COURT FILE NO.: FS-19-19721

DATE: May 12, 2020

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: May 6, 2020

ENDORSEMENT on motion

[1] This is a follow up motion brought by father to have supervised access outside of the Supervised Access Centre. The Centre is currently closed due to the COVID-19 crisis. It is proposed that supervised access continue with either father’s parents supervising, or his brother. Mother opposes the request, arguing that it will not sufficiently secure the safety of the children. The backdrop for this motion is that father faces trial on criminal charges of domestic 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.

[4] I have recently received the transcript of the preliminary hearing into father’s charges, and the crown synopsis. Both documents reveal very serious allegations of domestic violence. The alleged assaultive conduct is extremely violent and is said to have followed a history of physical and sexual abuse.

[5] Of course, father is presumed innocent of these charges. He has denied the allegations, but is not wishing to speak about the incidents until his criminal trial. I understand that position. Father certainly has a right to remain silent on these issues. The difficulty is that, apart from a bald denial of the allegations, I have nothing before me to counter the details of the allegations, and the safety concerns that they spawn. There is no allegation that father assaulted the children. However, the evidence would indicate that the children were in the home when the alleged assaults occurred and that, on one occasion, father allegedly enlisted one of the children to participate in an event designed to humiliate and degrade mother.

[6] While the charges are serious, they have yet to be tested or proved. Therefore, it is appropriate, to the extent possible, to facilitate some contact between father and the children. The Supervised Access Centre was a good location for access visits, as independent supervisors able to ensure that the children were not exposed to any form of harm. As an ancillary benefit, the supervisors were able to record events at the access visits, allowing for an assessment of how the children have fared. Several visits took place before the Centre closed. The reports are largely positive, though one of the children appears to be having some difficulties.

[7] The above sets the context for the current request. I am concerned about the prospect of father’s parents as supervising parties. According to mother, she disclosed the domestic violence to father’s mother during the marriage, yet she did not take it seriously. Father’s mother denies this allegation. I am not in a position to make findings of credibility. The allegation against father’s mother gives me pause. If true, it suggests that she may not be in a position to adequately supervise interactions between her son and the children.

[8] There is no such allegation against father’s brother. He has attested to his willingness to supervise access and make sure that no harm comes to the children. I have anxiously considered whether his supervision provides enough comfort regarding safety of the children. I have no doubt that uncle has the best of intentions. However, I am concerned about the prospect of supervision by a close family member. Such an individual may feel conflicted about recording or reporting problems during access visits, for fear that it will prejudice father’s position on the criminal charges. This is not to say that there needs to be a record of every interaction during access. Visits are not for the purpose of gathering evidence; they are for the purpose of facilitating the parent-child relationship. However, the supervisor must be in a position to intervene and report on any concerns that might arise from the interactions.

[9] For that reason, it is preferable to have supervision by a more independent party. I was advised during the last hearing father had proposed four individuals as prospective supervisors to mother. I was advised that mother did not approve of those individuals. This issue was not strictly before me on the last appearance, as no materials had been filed about the new individuals. I did however indicate that I would be willing to consider supervising parties proposed by either father or mother. I am of the view that, so long as an appropriate supervisor can be identified, it is important to facilitate continued access by father pending re-opening of the Supervised Access Centre.

[10] Therefore, I dismiss the application to have father’s parents or brother supervise father’s access. This ruling is without prejudice to the ability of father to bring forward a list of alternate supervisors. If mother agrees to one or more of these individuals, the order can be amended on consent. If mother does not consent, I will hear argument on the suitability of these individuals as supervisors.

[11] I will consider any alternate proposals that counsel may place before the court, at a hearing scheduled through trial coordination.

[12] There will be no order as to costs.

Renee M. Pomerance

“Electronically signed and released by Pomerance J.” Justice

Date: May 12, 2020