Court File and Parties
COURT FILE NO.: FS-19-19721 DATE: 20200422 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ashley Ann Thibert, Applicant AND: Gerald Thibert, Respondent
BEFORE: Pomerance J.
COUNSEL: Michelle DiCarlo, for the Applicant Michael Frank, for the Respondent
HEARD: April 21, 2020
Endorsement on Motion
[1] This is an application brought by father to have supervised access to his children. On November 13, 2019, I made an order directing that supervised access take place at the supervised access centre, New Beginnings. Since the closure of many services due to the COVID-19 crisis, New Beginnings is no longer offering that service. Father therefore seeks to have access supervised by a family member: his mother or his brother. Mother opposes the request on the basis that this will not adequately protect the safety of the children. The backdrop for this motion is that father faces trial on criminal charges of assault in February 2021.
[2] On April 8, 2020, I ruled that there was sufficient presumptive urgency to allow the hearing of the motion to take place by way of teleconference. My ruling included the following:
This case is complicated by a pending criminal trial, and a non-association order preventing the respondent from having contact with the applicant. I had requested that counsel obtain further information about the criminal charges as a pre-condition to ordering unsupervised access. Counsel for the applicant was taking steps to obtain a WAGG order but this process has been impeded by the current circumstances.
At present, it is uncertain how long the pandemic will force closure of the New Beginnings facility. I am of the view that, on its face, this request presumptively meets the test for urgency. There are two central concerns in this case. First, it is important to facilitate an ongoing relationship between the respondent and his child. Second, in light of the outstanding criminal charge and non-association clause, it is important to ensure that any access arrangements reflect the need to protect the safety of all family members. These joint concerns formed the basis for the requirement in my earlier order that there be access, but that it be supervised.
[3] Prior to the suspension of normal court operations due to COVID-19, I directed counsel that I needed more information about the criminal charges before I could make an order of unsupervised access, or access supervised by a family member. Counsel for mother was to obtain a WAGG order in anticipation of a hearing on March 30, but the hearing was suspended, and this did not occur.
[4] I have considered the affidavit material before me on this motion. As on earlier occasions, there is a stark conflict in the evidence of father and mother. The affidavit of mother, if accepted, describes a violent relationship with father, the adverse effects of which have impacted on the children. Mother’s affidavit has also called into question the suitability of the family members proposed to supervise access. Father’s affidavit describes a situation in which the children have had positive encounters with him at the New Beginnings centre. The allegations against him and his proposed family members are hotly contested.
[5] While I agreed to hear this motion based on urgency, I am in no better a position now than I was before to assess the safety concerns as they relate to the children in this case. Father has elected to remain silent about the criminal charges, as is his constitutional right. The WAGG order sought by counsel for mother has not yet been obtained.
[6] As a result of discussions during the motion heard today by teleconference, I direct the following:
- This matter is adjourned to be heard during the week of May 5, on a date and time to be scheduled by trial coordination.
- Prior to the next hearing date, counsel for Mr. Thibert shall obtain an electronic copy of the transcript of the preliminary hearing held in relation to the outstanding criminal charges. That transcript will be served on opposing counsel and filed electronically with the court.
- Both counsel shall consider whether there are other sources of information to assist in shedding light on whether access outside of the New Beginnings Centre would adversely affect the safety of the children. a. Mr. Frank may wish to consult with criminal defence counsel to determine whether he has any information about the criminal charges that would assist Mr. Thibert in his request for access. It will be for criminal counsel to assess whether sharing of any information is in Mr. Thibert’s interests as it relates to the criminal charges. It is open to Mr. Thibert to rely on his constitutional right to silence. b. Ms. DiCarlo may wish to consult the local Crown attorney or the investigating police officer to obtain information that would include: the reason for including the children in the non-association order; and whether there are specific safety concerns regarding the children.
- In the interim, Mr. Thibert shall have remote access visits with his children through the use of videoconferencing. Such videoconferencing will be facilitated by April Kuzniak, Ms. Thibert’s aunt, and Ms. Thibert shall not be present at the time such conferencing occurs. The non-association clause as it relates to Ms. Thibert shall be modified so as to permit Mr. Thibert to contact Ms. Thibert’s home for the purposes of exercising electronic access visits with the children. The time will be scheduled in advance so that Ms. Thibert can absent herself from the relevant area of the house before the visit commences. Such access will occur at least once a week, with the parties to consider whether two access visits per week can be arranged.
[7] There shall be no order as to costs.