Court File and Parties

COURT FILE NO.: 757/17 DATE: 2020-05-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sarah Castor, Applicant AND: Dennis Hazell, Respondent

BEFORE: The Honourable Madam Justice C. Lafrenière

COUNSEL: Mr. Jorge Saenz, Counsel, for the Applicant Mr. Sukanta Saha, Counsel, for the Respondent

HEARD: In Chambers

Endorsement

[1] AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice are 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/.

[2] For the moment, the court is prioritizing “urgent” matters. A supplemental Notice to the Profession dated April 2, 2020 sets out a narrow list of less urgent matters the court will attempt to deal with, as time and resources permit. (Further information is available in the April 7, 2020 “Protocol Regarding Family and Child Protection Matters in Central South Region”.)

[3] This motion was referred to me by the Triage Judge, Justice Pazaratz, who made a preliminary determination of potential urgency based on the Applicant’s Notice of Motion and Affidavit dated April 24, 2020.

[4] Justice Pazaratz set out timelines for filing of the Respondent father’s responding material and the Applicant mother’s reply material.

[5] I will refer to the Applicant as the mother and the Respondent as the father in this endorsement.

[6] Electronic materials were filed through the courthouse email address: Hamilton.Family.Superior.Court@ontario.ca. Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.

[7] The mother seeks an Order that her motion be heard on an urgent basis. She seeks an Order that Justice Chappel’s Order dated September 26, 2019 be complied with and that a police enforcement clause be added to the Order to ensure that she and her daughter share the time set out in the Order.

[8] The father has brought a cross-motion seeking an Order that Justice Chappel’s Order be changed to provide the mother’s access with Gaberia will be via Skype or other means of video conferencing available to the parties and that this form of access continue until Gaberia has completed abuse counselling and both Gaberia and the mother’s husband, Tom Arvantis have undergone reconciliation counselling.

[9] The father also seeks release of the CAS file but did not serve the CAS with this motion. The court cannot make an Order compelling the CAS to do anything in the absence of service on the CAS.

[10] The Temporary Order of Justice Chappel, dated September 26, 2019 and based on Minutes of Settlement, provides the mother’s access is as follows:

Week 1: Monday 3:30 p.m. to 5:30 p.m.; Thursday 3:30 p.m. to 6:00 p.m.; and, Sunday 1:00 p.m. to 4:00 p.m.

Week 2: Monday 3:30 p.m. to 5:30 p.m.; Saturday 1:00 p.m. to 4:00 p.m.; and, Sunday 1:00 p.m. to 4:00 p.m.

[11] The father acknowledges in his affidavit he has withheld access since April 13, 2020.

[12] I have received the following material and I have read all of it:

a. Notice of Motion and Affidavit of the mother dated April 24, 2020; b. Cross-Motion and Affidavit of the father dated April 28, 2020; and, c. Reply Affidavit of the mother dated April 30, 2020.

[13] There were a number of attachments to the Affidavits, as follows:

a. Mother’s Affidavit dated April 24, 2020 i Temporary without prejudice Minutes signed by the parties on September 26, 2019 and endorsement of Chappel J. on that date (Exhibit A); ii Final Order dated October 18, 2017 (Exhibit B); iii Temporary Minutes of Settlement signed by the parties on December 10, 2019 and endorsement of Lococo J. on that date (Exhibit C); iv Letter from Mr. Saha to Mr. Saenz dated March 3, 2020 (Exhibit D); v Letter from Mr. Saha to Mr. Saenz dated February 21, 2020 (Exhibit E); vi Letter from Ms. Tweedie, CAS, to Mr. Saenz dated January 24, 2020 (Exhibit F); vii Letter from Ms. Patil, CAS, to Mr. Saenz dated January 16, 2020 (Exhibit G); viii Letter from Mr. Saha to Ms. Patil dated January 21, 2020 (Exhibit H); ix Letter from Mr. Saha to Mr. Saenz dated April 13, 2020 (Exhibit I); x Letter from Ms. Tweedie, CAS, to both counsel dated April 23, 2020 (Exhibit J); and, xi Letter from Mr. Saha to Mr. Saenz dated April 21, 2020 (Exhibit K).

b. Father’s Affidavit dated April 28, 2020 i Temporary without prejudice Minutes signed by the parties on September 26, 2019 (Exhibit A); ii Letter from Mr. Saha to Mr. Saenz dated October 4, 2019 (Exhibit B); iii Letter from Mr. Saha to Mr. Saenz dated October 3, 2019 (Exhibit C); iv Letter from Mr. Saha to Mr. Saenz dated November 12, 2019 (Exhibit D); v Letter from Catholic Family Services to Mr. Saenz dated November 19, 2019 (Exhibit E); vi Letter from Mr. Saha to Mr. Saenz dated February 20, 2020 (Exhibit F); vii Letter from Mr. Saha to Mr. Saenz dated March 27, 2020 (Exhibit G); viii Email exchange between the mother and father on April 13, 2020 (Exhibit H); ix Letter from Ms. Tweedie, CAS, to both counsel dated April 28, 2020 (Exhibit I); x Letter from Mr. Saenz to Mr. Saha dated January 13, 2020; Letter from Mr. Saha to Mr. Saenz dated January 22, 2020; and, Letter from Mr. Saha to Mr. Saenz dated February 25, 2020 (Exhibit J); xi Email from mother to father dated March 24, 2020; xii Letter from Mr. Saha to Mr. Saenz dated March 26, 2020; Letter from Mr. Saenz to Mr. Saha dated March 27, 2020; and email from Ms. Swan to Mr. Saha dated April 24, 2020 (Exhibit L); and, xiii Letter from the CAS to the father dated August 9, 2019 (Exhibit M).

c. Mother’s Reply Affidavit dated April 29, 2020 i Information from Shalam Mental Health Network (Exhibit A); ii Biography of Betty J.B. Bouwer, MSc, RCAT, RP – Registered Psychotherapist and Director of Attachment Therapy at Shalam (Exhibit B); iii Letter from Ms. Tweedie, CAS, to Mr. Saenz dated February 5, 2020 (Exhibit C); and, iv Letter from Ms. Patil, CAS, to Mr. Saha and copied to Mr. Saenz dated October 25, 2019 (Exhibit D).

[14] The party’s materials are not sworn. In the circumstances, I have treated these documents as though they were properly sworn, and I attach to them all of the qualities and consequences of sworn evidence.

[15] The Chief’s Notice confirms that once all materials are filed, the judge hearing the motion will determine the manner of the hearing, whether it be in writing, by teleconference or by video conference.

[16] The court’s discretion to determine matters based on the written record has been confirmed by Regional Senior Justice Arrell in his Notice to the Profession in Central South Region, dated March 24, 2020.

[17] On April 30, 2020, I advised the parties I would allow the father to re-submit his Affidavit as I determined some Exhibits appeared to be missing:

a. The father states in his affidavit that Exhibits B, C, D and F are copies of exchanges of correspondence. As noted above, only one letter is attached in each of these Exhibits. b. The father states in his affidavit that Exhibit I are copies of correspondence between his counsel and Ms. Tweedie of the CAS. The letter attached dated April 28, 2020 is a letter from Ms. Tweedie to both counsel. c. I will allow the father’s counsel to re-serve and re-file the Affidavit dated April 28, 2020 with all of the Exhibits to which he has referred attached by 10:00 a.m. tomorrow morning. If I do not receive the April 28, 2020 affidavit with additional attachments by 10:00 a.m. tomorrow, I will rely on the father’s Affidavit and Exhibits that have been filed.

[18] I also advised the parties that having reviewed the materials I found that this matter can be dealt with based on the written record and that the hearing scheduled for Friday, May 1, 2020 is cancelled.

[19] The Chief’s Notice does not define urgency in family law matters but is described to include requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions or contact between the parties or a party and a child, or exclusive possession of the home) and urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues related to the wrongful removal or retention of a child.

[20] Having considered the developing caselaw, Justice Kurz made an attempt in his recent decision in Thomas v. Wohleber, 2020 ONSC 1965 (Ont. S.C.J.) to establish certain factors that might be considered by the court when determining whether a matter is truly urgent within the context of the Chief’s Notice, stating as follows:

In considering the dictionary definition of the term, urgent, the circumstances of urgency set out in the Notice, the examples of urgency offered in Hood and Rosen, and the cases cited above that apply the Notice’s test of urgency, I find that the following factors are necessary in order to meet the Notice’s requirement of urgency:

1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

[21] I find that the mother’s request for an order to have her access enforced by police if necessary and for make-up time to be urgent within the meaning of the Chief’s Notice.

[22] I received the additional attachments as Exhibits when the father re-submitted his Affidavit:

a. At Exhibit B: Letter from Mr. Saenz to Mr. Saha dated October 4, 2019; b. At Exhibit C: Letter from Mr. Saenz to Mr. Saha dated October 4, 2019 and Letter from Mr. Saha to Mr. Saenz dated October 11, 2019; c. At Exhibit D: Letter from Mr. Saenz to Mr. Saha dated November 11, 2019; d. At Exhibit F: Letter from Mr. Saha to Mr. Saenz dated March 3, 2020 and Letter from Mr. Saenz to Mr. Saha dated March 9, 2020; and, e. At Exhibit I: Letters from Mr. Saha to Ms. Tweedie (CAS) dated April 23 and 24, 2020.

[23] Justice Pazaratz stated as follows in his Triage Endorsement dated April 24, 2020:

I have not yet received responding materials from the father’s counsel. This is understandable given the fact that these motion documents were served on Mr. Saha today.

However, by coincidence, I have had extensive involvement with this family.

a. On January 10, 2020 I heard a contested motion. b. As a result I was apprised of the background, including the fact that there was originally a final order of joint custody/weekabout time sharing in relation to a female child who is now almost seven years old. c. In May 2019 that changed when Hamilton CAS intervened as a result of serious concerns about physical abuse by the mother’s partner, as disclosed by the child. d. Since then the child has been residing with the father. e. Pursuant to a temporary order of Justice Chappel dated September 26, 2019 (based on minutes of settlement) the mother has been having non-overnight access three times per week, on condition that her partner not be present or have any contact with the child. f. That time-sharing arrangement was not addressed or changed at the January 10, 2020 motion.

From today’s materials it appears that the father suspended the mother’s access on or about April 13, 2020.

g. He says the child disclosed that during three access days in April the mother allowed her partner to be present. h. The father initially advised the mother that he was suspending access while CAS investigated the matter. i. However, a letter from CAS dated April 23, 2020 sets out that the Society investigated the allegations – and spoke to the child – and that the allegations are “not verified.” j. However, the father’s counsel wrote to the mother’s counsel this morning advising that notwithstanding the CAS letter, the father still believes the mother has been allowing her partner to have contact with the child. k. As a result, even without receiving reply materials from the father, based on his lawyer’s letter, it appears that the father is indeed denying the mother access.

In the circumstances, I find that the issues raised in the materials before me are potentially urgent. This is a preliminary determination, without prejudice to either party on the ultimate hearing of the motion.

Given the subject matter – an ongoing denial of court-ordered access – this matter needs to be addressed by the court quickly.

The father shall be permitted until Wednesday April 29, 2020 at 10:00 a.m. to serve and file any responding materials. The mother may serve and file any reply by Thursday April 30, 2020 at 10:00 a.m.

The matter will be scheduled to be dealt with by a Judge on or after Friday May 1, 2020.

l. The Judge may decide to conduct a hearing by teleconference involving counsel (who may arrange for their clients to be on the line as observers). In that event, counsel will be advised by the court as to the date and time of the teleconference. m. However, after reviewing the file, the Judge may determine that it is more appropriate to deal with the matter based solely on the written materials, without a teleconference. In that event, counsel will be forwarded a copy of the Judge’s written decision. n. The judge dealing with the matter will make a formal determination as to whether the materials filed – and any responding materials – raise any issues which meet the threshold of being “urgent”, as required in the Notice to the Profession. If urgency has been established, the Judge will make any necessary orders.

Before we go any further, I would ask the parties and their lawyers to carefully reflect on a number of issues which will likely arise if a hearing by teleconference is scheduled.

o. Paragraph 6 of the September 26, 2019 consent temporary order stated that the parties are to follow the Society’s recommendations in relation to the mother’s partner’s contact with the child, overnights and any other recommendations, along with the recommendation of the child’s counsellor. I note that in a January 16, 2020 letter CAS advised that the child wishes to have more access to the mother, and the Society was approving an expansion of access to include one overnight each week. Clearly, CAS doesn’t have the authority to unilaterally change orders. But CAS appears to have had extensive involvement with this family, so any observations or recommendations by the Society may end up being factored into the court’s analysis. Counsel should be prepared to address this. p. I recall that at the January 10, 2020 motion there was discussion about the need for reconciliation counselling, and this was supposed to have been arranged as set out in Justice Lococo’s endorsement of December 10, 2019. The Society urged the parties to pursue counselling by letter dated February 5, 2020, and in their April 23, 2020 letter the CAS reminded the parties that it is important that counselling occur. Counsel should be prepared to explain what progress has been made in arranging this vitally important counselling. q. I have significant concerns about the high conflict nature of this file, and the strident letters exchanged between counsel. The parties should clearly understand that the court expects orders to be complied with, and this cuts both ways: If a parent feels the other parent is not complying with a court order, they should take appropriate steps to have the issue dealt with by a judge, rather than resorting to self-help or unilateral action. r. The letter from the father’s lawyer this morning identifies that the main reason for a denial of in-person access is concern about the mother’s partner. As an aside, the letter makes reference to COVID-19 concerns. In relation to the latter issue, I would urge counsel and the parties to review this court’s endorsement in Ribeiro v. Wright 2020 ONSC 1829.

[24] In Ribeiro v. Wright, Justice Pazaratz stated the following:

The health, safety and well- being of children and families remains the court’s foremost consideration during COVID-19. This is an extremely difficult and stressful period for everyone.

On the one hand, in this case there is an existing parenting order. There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.

On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.

Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID- 19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.

In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.

And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

Each family will have its own unique issues and complications. There will be no easy answers.

But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.

Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system. Despite extremely limited resources, we will always prioritize cases involving children. But parents and lawyers should be mindful of the practical limitations we are facing.

If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.

We will deal with COVID-19 parenting issues on a case-by-case basis.

a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols. b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc. c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.

Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

In family court we are used to dealing with parenting disputes. But right now it’s not “business as usual” for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don’t take parenting responsibilities or COVID-19 seriously.

I have carefully reviewed the materials filed on this case. Even in the absence of responding materials from the father, I have had the benefit of considering the e-mails he exchanged with the Applicant’s lawyer in relation to COVID-19 considerations.

While the mother’s concerns about COVID-19 are well-founded, I am not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.

Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day.

e. The disruption of our lives is anxiety producing for everyone. f. It is even more confusing for children who may have a difficult time understanding. g. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner. h. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance. i. Right now, families need more cooperation. And less litigation.

I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.

My denial of authorization to proceed with an urgent motion is without prejudice to the issue being returned to court if more serious and specific COVID-19 problems arise. Any future motion would again have to be reviewed by the Triage Judge. However, I hope that both parents will understand the limitations of the family court process at this critical time.

None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.

[25] I have cited this lengthy passage from the Ribeiro endorsement because it is important that the parties understand why Justice Pazaratz referenced his decision.

[26] It is important that the parties realize that when this health crisis is over and regular court operations resume, there will likely be considerable scrutiny regarding their actions and parenting decisions during the suspension of regular court operations.

[27] Parents may be in a position to gain an advantage because of the suspension of court operations, but those parents are well advised to consider the long-term consequences of their actions. The court may have no difficulty determining which parents simply took advantage of the situation and which parents were able to put the needs of their children first.

[28] Parents’ actions during this situation will be powerful and persuasive evidence of their ability to protect and promote the other parent’s relationship with the child. The court must determine which parent is better able to protect and promote the other parent’s relationship with the child, when deciding which custodial and residential arrangements on a final basis are in the child’s best interests.

[29] As noted above, I am satisfied the mother’s motion is urgent and must be dealt with immediately.

[30] I rely on the factual findings set out by Justice Pazaratz and make the following additional findings:

a. The parties were never married; b. The have one child together: Gaberia Mae Hazell born May 8, 2013; and, c. On October 18, 2017, I granted a Final Order based upon Minutes of Settlement which provide the parties share joint custody of Gaberia and she resides equally with her parents on a week about basis.

[31] I am concerned that the father is not promoting and protecting Gaberia’s relationship with her mother and that the actions he has taken have had the opposite impact. I find he is undermining Gaberia’s relationship in a number of ways. I rely for the most part on the father’s own statements in his affidavit.

[32] The facts I have relied on to make my finding that the father is not promoting Gaberia’s relationship with her mother are:

a. He cancelled a visit on February 15, 2020 and refused to provide a make up visit; b. He has not cooperated in securing counselling for Gaberia; c. He has not followed the recommendations and directions of the CAS with respect to supervised access visits with Mr. Arvantis and overnight visits for the mother in the absence of Mr. Arvantis; d. He determined he would withhold access as of April 13, 2020 and has continued to do so to date despite the fact that the allegations he made to the CAS were not verified as the CAS confirmed on April 23, 2029; and e. The father is questioning Gaberia, as a matter of routine, about the time she spends with her mother, upon her return to his care.

[33] I have a lot of concerns about the language the father uses in his affidavit and the language his counsel uses in correspondence with the mother’s counsel and the CAS.

[34] The father states he “disallowed” the mother’s access at Thanksgiving and he will “withhold” access if he gets the impression that his daughter’s safety is being jeopardized.

[35] The father is not in a position to allow or disallow the mother’s time with Gaberia. There is a court Order in place. The father is in breach of that Order. The mother has not sought a finding of contempt of the Order, presumably because motions for contempt are not matters that are to be heard during the suspension of regular operations.

[36] If the mother had been able to bring a contempt motion, I would have no difficulty making the finding because the father states in his affidavit he is not complying with the Order, at paragraph 22:

Given the above, I made the decision on Monday, April 13, 2020, to withhold access. The Applicant alleges that she went to the Access Exchange place on this particular day. That simply cannot be true. I notified her well before the access visit was scheduled to start that I would be withholding access.

[37] The father has taken unilateral action which will not be condoned by the court.

[38] It is important to emphasize the father does not have sole custody of Gaberia. The existing Final Order provides the parties share joint custody. The Temporary Order of September 26, 2019 provides the father has primary residence of Gaberia on a without prejudice basis.

[39] The father states at paragraph 18 of his affidavit:

Although I have no intention of violating court orders, I will withhold access if I get the impression that my daughter’s safety is being jeopardized.

[40] Decisions about the best interests of children are not made based on a person’s impressions but on trustworthy and reliable evidence.

[41] I have concerns about the reliability of the father’s evidence because despite his assurance at the beginning of the affidavit that he will identify the source of information that is not as a result of his direct knowledge and that he will state his belief the information is true, he does not do so consistently in the affidavit.

[42] It is clear the father has no direct knowledge of the allegations he makes.

[43] He could not possibly have direct knowledge because he makes assertions as to what is happening during the mother’s access and he is not present during the access. The only source of information available to the father other than the mother is the child.

[44] It is obvious the father is questioning the child and engaging her in conversation about what is happening during the access with her mother. The father states at paragraphs 53 through 58 of his affidavit,

53. The Applicant, in her materials, have made allegations that I have interrogated Gaberia and I have caused her a significant amount of stress. I emphatically deny these allegations.
54. Gaberia and I share the same place of residence and we also have a substantial father-daughter relationship. Whenever, Gaberia leaves our home and then returns from visits with her mother, paternal grandmother, friends, etc., I always ask her three questions: (1) “What did you do?”; (2) “Did you have fun?”; and (3) “Did you eat something?”
55. The third question, in particular, is important for me as I need that information in terms of meal preparation for Gaberia.
56. On repeated occasions, I have noticed that even before I get an opportunity to ask my three questions, Gaberia returns from an access visit with the Applicant and appears to be stressed and upset.
57. Again, before I ask my three questions, Gaberia tells me about the Applicant’s violations of court order of the Honourable Madame Justice Chappell dated September 26, 2019. She appears to be especially concerned about the appearance of Mr. Arvantis.
58. I agree that Gaberia is under stress. However, this stress has been caused by the interactions between Gaberia and the Applicant, as opposed to myself.

[45] Questioning Gaberia about whether or not she ate anything suggests to her that the father is concerned her basic needs may not have been met during the time she was in her mother’s care. The questioning is a means of subtly messaging Gaberia that he has concerns about what happens when she is with her mother. I am prepared to give the father the benefit of the doubt and accept that he may not understand the impact of his actions.

[46] I urge the father to seek out some information with respect to appropriate communication with Gaberia. The three questions as he describes them are not appropriate. The father has established a routine in which Gaberia can expect she will be required to answer these three questions upon her return from her time with her mother. The suggestion that the father must ask if Gaberia ate anything to plan her meals is not credible. There are many other ways of ascertaining whether Gaberia is hungry and what meal should be prepared for her.

[47] Similarly, when the father cancelled the mother’s access occasion because Gaberia was ill he messaged to her that the mother could not adequately care for her when she is ill and that she needed to stay with him. Unless a child is so ill that she is confined to her bed, access should not be disrupted because of the child’s illness. Parenting includes looking after all of a child’s needs. Taking care of a sick child is a very good nurturing opportunity for the parent and child.

[48] I am concerned by the father’s refusal to provide a make-up visit for the one he cancelled. The father’s counsel stated in his letter dated February 25, 2020:

Regrettably, Gaberia was ill on Saturday, February 15, 2020, so my client had no alternative but to cancel the access visit. It appears that Gaberia had flu-like symptoms. While my client’s action may appear to be “unilateral” to your client, my client has and always will look after the best interest of his daughter.

Furthermore the access visit ON THE FOLLOWNG DAY (i.e. Sunday February 16, 2020) took place as scheduled.

As I am sure you are aware there is no obligation to provide your client with a make up visit when an access visit is cancelled due to the illness of the child. As such, there will be no make up visit.

[49] A unilateral parenting decision is one that is made without input or consultation with both parents. Unless the father spoke with the mother and secured her agreement to forgo the visit, he made a unilateral decision. His belief he did so in the best interests of his child does not change that fact.

[50] As noted above, the father does not have a custody Order. He has conducted himself as if he has the authority of a sole custodial parent.

[51] The father does not have the authority to make unilateral decisions. His lawyer appears not to be aware of that fact.

[52] Further, I am not aware of any principle in law that provides an access visit cancelled by the residential parent need not be made up because the cancellation was due to the child being ill.

[53] The father’s position on this make up visit, encouraged clearly by his counsel, is not a child focused one. If the father was promoting and protecting Gaberia’s relationship with her mother, he would be ensuring that this time is made up. Gaberia’s reality until May 2019 was that she resided equally with each of her parents.

[54] For legitimate reasons, the mother’s time with Gaberia has been significantly curtailed. I am concerned by the father’s obvious intention of further limiting the already quite limited time Gaberia shares with her mother.

[55] Such action is not in Gaberia’s best interests.

[56] The father would be well advised to consider the parenting stance he has taken to date. The court will be persuaded by his actions that he should not be entrusted with sole custody which I take to be his object given the reference in Ms. Patil’s letter to Mr. Saha dated October 25, 2019 in response to Mr. Saha’s letter dated October 11, 2019, that the Society takes no position on the father’s claim for sole custody.

[57] Ms. Patil confirms in this letter that the mother has signed the Consent Form to release CAS records and she enclosed the Consent Form that the father needed to sign.

[58] Also in this letter, Ms. Patil states that the Society is recommending Gaberia have two visits with Mr. Arvantis in his home supervised by a Society worker “to properly assess an access trajectory that is in the best interests of Gaberia.” Ms. Patil reminded the father’s counsel of paragraph 6 of the MOS dated September 26, 2019 which provide the parties are to follow the Society’s recommendations as it relates to Mr. Arvantis’ contact with Gaberia, overnights and any other recommendations that the Society may have along with the recommendation of Gaberia’s counsellor.

[59] Gaberia has not had the two supervised access visits as recommended by the CAS nearly six months ago.

[60] The father’s counsel advised the mother’s counsel by letter dated November 12, 2019 that paragraph 6 was not being interpreted correctly by the mother and her counsel.

[61] Mr. Saha stated that the parties are obliged to follow the recommendations of Gaberia’s counsellor as well. Mr. Saha then stated that:

Gaberia’s counsellor is opposed to access visits for Mr. Arvantis. Gaberia’s counsellor takes the position that your client and Gaberia are currently undergoing reconciliation therapy and to introduce Mr. Arvantis, at this point, would adversely affect Gaberia’s recovery.

[62] Mr. Saha invited Mr. Saenz to speak with the counsellor directly.

[63] On November 19, 2019, Ms. Sharkar wrote to Mr. Saenz and copied her letter to Mr. Saha.

[64] Ms. Sharkar stated:

Next steps in this matter involves holding off further counselling with Gaberia until the outcome of access and visitation · with Mr. Arvantis is determined as the outcome may impact our current counselling , focus. This writer will momentarily hold a one-time session with Gaberia t o trans i tion her and discuss the temporary hold on her file. Gaberia Hazell's file will be reassessed once additional information is provided.

[65] Ms. Sharkar does not state in this letter that she is recommending there be no access between Mr. Arvantis and Gaberia, on the contrary, she says the counselling should be put on hold until after the outcome of access with Mr. Arvantis is determined.

[66] There is no evidence in this record to justify the father’s refusal to follow the Society’s recommendation and cooperate with the two supervised access visits for Gaberia with Mr. Arvantis.

[67] On January 16, 2020, the Society recommended the mother’s access be increased to include one overnight visit each week on the condition that Mr. Arvantis not be present.

[68] The father has not cooperated with the mother to follow the Society’s recommendation to increase her access.

[69] The father stated through his counsel by letter dated January 22, 2020, that he disagreed with the entire contents of the CAS letter recommending the expansion of access to include overnights. The father’s counsel goes on to state the CAS has discretion to make recommendations with respect to Mr. Arvantis’ access and because the CAS is recommending overnight access for the mother without Mr. Arvantis being present the CAS is “outside their discretion.” Mr. Saha continues that a recommendation from a counsellor has not yet been received and that paragraph 6 of the September 26, 2019 requires one.

[70] The father’s position with respect to the CAS recommendations is untenable. The conditions that the father has imposed regarding paragraph 6 are not credible. Firstly, the parties cannot determine what the CAS will or will not do. The parties cannot say we only want recommendations from the CAS regarding Mr. Arvantis’ access. Such an interpretation is not possible on a plain reading of the paragraph.

[71] If the parties intended the recommendations of the CAS did not have to be followed if a conflicting recommendation was received from Gaberia’s counsellor, they could have so stated in the Minutes. They did not.

[72] What is particularly troublesome is that the father knew full well on January 22, 2020 there was no counselling arranged for Gaberia. I conclude the father was attempting to delay the expansion of the mother’s access by taking this position.

[73] In the letter dated February 25, 2020, the father’s counsel renewed his request for the mother’s consent to allow the father to speak to Gaberia’s former counsellor to obtain a reference for a new counsellor.

[74] The mother advised through counsel on January 13, 2020 she had contacted a counsellor through Shalam Mental Health Network. The mother states this service was recommended to her by Ms. Sharkar.

[75] Ms. Tweedie recommended the parties contact Gaberia’s former counsellor through Catholic Family Services or Shalam on February 5, 2020.

[76] There is no justification on the record before me for the delay in arranging the counselling.

[77] I find it is the father who is delaying the organization of this service for the child and that he is trying to lay the blame on the mother.

[78] There is no obligation on the mother to come up with suggested counsellors and present them to the father.

[79] There is a mutual obligation on the parties to organize this counselling for Gaberia as they agreed in the Minutes of Settlement signed on December 10, 2019:

Gaberia shall attend reconciliation counselling with her current counsellor, Aklima Sarkar with Catholic Family Services of Hamilton to facilitate reintroducing the Applicant mother’s current spouse, Mr. Tom Arvantis. The parties shall ensure Gaberia attends counselling and shall encourage her to attend such. Should the above noted counsellor not be able to facilitate reconciliation counselling, the parties shall agree on another counsellor forthwith.

[80] The father, through his counsel in a letter dated January 22, 2020, rejected the mother’s suggested counsellor stating she is “ill-equipped” to deal with this situation and that Gaberia required a counsellor who specializes in child abuse.

[81] The father’s position also set out in the letter that there should be no overnight visits until Mr. Arvantis and Gaberia have completed reconciliation counselling.

[82] No such condition is set out in the September 26, 2019 Order.

[83] The father’s current position as set out in his cross-motion is that the mother’s access should be by Skype only until Gaberia has completed abuse counselling and she and Mr. Arvantis have completed reconciliation counselling.

[84] The father’s position seems to be based on his belief that the mother has included Mr. Arvantis in the access occasions and will continue to do so.

[85] The father has had the benefit of the Society investigating this allegation, but he is not satisfied. The father has made it clear that he will be the final decision maker as to whether or not Gaberia sees her mother and will not follow the recommendations of the CAS if he does not agree with the recommendation.

[86] Mr. Saha stated in his letter to Mr. Saenz dated April 13, 2020:

All of the above are serious allegations which should be investigated by the Children’s Aid Society of Hamilton (CAS). My client has already contacted the CAS to ask for an investigation. Until such time as the CAS completes its investigation and reaches a conclusion that Gaberia is no longer in a position of danger, my client shall withhold access effective immediately. (In the original the underlined words were bolded.)

[87] The Society concluded its investigation and Ms. Tweedie reported to the parties on April 23, 2020. The Society did not verify the allegation that Mr. Arvantis was present during the mother’s access on April 6, 11, and 12, 2020.

[88] Ms. Tweedie reminded the parties the December 10, 2019 Order provides the child is to attend counselling and that Ms. Tweedie had made some recommendations with respect to who could be retained in her letter dated February 5, 2020. Ms. Tweedie asked for an update as to the efforts made to secure counselling for the child.

[89] Ms. Tweedie stated in the February 5, 2020 letter:

I have gleaned from a letter dated November 19, 2019 from Catholic Family Services addressed to you and provided to the Society by Mr. Saha on November 21, 2019, that Catholic Family Services put the child’s file temporarily on hold until the outcome of access and visitation with Mr. Arvantis was determined. If you are in need of recommendations for counselors, I suggest you contact the child’s former counselor at Catholic Family Services, and Shalam to seek their suggestions. Two other resources would be Lourdes Geraldo MSW, 905-527-7317, and Michelle Hayes MSW 905-667-1999, Successfulfamilies.ca.

[90] There is absolutely no justification for the father to take the position that he will withhold access until the Society completes its investigation and concludes Gaberia is no longer in a position of danger. There has been no finding that Gaberia is or has been in danger in her mother’s care.

[91] Even more troubling is the fact that when the CAS completes its investigation the father refuses to accept the CAS findings and criticizes the CAS.

[92] There is no justification for the father’s denial of the mother’s access as set out in the Order dated September 26, 2019.

[93] There is no question that the father is in contempt of the Order dated September 26, 2019. He acknowledges he is. Given the fact that the father believes it is appropriate to take matters into his own hands without seeking the assistance of the court, I will make the Order requested by the mother that there be a police enforcement clause added to the Order made on September 26, 2019. I am always reluctant to make police enforcement Orders which would subject the child to being collected by police officers from the father and delivered to the mother. Whether or not Gaberia must experience such a traumatic experience is entirely within the father’s control.

[94] The mother has asked for make up time for the time she has missed since April 13, 2020.

[95] I find make up time is in Gaberia’s best interests.

[96] Currently due to the COVID-19 pandemic, Gaberia is not attending school.

[97] I will provide in my Order that Saturday, May 2 is part of Week 2 in the schedule in the September 26, 2019 Order, such that Gaberia will share time with her mother on Saturday, May 2 and Sunday, May 3, 2020.

[98] To make up the time lost, I will provide that the Monday and Thursday access in Week 1 commence at 1:30 p.m. and the Monday access in Week 2 commences at 1:30 p.m. I will also increase the weekend times by having the Saturday access in Week 2 and the Sunday access in Weeks 1 and 2 begin at 11:00 a.m. and end at 6:00 p.m. I am not putting a time limit on the new access regime.

[99] The father is ordered not to question Gaberia about her time with her mother. If Gaberia initiates a conversation about her time with her mother, the father will use his parenting skills to quickly end that conversation and distract Gaberia by discussing another topic with her.

[100] The mother has been entirely successful, and she should not have had to bring this motion. She is presumptively entitled to her costs and I encourage the parties to negotiate a resolution on this issue.

[101] Therefore, my Temporary Order is as follows:

a. Order to go in accordance with paragraphs 1 through 7 of the Applicant mother’s urgent motion. b. The make up time will be provided by adjusting the current access times as set out in the Order of the Honourable Madam Justice Chappel as follows:

Week 1: Monday 1:30 p.m. to 6:00 p.m.; Thursday 1:30 p.m. to 6:00 p.m. and, Sunday 11:00 a.m. to 6:00 p.m.

Week 2: Monday 1:30 p.m. to 6:00 p.m.; Saturday 11:00 a.m. to 6:00 p.m.; and, Sunday 11:00 a.m. to 6:00 p.m.

c. Mr. Arvantis shall not be present during the mother’s access with Gaberia. d. The father shall not question Gaberia about or discuss with her any aspect of Gaberia’s time with her mother. e. The claims made by the Respondent father at paragraphs 2, 3, and 4 of his cross-motion are dismissed; f. By Friday May 8 th the parties are to advise me through counsel by way of letter what progress has been made to arrange counselling for Gaberia. g. If costs are in issue , and, as a result of COVID – 19 and the suspension of regular court operations at this time, written submissions may be filed as follows:

i. The Applicant mother may serve and file her submissions by July 10, 2020; ii. The Respondent father may serve and file his responding submissions by July 31, 2020; and, iii. The Applicant mother may serve and file any reply submissions by August 14, 2020. iv. The schedule for filing costs submissions is subject to change and if there must be a change, the parties and counsel will be notified by the Trial Office.

Date: May 1, 2020