WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: FC-16-628 DATE: 2018/09/14

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1 AND IN THE MATTER OF B.D., (DOB: October 24, 2011)

BETWEEN:

Children’s Aid Society Applicant – and – S.D. (Mother) Respondent – and – R.K. (Father) Respondent – and – J.P. (Maternal Grandmother) Respondent

Counsel: Kim Juliet, for the Children’s Aid Society S.D. (Mother), Self-Represented R.K. (Father), Self-Represented Peter Stieda, counsel for the Maternal Grandmother Pamela Barron, Office of the Children’s Lawyer

HEARD: September 5-7, 10-13, 2018

REASONS FOR JUDGMENT

J. Mackinnon J.

[1] This case raises the single issue of the access to take place between the child B., and her mother. On September 8, 2017, Justice Audet released reasons for granting summary judgment on the finding that B. is a child in need of protection and awarding joint custody to the child’s father and maternal grandmother, with primary residence with the father who lives in Kingston, Ontario and alternating weekend access to the grandmother, in Ottawa. Justice Audet directed a mini-trial pursuant to Family Law Rules, O. Reg.114/99, r. 16 (6.2) as to the extent of access between the mother and child, whether supervision was required, and if so, the level of supervision.

[2] B. will be turning seven years of age next month.

[3] Over the course of multiple trial management conferences, this trial was scheduled not as ordered by Audet J., but as a trial of the access issue on a substantive basis.

[4] The reasons on the summary judgment are found at 2017 ONSC 5335. The background facts which were not in dispute are set out there and relate the history of the parents’ relationship, separation, residential arrangements for B. to date, and the CAS involvement. I will not repeat that background here, and adopt paragraphs [11]-[30] as introductory to my decision.

[5] The basis of finding the child in need of protection is set out by Audet J. at para [101]:

101 I am satisfied that the Society has established a strong prima facie case that there is no genuine issue requiring a trial in relation to this issue. The evidence presented by the Society is overwhelming in this regard. I find that the child has been, and continues to be, at risk of suffering emotional harm if she is returned to her mother's care. This is the direct result of the mother's long-standing personality difficulties, conflictual relationships with others including her immediate family members, her inability to regulate her emotions, her unwillingness to cooperate with the Society and her unwillingness to take ownership or responsibility for those issues, which have a direct impact on her parenting ability. There is ample evidence confirming that there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) of the CFSA if she is returned to her mother's care at this time. Further, I find that there is ample evidence before me showing that there is a risk that the child is likely to suffer physical harm if returned to her mother's care based on her aggressive and conflictual behaviour with others in front of the child, her lack of insight as to the impact of her behaviour on the child, and her long-standing use of marijuana.

[6] The court then addressed the prospect of placing B. with the mother under a supervision order at paras [109]-[112]:

• Supervision Order to the Mother

109 I am of the view that the evidence before me makes it abundantly clear that a supervision order to the mother, at this time, is not a viable option; and that there is no genuine issue requiring a trial in that regard.

110 The mother agrees with the conclusions and the recommendations of Dr. Wood. In his assessment report, Dr. Wood concluded that the mother has struggled with interpersonal relationships because of her behaviours which are suggestive of a personality disorder of a cluster B type, specifically a borderline personality disorder. He concluded that despite participating in multiple programs over the years to address her emotional difficulties, she appeared to minimally benefit from these programs and continued to be entrenched in a victim's stance. While pessimistic about the mother's ability to benefit from further treatment, the FCC opined that she could possibly profit from participating in dialectical behaviour therapy but that this could typically require serious commitment for a year or more. In addition to there being long waiting lists for this type of therapy, the FCC noted that she would first need to successfully complete an addictions counselling program.

111 It is clear that, even assuming the mother is genuinely committed to engage in this process, which I very much doubt based on the evidence before me, the mother would need significant time to complete these programs before any plans of care by her could be assessed. As stated in Children's Aid Society of Ottawa v. K. (S.):

The legal process is not to be used as a strategy to "buy time" to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a parent's heartfelt expression of his desire to resume care of the child; the parent's evidence must support that he faces better prospects than what existed at the time the society removed the child from his care and that he has developed new parenting skills.

112 The evidence presented in the context of this summary judgment motion makes it abundantly clear that the mother has not cooperated with the Society and leaves very little hope that she ever will within a reasonable amount of time. The mother's evidence falls short from establishing that she faces better prospects at this time than what existed at the time the Society removed the child from her care. There is simply no evidence that would suggest that the mother has made any progress in addressing her challenges. Unfortunately, time has run out for B.D. She was apprehended from her mother's care on March 28, 2016, more than 17 months ago, and there is still no permanent plan in place for her which far exceeds the statutory limits imposed by the Act . She can no longer wait.

[7] The judge went on to find no genuine issue for trial in regards to the CAS’ proposal for joint custody to the father and maternal grandmother with primary residence to the father, stating at para [121]:

121 The evidence before me makes it clear that the father has demonstrated an increasing ability and desire to parent B.D. and to provide a permanent and stable home for her. This is reflected in the evidence filed by Society workers, and is supported by the lengthy assessment report produced by the FCC. Further, it is supported by the maternal grandmother who has been the child's full-time caregiver for well over a year. Her decision to step aside as the child's primary caregiver to make room for the father to take on that role, despite her own desire to remain the child's primary caregiver, speaks volume about her trust in his parenting abilities.

[8] During the hearing before Audet J. and at this trial, it was not questioned whether the mother should have access to B. There is no doubt that she loves B. dearly and is strongly committed to remaining in her life and to contributing to her upbringing to the best of her abilities. Similarly, B. enjoys her time with her mother and visits have been positive and meaningful for her. The issues for this trial are whether the mother should have access as proposed by the Society, which is to maintain the status quo (three hours community access on alternating Saturdays in Ottawa during the maternal grandmother’s weekend time with B.); or as proposed by the father and the maternal grandmother, namely for community access for five hours on two Saturdays, one in Ottawa during weekends when B. would be in Ottawa visiting her grandmother, and the other in Kingston during a weekend when B. would spend the rest of that weekend with her father, plus additional specified access in Kingston; or as the mother proposes, namely that B. should spend one weekend with each of the three adults, on a regular rotating three week schedule. She would have her access weekend with B. in Ottawa in her apartment. The mother also seeks additional access for holidays and the flexibility to arrange for additional day visits with B. in Kingston, on reasonable notice to the father, as and when she is able to afford to do so.

[9] The location of pickups and drop offs is also in issue.

[10] The child B. was represented by the Office of the Children’s Lawyer. The position of her lawyer matched that of the joint custodial parents.

[11] The court heard testimony from the father, mother and maternal grandmother, from the CAS protection worker, Ms. Parke and an access supervisor, Ms. Neil, as well from two friends of the mother’s and from the paternal grandfather. Dr. Wood testified as to the Family Court Clinic Assessment completed in April 2017. Ms. Tan Bakhari testified as to counselling the mother has received from her at the Elizabeth Fry Centre in Ottawa.

[12] The mother emphasizes that she and B. share a strong bond. In her view, this should be facilitated by ongoing access that would include overnights and would take place in her own home. She wants to have a more normal, fulsome relationship with B. and believes this is in B.’s best interest too. In addition to one full weekend out of three the mother has also asked for flexibility to arrange additional visits in Kingston on reasonable notice, and for holiday and special occasion access.

[13] The mother also requests information pertaining to her daughter’s education, school activities, extracurricular activities and medical and dental appointments. If B. is going on a trip with her father, the mother wants to be informed.

[14] In support of her position the mother points to the counselling and programming she has taken. She relies on statements made to her by B. wherein she is asking frequently when she can come to her mother’s home. The mother admitted there was a lot of friction between her and her mother and that their relationship is troubled. She acknowledged conflict in her relationship with the father during their cohabitation. She says she wants a working relationship with the father and grandmother and is prepared to go to counselling with her mother to that end. She points out that none of the three of them followed Dr. Wood’s recommendation to attend the Parenting through High Conflict education program at the Family Services Ottawa. She did not know that she could attend on her own, but knowing this now, is prepared to do so. In terms of cannabis, she acknowledges using it, but points out there is no evidence of her having used in B.’s presence in the past 2.5 years, and says that she has not and would not.

[15] The mother denies asking B. to keep secrets or discussing adult matters with her. She tries to answer B.’s questions honestly but at an age appropriate level.

[16] The mother has taken two programs at the Elizabeth Fry Centre in Ottawa plus some individual counselling. The programs predated Dr. Wood’s report. He found they were minimally helpful. The individual counselling has been supportive and has helped the mother to cope when she has an emotional setback. She has not received the type of intensive treatment that was recommended by Dr. Wood. Ms. Bakhari acknowledged that she had neither the capacity not the availability of sufficient time to provide the treatment that Dr. Wood had recommended.

[17] I am sure B. loves her mother and tells her she likes to see her and would like to be able to go to her mother’s house. They seem to have a long-established routine of referring to themselves as the “best team ever”, and as “Mama Bear” and “B. Bear”. B. has told the CAS worker that she enjoys seeing her mother and has fun with her. She also mentioned that in addition to her Tuesday and Thursday phone calls with her mother, she would like to talk to her to her more, perhaps on the weekend. B. did not tell the social worker that she would like to stay overnight at her mother’s house. She did not state this to Dr. Wood either.

[18] Dr. Wood reported that B.’s parental preference figures fluctuated between her father and her maternal grandmother.

[19] B. also told him that she liked her visits with her mother and that it sometimes made her sad that she cannot visit her mother at her new home.

[20] There is some evidence that the mother does discuss adult matters with B., and may ask her to keep their discussions and activities private. The mother testified that B. had been well aware of her plan to move to Nova Scotia. She said B. was also well aware of the strained relationship between her and the maternal grandmother. In her conversation with Dr. Wood, B. said that it made her sad when her mother told her she did not want her father around and that her father felt the same way about her. B. added that sometimes she did not want her mother around but would not elaborate, became quiet and avoided eye contact. Both the father and maternal grandmother testified that on return from visits with her mother B. was very reluctant to provide any information about the visit and would just say, “I don’t know”. The mother testified that B. was like this with her too. When she would ask how her week had been, the answer was typically, “I don’t know”.

[21] I concluded that B. is compartmentalizing her relationships probably because this helps her feel more comfortable moving between households. Dr. Wood’s testimony supports this conclusion.

[22] B. also told Dr. Wood about seeing an argument between her mother and paternal grandfather, and arguments between her mother and her maternal grandmother. Other testimony verified that indeed B. had been exposed to arguments as she described.

[23] The mother did not provide much testimony about her current use of cannabis. She admits to using. At the time of the Family Court Clinic Assessment she told Dr. Wood that she was using every night and had increased her use since B.’s apprehension. She finds it relaxes her and helps her cope. She told Dr. Wood that she would like to quit and she repeated this in her testimony too. She was referred to an addiction program by Dr. Wood but has not gone.

[24] The mother is steadfast that she has never and would never use cannabis in B.’s presence. There was no evidence that she had done so since the date of apprehension.

[25] The mother has rented a two bedroom apartment in the hopes that B. can visit and have her own room there. I find she did not tell the CAS worker her address until the first day of trial despite two emailed requests for the information. The mother stated in testimony that her apartment was still not ready for the CAS to see it, because she was still unpacking her boxes. I find this is why she delayed providing the address. The mother thinks she will finish up over the weekend and that the CAS worker could come next week.

[26] In submissions the other parties suggested that perhaps the mother could not afford a two bedroom apartment and would have to move again. Or, that she should move to a smaller apartment and use the savings to fund travel to Kingston to visit B. there. My own view is that the mother should settle into this apartment and stay there. She has moved frequently in the past. The apartment itself and the surrounding area sound suitable for a child. It is generally accepted that home visits that can occur safely are more conducive to the relationship than community visits. B.’s relationship with her mother would not be assisted by the child visiting her mother in a series of changing locations.

[27] In support of her position, the mother points to the circumstances that preceded the apprehension of B. on March 28, 2016. In October 2014, the mother and father had consented to an order that allowed her and B. to move to Nova Scotia where the mother’s father and step mother lived. The move had not occurred by November 2015. By then, the father had returned to Kingston from Thunder Bay. He requested to see B. and the mother agreed to bring her to Kingston for a visit. She did so on November 8. Unexpectedly, from the mother’s point of view, the paternal grandfather joined the visit. It is admitted that he raised her potential move with her, and spoke strongly against it. An altercation occurred in his vehicle when he was driving with the mother in the front passenger seat. In the course of this, the paternal grandfather did assault the mother. His actions are not condoned or excused by anything she may have done or said at the time. My finding that he did assault her is made on balance of probabilities and is supported not just by their testimony but also by the Ottawa Hospital records that were seen and described by Dr. Wood in his Family Court Clinic Assessment. The attending physician had described the mother as being covered in bruises and literally “black and blue” when seen in hospital two days after the assault.

[28] The Ottawa CAS was notified by the hospital because B. had been present when the assault took place. This commenced the file opening by the CAS that resulted in the apprehension. For that reason and because she suspects the paternal grandfather encouraged the father to apply to court to prevent the mother from moving B. to Nova Scotia, which he did successfully do, the mother regards the November 8, 2015 assault as precipitating the child’s apprehension. She also connects the prohibition against the move to Nova Scotia with the apprehension because she had to extend her stay in her own mother’s home, which, given the longstanding dysfunctional relationship between them resulted in the argument that resulted in the actual apprehension on March 28, 2016. The mother explained that this is why she has great difficulty in moving forward from the assault in November: she links it closely with the loss of her daughter.

[29] I have found that the paternal grandfather did assault the mother. And there is no doubt that the mother has had a longstanding troubled relationship with her own mother. This has and does continue to impact her strongly. In testimony the mother was very emotional towards her mother. She was tearful in describing how she would like to be able to repair the relationship and feels rebuffed by her mother’s refusal to go to counselling with her. One example of how she carries the past with her in relation to this relationship was evident in her closing submissions. She described herself as being in hysterics on March 28, 2016 when her mother told her she would have to leave her home. She said she was distraught and pleaded with her mother not to send her away. She said she asked her, how can you do this to me, when you let my brother stay here? Why are you alienating me when I am the one with the child? My impression was more than recounting the event, the mother was almost reliving it.

[30] There is an important distinction between the fact that the mother was a victim of an assault and the fact that her relationship with her mother is very disappointing to her and not equivalent to that of her siblings’ relationship with their mother, and what Dr. Wood is talking about when he describes the mother as being “entrenched in a victim’s stance”, the problems that flow from this, and her inability to move off of that stance. In my view, Dr. Wood is speaking to how the mother looks at and experiences the world. Her outlook permeates her reactions to events and people. The lens she looks through persuades her that she is unfairly and unjustly treated by other people and by events. As a victim she cannot change what happens to her so she becomes angry, frustrated, and / or emotional.

[31] Dr. Wood observed that the mother repeatedly geared conversations towards the perceived injustices that others have done towards her during her life and became irritable and tearful when doing so. (p. 27). She believes she got a raw deal and tends to blame others for her difficulties, which limits her ability to develop insight into her own feelings and behaviours. She has feelings of anger and frustration which can express in emotional outbursts. (p. 28 – 29). This contributes to the struggles she has had in all major areas of adult adjustment. (p. 30). Her longstanding behavioural and relationship issues are in keeping with a diagnosis of a Borderline Personality Disorder (p. 30). Unfortunately, her strengths are undermined by her personality issues and are so entrenched that her treatment prognosis is guarded. (p.31).

[32] Shortly following B.’s birth, the mother was seen in psychiatry at the Ottawa Hospital. She described feeling emotional and being unable to cope. She said she had had emotional outbursts on a very regular basis that could be triggered by the slightest setback or perceived criticism. She expressed concern that her employment and relationships could be at risk if she did not get help and that she did not want to model this type of behaviour to her daughter. Unfortunately, I did not observe that level of insight in the mother during this trial. Nor was it present during the assessment done by Dr. Wood. Despite programming and counselling received to that date she seemed unable to move past her sense of victimhood.

[33] Dr. Wood suggested that an intensive engagement with Dialectical Behaviour Treatment (DBT) that may extend over a one year period might possibly assist the mother. This involves weekly sessions and group sessions. The mother accepted two referrals to DBT programs, one in Ottawa and one in Kingston, but the sessions have not taken place and there was no independent information to confirm whether she was still on a waiting list and if so, when she might be accepted into the program.

[34] Additionally, Dr. Wood recommended strongly that as a precursor the mother avail herself of addiction services to stop her use of cannabis. At the time of his assessment, she told him she smoked every day. Most DBT courses require abstinence from substances because a substance, such as cannabis, numbs the emotions that have to be generated in order to explore and learn new ways to respond to and handle them.

[35] Dr. Wood attended trial to be cross examined. His opinions did not change. He reiterated that the concern for B. arising from the mother’s personality disorder was with the child being exposed to verbal confrontations engendered by the mother towards others with whom B. has a relationship. He said this exposure can cause the child to be confused about her relationships, to have divided loyalties, and to exhibit modeling behaviour. She may be reluctant or unwilling to tell one parent what she has done with the other for fear of upsetting the receiving parent and/or upsetting the other parent or revealing something she has been asked to keep secret. This is not healthy for the child who should be encouraged to speak positively of her experiences with her father, her grandmother and her mother, providing they are positive experiences.

[36] I was also concerned by observations in his report that B. seemed to be more temperamental with her mother than with the father or maternal grandmother during the observed interactions.

[37] For access Dr. Wood recommended several hours on the weekends when B. was in Ottawa to visit her grandmother, or alternatively in Kingston on a weekend day. He said that it is possible the mother might progress in her visits to share the grandmother’s weekends with her or to each have a weekend per month. But he cautioned that any changes to access should be conditional on her demonstrating that she is taking ownership or responsibility for those issues including her personality difficulties that impact her parenting ability. He added, this would include her accepting treatment and allowing the CAS access to her counsellors or therapists to confirm her co-operation and progress. (p.86-87).

[38] The mother’s testimony focussed on the changes she would like to see in her access to B. and the reasons why, but she did not appear to me to show insight into her personality disorder and she has not been able to take the DBT which has been identified as the one treatment that might assist in her in modifying the associated personality traits. Her relationship with her mother is very complicated and of course responsibility for this is not just one sided, but there is no foundation before me that suggests the relationship will change. As the mother herself said, they have only been able to get along for short periods of time.

[39] The Society, father and maternal grandmother submit that the factual findings made by Audet J. in finding the child in need of protection and in finding there was no genuine issue for trial with respect to a potential placement of the child with her mother under a supervision order also support the proposal each has made with respect to the type of access the mother should exercise.

[40] The evidence I have heard includes two recent incidents of the mother engaging in escalated conflict with her mother. First, outside the Legal Aid Office following an unsuccessful mediation in May 2018, and second, on the Mackenzie King Bridge following a court settlement conference, on July 19, 2018. On each occasion, the mother was verbally aggressive towards the maternal grandmother, and was forcefully seeking her agreement for more access to B.

[41] There was also testimony from Ms. Parke that the mother had not replied to her inquiries for her current address so that she could inspect the premises prior to trial. Ms. Parke described the mother as raising her voice, talking over her and speaking very rapidly and pointedly, all of which I observed during various times in the trial. The mother became antagonistic at times during her cross examinations. She showed antipathy or disrespect for her mother when she mimicked her voice during her own testimony.

[42] Ms. Parke also testified to two occasions when changes were proposed to the mother’s access which the mother would not agree to and which gave rise to an untoward level of disagreement.

[43] The first was the father’s request to change the mother’s access so that B. could attend a friend’s birthday party in Kingston. The mother refused, and threatened to call the police if B. was not made available to her at the usual time. The second related to a visit when the mother proposed to take B. to the fair. The father/maternal grandmother had agreed that she could have a 5 hour visit to accommodate this outing, and that the access would run from 11:00 a.m. to 4:00 p.m. The mother insisted that the visit had to start at noon. The CAS arranged for a driver to bring B. for noon but the return drive would have remained at 4:00 p.m. The mother again threatened to call the police if she did not receive a 5 hour visit that would now have to end at 5:00 p.m. No agreement was reached and unfortunately for B. the visit was cancelled.

[44] The mother also declined to accept a change that would have permitted B. to meet her cousins who were travelling from Thunder Bay on their arrival at the airport.

[45] I agree that these examples show that it is difficult to negotiate access changes with the mother.

[46] In terms of emotional regulation I observed the mother crying on many occasions during her trial testimony. This is not unexpected. Parents are often emotional in addressing their love for their child. But there were occasions when I formed the impression the mother was crying out of frustration and her sense of unfairness at the turn events had taken since November 2015. I appreciate that neither Ms. Bakhari nor the mother’s friends had observed emotional outbursts by the mother. I concluded that this was due to the supportive nature of these relationships. This is not the same type of relationship as the mother has with the other people who are important in B.’s life.

[47] The mother’s reaction under cross examination by her mother’s counsel was also noticeable. She appeared incredulous at some of his questions, and projected an air of either disbelief or exaggerated reasonableness in answering others. Her voice was raised at times. In my view these reactions reflected her frustration with her mother’s position in this case.

[48] Whatever position she articulated to Audet J., during this trial the mother expressly disagreed with Dr. Wood’s conclusions about herself. This makes it very unlikely that she will in future follow the recommendations he has made for her.

[49] I have been referred to the best interest test set out in section 74(3) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14. I have reviewed this provision and have taken into account in particular clauses (a), (c) (in), (ii), (v), (vi), (vii), (vii) and (xi) as they relate to the evidence in this case. This includes the risk identified by Audet J. in her finding the child in need of protection.

[50] I turn now to a discussion of the specific proposals for access. I have concluded that the access need not be supervised and that it can take place in the mother’s home after the home has been inspected and approved by the CAS. (The CAS agreed to undertake this responsibility if requested by the court). Dr. Wood did not stipulate for supervised access or propose that visits should be restricted to the community. Neither did the CAS.

[51] I have rejected the suggestion that one or both joint custodial parents should inspect the mother’s apartment. I find that would likely be conflict inducing in this case.

[52] I do find that any exchanges of B. between the mother and maternal grandmother should be in a public place. Each of them acknowledges that they can do exchanges in this way but they disagree on the location. The mother’s suggestion that her apartment lobby is most suitable is rejected. It is not public and it puts the full burden of travel on the maternal grandmother, whereas normally the access parent provides the transportation. Yes, the maternal grandmother has a vehicle and the mother does not, but that does not in my view warrant placing the full obligation on the grandmother.

[53] I do not agree that B. is best served by spending two out of every three weekends in Ottawa. She resides in Kingston and she should have the opportunity to have more than one weekend out of three in that community with local friends and the usual extracurricular activities that take place during weekends. Additionally the driving time for a child of B.’s age would in my view be excessive under the three week rotation proposed by the mother.

[54] I do not agree that one of the mother’s regular visits should take place in Kingston on the father’s weekend time. So doing would save B. from traveling to Ottawa, but that can be accomplished another way. It would be fair as between the father and maternal grandmother, but would not provide B. with the best opportunity for a visit with her mother.

[55] I find the regular access should be specified and not subject to change except in extenuating circumstances relating to B. The need to reduce, even eliminate, opportunities for conflict leads me to this conclusion. The order I make today will end the CAS case. The parties will no longer be able to rely on the CAS to assist in communicating and making changes to access visits. They will have to do this themselves. I recommend a communication software program should be used to facilitate their communication. In any event communication about B. should be restricted to email or texts except in urgent situations affecting B.

[56] I agree that arrangements should formalized so that the mother receives important information about B.’s education, activities, health and welfare. I prefer to impose this obligation on the father to avoid any potential conflicts arising with third parties who stand in the place of service providers to the child.

[57] I am persuaded to increase the duration of the visits between B. and her mother, but not to extend them to overnight visits. I also find that the mother’s visits should take place in Ottawa except if on an occasional basis she is able to attend in Kingston for additional time with her daughter. I see no good reason to change the existing practice of accommodating the mother’s visits with B. during the regular alternating weekends the child is here to visit her maternal grandmother.

[58] Some provision can be made for special access between the mother and B. in relation to holidays and birthdays. This will need to reflect the distance involved and adhere to the routine of daytime visits.

[59] B. is kept in contact with her paternal family by her father and with her maternal family in Ottawa by her maternal grandmother. The access order needs to facilitate B.’s relationship with her mother, to help it continue to be beneficial and meaningful to B. One expects that the mother would also maintain some connection between B. and her maternal grandfather and his spouse in Nova Scotia.

The Order

[60] The CAS shall within 7 work days after the mother’s written request attend at her residence and inspect it for suitability for day visits by B. If and after approved, which shall be confirmed in writing by email from the CAS to all parties, then the mother may exercise her access with B.in her home.

[61] The mother shall have access to B. during the maternal grandmother’s weekends on Saturdays, from noon until 5:00 pm. The visits must take place within the National Capital Region, including Gatineau Park.

[62] The mother shall enroll in the first available and shall complete the program at the FSO known as Parenting through High Conflict. (I strongly recommend this course to the father and maternal grandmother and were my decision not confined to the mother’s access, I would have ordered them to complete the program.)

[63] The mother shall refrain from the use of cannabis during the day of the visit, including before and during the visit. The day of a visit commences at midnight preceding the pickup time. The mother shall not expose B. to second hand cigarette smoke during her visits.

[64] The mother shall refrain from discussing adult issues with B. including saying anything that would cast her father or maternal grandmother in poor light.

[65] The pickups and drop-offs may occur at the maternal grandmother’s home provided they are handled by either S.R. or J.R. without the mother herself being present in the vehicle for the duration of the transportation. A precondition is that a photocopy of the individual’s driver’s license and vehicle insurance has been delivered to each of the joint custodial parents.

[66] Further, the mother must provide the maternal grandmother with at least 48 hours’ notice as to which one of these individuals shall be picking up and returning B. for the access visit. S.R. or J.R. shall remain within arm’s reach of her vehicle and may say hello, goodbye, how are you, or thank you to the maternal grandmother but shall not otherwise speak to her. The maternal grandmother may accompany B. to the vehicle and may also receive her from the vehicle on her return, but is not required to and may remain on her door step if she wishes. For clarity, to utilize this provision my order requires that B. is both picked up and returned for the visit in question, and that the same individual provides the driving in both directions for that visit.

[67] All other exchanges shall take place at a public location to be agreed upon by the mother and maternal grandmother prior to the next access visit, which shall continue to be the exchange location thereafter. It shall be approximately equal travel time between the mother’s current residence, by bus, and the maternal grandmother’s residence, by car. Failing written agreement prior to the first access pursuant to this order, the exchanges shall occur at the McDonalds Building at Billings Bridge Shopping Mall. All of these exchanges shall be between the mother and maternal grandmother. Civility is required of them both for the duration of the exchange.

[68] The father shall initiate telephone access every Tuesday and Thursday between the mother and child at 7:00 pm for a duration of 15 minutes. He shall also initiate telephone access between the mother and child during his weekends with the child, to take place at 7:00 pm on the Saturday for a duration of 15 minutes.

[69] The father shall initiate telephone access between the mother and child on B.’s birthday each year at 7:00 pm for a duration of 15 minutes. The mother shall also be afforded special telephone contact with B. on Christmas Day, Easter Sunday and Thanksgiving Monday. This shall be initiated by the father whether B. is with him or with the maternal grandmother at 7:00 pm for a duration of 15 minutes.

[70] Speaker phone may be utilized for all telephone contacts between the mother and child, subject to any future order after the child reaches a suitable age.

[71] If the mother chooses to travel to Kingston to exercise additional access to B. she may do so not more than once per two months, to coincide with a weekend that the child is in the father’s care. The mother shall provide the father with two weeks written notice of her intention to exercise this option, and shall specify her choice of either the Saturday or the Sunday. The visit shall commence at noon and conclude at 5:00 pm. If B. has a scheduled extracurricular activity during these hours the mother shall be required to take B. to it. The father may override the mother’s choice of Saturday or Sunday, and he may require the visit to be on the other day of the same weekend, only if required by a birthday party which B. has already accepted to attend.

[72] The mother may not arrange for additional access in Kingston on B.’s birthday or during a summer vacation period between B. and the father. If B.’s birthday falls during a weekend that B. is with her father, the mother may exercise additional access on the day of the weekend that is not the actual birthday. The father shall notify the mother of the two weeks summer vacation he will take with B. by May 1 in each year so that the mother will know when not to ask for additional access to B.

[73] The exchange place for these visits in Kingston shall occur at one of the locations utilized for this purpose during the time the mother resided in Kingston, to be chosen by the father and communicated in writing to the mother within 48 hours of her notifying him of the intended visit. Only the father and the mother shall attend the exchanges. Civility is required of them both for the duration of the exchange. The paternal grandmother may substitute for the father if he is required to be at work at the appointed time.

[74] During years when B. is with her maternal grandmother in Ottawa for the part of the school Christmas vacation that includes the mother’s birthday (December 28) then the mother shall be entitled to have B. visit with her for 5 hours on that day commencing at noon and ending at 5 :00 pm.

[75] The father and maternal grandmother shall arrange their summer vacation schedules with B. so that it does not interfere with the mother’s regular Saturday access to B. Nor shall the allocation of vacation time, including part of the March break and part of the school Christmas vacation to the maternal grandmother interrupt the mother’s exercise of her regular Saturday access to B. Accordingly the mother shall be entitled to Saturday access to B. if B. is with her maternal grandmother on Saturday, December 25, and / or the Saturday of the March break.

[76] Every year the mother may exercise an additional 5 hour visit with B. in Kingston during the part of the school Christmas vacation when B. is with her father. The father shall notify the mother by November 1 each year of the Christmas break time allocation between himself and the maternal grandmother so that the mother may schedule her additional visit with B. during the father’s time. The visit may occur on any day that B. is with her father, except for December 25, shall take place between noon to 5:00 pm, and shall be scheduled on not less than two weeks’ notice to the father.

[77] I recommend a communication software program should be used to facilitate their communication. In any event communication about B. should be restricted to email or texts except in urgent situations affecting B.

[78] The father shall notify the mother in writing of all third party service providers to B., including her school, teachers name, any day care provider’s name and address; and her doctor and dentist. He shall forthwith provide the mother copies of school report cards, and updates in relation to each medical or dental visit for B. The father shall notify the mother of each registration for B. in an extracurricular activity and if the activity provides a report or certificate on completion he shall also send the mother a copy of that. In the event B. will participate in a recital or other similar type of activity the father shall also notify the mother of B.’s role and the date of the event.

[79] I expressly do not order additional access as agreed to between the parties because I am not persuaded that flexibility can be exercised without giving rise to protracted debate and disagreement.

J. Mackinnon J.

Released: September 14, 2018