Court File and Parties
COURT FILE NO.: FC-16-FO000034-0001 DATE: March 31, 2020 SUPERIOR COURT OF JUSTICE, FAMILY COURT
E.C., Applicant and J.T., Respondent
PRESENT: Applicant Father represented by Duty Counsel, Steve Akman Respondent Mother, In Person
HEARD: February 12, 2020 BEFORE: Justice Nicole Tellier
RULING ON APPLICANT’S UNCONTESTED TRIAL AND REPSONDENT’S ORAL MOTION AT HEARING
OVERVIEW AND PARTIES’ POSITIONS
[1] The applicant father (“father”) seeks a final order in accordance with the relief requested in his Uncontested Trial materials. The respondent mother (“mother”) asks that the court set aside the noting of default against her and grant her another extension of time to file responding materials. She relies on her own mental health challenges as the reason for not participating fully earlier. The case concerns the child, C.C., born January 7, 2010, now 10 years old. C.’s parenting arrangement is at issue.
PRIOR PROCEEEDINGS
[2] Father commenced a motion to change the final consent order of Tellier J. dated August 26, 2019. That order arose from a previous motion to change the final consent order of Deluzio J. dated March 22, 2016, also brought by father. The Deluzio J. order placed C. in the primary care of the mother and granted her sole decision-making authority. The father’s contact with his daughter was limited to Saturdays from 2:00 p.m. to 7:00 p.m., unless other times were mutually agreed to, in the child’s best interests.
[3] Many of the parenting provisions in the Deluzio J. order were varied on consent to align with the parties’ actual parenting arrangement. This included father’s parenting time with his daughter on alternate weekends and at other times, as reflected in the new final consent order dated August 26, 2019. That final order was made by me at an Uncontested Trial aimed at concluding the first motion to change. The mother had failed to attend the first appearance or file responding material. Nonetheless, she appeared at the Uncontested Trial, engaged in the process and a final consent order was achieved.
[4] By October 2019, the father commenced another motion to change, seeking to vary the final consent order dated August 26, 2019 referred to above. He asks for an order granting him sole custody and primary residence of C. Additionally, he asks that C.’s contact with her mother be supervised, in his discretion. In his Change of Information Form and Affidavit, both dated October 9, 2019, father alleges mother suffers from mental health issues and is using drugs. His materials express concern that at times C. does not have enough food at home and that various people have contacted the Children’s Aid Society to report concerns about C. in her mother’s care, including being left unsupervised or locked out of her home. He also expresses concern about the conflict between mother and her partner, who describes as violent, thereby exposing C. to unhealthy adult conflict. His materials go on to explain that he had some of these concerns back in August 2019 but did not believe he would be able to persuade a judge to change the custodial and primary residential arrangement, so he focused his evidence and efforts on reinstating his parenting time.
[5] Once again, the mother failed to attend the first appearance, this time in the second motion to change proceeding. Justice Malcolm heard an interim motion on October 23, 2019, brought by father. Both parties were present; both had the benefit of duty counsel. Ms. Howlett, counsel to the Highland Shores Children’s Aid Society (the “Society”) was also present as was Ms. Mackie, a Society worker. Malcolm J. varied the final consent order dated August 26, 2019 on a temporary without prejudice basis, granted the respondent an extension of time to file her response to November 19, 2019 and placed C. in the “primary residential care and control” of her father. Mother was granted reasonable unsupervised daytime access on the condition that she be in a sober condition and not consume drugs or alcohol during access. Lastly, Malcolm J. ordered the Society to produce a summary report of their involvement with this family.
[6] The matter was rescheduled to another first appearance court on November 21, 2019. By then mother’s delayed responding materials were due, so the matter could be scheduled for a case conference. Mother failed to comply with Malcolm J.’s extension order. She failed to attend the rescheduled first appearance, on time, a date she knew about as she was present in court when it was set and given a copy of the endorsement. Accordingly, at the rescheduled first appearance, the father noted mother in default and scheduled an Uncontested Trial for February 12, 2020.
[7] The mother arrived for the Uncontested Trial without counsel. She did not have the assistance of duty counsel either. She urged the court to grant her a further indulgence to participate in the proceeding. Since she had no evidence before the court, I asked her to provide oral evidence that day, with a focus on her request for another extension and an opportunity to participate before a final order is made. She was cross-examined.
ANALYSIS
[8] The crux of the analysis is for the court to find the appropriate balance between father’s right to achieve a resolution in a timely fashion and to insist on compliance with orders of this Court and mother’s right to participate in a proceeding that entails a significant change to a long-standing status quo parenting arrangement, notwithstanding her delay in defending. In that sense, this case is about each parties’ right to access to justice, having regard to the primary objective in family law proceedings, as set out and elaborated in Rules 2(2) and 2(3) of the Family Law Rules, O Reg. 114/99. The analysis must be informed first and foremost by the child’s best interests, as well as fairness to both parties.
Mother’s Request for a Further Extension
[9] The evidence in the father’s Uncontested Trial materials supports the relief requested by him. He asks for sole decision-making authority and also that he have the discretion to determine mother’s contact with their daughter, in terms of time, frequency, location and also whether supervised parenting time may be appropriate to keep C. safe. The request for this discretion, including the possibility of supervised contact, is grounded in his belief that mother has serious mental health and addiction problems, which adversely impact her ability to parent and care for C. safely.
[10] Malcolm J.’s order dated October 23, 2019 did not change the decision- making provision of the operative order because that is a triable issue and there was no evidence on that motion that any major decisions were imminent, which might warrant making an interim order in this regard. As her endorsement indicates, Justice Malcolm had the benefit of the view of Society counsel who supported unsupervised contact, provided it was limited and entailed a condition that mother abstain from consuming alcohol or drugs during her parenting time. That order provided reasonable day time access, undefined. This means the essential difference between this interim order and the final order sought relates to decision-making authority and father’s discretion to insist on supervised contact, if he believes that is necessary to protect C.
[11] Since that order was made, the Society produced a document named Child Protection Summary for Custody and Access Proceedings, dated November 15, 2019. Although this document is not sworn evidence, it contains information from various unidentified and identified community sources, C.’s school and C. herself. And although all of the evidence before me is uncontested, I find it to be both credible and reliable.
[12] This summary describes a number of serious concerns regarding mother’s past and recent parenting conduct. It details examples of lack of supervision, a failure to provide adequate hygiene, food and clothing, exposure to adult conflict and parenting while impaired from drug consumption. There is a suggestion that mother may be dealing drugs. C.’s attendance record and hence her performance at school is very poor. C.’s has had to seek out shelter or food from neighbours or fend for herself, when her mother is absent from home without warning or planning. She is just 10.
[13] It is the Society’s practice to refrain from sharing their summary reports directly with unrepresented litigants. So I began to read the contents of the report into the record but mother asked me to stop. She said some but not all of the contents were likely true but urged that she be given an opportunity to advance her claims and respond to all allegations. The mother had several opportunities in both these motions to change to deny any alleged concerns about her parenting and, even when granted an extension of time, she did not do so. What she has consistently informed the court about in her oral submissions is that she struggles with severe PTSD. She elaborated on her past and recent trauma.
[14] The mother’s mental health status is central to the question of whether the noting of default against her should be set aside so she can submit evidence and participate in a hearing at which she can make submissions on the issues of decision-making authority and the terms of her parenting time. In Cadas v. Cadas, 2013 ONSC 2608, 34 R.F.L (7th) 357, Stevenson J. set aside a final order arising from an Uncontested Trial on the basis that the respondent spouse suffered from mental health issues which interfered with his ability to participate in the proceedings. In Cadas, the father tendered objective medical evidence from a treating health professional to support his claim. Further, there was evidence the applicant spouse had deliberately misled the court regarding the parties’ financial circumstances to achieve a more favourable outcome on spousal support and the property issues than what was fair, if the court had all of the evidence before it.
[15] While the evidence regarding mother’s mental health challenges comes from the parents and the Society, rather than any health professional as in Cadas, I am satisfied on the oral evidence received that mother experienced some significant mental health struggles and set-backs, particularly in the latter part of 2019. When the court asked mother whether she is now capable of seeking legal advice or assistance or if she is able to file responding materials on her own, she reassured the court that she would be able to comply with any further extension, should one be granted. She expressed a sincere apology to father and to the court for not doing so earlier. In these circumstances, and to ensure the court has a complete record upon which to make a fresh final parenting order, I will allow the mother’s request to set aside the noting of default and grant her one last extension to complete the documentation necessary for the court to consider her claims.
Variation of Temporary Order
Decision Making Authority
[16] Despite that ruling, it is not in C.’s best interests to leave the operative interim order in place without amendment. There are health and educational decisions on the horizon for C. and therefore an interim order relating to decision-making authority must be made. There is ample evidence to conclude that joint decision-making is not workable for these parents, at this time. The record and their interactions in court leads me to conclude that they lack the demonstrated ability to communicate well or work co-operatively, in C.’s best interests, so essential to successful joint decision-making. Further, mother’s actions in relation to C.’s schooling and her overall health reveals she makes poor choices.
[17] Father needs to be able to make educational decisions for C., including which school she should attend and what, if any, special supports she needs in the classroom. Although it is mother’s position that C. should be returned to her primary care, when asked about this at the hearing, mother conceded that father should be able to change C.’s school to the district in which he lives. Father must keep mother informed about C.’s schooling via email. Mother also has the right to receive information directly from the school. Given C.’s chronic absenteeism and tardiness for the last two scholastic years, an order in this regard cannot wait.
[18] C. has very likely suffered emotional and psychological harm based on the poor care she received while living primarily with her mother. During the hearing, I canvassed who C. primary healthcare provider is and there was agreement that she will continue to be cared for by her current family physician, Dr. Bennachie. C. should be seen by her family doctor as soon as possible and would likely benefit from counselling, if such a referral can be arranged. This may take some time in the context of the present COVID-19 pandemic. And due to this pandemic, there is also the possibility father may need to make pressing healthcare decisions.
[19] For these reasons, I conclude that father should be granted interim sole decision-making authority. He must keep mother informed about any major health or educational decisions he makes for C. .
Residential Arrangement and Mother’s Parental Contact
[20] On the evidence before me, there is no doubt that C. should remain in the primary care of her father. Mother’s parenting time is currently unsupervised but limited to reasonable daytime access. In his motion to change father seeks the ability to impose supervision, if he believes it is in C. best interests to do so.
[21] The imposition of supervised parenting contact or access is a remedy reserved for circumstances where it is necessary to protect a child from risk of harm. It can be achieved by insisting that other responsible family members or friends be present during someone’s parenting time or it may be that the enhanced structure and oversight afforded by a supervised access centre is required. In either case, it is a significant intrusion on a parent’s time with his or her child and should not be ordered lightly.
[22] Father is not insisting that mother’s parenting time always be supervised. He asks that he be granted the discretion to insist that it be, should circumstances arise which warrant this safety measure for C. Mother has been in unstable circumstances for some time. She is struggling to care for herself as well as her child. Mother’s lack of stability and conduct place C. at serious risk of harm. I have concerns about her ability to keep herself informed about and comply with all COVID-19 related government and public health directives, including enhanced hand and face sanitization, and physical distancing. For these reasons, I am prepared to grant father’s request to use his discretion regarding parenting time, on an interim basis, including whether some form of supervision is warranted.
[23] Based on father’s evidence and submissions, I accept that he will make decisions about mother’s parenting time that serves C.’s best interests. I do not believe he will use any court sanctioned discretion in an unreasonable or punitive manner.
NEXT STEPS
[24] Once mother’s materials are filed and after court operations resume, a settlement conference shall be scheduled. The court will be looking to see what concrete steps mother has taken to address her mental health and addiction challenges. The court will also be looking to see whether father has acted reasonably in providing information to mother and ensuring as much contact between mother and C. as is in C.’s best interests. Given C.’s age, the court will likely consider how to fulfill its mandate to ascertain her views and preferences regarding her parenting arrangement.
[25] If mother fails to meet the extension, the father may once again note mother in default and proceed with an Uncontested Trial, as swiftly as can be scheduled. Given the challenges presented by the current reduced court operations arising from the COVID crisis, I am granting an extension of 60 days, from the date this ruling is emailed to the respondent mother, rather than 30 days. As of the date of this ruling, the court administration remains accessible for these filing purposes.
COSTS
[26] Neither party has incurred legal fees. Therefore, no costs are payable by either party to the other.
CONCLUSION
[27] Based on the foregoing, I make the following interim order, with paragraphs 4 and 5 being on consent:
The noting of default against the respondent mother, J.T. is set aside. The relief sought in the applicant father’s draft order accompanying his Uncontested Trial is granted, on an interim rather than final basis, as amended by the court.
The respondent mother has 60 days from the date the court emails this ruling to her, to serve and file her responding materials. Short of a proven catastrophe, no further extension shall be granted. She may serve the applicant father by email and he shall acknowledge receipt immediately.
On an interim basis, the applicant father, E.C. shall have sole decision-making authority regarding the health, education and general well-being of C.C., born January 7, 2010.
The applicant father is at liberty to register C.C. in a school of his choice.
C.C. shall continue to be in the care of her current family physician, Dr. Bennachie.
The applicant father is at liberty to change C.C. physician, only if it becomes necessary, in her best interests, to do so.
The applicant father shall keep the respondent mother fully informed of all major decisions he makes regarding C.C.’s health, education and general well-being in a timely manner. The applicant father shall immediately notify the respondent mother of any change in C.C’s service providers or school.
The respondent mother shall have direct access to all health and educational information, both past and future.
The applicant father shall be entitled to apply for and obtain any and all government documents for the C.C. without the written consent or signature of the respondent mother.
C.C. primary residence shall be with her father.
C.C.’s contact with her mother shall be in the discretion of her father in terms of location, duration, frequency and supervision. This shall include telephone and video communication, if available. The parents shall devise a predictable schedule for all mother’s contact, which shall not include overnight parenting time.
The respondent mother shall be in a sober state when she has contact with C.C and shall refrain from the use of alcohol or drugs at least 12 hours prior to her contact with the child.
The respondent mother shall not attend at the child’s school for pick-ups or any other place the child might be, unless the applicant father has provided his prior written consent.
Both parents shall strictly comply with all applicable government and public health directives or laws, both current and future, regarding COVID-19, including enhanced personal sanitization, physical distancing, stay home directives, self-isolation or quarantine, to minimize the risk to C.C. and to themselves of contracting the virus.
No parent shall speak negatively about the other parent in front of the child. Mother’s communication with the child shall always be positive and child focused.
There shall be no order as to costs.
If the respondent mother files her materials within 60 days from the date the court emails her this ruling, then this matter is adjourned to RO Scheduling Court on June 11, 2020 at 10.00 am. to schedule a settlement conference.
If the respondent mother fails to file her materials 60 days from the date the court emails her this ruling, the applicant father is at liberty to note her in default and schedule another Uncontested Trial before me, without further notice to the respondent, as soon as can be accommodated when the court resumes normal operations.
Nicole Tellier, J.
Date: March 31, 2020