Court File and Parties
COURT FILE NO.: FC-185-20 DATE: May 11, 2020
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BRITTANY SOARES, Applicant Mother AND: CARY KILGOUR, Respondent Father
BEFORE: Madam Justice J. Breithaupt Smith
COUNSEL: E. Carroll for the Applicant Mother, Brittany Soares No one appearing for the Respondent Father, Cary Kilgour
HEARD: May 4, 2020 by Zoom Videoconference
ENDORSEMENT -- COVID 19 PROTOCOL
(Motion and Cross-Motion argued May 4, 2020)
1AS 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/
Procedural Background
2In accordance with the Regional Notice to the Profession dated March 24, 2020 and the Protocol for Central South dated April 7, 2020, electronic materials were initially filed by the Applicant Mother, Ms. Brittany Soares, (“Mother”) on April 21, 2020. Those materials had not been served upon the Respondent Father, Mr. Cary Kilgour, (“Father”). On April 22, 2020 Triage Judge Madsen found this matter to be urgent and referred it to me for determination on the merits. Also on that date, Madsen J. issued the 14D Order made on Motion without Notice (“14D Order”) which provided the following substantive relief on a temporary, without prejudice basis:
a. placement of the then three-week-old baby (“Baby L.”) with Mother; b. access between the child and Father as the parties may agree in writing; c. restraining order; d. police assistance clause; e. alternatives for service of the materials upon Father; and f. timelines and next steps.
3In her original materials, Mother sought the return of the parties’ baby daughter to her care, police assistance and a Restraining Order. Mother seeks to have Madsen J.’s 14D Order made Temporary, inclusive of the continuation of the Restraining Order but without the police assistance clause. Father had the assistance of counsel in the preparation of his own motion materials and has two Motions before the Court: (1) a records motion seeking the production of the records of Family & Children’s Services of the Region of Waterloo (the “Society”); and (2) a motion seeking an equally-shared parenting arrangement. The Society has not yet responded to the records motion.
4Madsen J’s determination of urgency for triage purposes was without prejudice to both parties, but I agree that the parenting arrangements and safety of a very young baby (now six weeks old) is a “situation of urgency” that warrants the hearing of both Mother’s initial motion and Father’s corresponding cross-motion in advance of a case conference. I find this to be the case despite the absence of any evidence of the factors to be considered in Rosen v. Rosen [1] (i.e. the availability of case conference dates and the viability of settlement discussions). As noted, there are three motions before me, but only two will be addressed in this Endorsement, with Father’s records motion being adjourned without a return date, returnable on seven (7) days’ notice.
5As a result of the COVID-19 situation, the motions were scheduled for argument by videoconference. Father did not attend the videoconference hearing. For clarity, no lawyer is on the record for Father. Two business days prior to the scheduled videoconference hearing, the Trial Coordinator received an email from the lawyer who assisted Father in preparing his materials advising that she was not retained to argue the motion. Father indicated to the Trial Coordinator that an email address provided by his former counsel was incorrect, although Mother’s counsel notes that she has received emails from him via that address. The family’s Child Protection Worker advised in a letter addressed to Mother’s counsel that Father struggled with the implementation of Madsen, J.’s Order such that he sent the worker a voicemail and an email stating that he was “walking away” from a parenting role with Baby L. and would not be attending the hearing.
6It is important to underscore that the current COVID-19 situation is causing untold stress to many of the most marginalized members of our society. The unease felt by all of us is undoubtedly magnified for persons who find themselves precariously housed or employed; for survivors of any form of toxic relationship; and for caregivers charged with looking after the medically-vulnerable. [2] Both parents in this matter are experiencing all of these added stresses:
a. Father works in the construction industry, which is still operating but in an uncertain economic climate and in an ever-changing regulatory landscape; b. Having given birth on March 30th, Mother is not employed and has applied for government benefits; c. Father was residing with his parents until his very recent move into a basement apartment; d. Mother resides at a local shelter for pregnant women and new mothers; e. The parties were in a toxic relationship with one another; and f. The parties are together the parents of newborn Baby L., who is just six weeks old.
7The current situation has resulted in a suspension of all in-person hearings. This suspension has a particular impact upon family matters in that parents are denied the opportunity to discuss resolution options at court outside of the courtroom, a practical mechanism that was used daily in family courts before March 17, 2020. [3] Further, the reliance upon technology in accessing justice means that the court has only very limited options if a self-represented litigant is not punctual. Security concerns require the locking of the virtual hearing – whether it is taking place by teleconference call or videoconference – meaning that latecomers cannot be readily admitted. As the presiding judge, I have no court services assistance during the hearing: I cannot ask court staff to page a tardy litigant or call Duty Counsel into court to determine whether the litigant is waiting for legal advice. Having opened the virtual waiting room for this hearing at approximately 10:00 a.m. for the 10:10 a.m. start time, I waited until 10:23 a.m. to lock the hearing. Thereafter, before the hearing concluded, I emailed each of the Trial Coordinators to confirm that neither of them had received any communication from Father. These are steps that could, perhaps, reconnect a lost self-representing litigant with the virtual hearing before it concludes. But the stakes are high: a parent could be denied any meaningful time with his or her child by being fifteen minutes late, a punitive result which would be unlikely at the regular pace of family motions court. Consequently, although Father did not attend the virtual hearing, no adverse inference will be drawn against him for his absence. [4] Father prepared detailed materials with the assistance of counsel and I have considered them as if he had been present to argue in person on his own behalf.
8The parties have filed the following materials by email to Kitchener.Superior.Court@ontario.ca:
a. Applicant’s 14B Motion Form, dated April 21, 2020; b. Affidavit of the Applicant, sworn April 21, 2020; c. 35.1 Affidavit of the Applicant, sworn April 21, 2020; d. Affidavit of the Applicant, sworn April 29, 2020; e. 35.1 Affidavit of the Applicant, sworn April 29, 2020; f. Factum of the Applicant, dated April 29, 2020; g. Brief of Authorities of the Applicant, dated April 29, 2020; h. Respondent’s Motion for CAS Records & Supporting Affidavit, dated April 27, 2020; i. Respondent’s Motion re: Parenting Issues, dated April 27, 2020; j. 35.1 Affidavit of the Respondent, sworn April 27, 2020; k. Affidavit of the Respondent, sworn April 27, 2020; l. Affidavit of Barbara Kilgour, sworn April 27, 2020; m. Affidavit of Gary Kilgour, sworn April 27, 2020; n. Letter from Mr. Larry Ellis dated April 30, 2020; and o. A copy of the Endorsement and the 14D Order with respect to urgency.
Evidence
9For the purpose of these Motions, the undisputed facts are as follows:
a. Mother has two other children, neither of whom are in her care, one of whom resides with that child’s paternal grandparents and the other of whom was adopted from birth and is the subject of an Openness Order; b. Mother relies upon the support of the staff at Marillac Place and the Society; c. Father has one other child who resides with him on alternate weekends; d. Father has the support of his parents, Barbara Kilgour and Gary Kilgour; e. the parties started a dating relationship in June of 2019; f. throughout the parties’ relationship, Father resided with his parents and his brother, John Kilgour, at his parents’ residence; g. the parties never cohabited as spouses or as a family in their own family residence, although there were some periods of time when Mother stayed with Father at paternal grandparents’ home; h. there was conflict between the parties, and between Mother and other members of paternal family, during the periods of time when she stayed with Father in his parents’ home; i. when she was not staying with Father, Mother was precariously housed and/or was living at a women’s shelter; j. Mother moved to Marillac Place, a shelter for young pregnant women and new mothers, in February of 2020; k. the parties’ daughter was born on March 30, 2020; l. Father’s attendance at medical appointments was impacted by COVID-19 protocols; m. Baby L. stayed primarily in Mother’s care and resided with Mother at the shelter; n. Baby L. stayed with Father overnight on April 11, 2020 with Mother’s consent; o. Baby L. stayed with Father overnight on April 12, 2020 with Mother’s reluctant consent; p. Father kept the baby in his care from April 13, 2020 through to April 22, 2020, over Mother’s clear objections; q. Father moved out of his parents’ home and into a basement apartment on or about April 17, 2020; r. the parties were no longer in a dating relationship as of April 19, 2020; s. the Society supports Mother’s care of Baby L. so long as she continues to reside at Marillac Place; t. the Society has assessed Father’s new residence and identified no concerns; u. Baby L. has been in Mother’s care, without access to Father, since April 22, 2020; and v. Father posted certain messages at photographs on his Facebook profile which included disparaging comments about Mother.
10In addition to significant discrepancies in Mother’s two Form 35.1 Affidavits, discussed under the heading “Child Protection Involvement” below, there are two inconsistencies in Mother’s evidence which cannot be ignored. The first is Mother’s response to Father’s evidence that she was homeless and “living rough” in June and July of 2019. Mother responds by stating that she was residing at Marillac Place during that time, but also attests that she discovered her pregnancy when she was approximately three months pregnant in the Fall of 2019. Marillac Place is a shelter for young pregnant women and new mothers, and it therefore seems unlikely that Mother would have resided there in June and July of 2019 before she was aware of her pregnancy. In her Affidavit sworn April 29, 2020, Mother attests that she was discharged from Marillac Place after twelve months in accordance with their policies, which statement only adds to the confusion as to her housing in June and July of 2019. Secondly, Mother attaches photographs posted by Father to his Facebook profile as Exhibit “C” to her Affidavit sworn April 29, 2020 which she describes as “sexually explicit” and posted “publicly for anyone to see.” Mother asserts that Father’s behaviour in this regard was criminal. The photographs included as Exhibit “C” are certainly unflattering, but to assert that they constitute “intimate images” as defined by section 162.1(2) the Criminal Code of Canada is a considerable exaggeration.
11It is important to remember that Madsen J. did not have the benefit of the detailed materials provided as a result of her Endorsement – she had no materials from Father and only the original Affidavits from Mother dated April 21, 2020. Having reviewed Mother’s materials, Father filed a responding Affidavit which denied her accusations that he had been violent or abusive with her and provided considerable additional background information. He also filed Affidavits sworn by each of his parents, who, although potentially aligned with him, each observed Mother to behave in a volatile and violent manner. Mother responded by Reply Affidavit and fresh Form 35.1 Affidavit dated April 29, 2020.
12In brief, the most significant allegations by each parent against the other can be summarized as follows:
a. Abusive behaviours by Father: Mother alleges that Father was abusive throughout their short relationship, including: repeatedly threatening to kill her; choking her; attempting to gouge her eyes while he was driving; throwing her into a dog crate resulting in a “massive bruise”; attempting to suffocate her with a pillow more than once; and abandoning her on a rainy December day without a jacket when she was six months’ pregnant. She states that she spoke with a family violence counsellor when she was admitted to hospital following the strangulation incident but told that person that her injuries had been inflicted by a random assailant. Most recently, Mother alleges that Father violently assaulted her on April 19, 2020 in the parking lot of the Kitchener Public Library adjacent to the Kitchener police station while she was holding the baby. The parties had met there so that Father could return Baby L. to Mother’s care. Mother attests that Father threatened to “crush [her] f#cking skull” and that he lifted her up by her hair and forced her toward the passenger side of his pickup truck, where she fell while holding Baby L. Father sped off with the baby in the truck and Mother reported the incident to police.
Father denies all abuse allegations. Both of Father’s parents attest that they are not aware of any incident of violence by Father against Mother. Father’s recollection of the events of April 19, 2020 is very different from Mother’s: he says that when the parties met in the parking lot Mother got into his vehicle and proceeded to give Baby L. a bottle. Mother then told Father that she was going to burp Baby L. outside of the vehicle, and when Father suggested that Baby L. wear a hat in the cool outside temperature, Mother became agitated, saying: “This is f#cking bullshit that this is how it’s got to be.” The family exited the vehicle and Father says that Mother continued to escalate, saw the police vehicle exiting the police station parking lot and tried to flag it down, shouting “He just hit me! He’s f#cking hitting me!” Mother started to walk down the street with Baby L. in her arms, and Father held Mother’s upper arm to stop her. He says that he then covered Baby L. with his jacket, put Baby L.’s hat on her head, and placed her back into the car seat in the vehicle while Mother stood staring. Father says that an older woman witnessed the situation and suggested that police be called.
Mother does not mention the presence of any witness to the incident of April 19, 2020. Waterloo Regional Police Service has advised Mother that no charges will be laid against Father at this time.
b. Abusive behaviours by Mother: Father alleges that Mother physically attacked him at his parents’ home in the Fall of 2019, which altercation ended when paternal grandmother stepped in. Paternal grandmother further alleges that on a separate occasion Mother was “screaming at my son in our house” and that Mother’s “eyes looked wild as though she were high on drugs.” Paternal grandfather attests to a separate incident around Thanksgiving 2019 when Mother was “making a scene” in the basement of the home and Mother admitted to carrying a loaded BB gun concealed in her purse. Both of Father’s parents allege that Mother would behave in such a manner that paternal grandmother would leave her own home when Mother escalated, and that paternal grandfather would intervene to require Mother to leave.
Mother denies being disrespectful to paternal grandparents. She denies ever causing distress to Father’s parents and attests that paternal grandmother left the home only once to look for Father out of concern for his well-being. She admits to having owned the BB gun and that there was an altercation in which the BB gun was discovered by paternal grandfather, who kicked her out of the house. She believes that her BB gun is now in Father’s possession.
c. Father’s mental instability: Mother attests that, on the occasion when paternal grandmother left the house while Mother was staying there, she left not because of Mother’s behaviour but because Father was suicidal and therefore paternal grandmother went looking for him. Father denies any suicidal thoughts. No other family member’s evidence supports this narrative.
Following the removal of Baby L. from his parents’ home with police involvement, Father sent two text messages to Mother which she attests are evidence of his mental instability. At the end of the first message, sent at 2:38 a.m. on Thursday, April 23, 2020, he writes [sic]: “Enjoy an good bye forever”. At 10:23 a.m., he writes [sic]: “Your welcome an sure hope it was worth taking my life for your selfishness an greed. Cheers ill be watching over my girls from above an you will have to answer to this all for you love you an good bye”. These text messages show that Father is emotionally distraught in the period immediately following the removal of Baby L. from his care without explanation [5], but to conclude that they demonstrate his overall mental instability is overreaching.
d. Mother’s mental instability: Father attests that Mother angers easily and escalates quickly. He says that on April 13, 2020 he first suggested an equally-shared parenting schedule for Baby L. while the three of them were sitting in his pickup truck, and Mother responded by yelling about the end of the relationship and banging her head repeatedly against the window until they arrived at paternal grandparents’ home. Father says that Mother then walked down the street in her stocking feet carrying the baby. Father claims that each time that he attempted to return Baby L. to Mother’s care during the week of April 13th, Mother would escalate emotionally and be “either unable or unwilling to calm down” such that he was not comfortable leaving Baby L. in her care. On each occasion, Father states that he contacted the Society and advised his worker of the situation and of his decision to keep Baby L. in his care. On one occasion, Father called police to ask them to do a wellness check on Mother. Father provides his telephone records to substantiate this evidence.
Mother denies any emotional or mental instability. She says that she does not use any illegal drugs and consumes marijuana only occasionally. Notably, she uses variations on the phrase “kicked out” to explain her departure from a women’s shelter, from paternal grandparents’ home, and from the residence of friends, playing the victim in her description of the deterioration of each residential arrangement.
e. Child Protection Involvement: Father points out that, in her original affidavit in support of the ex parte motion, mother failed to advise the Court of her own history with the Society. Mother has two other children, neither of whom are in her care. Mother’s original Form 35.1 Affidavit, which was the document presented to Madsen, J. with the ex parte motion, indicates “NONE” in response to Statement #5: “ I have been a party or person responsible for the care of a child in the following child protection court case(s).” In Mother’s Form 35.1 Affidavit sworn April 29, 2020, completed after receipt of Father’s materials, Mother admits that her eldest child, K.G. (age 6) is in the custody of that child’s paternal grandparents who grant access in their discretion. Mother was not able to produce a copy of the relevant Final Order regarding K.G. to append it to her updated Form 35.1 Affidavit. Mother further attests that she gave another child up for adoption at birth, which adoption was undertaken with the assistance of the Society, and therefore some form of court document presumably exists addressing the openness that Mother says characterizes her relationship with that child and that child’s adoptive parents. It is gravely concerning that Mother has misled the court on the question of her prior child protection involvement.
Regarding Baby L., Mr. Larry Ellis was the family’s service worker at the Society until April 30, 2020, when the file was transferred to Ms. Catherine Hunter. In response to a suggestion by Triage Judge Madsen, Mother’s counsel obtained a letter from Mr. Ellis setting out the Society’s position. The Society notes that the family receives services by means of a Service Agreement, and that Mother “receives on-site support from residential staff and peers” at Marillac Place which “has been a significant factor in the Society’s level of intervention with this family.” Should Mother move out of Marillac Place, the Society would reassess its position and level of involvement. The Society has no concerns about Father’s new residence but noted that Father “struggled” with the decision that Baby L. be returned to Mother’s care pending the hearing of these Motions, and “his engagement with the Society has become increasingly negative” as a result.
On April 27, 2020, Father left a voicemail and sent a text message to Mr. Ellis indicating that he no longer wanted contact with the Society, that he was “walking away” and stating “[Mother] gets [Baby L.], I walk away, just how she wants it.” A review of Father’s posts on Facebook shows that he understood the decision to place Baby L. in Mother’s care on April 22, 2020 to have been made by Mr. Ellis. This is not surprising, considering that the original motion was brought by Mother without notice to him and it would appear that no copy of Justice Madsen’s 14D Order was produced to him at that time. He writes on April 22, 2020 [sic, emphasis added]:
Its crazy to think they take my daughter an put her in the care of the junkie mother… Who do I contact to have larry over ruled as he has no care what so ever for my daughters well being
Where to start … mother of my daughter born on the 30 of march some how has my daughter removed from my grandparents home with police refusing to show court order papers no names given…
The Affidavits of Service filed by Mother show that it was not until 12:35 p.m. on April 23rd that documents were taped to the front door of Father’s parents’ home. Duplicate copies of the Orders and materials were delivered electronically to his Facebook account at 3:46 p.m. and emailed to him at 3:52 p.m. It is not surprising then, that on the evening of April 22, 2020 Father concluded that the Society had suddenly decided to remove Baby L. from his care and thereafter that his attitude toward the Society changed accordingly.
The Society’s involvement continues.
Law and Analysis
13For the reasons that follow, I have crafted a Temporary Order maintaining the baby’s current primary placement with Mother and providing for parenting time between the baby and Father three nights per week, which parenting time shall take place at the home of paternal grandparents but shall not require their continuous supervision. Although my Order restricts and manages communication issues, it does not renew either the Restraining Order or the police assistance clause.
14The focus is squarely upon the best interests of the parties’ baby daughter. As they are not married, the relevant legislation is the Children’s Law Reform Act, S.O. c. C.12 as amended (the “CLRA”), and specifically the following sections:
20(1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody.
21(1) A parent of a child or any other person including a grandparent may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.
24(1) – (5) [see attached Appendix]
28(1) The court to which an application is made under section 21,
(a) by order may grant the custody of or access to the child to one or more persons; (b) by order may determine any aspect of the incidents of the right to custody or access; and (c) may make such additional order as the court considers necessary and proper in the circumstances, including an order: i. limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child;
34(1) Where an order is made for custody of or access to a child, a court may give such directions as it considers appropriate for the supervision of the custody or access by a person, a children’s aid society or other body.
35(1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
15Applying the applicable factors under section 24 of the CLRA yields the following:
a. Emotional Ties Between Baby L. and Family: Although Baby L. is still an infant, there is no doubt that she is loved by both parents and by her paternal family. Father notes that Baby L. has been cared for by paternal grandmother in the past, who will continue both to provide care for Baby L. while Father is at work and to facilitate parenting time exchanges with Mother at Marillac Place. b. Child’s Views: Not applicable. c. (and 24(2)f.) Stability of Home Environment: Although Baby L. may not be aware of her environment, Mother’s stability rests on her continued residence at Marillac Place, and Father’s stability is through his parents’ home where he was living until very recently. d. (also 24(2)g. and 24(2)h.) Willingness of Parties to Parent the Child: Without question, both biological parents are willing to provide fully for Baby L. e. Plans of Care: Father’s plan of care for Baby L. includes all items that any parent needs to house a tiny baby and the Society has identified “no significant concerns” around Father’s ability to parent Baby L. in his new residence, although it bears noting that Father’s plan of care for Baby L. indicates that he would reside with his parents in their home. Mother’s plan of care for Baby L. is acceptable to the Society only so long as she continues to reside at Marillac Place. (3) Past Conduct and Ability to Parent: While there is no information before the court regarding Mother’s past conduct with her eldest child, K.G., as it reflects on her ability to parent Baby L., the fact is that she has access to K.G. only at the discretion of K.G.’s custodians and that she omitted this information from the materials placed before Madsen, J. Father currently parents his eldest daughter on alternate weekends and attests that he took the “Caring Dads” parenting course after her birth. Although he has a history of criminal convictions dating to 2016 and earlier, he states that “parenting [his daughter] has transformed [his] life.” (4) Violence and Abuse: The evidence is that this was a toxic relationship in which both parties behaved badly. Regarding Mother’s allegations of physical violence by Father, unfortunately her misrepresentation of important evidence, including her incorrect characterization of the photographs posted by Father as “sexually explicit,” taints her evidence on this motion, and I therefore decline to make any assessment of the presence or absence of physical violence between these parties. I conclude that, with proper limitations upon contact between these parents, future incidents can be avoided without minimizing either parent’s role in Baby L.’s life.
16In D.G. v. A.F. [6], a decision regarding the viability of an appeal in a family matter, Lauwers J.A. opined that: “The best interests of very young children are usually best served by stable custody and access arrangements, and the formation of strong relationships with both parents.” Although that comment related to children who were 5 and 7 years of age, it is equally applicable to all children, and it is important that, when called upon to do so, the court make its best effort to stabilize parenting arrangements as early in the litigation as possible. Having regard to the factors impacting this family, including the Society’s involvement and each parent’s plan of care for Baby L., the stability which best serves Baby L.’s interests is one where she spends considerable time in the care of each parent.
17Finally, I wish to also address two cases cited by Mother in the Factum filed on her behalf.
18The first is V.S.J. v. L.J.G. [7] in which Justice Blishen conducted a detailed review of the caselaw surrounding the issue of discontinuing access between a non-residential parent, alleged to be a sexual predator, and his preschool-aged daughter. Seven factors were identified by Blishen, J. as being considered in circumstances where long-term supervision or termination of access was sought. In that case, the access parent had been a child soldier in Africa and was a convicted bank robber prior to the parties’ marriage. The parties’ three-year relationship was characterized by verbal and emotional abuse, physical aggression, accusations of infidelity, arguments and name-calling, which both parties agreed had an impact upon their child. Although a comprehensive Divorce Order was granted, the parties were back in court the following year and Father agreed to the supervision of his access by Mother, and later by maternal grandparents. When Mother supervised Father’s access, he was verbally abusive and sexually harassing towards her. The stress of interacting with Father at visits challenged the health of maternal grandparents such that the only remaining option was a Supervised Access Centre. By the time Justice Blishen was called upon to conduct the trial and render a decision, both a clinical investigation by the Office of the Children’s Lawyer and a parenting capacity assessment had been completed. There is little, if any, comparison to the facts in the case at bar. Therefore, while Blishen J.’s decision is extremely helpful in analyzing access supervision and the extreme measure of discontinuing access between a parent and child, the factors delineated in the decision do not assist with this case.
19Secondly, Mother references the case of Rifai v. Green [8] in which Justice Pazaratz admonished a parent for engaging in “self-help tactics despite the best interests of the child” raising “serious questions about their own parenting skills and judgment.” Father’s evidence, supported by his telephone records, is that he was not unilaterally engaging in self-help tactics for his own selfish purposes. From his perspective, Mother was highly emotional and escalated on each occasion when they interacted in anticipation of his returning Baby L. to her care during the period from April 12 – 21. Each time he telephoned the family’s Society worker and, on one occasion, police, to advise of his concerns about Mother’s ability to care for Baby L. in her emotional state. Neither the Society nor police intervened. It cannot be said that Father acted in a “manipulative, selfish or spiteful” manner like the parent chastised by Pazaratz, J in Rifai v. Green, and therefore that case does not assist with the assessment of Baby L.’s best interests.
Disposition
20Temporary Order to go as follows:
The child, Baby L., shall be in the care of the Respondent Father, Cary Kilgour, on the following basis: a. Commencing May 12, 2020, every Tuesday at 4:30 p.m. through to Wednesday at 4:30 p.m.; b. Commencing May 15, 2020, every weekend from Friday at 4:30 p.m. through to Sunday at 7:00 p.m.; c. Father shall reside at the home of paternal grandparents, Barbara Kilgour and Gary Kilgour, throughout his parenting time with Baby L. but for clarity, his parenting time shall not be supervised; and d. Such further and other parenting time as the parties may, from time to time, agree upon between them in advance in writing.
The child, Baby L., shall be in the care of the Applicant Mother, Brittany Soares, at all other times.
Parenting time exchanges shall occur at Marillac Place and shall be facilitated by either or both of Baby L.’s paternal grandparents, being Barbara Kilgour and/or Gary Kilgour.
At no time shall the Respondent Father leave Baby L. alone in the care of his brother, John Kilgour.
The parties shall use a communication book in which each shall make daily notes regarding Baby L.’s health and well-being, including but not limited to their observations regarding her development and any information regarding upcoming appointments related to her health. The communication book shall travel with Baby L. between households. The parties shall not communicate with one another other than via the communication book except in a situation of emergency affecting Baby L.’s health or well-being, in which situation they shall communicate via text message or telephone.
Either party is entitled to make inquiries of, and be given information directly by, all professional persons providing services to Baby L. without the prior consent of the other.
The Restraining Order dated April 22, 2020 is rescinded.
The Notice of Motion dated April 27, 2020 respecting the records of Family & Children’s Services of the Region of Waterloo (the “Records Motion”) is adjourned without return date, returnable on seven (7) days’ notice. When revived, the Records Motion shall be heard in writing in accordance with the Protocol for Central South Region dated April 7, 2020 (the “Protocol”). Notice of the return of the Records Motion shall be provided by either party to the other, and to the Society, in writing. The party seeking to return the Records Motion shall write to the other party/counsel and to the Society’s legal department via email to notify them, attaching a duplicate copy of the materials intended for use on the Records Motion. The party so notified, and the Society, shall have seven (7) days to prepare and serve any responding materials. Not earlier than the 8th day following written notification of the return of the Records Motion, the party seeking to return the Records Motion shall then file all materials with the court in accordance with the procedure set out at section 21 of the Protocol.
Upon the resumption of court operations, the parties shall file their materials in the continuing record at the courthouse.
Court staff shall deliver a copy of this endorsement and a copy of the Protocol for Central South Region dated April 7, 2020 by email to each of the Applicant’s counsel, Ms. Carroll, at carroll@mgdlawyers.ca and the Respondent at [personal email address removed for publication].
Counsel for Ms. Soares shall further serve a copy of this endorsement and a copy of the Protocol for Central South Region dated April 7, 2020 by delivery to the Respondent’s Facebook profile, located at [personal email address removed for publication].
A copy of this Endorsement shall be provided by counsel for Ms. Soares to Family and Children’s Services of Waterloo Region, to the attention of Catherine Hunter, immediately upon receipt.
No order as to costs.
Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party.
J. BREITHAUPT SMITH, J.
DATE: May 11, 2020
Appendix to Endorsement – FC-20-185
Children’s Law Reform Act, R.S.O. 1990, C. C-12 as am.
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child.
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
1Rosen v. Rosen at paragraphs 7 – 9.
2This list is not exclusive, but merely provides examples relevant to the case at bar.
3In a situation such as this one, where Mother advocates for Father to have some parenting time with the child but the Restraining Order prohibits communication other than between counsel or via the Society’s workers, it may be that in-person discussions between Mother’s counsel and Father could have generated a temporary parenting arrangement, perhaps with the assistance of on-site mediation or Duty Counsel.
4Having regard to the situation in which we find ourselves, any inference drawn against a litigant who serves and files proper materials but does not participate in a virtual hearing could well be overturned on appeal due to a lack of procedural fairness in breach of the court’s primary objective to deal with cases justly per Rule 2(2) and 2(3). See Davis v. Morris.
5As is discussed under the heading below, “Child Protection Involvement,” it appears from Father’s Facebook postings that police attended to remove Baby L. from his care without presenting a copy of Madsen J’s Order to him. It appears that the Society worker was present and also failed to provide Father with a copy of the Order. This is of great concern to the court.
6D.G. v. A.F., 2014 ONCA 436 at paragraph 34.
7V.S.J. v. L.J.G. at paragraph 135.
8Rifai v. Green, 2014 ONSC 1377 at paragraph 22.