Court File and Parties

COURT FILE NO.: C836/14-2 DATE: May 29, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017

BETWEEN:

Children’s Aid Society of London and Middlesex Randolph C. Hammond for the Society Applicant

- and -

D.D.P., T.M. and M.B. Toenie Hersch for D.D.P. T.M. in person M.B. in person Respondents

HEARD: October 9, 10, 11, 2018; December 1, 2018; February 20, 2019; and March 14, 2019

HENDERSON J.

[1] The Children's Aid Society of London and Middlesex (the “Society”) has brought this application in respect of the child, V., who was born in 2016 and is now almost three years old.

[2] D.P. is the child’s mother. She appeared for the first day of trial only and did not testify. There was evidence that she suffers from bipolar disorder and depression.

[3] T.M. was named by D.P. as V.’s father, which he has accepted and has continued to demonstrate an intention to treat V. as his child.

[4] M.B. is the aunt of a friend of D.P. She has been the effective caregiver of the child since she was six weeks old. Initially she assisted D.P. due to her inability to cope caring for the child. Over time, her responsibilities increased such that she became the child’s primary caregiver. In February 2017, D.P placed the child in her care with the Society’s knowledge while D.P. was working with the Society pursuant to terms of a voluntary service agreement.

Findings

[5] No party opposed the finding that V. was a child in need of protection pursuant to s. 74(2)(b)(i) and (ii) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). On the basis of the evidence, I am satisfied that such a finding may be made. Further, I make the statutory findings pursuant to s. 90(2) as set out on page three of the application.

[6] In her affidavit filed at trial, Ms. DeKnibber, a Society worker, attested that D.P. at one time told her that her maternal grandfather was Métis and resided in Saskatchewan. Other than this, D.P. denied knowing anything about him. Because the mother failed to appear at trial, no further information was available.

[7] I continued the trial on December 13, 2018 to address this specific issue with the parties. The mother did attend and the parties left that day on the understanding that D.P. would provide the Society with contact information in order to establish the child’s native status.

[8] The matter resumed February 20, 2019. The mother failed to attend. As my endorsement from that day states, the Society’s efforts to determine whether the child is First Nations, Inuk or Métis had reached an impasse. In fact, D.P. had told the Society to back off on its efforts and that she had her own workers pursuing the matter. D.P. produced no further evidence and, as noted, failed to attend court on the return.

[9] As this matter at that point had been ongoing for almost three years, I found that it was in the child’s best interests to close the matter and end the trial. I concluded that, while there may be a First Nations, Inuk or Métis connection, there is no identifiable band or community.

Background

[10] D.P. has had two other children who, due to protection concerns, were removed from her care in 2014 and made Crown wards in 2017.

[11] The evidence from the Society worker indicates the mother is bipolar and suffers from depression.

[12] Because there were no immediate concerns when V. was born, the child was left in D.P.’s care.

[13] Initially, D.P. identified a certain male as the child’s father and indicated she wanted to raise the child with her then current partner. Then D.P. identified T.M. as the child’s father and he has continued to identify as her father since.

[14] After D.P. brought the child home from the hospital, the Society ensured workers attended her home every day. Initially, care went well but, within a few weeks, protections concerns began to arise: unstable relationship with N.S.; unstable living situation; and reports N.S. being verbally and emotionally abusive to D.P.

[15] At about this time, when the child was about six weeks old, D.P. was leaving the child increasingly with M.B.

[16] In the meantime, T.M. moved in with D.P. This arrangement lasted about a month. T.M. explained that, despite efforts to make things work, he found D.P.’s increasingly erratic behaviour and resulting conflict impossible to handle. He had real concerns about D.P.’s ability to care for the child and keep her safe.

[17] What ensued over the next few weeks was a tug-of-war over the child. Ultimately, the child was returned to D.P.’s care under an order pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12. T.M. was granted access.

[18] There were allegations T.M. was not exercising access. T.M. testified D.P. was denying him access. In any event, T.M. did not see the child from the end of January 2017 until September 2017, after the Society commenced these proceedings and obtained a temporary order.

[19] In the meantime, the Society’s protection concerns about D.P.’s quality of childcare reached a level where D.P. placed the child in M.B.’s fulltime care with the acquiescence of the Society.

[20] D.P.’s circumstances deteriorated over the next few months until the Society commenced these proceedings in September. By a temporary supervision order dated September 12, 2017, the child was formally placed in M.B.’s care, with her parents having supervised access at the Society’s discretion.

[21] T.M.’s access was initially supervised but the Society ultimately concluded there were no protection concerns. Access was then scheduled for every Saturday for a few hours.

Positions of the Parties

[22] The child, having been found in need of protection, the remaining issue is disposition. M.B., supported by the Society, seeks a custody order pursuant to s. 102 of the CYFSA. D.P. seeks return of the child but, in the alternative, is not opposed to the child’s placement with M.B.

[23] T.M. seeks to have the child returned to his care, although a finding has been made, pursuant to s. 101(8) of the CYFSA. Access to M.B. would be reduced to virtually nil. In the event I were to award custody to M.B., he seeks regular access.

[24] The issue is therefore which plan is in the child’s best interests.

Legislative Framework

[25] Section 1(1) of the CYFSA states that “the paramount purpose of the Act is to promote the best interests, protection and well being of children.” Subsection (2) includes a number of “additional purposes so long as they are consistent with the best interests, protection and well being of children.”

[26] These additional purposes include the “least disruptive course of action that is available and is appropriate in a particular case to help a child” (s. 1(2)2.).

[27] Further, services to children should respect a child’s “need for continuity of care and for stable relationships within a family” (s. 1(2)3(i)). Services should also take into account physical, emotional, spiritual, mental and developmental needs and differences among children.

[28] Section 101(1) of the CYFSA directs the court to consider several dispositional options “where the court finds a child in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future.”

[29] Given the positions of the parties, I am only considering three possible outcomes:

1. D.P.’s request for a return of the child subject to a supervision order (s. 101(1)1.);
2. T.M.’s request for placement of the child with him pursuant to s. 101(8); and
3. M.B.’s request for placement of the child with her, supported by the Society, pursuant to a custody order under s. 102(1). Access would be considered pursuant to s. 105(1) or (2).

[30] All outcomes are to be decided in the child’s best interests. Section 74(3) of the CYFSA contains a list of factors I must consider when rendering any decision in the best interests of the child. Relevant to the present case, I will consider the following:

74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(c) consider any other circumstance of the case that the person considers relevant, including,

(ii) the child’s physical, mental and emotional level of development,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[31] A further relevant consideration is found in s. 101(3):

101(3) The court shall not make an order removing the child from the care of the person who had charge of the child immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential care and the assistance referred to in subsection (2), would be inadequate to protect the child.

[32] I have not given any consideration to s. 1(2)6, s. 74(3)(b) and s. 101(5). These subsections are applicable to children who are found to be First Nations, Inuk or Métis. As I found in my endorsement of February 20, 2019, the evidence concerning the child’s native status was vague and, in any event, there was no evidence identifying any specific community. In these circumstances, I have not given these subsections any consideration.

Analysis

[33] At the outset, I dismiss D.P.’s claim for return of the child to her care. She failed to appear at trial and, although her counsel ably defended her interests, I heard no evidence that supported her claim. I am only left with evidence that supports my view that returning the child to her care would be inappropriate and expose the child to a significant risk of harm.

[34] I do, however, acknowledge that according to instructions to her counsel she supported, in the alternative, that M.B. have custody and T.M. have access.

[35] The contest, therefore, is between M.B. and T.M.

[36] T.M. has argued consistently throughout these proceedings and at trial that, because he is the child’s biological father, he has first rights to her custody. He wants to raise her as his daughter and that she grow close to her half-sister, I. From early on, it was his desire to put forward a plan to have the child placed in his care. He points out that at no time has the Society raised any serious concerns regarding his care of the child.

[37] Is this sufficient to obtain the order he desires? For the reasons set out below, I find that it is not. An order shall issue placing the child in the custody of M.B. pursuant to s. 102(1) of the CYFSA.

[38] Before moving on to my reasons, it is necessary to discuss T.M.’s main point that, as the child’s father, he merits higher consideration.

[39] Any decision I make regarding this child is to be made in her best interests. In fact, her best interests are paramount over all other interests, including parental.

[40] The landmark Court of Appeal decision in Moores v. Feldstein, 1973 ONCA 535, 1973 CarswellOnt 156, [1973] 3 O.R. 921 (Ont. C.A.) marked a departure from the parental rights perspective that influenced the jurisprudence up to that point.

[41] In a contest between a parent and a non-parent, the fact of a parental connection provides no special advantage when determining a child’s best interests. At para. 45, the Court of Appeal wrote:

45 In the instant case, if I may say so with respect, the learned trial Judge rather treated the statement set forth by Cartwright J. in the case of Hepton v. Maat, 1957 SCC 18, [1957] S.C.R. 606, 10 D.L.R. (2d) 1] as a formula and, having found that the child was not abandoned and the mother not unfit, he felt that it inevitably followed that the child must be returned to its mother. He assumed, without fully considering the likely effect on the child, that the child would benefit by being returned to its mother by the mere fact of the blood relationship of mother and child. I find it difficult to approach a custody case by adhering to a formula. As pointed out by McGarry J. in the case of Re F., [1969] 2 Ch. 239, [1969] 3 W.L.R. 162, [1969] 2 All E.R. 766, in cases such as these, the court is dealing with the lives of human beings and these cannot be regulated by formulae. I do not think it safe to proceed on the assumption that a child will receive greater love and a more understanding upbringing if it is returned to a mother who did not want it at the time of its birth, than it would if left in the hands of those who sought it out for their love and care. Although in most cases it is to be expected that a child will benefit by the ties of affection of a parent and what naturally flows from it, that must be a question of fact in every case, and I do not think that I am bound by precedent to proceed on the assumption that it is inevitably so.

[42] And at para. 48:

48 I do not read the judgment of the Supreme Court of Canada in the cases that I have cited as laying down a formula to be applied where the child would not benefit by being returned to its mother, nor, in my view, did the Supreme Court of Canada in those cases approach the issue as if the parent had a proprietary right in a child. I conclude, therefore, that it is the duty of the court to view all the circumstances relevant to what is in the interest of the child, including a consideration as to whether the evidence disclosed that the child would benefit from the tie of a child to its mother. It would appear from the learned trial Judge's reasons that no consideration was given to the welfare of the child and in this respect also I think he erred.

[43] Wilson J., for the Supreme Court, voiced a similar view in R.(A.N.) v. W.(L.J.), 1983 SCC 27, 1983 CarswellMan 147, [1983] 2 SCR 173 (S.C.C.) at para. 23:

23 Be that as it may, I do not think a finding of abandonment was necessary to the trial judge's decision. I think the statute is clear and that s. 103(2) dispenses with parental consent in the case of a de facto adoption. This does not mean, of course, that the child's tie with its natural parent is irrelevant in the making of an order under the section. It is obviously very relevant in a determination as to what is in the child's best interests. But it is the parental tie as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to be concerned about. As has been emphasized many times in custody cases, a child is not a chattel in which its parents have a proprietary interest; it is a human being to whom they owe serious obligations. In giving the court power to dispense with the consent of the parent on a de facto adoption the legislature has recognized an aspect of the human condition — that our own self-interest sometimes clouds our perception of what is best for those for whom we are responsible. It takes a very high degree of selflessness and maturity, for most of us probably an unattainable degree, for a parent to acknowledge that it might be better for his or her child to be brought up by someone else. The legislature in its wisdom has protected the child against this human frailty in a case where others have stepped into the breach and provided a happy and secure home for the child for a minimum period of three consecutive years. In effect, these persons have assumed the obligations of the natural parents and taken their place. The natural parents' consent in these circumstances is no longer required.

[44] The parental connection is but one of the circumstances the court is to consider and is a question of fact. This approach has been followed in subsequent case law (see, for example, Nelson J. in Khan v. Kong, 2007 ONSC 61091 and Mackinnon J. in Johnstone v. Locke, 2012 ONSC 719).

[45] I find nothing in the best interests considerations set out in s. 74(3) of the CYFSA that would alter this approach. Section 74(3)(c)(vi) specifically references a child’s relationship and emotional ties to a parent or sibling. However, there is nothing in the wording of this section that this factor carries any greater weight than the other factors in s. 74(3). For example, an equally compelling circumstance is found in s. 74(3)(c)(vii), the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.

[46] In the end, it is the facts couched in the circumstances spelled out in s. 74(3) and particularly s. 74(3)(c) that determine this child’s best interests.

[47] The reasons for my decision are as follows:

[48] T.M., who lives in Kitchener, is currently 33 years of age and is employed fulltime, working Monday to Friday. He has one child from a prior relationship, I., who is now seven years old. She lives in Mississauga and T.M. exercises access to her alternate weekends from Friday to Sunday.

[49] T.M. does not have a criminal record and no prior child protection history. He does not abuse alcohol or hard drugs but is a daily user of marijuana which he says assists him with his anxiety. The evidence also shows he has a short temper and can be verbally abusive.

[50] He has been living with S.A. for over a year and they plan to marry. She has two young children from a previous relationship. They spend a significant time with each parent pursuant to a liberal timesharing arrangement.

[51] While T.M. stepped up early with a plan to parent the child, his follow through has fallen short. In particular, his efforts to exercise access have been halfhearted, bringing into question his long-term commitment to the child’s best interests.

[52] D.P. and T.M. had a casual acquaintance in 2015 and then lost contact with each other. T.M. did not become aware that D.P. had delivered their child until the child was about three months old in October 2016.

[53] At the time, D.P.’s life was chaotic as she floated in and out of an abusive relationship. The same day that individual N.S., was escorted from D.P.’s residence, T.M. moved in. This arrangement lasted about a month until T.M. removed the child from D.P., fearing her precarious mental health posed a threat to the child. Each ran to court but D.P. got there first.

[54] By order dated December 21, 2016, McSorley J. ordered the child back to D.P.’s care but granted access to T.M. each Monday from 10 a.m. to Tuesday at 10 a.m. and each Friday from 10 a.m. to Saturday at 10 a.m.

[55] Despite the order, the access was spotty and by the end of January 2017, T.M. stopped seeing the child entirely. He did not see her again until September 2017, after these proceedings were commenced.

[56] T.M. blamed D.P. for the gap, saying she was denying him access (although by February 2017, the child was in the primary care of M.B., with D.P.’s and the Society’s acquiescence). Nevertheless, he did not begin a contempt motion on, as he said, the advice of counsel, nor did he contact the Society, which was working with D.P. under a voluntary service agreement.

[57] After these proceedings were commenced, T.M. did contact the Society shortly after to arrange access (he had been granted reasonable access at the discretion of the Society by Mitrow J.). It was agreed he would have visits with the child each Saturday from 9 a.m. to 6 p.m. in London. He could use M.B.’s home as a base for naps and diaper changes.

[58] Unfortunately, until late June 2018 when Society drivers drove the child to T.M.’s home in Kitchener, T.M.’s access was inconsistent, missing weeks at a time, often without notice to M.B. who had care of the child.

[59] At the end of May 2018, access was liberalized to permit T.M. to take the child to his home in Kitchener on alternate Saturdays. The child was also available for access in London the off weekend but T.M. never availed himself of the opportunity. T.M.’s record did not improve. By the end of June, the Society was able to secure volunteer drivers to drive the child. It was only then that T.M.’s access was exercised consistently. Alternate weekend overnight access began the weekend of August 26-28, 2018.

[60] As a response to this poor record, T.M. blamed everyone but himself. Initially, he blamed D.P. for blocking his access. Then he said it was on lawyer’s advice that he did not bring a contempt motion to enforce his court ordered access.

[61] The Society workers were a constant target. T.M. began pushing for overnight access early on. The Society wanted an assessment conducted regarding T.M.’s housing and background before they would consider any overnight access. The workers also stressed the importance of graduated, consistently exercised access in view of the child’s age and the fact that T.M. had played a minimal role for the first 14 months of her life.

[62] Instead, he completely missed the child focused position of the workers. He became frustrated and, at times, verbally abusive towards the workers. He said he was being “screwed” by the Society and it was denying him the ability to bond with his daughter.

[63] It was about him and his rights, his convenience. He acknowledged only peripherally that the timing of the assessments was complicated by the fact that he lived in Guelph, outside the Society’s jurisdiction. Then, halfway through the Guelph assessment, T.M. moved to Kitchener and the process had to be started over again. There was no recognition by T.M. that outside agencies were conducting these assessments and the Society had no control over their timelines.

[64] Furthermore, T.M. completely missed the importance to the child of regular, predictable and consistent visits, especially for a child of her age.

[65] T.M. also blamed his own circumstances. He had an unreliable car; gas was expensive; it was too far to drive. He had to pick up his other daughter in Mississauga for access. She found the drive tiring and boring. T.M. cancelled at least one visit on October 14, 2017. He told the worker that I “threw a fit,” did not want to go so he didn’t see V. because he did not want to “force her (I) to be miserable.”

[66] This episode, against the backdrop of T.M.’s poor track record of access, reveals that he wanted things to go according to his convenience, without considering the child’s best interests. More concerning, he clearly favoured one child’s needs over the other.

[67] This view is confirmed by the fact that, despite being offered an additional weekend in London on the off access weekend in June 2018, he never exercised the option.

[68] Consequently, since the child was born, he has never had primary care and responsibility of the child, despite having been provided the means of achieving that end.

[69] As I have noted, the contest is between T.M. and M.B. Although M.B.’s record is not without blemish, I find, based on the child’s best interests, that she is a superior placement for the long-term care of the child.

[70] M.B. is 43 years of age and the mother of seven children. Of those, five remain at home, with the eldest having global developmental delay and two others with learning disabilities. She receives ODSP for anxiety but otherwise has no physical disabilities.

[71] She is single and lives with the children in a five bedroom house in London, purchased for her by her parents.

[72] Based on a kinship investigation by the Society, M.B. does not have a criminal record but does have a history of prior involvement with the Society going back to 2002. According to the Society’s Kinship Comprehensive Assessment (“KCA”) completed July 26, 2017, there were three entries of any significance and the investigations ended shortly after opening.

[73] The most significant of these occurred in 2015 when one of the children reported she had been sexually assaulted by a cousin who was babysitting her. The event took place about five years before the child reported it.

[74] Both the police and Society investigated the report. It was concluded, according to the summary in the KCA, that the child was “likely sexually abused” by the cousin when he was in a caretaking role. However, the report continues: “due to the length of time and limited disclosure and (the cousin’s) current mental health situation, charges were not laid and he was not registered on the Child Abuse Registry.” The file was closed at intake. According to the worker who prepared the KCA, M.B. was cooperative and conducted herself properly throughout. There were no protection concerns in respect of her care. I agree.

[75] Nevertheless, on March 26, 2019, I heard a motion brought by the Society to reopen the trial and admit fresh evidence. There were two issues: possible sexual assault of the child while in M.B.’s care and problems regarding access. On consent, the trial was reopened and affidavits filed. The parties agreed no cross-examination was necessary. At this time, I will deal only with the allegation of sexual abuse.

[76] On the record, I find the following facts:

1. The KCA was filed as an exhibit at trial and the worker was cross-examined on it and, in particular, regarding the reference to the sexual abuse above.

2. At no time did I hear any evidence regarding a possible sexual abuse of this child.

3. A society worker filed an affidavit in support of the motions sworn March 12, 2019, in which she states T.M. and S.A. (T.M.’s fiancée) have raised this issue before. She also states the child has been seen by the child’s doctor, who has concluded there was no cause for concern. The worker also attests that T.M. and S.A. have said the child is missing her hymen but points out they have not produced any medical evidence. She rightly expressed her concern:

   If the statement is true, I am concerned as to who examined (the child). If the statement is not, I am concerned that the statement is being made without factual foundation.

   On the evidence, therefore, I find this issue without foundation.

4. What is most concerning is that, in the hysteria over this issue, S.A. posted portions of the KCA regarding the sexual abuse on social media in contravention of the confidentiality provisions of s. 87 of the CYFSA.

5. Any deterioration in the relationship between M.B. and T.M. can be attributed to the over involvement of S.A. I remind S.A. that the child is not hers and that her involvement has not been helpful.

[77] The child, by all accounts, is a loving, affectionate child who has met all her developmental milestones.

[78] Starting when she was six week old, M.B. began providing supportive care at the request of D.P. M.B.’s niece was a friend of D.P. and so has no blood connection. Despite the fact she had five children, some with special needs, she agreed to help out.

[79] As the weeks and months passed, D.P. continued a very chaotic and unstable lifestyle and the child was left with M.B. for longer periods of time. D.P. at least recognized that the child needed the stability M.B. could provide.

[80] By February 2017, when the child was about five months old, she was under M.B.’s care fulltime. This was with the approval of D.P. and the acquiescence of the Society, with whom D.P. had been working pursuant to a voluntary service agreement. T.M., at this point, was not seeing the child. The child has been under her primary care ever since.

[81] M.B. has ensured that she has attended all her developmental checkups with the family doctor, received her immunizations, oversaw her toilet training, takes her to playgroups and attended to her basic needs of feeding, clothing and hygiene.

[82] Routine is important for children of this age. M.B. described to a worker in August 2018 that the child followed a routine that included:

• 7 a.m. wake up with breakfast right away – a bottle of milk, fruit and cereal / toast /waffle
• lunch – soup and another bottle
• nap – 12:30 / 1 p.m. to about 3:30 p.m.
• supper at 5 p.m.
• bedtime – a bottle every night and in bed by about 8 p.m.

[83] In oral testimony, the worker who completed the KCA observed M.B. to be patient, child focused, attentive to the child’s needs and nurturing. She also noted that M.B. was highly protective of the child’s safety with her wellbeing at the forefront. The worker had no concerns regarding M.B.’s care, a sentiment echoed by all the Society workers who engaged her.

[84] This worker also testified that the child had become one of the family. The other children consider her as another sibling. M.B. said the child was especially close to S., with whom she shares a bedroom. M.B.’s father comes over most lunch times to have lunch with the child.

[85] As time has gone by, the child has participated in many family activities such as camping, cottaging and family get-togethers. D.P. initially introduced the child to M.B. as a grandmother. The child is now calling M.B. “Mom” along with the other children, according to one of the workers. M.B. is the child’s only parental figure she has known her entire life.

[86] In the witness box, M.B. impressed me as being mature and calm. There was no doubt that this child receives the same care and attention as her own children. The Society is confident she would not be manipulated by D.P. and I am confident she can handle T.M.’s tantrums.

[87] M.B. stated that, at the outset, it was not her intention to take a child from her parents. It was only after the Society commenced these proceedings and it became evident that neither parent could present a viable plan that she decided to put forward a plan. She was confirmed in her belief when she received the backing and support of the Society.

[88] I have no doubt that the child is psychologically bonded to M.B. M.B. has been the only stable, consistent and continuous caregiver to the child. The child calls her “Mom.” Indeed, there has been no one else.

[89] T.M. had the opportunity to step up and fill that role, as he should have in early 2017. This was long before M.B. decided to put forward a plan. But he gave up and effectively abandoned his child.

[90] To remove the child from M.B.’s care would cause her confusion and both emotional and psychological harm, even if placed with her father. Compared to her relationship, her relationship with her father is less significant.

[91] In Johnstone v. Locke, 2012 ONSC 719, Mackinnon J. cited Pheasant v. Idowu, 2008 CarswellOnt 5403 (Ont. C.J.) at para. 95. The court in that decision, at para. 31, eloquently reflects my conclusion:

31 There is no hierarchy of rights in considering the best interests of children under the Act. To place emphasis on parental rights may diminish the importance of the attachment process in the healthy emotional development of children. If there is any right, it is the right of the child to maximize his or her attachment and emotional development and to minimize attachment uncertainties, regardless of a blood relationship.

[92] Further, in Basley v. Basley, 2016 ONSC 5877, Vogelsang J. directs that when considering a child’s best interests, the court should also consider which of the two parties is more likely to facilitate access.

[93] At trial, both T.M and M.B., although not warm towards each other, felt they could communicate with each other. Unfortunately, the evidence disclosed upon reopening the trial reveals a significant deterioration in the relationship between them.

[94] In his affidavit sworn March 21, 2019, T.M. states:

5. A read of the information contained in the Doxtator (Society worker) affidavit and the [M.B.’s] affidavit would indicate hostility towards me exists by [M.B.]. My preference is that she have no access at all. If necessary, then access should be on a monthly basis scaled down as time goes on. I certainly wouldn’t want to deny [the child] the opportunity to know her first foster parent [M.B.].

[95] This is the tempered version. T.M. expressed his true feelings in a crude, profanity laden text contained in the worker’s affidavit referred to earlier and which was not denied by T.M.:

Its pretty sad when [the child] flat out sais you don’t like me. Clearly your mouth is as big as your ego cus you can’t keep it fucking shut around her.

Your lucky im able to bite my tongue as much as i am. I got nothing but disgust for you. No respect. None. Nothing but a scam artist baby stealin cunt. burned your bridges with me you best PRAY you get custody cus ill be makin sure you never see [the child] again after the way youve treated me u can fuck right off. Ur so petty u cant even send her back in boots i paid for ffs. Low life.

[96] I have reviewed the text exchange between M.B. and S.A., referred to by T.M. in his affidavit. Although emotion can be difficult to assess in texts, I find nothing in M.B.’s text that would suggest hostility. In fact, the conversation was congenial trying to work out some extra access time.

[97] Towards the end, S.A. did enter several unresponded to texts that appeared more hostile. There was obvious frustration that the access piece could not be resolved. To that extent, I agree it was unfortunate it could not be but I do note the last exchange was a congenial inquiry and response regarding whether the child was feeling better after being ill.

[98] For these reasons, I find it is in the child’s best interests that she remain in the care and custody of M.B. pursuant to s. 102 of the CYFSA.

[99] D.P. shall have access at the discretion of M.B. but which must be supervised.

[100] T.M. shall have reasonable access, which shall include:

1. Alternate weekends from Friday evening until Sunday at 7 p.m. (to Monday at 7 p.m. in the event of a long weekend).
2. Two non-consecutive weeks during the school summer vacation, one in July and one in August. T.M. shall have first choice of weeks in even years and M.B. in odd years, with notice by the first choice party to be given by May 1 of each year.
3. For Christmas, in even years, the child shall be in the care of M.B. from noon Christmas Eve until 2 p.m. Christmas day and in the care of T.M. from 2 p.m. Christmas Eve day until 7 p.m. Boxing Day. In odd years, the reverse shall apply.
4. The balance of the Christmas vacation period shall be shared equally as the parties may agree.
5. Such other times as the parties may agree.

[101] In addition, I order the following:

1. T.M. is entitled to information regarding the child regarding her educational, medical needs or general welfare. He may obtain the information directly from the child’s school and appropriate medical practitioner.
2. T.M. shall have one weekly phone or Facetime visit with the child, not to exceed 15 minutes, at a time to be arranged between the parties.
3. T.M.’s scheduled time with the child shall take precedence over any of the child’s extracurricular activities if the parties cannot make other arrangements.
4. All communications between the parties shall be conducted through Family Wizard, which shall be funded by M.B. if a fee waiver is not obtainable. The parents may use Talking Parents as an alternative program.
5. No party shall speak ill of any of the other parties in the presence of the child, nor permit anyone else to.
6. No party shall post on social media anything about this decision, the decision itself, the ensuing order or anything about the other parties, whether or not it involves their relationship with the child, or the child insofar as it reflects on the relationship the child has with any of the parties, nor permit anyone else to.
7. There shall be no order as to costs.

[102] Two versions of this order shall issue: one under the CYFSA and one under the Children's Law Reform Act. Insofar as the second order is concerned, the named applicant shall be M.B. and the named respondents shall be T.M. and D.P.

“Justice Paul J. Henderson” Justice Paul J. Henderson Released: May 29, 2019

COURT FILE NO.: C836/14-2 DATE: 20190529 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: Children’s Aid Society of London and Middlesex Applicant - and - D.D.P., T.M. and M.B. Respondents REASONS FOR JUDGMENT HENDERSON J. Released: May 29, 2019