Court File and Parties

COURT FILE NO.: 433/19 DATE: 20200417 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cameron Douglas Jennings, Applicant AND Allison Samantha Thompson, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Beth Ambury, for the Applicant Judith Millard, for the Respondent

HEARD: April 17, 2020

Endorsement

Nature of the Hearing

[1] This is the applicant father Mr. Jennings’ motion to place restrictions on the respondent mother Ms. Thompson’s access, heard by way of teleconference given that in-person hearings of the court are suspended until further notice as a result of the COVID-19 pandemic.

[2] A finding of urgency was previously made by me: Jennings v. Thompson, 2020 ONSC 2236. That decision also addressed the process, referring to the relevant Notices to the Profession.

[3] I have reviewed the affidavits of Mr. Jennings dated April 8, 2020, Ms. Thompson sworn April 15, 2020, and the reply affidavit of Mr. Jennings dated April 16, 2020, as well as heard submission from counsel.

Facts

[4] The parties separated in July of 2019. They are parents to two children, Lily age 3 and Lucy age 1. The children have been residing primarily with the father, with access to the mother.

[5] The father asserts that the mother has severe mental health issues, including being diagnosed with borderline personality disorder and depression. He indicates that she has threatened suicide three times and attempted it twice in the past three years. The mother admits to having both diagnoses, and that she was hospitalized in November of 2019 following an overdose of pills. She explained that she had just experienced a traumatic event, namely being sexually assaulted by her ex-partner. She says she currently does not have suicidal thoughts. In her affidavit she says “I discontinued taking my [depression] medication and my psychiatrist confirmed that I do not need it at this time”. Inconsistently she also said “I am currently taking 100 mg of Sertraline daily … to help with my Mental Health issues and my seizures.” She adds that she is being followed by her family physician, psychiatrist, and the Neurology Department at Kingston General Hospital, for her “seizures and mental health concerns.”

[6] As noted, the mother has a significant problem with seizures. She indicates that she was having them approximately six times each week.

[7] Notwithstanding the above concerns, at the case conference on January 16, 2020, I made a temporary without prejudice order on consent that provided the mother with weekly access on Tuesdays and Thursdays from 10:00 a.m. to 4:30 p.m. and Saturdays from 10:00 a.m. to Sundays at 10:00 a.m. There were no access conditions, however the mother was residing at a woman’s shelter at the time, where other people would be around. The order also required the mother to disclose her medical file from her family physician, including mental health attendances and assessments. The application was adjourned to a settlement conference on March 20, 2020, but has since been adjourned to June 9, 2020, to be spoken to only, pursuant to the local Notice to the Profession.

[8] Since the case conference the mother continued having seizures, at times requiring her access to be cancelled. The parties were cooperating, and often make-up visits were arranged. The mother has to some degree minimized the severity of the seizures stating that they “come on with a few minutes warning and they usually last approximately 2 minutes.” However, she was taken to the hospital regarding the second most recent one, on February 26, 2020. The worker at the woman’s shelter had to call the father.

[9] The mother claims that she has been on new medication since early March 2020 and has seen a significant improvement with only one seizure. The ordered medical (and mental health) disclosure was just received by the parties with no opportunity to review it for this hearing. There is therefore no medical evidence before me. The mother indicates that she is making arrangements to put a medical alert system in place as part of her safety planning.

[10] On March 25, 2020, amid the COVID-19 crisis, the mother moved out of the woman’s shelter indicating that she was concerned that the other residents were not practicing social distancing. By agreement she went a period without seeing the children because she was self-isolating.

[11] On April 2, 2020, the mother moved into a new home with her new partner C. K. Mr. K is approximately 30 years old and was previously convicted of sexually assaulting his younger sister when he was 18 and she was 12. He received a sentence of 6 months incarceration followed by two years probation. The local Children’s Aid Society (“CAS”) has provided a letter to Mr. K -- put in evidence by both parties – dated April 1, 2020 which quotes from a letter it authored dated January 19, 2017, as follows: “[a] thorough review of your history, as well as information received from other service providers led to our finding that you pose a low risk of harm to any child with whom you may be involved.”

[12] I am advised that the sexual interference incidents occurred over a period from 2008 to 2011, so they started when Mr. K was 18 and ended roughly three years later. He was convicted in 2015. The CAS investigation resulting in the low risk finding concluded in early 2017. His probation ended in April of 2017. It has therefore been about 9 years since the criminal activity, and Mr. K has been having access to his own daughter and step-daughter. The new CAS letter confirms that it does not have any current child protection concerns.

[13] The father is concerned about Mr. K as well as the other adults living in the mother’s home, namely Mr. K’s roommate Virginia Ryan and her friend Shawn Marchen. However, the mother indicates that neither have a child protection history or criminal convictions concerning children, and all of them, including Mr. K, have the applicant’s cell phone number and are under instructions to call him if she has a seizure. The mother adds that Ms. Ryan has agreed to be in attendance during all her parenting times.

[14] The father has allowed access at the mother’s new home with Mr. K present, although he has not allowed the Saturday overnight to Sunday morning. He is now of the view that the risks of further unsupervised access are too great. Both parties have been in recent contact with the CAS, so it is aware of the current situation.

Positions

[15] The father is seeking to amend the interim without prejudice order of January 16, 2020, by reducing the mother’s access on the weekends to Saturdays from 10:00 a.m. to 6 p.m. (from the current Saturdays from 10:00 a.m. to Sundays at 10:00 a.m.). He also wants the visits to occur outside of the mother’s home, either at her mother’s home, his home, his mother’s home, or the home of the child’s previous baby-sitter. He seeks a requirement that each of those people remain present during access and be under instruction to call him if the mother has a seizure. Lastly, he seeks a blanket order that the children have no contact with Mr. K. The mother, while she is not averse to some minor access conditions, seeks to have the father’s motion dismissed.

Law

[16] The parties never married. This case is therefore governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Section 72 allows the court to make an interim order “as the court considers appropriate”. I apply the test found in section 24(1) which indicates that the merits of the application itself shall be determined on the basis of the best interests of the children in accordance with subsections 24(2), (3), and (4). Subsection 24(2) directs me to consider all of the children’s needs and circumstances with specific items mentioned; not all are applicable to access although that list is not exhaustive.

Analysis

[17] While the court processes have been affected by the current pandemic, this is not a COVID-19 case. It is not driven by concerns about the mother failing to take proper precautions in the children’s best interests related to that virus. Indeed, the evidence of both parties establishes that the pandemic is a concern that they share, and both are managing appropriately.

[18] The mother has also acted responsibly in putting her children’s best interest before her need for access in view of her health issues, even though she has at times somewhat understated the severity of those issues.

[19] The father has legitimate concerns, and for the most part they have been addressed by the mother, although not to his satisfaction. Indeed, the court too still has questions about the people living in the home and the mother’s medical condition. However, it cannot lose sight of the fact that the mother’s care of these children is currently only that of an access parent. Her issues were known at the time of the case conference, and there is no indication that her health has deteriorated since. Even though she continued to have seizures, the father did not bring his urgent motion until her living situation changed. This is all about the safety plan. The existing order left that to the mother to manage. The father is no longer content with that arrangement, taking a different view of what it should be.

[20] The parties have been sidetracked somewhat by the focus on Mr. K. Yes, the mother’s relationship with him is brand new and untested by time. Yes, he has a criminal record. But again, the mother is only having access. There is no need at this stage for Mr. K, or anyone else for that matter, to be in a caregiving role with respect to these children.

[21] In my view the evidence does not establish that a drastic change to the existing access order is required in the children’s best interests. All that is needed is some tweaking to articulate the safety plan and provide some additional protection for the children in view of the mother’s recently changed living situation. I would eliminate the overnight access for now until further information about her health and her co-tenants is available; that is a small reduction in time overall. I would not, however, impose the other restrictions sought by the father. Simply put, the mother knows that she must keep her children safe, and there is no evidence that she has failed in that regard. Based on the evidence of her recent conduct, I trust the mother to protect her children as indeed the father too has in the past, and in my order I am essentially adopting her safety plan.

Decision

[22] The order of January 16, 2020 shall continue, still on a without prejudice basis, with the following changes:

a) Paragraph 1 b. shall be deleted. The respondent shall now have access on Saturdays from 10:00 a.m. to 7:30 p.m.

b) The respondent shall ensure that the children are not left in the care of anyone other than herself during her access.

c) The respondent shall ensure that another adult is always present while she is caring for the children, and that this person has been given the applicant’s telephone number and has agreed to call him immediately if the respondent suffers a seizure.

[23] I thank counsel for their assistance in the orderly hearing of this matter in all the circumstances. The success on this motion was divided, in my view almost evenly. Therefore, no order as to costs.

Mr. Justice Timothy Minnema Date: April 17, 2020