COURT FILE NO.: 84/18

DATE: 20190221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CAMERON ROBERT YOUNG

Applicant

– and –

MICHELLE JOANNE HANSON

Respondent

Yervant Boghossian, for the Applicant

Ruchelle Heckburn, for the Respondent

HEARD: February 11, 2019

REASONS FOR DECISION ON MOTION

CHOZIK J.

Overview:

[1] This is a motion by the Applicant father (“father”) for an order of temporary custody and an order that all access to the child, Mason William Young (D.O.B. October14, 2015) (“Mason”), by the Respondent mother (“mother”) take place in a supervised access centre. The mother brings a cross-motion for a temporary without prejudice order that would see her have increased supervised access to the child in her home and the community. She asks that the supervision be by court approved or mutually agreed upon third parties. The mother also seeks an order clarifying that she shall have video chats with Mason daily at 7 pm for as long as she wishes, as well as other relief.

[2] For the reasons set out below, the father’s motion is dismissed. I decline to order that the mother’s access to the child take place in a supervised access centre. The mother is to continue to have access to the child supervised by third parties who are either approved by the court or mutually agreed upon in writing in advance of the access by the parties. I order that such supervised access is to take place in accordance with the schedule proposed by the mother. On the days she does not have access, the mother is to have video chats with Mason for 20 minutes, which must be facilitated by the father.

[3] I address various other relief sought by the father in paragraph 42 to 52. The father’s original motion, the history of which is set out below, asked for temporary custody of Mason. The parties did not make submissions regarding custody before me. In any event, I am of the view that a decision regarding custody is premature. The father has temporary care of the child. The mother does not challenge the temporary care arrangement for the time being. There are many uncertain facts and circumstances in this case. I decline to make any decision with respect to custody.

Background:

[4] The parties were in a relationship on and off from 2012 until about April 13, 2018.

[5] The parties had two children: Kaden Cameron Young (D.O.B. Aug. 4, 2014) and Mason William Young (D.O.B. October 14, 2015). Each party also has an older child from a prior relationship. Ms. Hanson has a son, who is now 17 years old. Mr. Young has a child, who is 9 years old.

[6] Throughout their relationship, the parties maintained their own residences. They separated and reconciled more than once. As a result of a separation in 2015, the mother sought and obtained an Order on consent made by Pugsley J. on May 6, 2015 granting her custody of Kaden who was then nine months old. The father was granted access to the child to be arranged between the parties having regard to the age of the child. Later that year, the mother became pregnant with Mason. On October 21, 2015, one week after Mason was born, Pugsley J. granted a further consent Order in which the mother was granted custody of Mason, with the father to have access to be arranged between the parties. The terms of the previous order with regard to Kaden were incorporated into this second order.

[7] Following the Orders of Pugsley J., the parties did not live together, but they did spend time together. Given their young ages, and based on the evidence before me, I accept that the mother was the primary caregiver to the children with the father having generous access.

[8] On February 21, 2018 tragedy struck. In the early morning hours, the mother was driving with Kaden in her car on 10th Line at the Township of Amaranth when her car ended up in the Grand River. According to a letter from a township official, there were flood warnings along the road and portions of the road were closed. This resulted in criminal charges later being laid. The Crown brief synopsis indicates that the mother and child escaped the vehicle, but soon after the mother lost her grip on the child and Kaden was swept away in the strong current. His body was recovered two months later, on April 21, 2018. An autopsy confirmed that Kaden died from drowning.

[9] According to the father’s affidavit dated November 9, 2018, on February 21, 2018 at around 12:00 or 12:30 am, the mother came into the bedroom where he was in bed and said she was going to the store to “buy smokes”. Kaden was still awake, and the mother proposed to take him with her as a car ride often helped him fall asleep. From his affidavit, I infer that the father either agreed or did not oppose this proposal. At approximately 12:47 am that morning he received a call from the mother saying that she was stuck in the raging Grand River. The father immediately got out of bed and rushed to help.

[10] After Kaden’s death, the relationship between the parties deteriorated. The father had to resort to the courts to be permitted to attend Kaden’s funeral. There were also issues around accessing a fund set up by the community for the family in light of the child’s death. The one constant was that Mason remained in his mother’s care.

[11] Eight months after Kaden’s death, on October 11, 2018, the mother was charged by the Ontario Provincial Police (“OPP”) in relation to the events of February 21, 2018 with dangerous driving causing death contrary to section 249(4), impaired operation of a motor vehicle causing death contrary to section 255(3), and criminal negligence causing death contrary to section 220(b) of the Criminal Code of Canada. The mother was released on a promise to appear. The criminal proceeding is in its early stages: a pre-trial was recently scheduled, dates for a preliminary inquiry have not yet been set.

Procedural History of This Motion & Interim Orders:

[12] On October 12, 2018 - the day after the mother’s arrest - the father brought an urgent motion seeking interim custody of Mason without notice to the mother. The motion was adjourned by Justice Seppi to permit service on the mother of the motion materials. Pending the hearing of the motion, Justice Seppi ordered that Mason be placed in the care of the father. Justice Seppi’s order was silent with respect to the mother’s access to the child.

[13] On October 15, 2018 the returnable motion was before Justice Wein. On consent, the motion was adjourned to October 29, 2018. The interim Order made by Wein J. maintained that Mason be in the care of his father and added that access by the mother to the child was to be approved by the Children’s Aid Society (“C.A.S.”) or in accordance with C.A.S. recommendations.

[14] On October 29, 2018 Justice Price heard the father’s motion for a variety of procedural and other relief. With respect to custody and access, Price J. ordered on an interim without prejudice basis that the mother shall have access to Mason at Dufferin Child and Family Services (“DCAFS”) in Orangeville on Tuesdays and Fridays from 10:00 am to noon, and every day by telephone at 7:00 pm for as long as she wishes.

[15] On November 16, 2018 Justice Wein ordered on consent of the parties that the Order of Justice Price be changed to provide that access by the mother with Mason shall be on three occasions per week for visits in the home of the mother and supervised by either Lorna Bryce, Johanna Hanson or Crystal McGovern or other persons that may be agreed upon by the parties. The order specified that Lorna, Johanna or Crystal shall be responsible for picking up and dropping off Mason at the father’s home on Tuesdays and Fridays, and that the father shall be responsible for picking up and dropping off Mason at the mother’s home on Saturdays. The order made a number of other provisions dealing with disclosure and other procedural matters. It did not expressly prohibit the mother from driving with Mason.

[16] An order made on November 26, 2018 by Justice Kurz clarified that the mother may be present when her third party supervisors attend to pick up and return the child for access visits, but shall not drive the child at any time without further court order, and that the mother shall, if present for the pick-up and return of the child, remain in the car all times during the pick-up and the return. Evidence suggested that the mother had been driving to pick up the child, with the third party supervisor. In correspondence with the father’s lawyer, the mother took the position that Justice Wein’s Order did not prohibit her from driving the child so long as the third party was present.

[17] On December 17, 208 Justice Gibson ordered the disclosure to the father of a redacted Crown brief synopsis and adjourned the motion for custody and access to January 21, 2019 peremptory on the mother. On January 21, 2019 the parties appeared before me. The mother was not prepared to proceed on the motion and sought an adjournment. The father vigorously opposed the adjournment on the basis that the mother had breached the terms of the supervised access order by allowing an unapproved third party to supervise one of the access visits. I adjourned the matter but ordered on a without prejudice temporary basis that access take place at supervised access centre until the hearing of the motion. I heard the father’s motion on February 11, 2019.

Safety Concerns Identified:

[18] Significantly, DCAFS expressed no safety or protection concerns regarding Mason for the eight months following Kaden’s death. The evidence before me, including a letter from DCAFS dated December 13, 2018, confirms the mother’s evidence that DCAFS was involved with the family in December 2017 and April 2018, and was aware of Kaden’s death but concluded that this did not give rise to protection concerns regarding Mason. Following its investigation, DCAFS found concerns in relation to the mother’s mental health and alleged substance misuse to be “inconclusive”. The Society put a plan in place to support both parties with coping with the tragedy of Kaden’s death, to assess and monitor the father’s progress in maintaining his sobriety, and to encourage the parties to develop a plan for Mason to have a positive relationship with each of them. Although DCAFS received “anonymous” referrals about suspected substance abuse by the mother, the Society followed up on this and found “no evidence to substantiate these claims”. No protection or safety concerns arose for the Society until criminal charges were laid.

[19] On October 12, 2018 – the day after criminal charges were laid - the mother met with DCAFS and entered into an agreement that Mason would be placed into the care of Tamara Wheeler, and that Lorna Bryce would provide support. The agreement further provided that the mother’s time with Mason was to be supervised and determined by DCAFS. The agreement set out that on October 14, 2018 Tamara Wheeler would transport Mason to his birthday party, where she would be responsible for his safety. The mother was to be present at the party from 2:30 until 3:30. That same day, the father put this motion before the court and was granted care of Mason on an interim basis.

[20] As indicated above, the father had on a previous motion sought the disclosure from the police and the Crown the fruits of the police investigation that led to the charges against the mother in relation to Kaden’s death. At this motion, he relies on the Crown brief synopsis as background and on a letter from DCAFS dated December 13, 2018. These documents speak to two factors. First, it is alleged that at the time of Kaden’s death, the mother drove past signs and barriers designating the road she drove on to be closed. Second, it is alleged that she was impaired by drugs and alcohol at the time. A toxicology report prepared by the Centre of Forensic Sciences apparently indicates that the mother had drugs and alcohol in her system. The toxicology report is not before me in evidence. The portions of the Crown brief referring to the results of the toxicology report are redacted. The only evidence before me of the toxicology results is the reference to it in the December 13, 2018 letter from DCAFS.

[21] The letter confirms that after the criminal charges were laid, the DCAFS received information from the OPP that toxicology screens showed that at the time of the accident on February 21, 2018 the mother tested positive for the following substances: Percocet, OxyContin, Cocaine and alcohol. It was then that the Society determined that the mother needed to be supervised with Mason. Although the Society had no information that the mother continues to abuse substances, the Society recommended that the mother should not be in a sole caregiving role or be left unattended with Mason, and that supervision should be provided by a mutually agreed upon third party or at a supervised access centre. The mother denied being impaired at the time of Kaden’s death to DCAFS.

Alleged Breaches of Court Orders by the Mother:

[22] In support of a further restriction on the mother’s access to Mason, the father relies on what he purports are deliberate breaches by the mother of this court’s orders. He says that she was responsible for Kaden’s death and she does not abide by court orders. He alleges that the mother (i) refused access to her treating physician’s clinical notes and files, (ii) initially failed to disclose her pharmacological history as required, (iii) suffers from a major mental illness; (iv) continued to drive Mason despite Justice Wein’s order that a third party do the pick-ups and drop offs, until Justice Kurz clarified that she not drive Mason, (v) attended at Mason’s birthday party longer than provided for in her agreement with DCAFS, and (vi) permitted a non-approved third party to supervise an access visit contrary to the court order of Wein J.

[23] It became clear during submissions that the clinical notes and the file of the treating physician, as well as the pharmacological history of the mother have now been disclosed to the father’s lawyer. This disclosure spans records from January 2017 to December 2018. Initially, the physician refused to disclose the file as he seems to have been advised that the consent given by the mother was insufficient to protect him from professional discipline. Now, the records sought by the father have been disclosed. I am not prepared to find that any delay in obtaining the files was as a result of the mother’s willful disregard of a court order.

[24] The father points to two entries on the mother’s pharmacological history as proof that the mother suffers from a mental illness. He says that she was prescribed “anti-psychotics”. The father does not point to anything else in the clinical file or pharmacological history that supports this conclusion. The pharmacological history disclosed by the mother shows that on February 21, 2018 – the day Kaden died - the mother was prescribed olanzapine and quetiapine by Dr. Paul Hanson (her uncle). The father relies on a partial printout from a website called canoe.com to establish that these are anti-psychotic medications used to treat schizophrenia or bi-polar disorder. Counsel also handed up during submissions a photocopy of a page from a book called “Clinical Handbook of Psychotic Drugs”, which lists these medications as “second generation” antipsychotics/SGAs.

[25] Based on this evidentiary record, I am not satisfied that the medications prescribed on February 21, 2018 were prescribed for a mental illness or a psychosis. Kaden was swept away by a freezing river from his mother’s grip to his death that morning. There may be any number of reasons the mother required medication that day, and in the days that followed. There is no evidence that these drugs have no secondary use or effect. There is no evidence of a medical or psychiatric diagnosis. The mother is longer taking the medication. The evidence presented by the father is not sufficient to support an inference that the mother suffers from a mental illness that now puts her child at risk of harm. This inference is also negated by other evidence including the affidavits of Johanna Hanson, Raylene Pardy, Tamara Wheeler and Lorna Bryce, all of whom attest to the mother’s capacity to care for Mason. I am not prepared to infer from the fact that the mother was prescribed this medication on the day her child died that she suffers from a mental illness.

[26] It is not disputed that the mother drove Mason after Wein J. imposed an order on November 16, 2018 that stated that the third party supervisor(s) was responsible for picking up and dropping off Mason from the father’s home. It is not alleged that the mother has driven the child since Kurz J. clarified that she is not to drive the child. In my view, the mother’s interpretation Wein J.’s Order was overly technical. Given the circumstances of Kaden’s death, there are valid safety concerns that arise from her driving Mason. At the same time, the wording of the Order could leave room for confusion. I am not prepared to find that by driving Mason prior to Kurz J.’s Order, the mother was deliberately in breach of a court order.

[27] The father alleges that the mother cannot be trusted to respect a court order because she violated the agreement she signed with DCAFS by overstaying at Mason’s birthday party. In the voluntary agreement she signed on October 12, 2018, the mother had agreed to stay at the party from 2:30 to 3:30 pm. The party was only a short time after criminal charges had been laid and Mason had been removed from her care. The mother had planned this party in advance of those events. It is not at all clear why her time at the party was limited to an hour in the agreement she signed with DCAFS.

[28] The affidavit of Tamara Wheeler, as well as Ms. Wheeler’s text messages with the father that day suggest that he deliberately made things difficult for Ms. Wheeler. He would not permit her to pick up Mason as planned, and as a result the party was delayed. It did not start until 4:30. Then, he insisted that his girlfriend, Erin Cage drive Mason to the party and that she stay at the party to supervise him. He and Ms. Cage’s infant son stayed nearby. In my view, his conduct on that occasion showed a disturbing lack of cooperation. He was not acting in the best interests of the child by making things unnecessarily difficult. There was no risk to the child from having his mother attend at the birthday party she planned for him with any number of family and friends.

[29] The agreement with DCAFS was by then void – a court order had removed Mason from Ms. Wheeler’s care and put him in the father’s care. The father cannot now insist that regard be had for one part (the time limit on the party attendance), and at the same time disregard its main aspect (that Mason be in the care of Ms. Wheeler). The text messages show that Ms. Wheeler acted in a level headed way, attempted to keep the peace and stay flexible, at all times keeping the best interests of the child in mind, in what was undoubtedly a difficult situation. I am not prepared to find that the mother or Ms. Wheeler unilaterally breached the terms of their agreement with DCAFS or that either of them would deliberately disregard a court order.

[30] It is not disputed that on January 12, 2019, during Mason’s access visit with his mother, the named third party supervisor Johanna Hanson (the mother’s grandmother) left part way through the visit. Her place was taken by Raylene Pardy, a person well known to both parties. Ms. Pardy supervised the visit for the rest of afternoon. The father had not known of the substitution until he came to pick up the child at the end of the access visit, nor had he agreed to Ms. Pardy acting as the supervisor. The details of the incident are contained in the affidavits of the mother, Johanna Hanson, Raylene Pardy and the father, as well as the text messages between the parties. Wein J.’s Order permitted supervision by a “mutually agreed upon” third party. The text messages show that the mother was of the view that Ms. Pardy was someone he would agree to. However, she did not notify him that Johanna Hanson left and failed to get his agreement to Ms. Pardy taking over the supervision in advance. This clearly was a serious incident that violated the letter and spirit of Wein J.’s Order.

[31] To her credit, the mother demonstrated some regard for the court order by ensuring that her visit with Mason was still supervised when her grandmother had to leave unexpectedly. Having regard to all the circumstances, I am not satisfied that this incident alone justifies the imposition of more onerous or strict supervision terms upon the mother. Rather, the concerns raised by this incident can be addressed by putting in place a formal process for how the parties are to deal with a situation when a court approved third party supervisor is unavailable. This process includes a requirement that any agreement to a substitute third party supervisor be obtained by the mother in advance and in writing. At the same time, this formal process includes an obligation on the father to not withhold his consent to a third party unreasonably and a requirement for immediate “make up” time should a scheduled visit not proceed.

Analysis:

[32] Determinations about custody and parenting time are to be made in the best interests of the children. In considering what is in the children’s best interests, the principle of maximum contact applies. Children are to have as much contact with each parent as is consistent with the child’s best interests (Divorce Act, section 16(8) and 16(10)). The best interest of the child is the paramount consideration, not the preferences or wishes of one parent or the other. It is the child’s right to have contact with both parents. In resolving disputes over access, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Where a parent argues for supervised or limited contact with a child, the onus is on that parent to satisfy the court that the contact should be limited, including that it should be supervised. Supervision is a great intrusion into the relationship between children and parent, and its continued imposition must be justified. [M.A. v. J.D., 2003 CanLII 52807 (ON CJ), [2003] O.J. No 2946 (O.C.J. Fam. Ct.); Folahan v. Folahan, 2013 ONSC 2966; Baldwin v. Baldwin, 2015 ONSC 1743; A.-Z. v. A.H., (2108) ONSVC 680 at para.103, citing Bates v. Bates, 2011 CarswellOnt 3876 (Ont. S.C.J.)]

[33] I am not persuaded on the record before me that the mother’s contact with the child should take place in a supervised access centre. It is in the best interests of the child to maintain as close a relationship with his mother, who was until October 12, 2018 his primary caregiver. The evidence before me does not establish that the mother poses a risk of harm to the child while supervised by third parties. I have considered the impact of the criminal charges on the need for supervised and limited access. Despite those criminal charges, the child has the right to have a relationship with his mother. Maintaining a relationship with his mother is critical to Mason’s development. Mason is very young. In addition to the trauma of losing his older brother, he has suffered the trauma of suddenly losing his mother as his primary care giver. He has had to move his primary residence from his mother’s home and community and has had to adjust to the introduction of the father’s girl-friend and her young child into his everyday life. In my view, despite the difficulties Ms. Hanson finds herself in, it is in the child’s best interest that he has as much access to his mother as reasonably possible having regard to the safety concerns that are also present. It is equally important that access take place in as natural and familiar an environment as reasonably possible, while at the same time minimizing the risk of harm to the child. In my view, this can be accomplished through supervised access by third parties who appreciate the responsibility and obligations they are taking on.

[34] In this case, despite the tragic consequence of the death of Kaden, the risk to Mason from supervised access in the home and in the community remains low. DCAFS had no protection concerns prior to criminal charges being laid: between the time Kaden died on February 21, 2018 until criminal charges were laid on October 11, 2018, the Society had no concerns regarding the mother’s ability as a caregiver. The Society’s concerns arise solely from the laying of criminal charges and allegations, so far unproven, that the mother may have been negligent or impaired by alcohol or drugs.

[35] I am not prepared to make a finding at this time that the mother has an underlying substance or drug abuse. The father never had any concerns in this regard as demonstrated by the fact that he was content to leave the two boys in her custody and care. His affidavit suggests that he did not object to her driving the night Kaden died.

[36] The father suggests that the mother was “negligent” when she drove into the river on February 21, 2018 and that “she was responsible for Kaden’s death”. He relies on a letter from the township employee setting out the location of various signs and barriers and pylons for a finding that the mother was negligent when she drove past them. He also relies on the Crown brief synopsis as “evidence” as to the details of the criminal proceedings and the fact that she was impaired. A Crown brief synopsis is just that – a synopsis of allegations. It is not evidence of a crime having been committed. On this interim motion, I am not prepared to make any findings that the mother was impaired, negligent or otherwise caused Kaden’s death. Those are final findings.

[37] The mother does not disagree that her access to Mason must be supervised. She proposes a list of possible supervisors for the Court’s approval. The affidavits of Johanna Hanson, Raylene Pardy, Tamara Wheeler and Lorna Bryce satisfy me that they understand the importance of the role of the third party supervisor in this case. I am prepared to approve them to act as third party supervisors. In addition, the father agrees to have Cindy Curry act as a third party supervisor. The mother also volunteers to undertake weekly urine testing for drugs and alcohol, to be facilitated by her family doctor.

[38] Further, I am satisfied that “make-up time” is in the best interests of the child. It is necessary to re-establish and maintain the relationship with his mother in light of the disruptions to that relationship since October 2018. It is not acceptable that when court appearances or other unavoidable commitments interfere with scheduled access time, the child loses out on access time with his mother for longer periods than intended. Therefore, if court commitments or other unavoidable events interfere with scheduled access time, make-up time is to be provided by the father within the same week. This may mean that his or his girlfriend’s plans take second place to that of Mason’s best interests, which lie in maintaining his relationship with his mother.

Daily Video Access to the Child:

[39] In his Order dated October 29, 2018, Justice Price ordered that Mason is to have daily telephone calls with his mother at 7 pm for as long as she likes. The purpose of this term is unmistakable: it is to ensure that the child has meaningful daily contact with his mother. It is part and parcel of the father having temporary care of Mason. The evidence before me suggests that these daily telephone calls are not providing daily meaningful opportunities for contact between Mason and his mother. Sometimes, they take place while the child is otherwise occupied by the father. Sometimes, the child is unable to engage over the telephone: he is only three years old and distracted by other things. Sometimes, there is background noise at the father’s house that interferes. Sometimes, the father forgets his phone, fails to charge it, uses his girlfriend’s phone or is otherwise occupied. In my view, it is the father’s obligation to provide an opportunity for the child to have meaningful daily contact with his mother. This burden is part and parcel of the transfer of primary care of the child from the mother to him and if it cannot be carried out, the overall care and access arrangement may need to be revisited.

[40] This telephone access intended that the child’s relationship with his mother be maintained and as ‘normal’ as possible. These are not intended to be phone calls of a few seconds or a minute or two with an otherwise distracted child. In my view, it only makes sense that the father be responsible for providing a quiet time uninterrupted for the child to spend quality time with his mother remotely on those days when he does not otherwise see her. This means the father has to facilitate this access. It is not enough to hand a phone to a three year old who is otherwise occupied, or while he is in riding in a car, or in the midst of another activity. The father has to use his best efforts to make this contact meaningful for the child.

[41] Mason is three years old. He has the right to have a meaningful relationship with his mother. Their relationship is long term. Nothing that is happening now is intended to punish Mason, but it may ultimately feel that way to him. In my view, it is in Mason’s best interest to maximize contact with his mother to the extent possible in these circumstances.

The Father’s Request for Mason’s Birth Certificate:

[42] The father asks that the mother be compelled to turn over Mason’s birth certificate and Social Insurance Number (“SIN”) to him so that he can register Mason for kindergarten. Mason would start junior kindergarten in the ordinary course in September 2019. In oral submissions, the father is no longer seeking the SIN.

[43] In my view, this request is premature. Mason had, prior to October 2018, lived with his mother in Arthur. The father now lives in Fergus with his girlfriend and her child. The two towns are approximately 30 minute drive apart. The order that placed Mason in the care of his father was temporary, and without prejudice. The parties made no substantive submissions before me with respect to where Mason should go to school. Questions of custody and long-term parent schedules have yet to be addressed or determined.

[44] Most importantly, the Order of Justice Wein requires the father to consult with the mother regarding major decisions about Mason. I am not prepared to make an order, essentially approving the father’s unilateral decision to register Mason in kindergarten at his convenience at a school of his choice in the absence of any evidence of consultation in this regard with the mother. The temporary without prejudice orders made thus far by this court are just that: temporary and without prejudice.

[45] Either party may request a review of the care and access provisions of this Order in four months’ time without the requirement of a material change in circumstance.

Procedural Objections to the Materials Filed by the Mother:

[46] The father raises several objections to the materials filed on behalf of the mother. I reserved my decision with respect to these issues until after the hearing of the motion. With respect to the procedural objections by the father at the outset of the hearing of this motion, I make the following findings:

[47] First, the mother filed an affidavit on the morning of the hearing of this motion. It purports to be a reply to the father’s reply. In my endorsement dated January 11, 2019, a timeline for the filing of materials was agreed to by the parties. The filing of this reply to a reply affidavit last minute does not accord with that time line. More importantly, Rule 14(20) of the Family Law Rules provides that no other evidence is to be served and filed after reply evidence. This rule is important: it provides for finality in the filing of evidence. In my view, it would be unfair to permit the mother to file sur-rely on the reply at this late stage of the motion. I have disabused myself of the contents of that affidavit.

[48] Second, the father objects to a reference in the mother’s affidavit to a settlement offer made by her. The mother says this settlement offer, as well as others, are relevant on the issue of costs. In my view, the Rules are clear that evidence of settlement offers is to form no part of the continuing record. Settlement offers are relevant to costs, and the proper place to include reference to them is on submissions on costs. I therefore strike the reference to a settlement offer in the mother’s affidavit sworn on February 1, 2019 at paragraph 7 pursuant to Rule 18(8)(a) of the Family Law Rules.

[49] Third, the father asks that I strike the reference to the evidence a witness, Chad Pettipas, would give because he has not provided an affidavit. Reference to his anticipated evidence is made in the mother’s affidavit sworn on October 23, 2018 and a letter from him is attached as Exhibit E. The mother does not oppose that the reference to the anticipated evidence and the letter at Exhibit E be struck. I therefore strike the reference to his proposed evidence, and the letter at Exhibit E without prejudice to the mother’s ability to present this evidence in a proper form at a later time if she chooses.

[50] Fourth, the father objects to the format of the affidavits from Tammy Wheeler and Lorna Bryce, which are contained as Exhibits Q and R to the mother’s affidavit sworn on February 1, 2019. One of these documents consists of handwritten notes, the other is a typed statement, and both are sandwiched between the first and last page of the form 14A for an affidavit. On the first page of the form, it states that it is the affidavit of Tamara Wheeler and that she is attaching her statement of events as well as text messages. The last page of the form has a line though the unused space on the page and is commissioned. Similarly, Lorna Bryce’s affidavit states on the first page that it is the affidavit of Lorna Bryce, that attached is her statement, which are handwritten notes. The last page of the form too has a line through the unused space and is commissioned.

[51] It is significant that these documents are commissioned. In commissioning an affidavit, a commissioner is required to ascertain the identity of the person purporting to swear the affidavit, commission their oath or solemn affirmation in declaring the contents of the affidavit to be true and witness their signature evidencing their oath or affirmation. This has clearly been done, as evidenced by the commissioner’s signature. There is no legal significance to attach to whether an affidavit is typed or handwritten, or whether it has consistent paragraph numbers, or whether any text appears on the last page with the commissioner’s signature. The form of the affidavits here does not give rise to concern that the person who purports to provide evidence to the court did not appreciate the significance or importance of it. I therefore decline to strike the affidavits of Tammy Wheeler and Lorna Bryce.

Request Regarding Kaden’s Ashes:

[52] Without prejudice, I dismiss the father’s motion to compel the mother to provide him with half of Kaden’s ashes. The parties did not argue the matter, and the materials before me do not speak to the appropriateness of such an order.

Order:

[53] For the foregoing reasons, I am of the view that it is in the best interests of the child that he have regular and frequent access to his mother, that the access be supervised by the named persons or a mutually agreed upon third party, that the access be in the mother’s home and in the community, and that it should include contact with the child by video on the days she does not see him, and an overnight visit every other week.

[54] I therefore make the following temporary order:

a. The child shall, on an interim without prejudice basis, remain in the care of the Applicant father;

b. The Respondent mother will have the child on the following schedule effective immediately:

(i) Every Tuesday from 10:00 am to 6:00 pm;

(ii) Week 1 on Fridays from 10:00 am to 6:00 pm;

(iii) Week 2 from Friday at 10:00 am to Saturday at 2:00 pm;

c. The week of February 18, 2019 shall be week 1;

d. Supervised access will be exercised in the mother’s home and the community;

e. Access shall be supervised by one of either Tamara Wheeler, Raylene Pardy, Lorna Bryce, Cindy Curry, Johanna Hanson or a mutually agreed upon third party, to be agreed upon in advance and in writing;

f. The Applicant shall not unreasonably withhold his consent or agreement to the appointment of a third party supervisor;

g. The Respondent shall make sure that the third party who is supervising her access to the child does not leave her unsupervised with the child at any time. This means that the third party supervisor must remain in the home or at the same place in the community throughout the visit, including overnight;

h. The Respondent shall provide a copy of this Order to Tamara Wheeler, Raylene Pardy, Lorna Bryce, Cindy Curry, Johanna Hanson or a mutually agreed upon third party who agrees to supervise her access to the child;

i. If one of the named third parties is unavailable to supervise a scheduled access visit, the mother shall notify the father of this by text message or otherwise in writing prior to the commencement of the access visit and shall propose a third party she believes will be mutually agreeable to supervise the visit. The father shall respond in writing to the request for the appointment of a mutually agreed upon third party not later than two hours after the request is made;

j. If during an access visit the third party supervisor has to leave but another supervisor is unavailable, the Respondent shall advise the Applicant of this immediately. The Applicant or his designate shall immediately attend to pick up the child, and the visit shall resume as soon thereafter as a third party supervisor is available;

k. If the parties are unable to reach an agreement as to a third party to supervise the access (other than those individuals named in this order), the access visit shall not take place at the scheduled time. Rather, the access visit shall take place as soon thereafter as a named third party or a mutually agreed upon party is available to supervise the access even if this entails a disruption of the child’s schedule, the father’s schedule or the cancellation of previously held plans;

l. If the Respondent’s court commitments or other unavoidable events interfere with access time, the Applicant shall provide “make up time” within the same calendar week (a calendar week being Monday to Sunday);

m. The Respondent shall not to consume alcohol or any controlled substances on the days she has access to the child, or within the 24 hours immediately preceding the days she has access to the child;

n. The Respondent shall undertake weekly urine testing for the presence of controlled substances, opiates or alcohol. This urine testing is to occur at the direction of the Respondent’s family physician in an accredited medical laboratory;

o. The Respondent shall provide the results of the urine testing to the Applicant’s counsel on the last day of every month; any positive findings for controlled substances, opiates or alcohol shall be reported by the Respondent to the Applicant within 24 hours of such a finding;

p. The Respondent shall execute a consent for her family physician to release the results of weekly urine tests to the Applicant’s counsel upon request;

q. The Respondent shall commence the weekly urine testing the week of February 25, 2019;

r. The Respondent shall provide a copy of this Order to her family physician within seven days of this Order being made;

s. The Applicant shall keep the Respondent informed of all medical emergencies pertaining to Mason;

t. The Respondent shall have access to all information pertaining to Mason including but not limited to school/daycare, doctor and therapist;

u. The Applicant shall not register the child in any programs without notifying the Applicant in advance;

v. The Applicant shall consult with the Respondent regarding major decisions;

w. The Respondent is prohibited from operating a motor vehicle at any time with Mason in it. Should the Respondent violate this term, the Applicant may bring a motion before the Court to revoke her access to Mason on two days’ notice;

x. The Applicant shall be responsible for picking up Mason from the Respondent following the access visits;

y. The third party supervisor shall be responsible for picking up Mason from the Applicant for the access visits;

z. The Respondent may accompany the third party to pick up Mason from the Applicant, but she shall not operate the motor vehicle and she shall remain in the car during the pick-up.

[55] With respect to the video access, I order that:

a. The mother shall have remote contact with Mason at 7:00 pm for 20 minutes on Mondays, Wednesdays, Thursdays and Sundays, or any other day when she does not have access to Mason;

b. This remote contact between the child and the mother take place by video;

c. The father shall provide the child with a quiet place, away from distractions and noise, in which the child can have contact by video with the mother;

d. The father shall provide the child with quiet activities such as a book or drawing materials or quiet toys with which he can engage by video with the mother;

e. The father shall ensure that technology is functioning property at his end to ensure video call ability;

f. The father shall notify the mother in advance if for some reason the video contact cannot take place at 7:00 pm, and arrange for an alternative time the same day that is agreeable to the mother for the contact to take place;

g. The father shall obtain the consent of the mother if the contact is to take place by telephone, rather than video, on any particular day;

h. The father shall use his best efforts to allow the mother the full 20 minutes of contact with the child, including encouraging the child and calling back if the child hangs up or otherwise gets disconnected.

[56] To be clear, the intention of this order is to put the responsibility on the father for ensuring that Mason is given an opportunity to have meaningful contact remotely with his mother on those days when he does not otherwise see her.

[57] Either party may request a review of the care and access provisions of this Order in four months’ time without the requirement of a material change in circumstance.

[58] Issues of custody and decision making have not yet been resolved. Neither party should take unilateral action or make unilateral decisions with respect to the child until such time as a court makes an order permitting him or her to do so.

Costs of this Motion

[59] The parties are encouraged to agree upon appropriate costs for this motion. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum two pages double-spaced, plus a bill of costs). The Applicant may have 14 days from the release of this decision to provide his submissions, with a copy to the Respondent; the Respondent a further 14 days to respond; and the Applicant a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received response or reply submissions within the specified timelines after the Applicant’s initial submission, I will consider that the parties do not wish to make any further submissions and I will decide on the basis of the material that I have received.

Chozik J.

Released: February 21, 2019

COURT FILE NO.: 84/18

DATE: 20190221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CAMERON ROBERT YOUNG

Applicant

– and –

MICHELLE JOANNE HANSON

Respondent

REASONS FOR DECISION ON MOTION

Chozik J.

Released: February 21, 2019