child or for N.I.J.T. or the reasons why that other child is now with the mother.

[25] She also stated she sees her two other children, age 9 and 10, for a couple hours in her home as the foster parents who have custody live only a few minutes away in the same neighborhood. This however has only recently started to happen and the court Order apparently only permits her having access to those two children in the discretion of these foster parents. Again, the foster parents were not called as witnesses either to confirm the details of her present access to those children including the length of the permitted visits or to what extent it is supervised or unsupervised by them. Also, these children are significantly older than N.I.J.T. who is still at a much more vulnerable age.

[26] The mother would like to have N.I.J.T. in the same house at the same time as his step-siblings and to enable him to get to know his aunt.

[27] She said she has grown up a lot since 2007 when she was only allowed supervised access to her three other children. She doesn’t believe any supervision is now necessary for her having N.I.J.T. in her house for her access visits which she also now wants to extend to every other weekend plus access during the week and for holidays during the year.

[28] She said she did not request an updated Parenting Capacity Assessment because of the cost which she couldn’t afford but there is no evidence to suggest she asked for the assistance of anyone to at least do a home assessment regarding her present capabilities to care for N.I.J.T. unsupervised in her home.

[29] She suggested that if supervised access was necessary, she preferred that it not be the father’s mother but rather it be a mutually agreeable party. However she did not suggest or name anybody who would be agreeable to her other than her mother.

[30] The Respondent’s mother M.T. stated that once a week she spends time with the Respondent when she has access in the community with N.I.J.T.. She states she sees the Respondent interact well with N.I.J.T. during that time. She states that although she did express concerns to CAS Niagara years earlier about the Respondent’s inability to parent and her lack of supervision, she doesn’t think that is the case any longer. She stated if her daughter were allowed access to N.I.J.T. in her home, she stated if she saw any such problems, she would immediately contact CAS.

[31] However, it is noteworthy that the 2007 Parenting Assessment Capacity report confirmed that she and her husband also could not properly parent the Respondent’s children. Furthermore, it is clear that she is spending nine hours a day during the week caring for two other grandchildren of another daughter in Wainfleet, some distance away, and accordingly, she spends little time with the Respondent.

[32] Counsel for the father cross examined the mother on select portions of that 2007 report only dealing with her behaviour and ability to parent a child unsupervised then compared to now. I have not reviewed or considered as evidence in this case any other portions of that report.

[33] The Father’s evidence confirms the mother’s access arrangements with N.I.J.T. since July 2014 of every Monday and Thursday from 9 a.m. to 3 p.m. in a community setting. He drops off the child at the YMCA and arranges to have picked him up after. He has not allowed her any other access.

[34] He is opposed to any change in access that would permit the mother to have N.I.J.T. in her home because of his concerns from years ago of her inability to protect her children and provide basic care without supervision. He has not provided her with access to the child’s medical records but would abide by a court order to that effect if granted.

[35] He and the child live in the basement of his mother’s home and the child appears to be doing well in his custody.

[36] He works full time and has the assistance from his siblings and mother to provide child care in his absence when he works as well when the child is not in his daily subsidized day care.

[37] He has been provided with no documentation or information to suggest that the mother is now a better parent or that her pattern of behaviour has changed significantly compared to how she was in June 2014 when she acknowledged she was not capable of having access to N.I.J.T. other than in a community setting.

[38] The paternal grandfather P.C. has joint custody of N.I.J.T. with his son and also confirms that N.I.J.T. is doing very well living with his father in the grandmother’s house. He confirmed he saw himself the Respondent mother’s inability to supervise her oldest son Jeremy a number of years ago while they visited him.

[39] The paternal grandmother K.C. also confirmed her observations of the Respondent’s mother inability to care for Jeremy showing disinterest and no concern for his safety during their visits years ago.

[40] She is reluctant to provide supervision of additional access if it were granted to the Respondent which is understandable given the strained relationship with the Respondent mother. She assists her son by picking up N.I.J.T. at daycare.

[41] She confirmed her personal knowledge of the Respondent mother’s inability to act as a good parent for N.I.J.T. and also believes that there should be no change from the access being in a community setting.

Analysis and Conclusion

[42] As can be noted the evidence above, there is really no significant evidence to confirm why the original terms of the Order granting access to N.I.J.T. to the mother with her consent in a community setting which has been the case since June 2014 should be changed.

[43] It appears that N.I.J.T. is doing well under the present custodial and access arrangements. No evidence was provided that would suggest that increased access to the mother and in particular, unsupervised access in her home, would be beneficial to him.

[44] No evidence from any counselor, family services worker or from her parenting programs was called to suggest that the mother’s inability to care for N.I.J.T. unsupervised in her home has significantly changed from her inability to do so in June 2014 when she consented to the Order requiring that her access to N.I.J.T. only be exercised in a community setting and not in her house.

[45] The fact that there is no evidence from witnesses of any concerns provided to CAS Niagara does not mean her access to N.I.J.T. should now be unsupervised in her home; at best, it means there is no evidence of any concerns with her restricted access to N.I.J.T. while exercised by her in a community setting since June 2014.

[46] The Respondent mother has not established that there should be a change in the access arrangements that she has had with N.I.J.T. since June 2014 and earlier that all access should be in a community setting and not in her house. The evidence has not established her ability to care for the child outside of a community setting to the Court’s satisfaction so as to permit unsupervised access there.

[47] There is however a need to confirm her entitlement to her position of her having access to the child’s medical and educational records and that is so ordered. There is also some merit to her position that her access should be allowed at additional times if that can be effected in a community setting or supervised such as on Mother’s Day, the child’s birthdays, Christmas and other holidays and other special occasions which the father has to date not allowed.

[48] In addition, neither party addressed in their submissions the real need and ways to revise the mother’s access schedule from her present Monday and Thursday access from 9 a.m. to 3 p.m. once N.I.J.T. starts attending school on a regular basis commencing September 2016.

[49] It is N.I.J.T.’s best interests that must be considered as well as his rights to have meaningful access to his mother once he starts school. However, in order to determine his best interests, I must hear further submissions from the parties as to whether that access can or should be exercised in a community setting after school hours during the week or on weekends once N.I.J.T. commences attending school in September 2016.

[50] At the same time, I am prepared to hear further submissions from the parties as to how the mother’s additional access in a community setting for special occasions referred to in paragraph 47 above can be arranged in N.I.J.T.’s best interests.

[51] I am available to hear those submissions including submissions on costs from the parties in Welland on June 14, 2016 at 2 p.m. if that is an agreeable date to them. I would ask that both Counsel immediately contact the trial coordinator in St. Catharines to confirm that and if it is not acceptable to either party or Counsel, an alternate date will be arranged by the trial coordinator.

The Honourable Mr. Justice R. J. Nightingale Released: 03 June 2016