COURT FILE NO.: 161/19 DATE: 2020-03-31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Frank Phipps, Applicant Brittany Petts, Respondent Colleen Petts, Added Respondent on the Motion
BEFORE: Madam Justice L. Madsen
COUNSEL: All Parties are Self-Represented
HEARD: By Teleconference
ENDORSEMENT -- COVID 19 PROTOCOL
[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice have been suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/. In accordance with that Notice, only urgent matters are being heard at this time.
[2] The Notice of the Chief Justice provides that “urgent and emergency” matters shall continue to be heard by the Superior Court of Justice during the suspension of operations due to COVID-19, and that urgency is “as determined by the presiding justice.” The Notice specifies that such matters may include requests for urgent relief relating to the safety of any child and urgent issues related to the wellbeing of a child. The preliminary determination of urgency is an exercise of judicial discretion.
[3] Brittany Petts [“the mother”], brought a motion on an urgent basis for the return of the parties’ child, J.P.-P., born April 28, 2011 [“the child”] to her care. The child had been in the care of Colleen Petts [the “maternal grandmother”], since March 18, 2020, without the mother’s consent. Neither the maternal grandmother, nor Frank Phipps [the “father”] were initially served.
[4] When the matter initially came before me as Triage Judge, I determined the matter to be urgent and required the mother to serve the father and the maternal grandmother, set a timeline for the filing of responding materials, and scheduled a hearing for today at 11:00 am by teleconference.
[5] I received the following materials in advance of the motion:
a. the mother’s notice of motion dated March 23, 2020, and accompanying affidavit; b. an unsigned typed statement provided by the maternal grandmother emailed to the court; and c. an unsigned email to the court provided by the father.
[6] In addition, court staff were able to provide me with a copy of a final court order dated May 18, 2017, an Application dated March 1, 2019, and a further final court order dated June 27, 2019.
[7] All three parties were sworn in by me on the record and I heard oral evidence on the motion to supplement the written materials.
[8] For the reasons set out below, I am ordering that the child remain in the care of his maternal grandmother on a temporary, temporary without prejudice basis, on the terms detailed in the order that follows.
[9] The following background is relevant:
a. By court order, the mother and father have joint custody, and the child resides primarily with his mother. The father has alternate weekend parenting time. b. The maternal grandmother has not been a party to the proceedings although I ordered that she be served for the purpose of this motion since the child is in her care.
[10] In summary, the mother provided the following evidence on the motion:
a. The mother lives with her boyfriend Nick Leyte, and the child. Mr. Leyte’s two daughters reside with the parties on alternate weekends; b. On March 18, 2020, the child was staying with the maternal grandmother. The maternal grandmother called the police because the child told her that Mr. Leyte put a sock in his “mouth.” The police attended the mother’s home and the maternal grandmother’s home. No charges were laid but the Children’s Aid Society was called. c. The maternal grandmother would not return the child to the mother after this incident. The child remains in the care of the maternal grandmother at this time. d. Mr. Leyte and the child “play-fight.” The mother says she has now told Mr. Leyte not to play-fight with the child anymore. The mother says that Mr. Leyte has never hurt the child or his own daughters. The mother says that this issue arises out of a misunderstanding. e. The mother and father argue, and when they do it can get loud. The mother knows they need to work on their relationship and says that they will do counselling. f. Family and Children’s Services of Waterloo Region (FACS) contacted the mother on March 27, 2020 and she was interviewed by phone. The mother spoke to a worker named Maria Stefen. The mother was not sure what the agency’s next step would be. She says she would like the CAS to investigate further. g. The mother has undiagnosed mental health issues and has breakdowns from time to time. The mother acknowledges that on December 20, 2019, she had a “mental breakdown” following which she went to the Grand River Hospital. She said she threatened to take her own life at that time. h. The mother says the maternal grandmother is coaching the child and speaks badly about her. The mother does not want the child to stay with the maternal grandmother at this time. i. The mother says she does not drink to excess and that she and Mr. Leyte do not use drugs. She says Mr. Leyte uses marijuana from time to time. j. In response to a question from the court the mother stated that she would not, on an ongoing basis, be able to comply with an order that Mr. Leyte not be left alone with the child. She says Mr. Leyte is helpful at home and that she would need his assistance when she goes back to work (she is a dental hygienist who cannot work at the moment because of COVID 19).
[11] In summary the father provided the following evidence on the motion:
a. The father does not want to interfere in the mother’s family life with Mr. Leyte and the child. However, he wants his son to be happy and believes that the child is not happy at this time. b. The child tells the father that Mr. Leyte punches him hard when mommy isn’t home. The child tells the father that mommy and Mr. Leyte fight too much and that Mr. Leyte squeezed mommy’s hand in the door and there was blood. c. The father had his regular weekend with the child from March 27 - 29, 2020. At the end of the weekend, the child went back to his maternal grandmother’s home, not to the mother’s home. d. At this time, the father is supporting the position of the maternal grandmother. e. The father has not yet been contacted by the FACS.
[12] In summary the maternal grandmother provided the following evidence on the motion:
a. The child lived with her for 8 of his 9 years. For the last three years, until December 2019, the mother and the child lived with her. For part of that time, Mr. Leyte lived there as well. The maternal grandmother has observed Mr. Leyte with the child. b. On March 18, 2020, when the child was dropped off for a visit, the child told her that Mr. Leyte had put a sock in his “throat.” She called the police. The police attended the home. At that time, she says that the child indicated he is afraid to go back to his mother’s home because Mr. Leyte hurts him. c. The police called FACS. The worker, Maria Stefan, interviewed the maternal grandmother and the child separately by video-conference. It is the maternal grandmother’s understanding that the FACS is continuing to investigate but that they are waiting to hear what the court will do. It is her understanding that FACS regards the child as safe in her care. d. The maternal grandmother says she observed the same behavior on the part of Mr. Leyte when he and the mother lived with her, and that it would happen when the mother was not there. The maternal grandmother said the mother and Mr. Leyte drink too much. e. The maternal grandmother would like Mr. Leyte removed from the mother’s home, and for the mother to address her alcoholism and mental health issues. She says the mother tried to commit suicide when the child was a baby, and that she threatened to again on December 20, 2019, after an altercation with Mr. Leyte. f. The maternal grandmother says she lives with three roommates, one who has lived there since before the child was born; another who has been there for six years; and a third roommate who has been there for a month and sleeps on the couch. She says he is leaving at the end of April 2020. There are two dogs in the residence.
[13] None of the parties to the motion provided a letter from FACS setting out the outcome of their investigation. As noted, they have interviewed the mother, the maternal grandmother, and the child, but have not yet met with the father.
[14] By court order, this child is to reside with the mother primarily. However, in the current circumstances, I am very concerned about returning the child to the mother’s care, without further investigation by FACS and without evidence about the child’s views and preferences. Specifically, I am concerned about:
a. the evidence that the child has told the father and his maternal grandmother that he is being hurt by Mr. Leyte, even if this is as a result of over-zealous play-fighting; b. the mother’s statement to the court that she would not be able to comply with an order that Mr. Leyte not be left alone with the child; c. the evidence (including from the mother herself) that the mother has undiagnosed mental health issues which have caused her sufficient anguish to recently threaten to take her own life; d. the evidence (including from the mother herself), that she and Mr. Leyte argue frequently; e. the allegations (not agreed to by the mother), that the mother drinks to excess when in a caregiving role.
[15] The court requires further evidence before being able to make a temporary order on the mother’s request to have her son returned to her care. Specifically, evidence regarding the outcome of the FACS investigation in this matter would be important. Evidence regarding the child’s views and preferences would also be very helpful.
[16] I make the following temporary, temporary, without prejudice order at this time:
- Colleen Petts is added as a party to this motion;
- The child shall remain in the care of Colleen Petts until further order of the Court;
- The father’s access shall continue in accordance with the order of Justice Breithaupt Smith dated June 27, 2019 at paragraph 1;
- The child shall be in the care of the mother on the weekends that he is not in the care of the father, on the condition that the child not be left alone at any time with Mr. Leyte;
- The mother shall not consume alcohol while in a caregiving role to the child;
- This matter may be returned to court on 7 days’ notice by the mother, the father, or the maternal grandmother as and when the outcome of the CAS investigation is known, on the provision of a copy of the closing letter or a letter setting out the extent of ongoing CAS involvement with the family; the matter would be returned to court by email to the following email address: Kitchener.Superior.Court@ontario.ca. The parties should indicate the name and court file number in the heading of the email.
- If the matter has not already been returned to court by that time, this motion is adjourned to June 9, 2020 at 9:30 am to be spoken to, at which time a date will be set for a continuation of the motion, and a timeline for updated materials;
- If it is Ms. Colleen Pett’s intention to offer a long-term home to this child, she will need to bring her own application in this matter, which application would logically be consolidated with the current court file. Presently there is no proceeding brought by her in relation to this child, only her motion materials seeking temporary care of the child;
[17] It is the understanding of the court that the Office of the Children’s Lawyer is not presently accepting referrals for Voice of the Child Reports. Such a report would be very helpful in this case. Court staff is requested to forward this Endorsement to the Office of the Children’s Lawyer as and when that office resumes accepting referrals for same. This Endorsement shall be deemed to be the required court order, given the current circumstances.
[18] This endorsement is effective when made. No formal court order is required.
L. Madsen J
DATE: March 31, 2020