C.A.S. v. J.N., 2020 ONSC 2999

COURT FILE NO.: FC-18-FO000193-0000 DATE: 2020-05-13

WARNING

This is a case under the Child, Youth and Family Services Act, 2017, and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both

Superior Court of Justice - Ontario

RE: Children’s Aid Society of the Region of Waterloo, Applicant

- and -

J.N., Respondent, A.F., Respondent, and M.S., Respondent

BEFORE: Justice D. Piccoli

COUNSEL: Mr. Boich, counsel for the Applicant Ms. Towlson, counsel for the Respondent J.N., Mr. Dewar, counsel for the Respondent A.F., Ms. Klodner, counsel for the Respondent M.S., and Ms. McInnis, as O.C.L.

HEARD: May 12, 2020

Endorsement -- COVID-19 Protocol

1AS A RESULT OF COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 15, 2020; the supplemental Notices to the Profession dated April 2, 2020, and April 28, 2020; and the Revised Notice to the Profession dated April 30, 2020 and the further Notice to the Profession dated May 5, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

2Electronic materials were filed through the Kitchener courthouse email address: Kitchener.Superior.Court@ontario.ca.

3The Respondent, J.N. (Mother), brought an Urgent Motion, whereby she sought to have reinstatement of parenting time with her three children, which she indicates has been suspended since shortly after the onset of the COVID-19 pandemic.

4The children, who are the subject matter of these proceedings, are S.F. (male age 11), C.F. (male age 10) and P.N. (female age 5).

5The Father of C.F. and S.F. is A.F. The Father of P.N is M.S.

6This family is subject to the Temporary Order of Justice Oldman of March 27, 2018. Both Respondent Fathers have custody of their biological children. The Respondent Mother’s access is at the discretion of the Applicant “Society”.

7The Mother seeks that her access be reinstated to what it was before COVID-19 and the blanket no in-person access as a result of COVID 19 policy of the Society namely:

With respect to S.F. and C.F: Week 1: Friday after school (3:00 p.m.) until Tuesday morning at 9:00 a.m. Week 2: Saturday at 5:00 p.m. to Tuesday morning at 9:00 a.m. On scheduled PA days, the Friday access to start at 9:00 a.m. instead of 3 p.m.

With respect to P.C.: Every other weekend, Friday after school (3:30 p.m.) through to Sunday at 5:30 p.m. and every Monday from after school 3:30 p.m. until 6:30 p.m.

8On April 29, 2020, Justice Madsen found this matter to be urgent on a without prejudice basis.

9As the parties are aware, I do not have the court file. I can only rely on the documents provided to me by the parties.

10The following documents were provided with respect to this motion:

1. Notice of Motion dated April 24, 2020;
2. Amended Notice of Motion dated April 29, 2020;
3. Affidavit of J.N. sworn April 23, 2020;
4. Affidavit of Christine Taylor sworn May 1, 2020 (OCL);
5. Affidavit of Christian Appleton (child protection worker) sworn May 1, 2020;
6. Responding Affidavit of A.F. sworn May 4, 2020;
7. Responding Affidavit of M.S. sworn May 4, 2020;
8. Reply Affidavit of J.N. sworn May 6, 2020;
9. Orders arising from CLRA proceedings with A.F. and M.S.;
10. A Draft Order; and
11. Affidavits of Service.

11This motion was heard by teleconference on May 12, 2020 from approximately 10:00 a.m. to 11:40 a.m. I advised all parties of my decision on May 12, 2020 and indicated I would release my written decision by Friday May 15, 2020.

Brief Background

12The Mother has two children with A.F. as identified above and one child with M.S. as identified above.

13On March 23, 2018, the children were apprehended from the Mother’s care due to concerns about drug use (cocaine), mental health, and her failure to comply with a Voluntary Service Agreement. Prior to that time the parties were subject to orders pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C. 12.

14Prior to COVID-19 and the Applicant’s “no in-person access policy” the Mother had significant parenting time with all three children as set out in paragraph 7 above.

15The Mother’s access was suspended by the Society effective March 15, 2020 with respect to P.N. and March 23, 2020 with respect to S.F. and C.F., as a result of the Society’s blanket no in-person access policy as a result of COVID-19.

16The Mother was advised that the Society’s no in-person access policy as a result of COVID-19 would be reviewed on April 6, 2020 and she was content to be patient given the difficult time for everyone, including the Society, to adjust to and make decisions. When April 6, 2020 passed, she again requested the resumption of her parenting time – her lawyer sent a letter on April 21, 2020.

17The Society took the position initially that it would support access if the parents could work out a schedule. When it became clear that the parents could not work out a schedule, the Society authored correspondence on May 8, 2020 outlining its position that access resume as it was prior to the blanket no in-person access policy as a result of COVID-19.

18Despite the current order that access be at the discretion of the Society, both Fathers opposed the resumption of access in accordance with the schedule in place prior to the blanket no in-person access policy as a result of COVID-19.

Current Circumstances of the Parties

19The Mother resides alone in the residence that she has lived in historically with the children. She has no pets. She is not working.

20The Father, A.F., resides alone in the home with the two children, S.F. and C.F.. He was working as a Millwright for a pharmaceutical company that supplies to dentists. He is not currently working as his employer is waiting for dentists’ offices to reopen. He has no pets.

21The Father M. S. resides with his common-law partner, the child P.N., and his child with his common law-partner. His common-law partner is four months pregnant. They have one pet. He is a general contractor and his common-law partner works for a bank but works from home.

22None of the children suffer from medical issues that would make them particularly vulnerable during the COVID-19 pandemic.

Position of the Parties

23The Mother wishes to have her access reinstated. She states she has made every attempt to work with the Respondent Fathers to make this happen but to no avail. She states that the Fathers have aggressively pushed back and will not follow the Society’s position with respect to the reinstatement of access. She states that the children deserve to have in-person contact with their Mother.

24The Mother states that she has been diligently complying with all Government and Public Health protocols and directives, that she has been vigilant in social distancing and has remained physically distant with everyone, although, she does have brief contact with her father and brother for very infrequent rides to run errands. She has been COVID-19 symptom free.

25The Mother has made it clear that she will continue to co-operate with the Society and that she will meet with the worker by phone or video as and when he requests.

26The Mother states that the Fathers have “thrown everything” at this motion and did not focus on the issue, which is whether the COVID-19 pandemic should halt her in-person access. She states that there is no reason for in-person access not to resume, that the Fathers’ historical concerns will be addressed at the trial, that the parties are on the eve of trial and that the trial would likely have occurred were it not for the suspension of normal court operations.

27The Mother properly gave both the Fathers credit for stepping up when she was unable to care for the children but indicates that she has demonstrated her ability to safely care for the children and has been fully co-operative with the Society.

28The Mother states that as it pertains to A.F., he continued to work outside the home and have extended family members provide childcare while he was working. It was only with his responding affidavit that she discovered that he was not working.

29The Mother states that with respect to M.S., there is no medical evidence before the court that there would be a negative impact to his common-law pregnant spouse who suffers from some form of asthma.

30The Mother states she is having issues with video access to the children and her concerns that video access is not meaningful.

31The Applicant Society supports the Mother’s position in that access can safely resume to the access in place prior to the COVID-19 in-person blanket suspension of access.

32The affidavit of Child Protection worker, Christian Appleton, sworn May 1, 2020 sets out the position of the Applicant. The Society sent correspondence to all parents setting out its position that access should resume the weekend of May 8, 2020 with all three children attending for their access visits on that date.

33The Society states that, due to the pandemic, it is not conducting any face-to-face home visits or check-ins unless there is a crisis situation. Instead, it will be checking in by phone or video with the Mother, while the children are in her care, to assess the safety and well-being of the children.

34The Society has gone over with the Mother their expectations of her during COVID-19 and she is committed to following those expectations.

35In a letter dated April 24, 2020, the Society offered to work with the parties and also offered the option of mediation. The issue is about the parents’ inability to resolve matters as between them.

36The Father A.F. is requesting orders which address the child protection concerns and COVID-19 related risks to the children. He requests that the Mother’s motion be dismissed, and her access remain temporarily suspended. In the alternative, he asks that her access be limited to telephone and live video calls/and or such in-person access which allows for social/physical distancing. If overnight access is to resume, he asks that the children be returned to his care on Sundays in consideration of their home-schooling schedule.

37A.F. submits that any breach of COVID-19 protocol puts all three families at risk.

38A.F. submits that there is a history of the Mother not abiding by court orders, and as a result, he does not believe she will comply with COVID-19 protocol.

39The Father M.S. states that he is prepared to abide by an order in which access is at the agency's discretion. He seeks assurances for P.N.’s safety and well-being. He asks that the agency follow its mandate to protect the child P.N. and queries what steps it will take to ensure its mandate.

40M.S. is concerned about the terms of face-to-face parenting time and seeks a prohibition on the consumption of alcohol, a prohibition against non-prescription drug use, and compliance with a strict COVID-19 protocol.

41The OCL (Christine Taylor as clinical assist to legal counsel Diane McInnis), on behalf of all three children, set out the views and preferences of S.F. and C.F. in general, but did not take a position on this motion. Prior to the pandemic, both S.F. and C.F. told the OCL that they liked the schedule that was in place. Given P.N.’s young age, the OCL took the position that prior to the pandemic, P.N.’s life was stable, she was doing very well in her Father’s home and parenting time with her Mother was important. Since the pandemic, S.F. expressed a desire to at least be able to go for walks with his Mother and spend time with her outdoors. C.F. expressed that he did not want a social distancing walk with his Mother as he was worried about her getting sick. The OCL found it difficult to ascertain the independence of C.F.’s views and preferences given his report that he feels pressure from both of his parents.

42The OCL was able to clearly articulate the level of “incredible mistrust” between the parents and her concern about its impact on the children. She made it clear that all children want a meaningful relationship with both parents and that the two older children feel caught in the middle. She is conscious of not putting pressure on them to decide or take a position.

Historical Concerns

43Both Fathers raised historical concerns about the Mother, including her alleged mental health issues, alleged drug and alcohol abuse issues, alleged engagement in criminal activity, alleged high risk lifestyle, alleged physical violence and alleged dishonesty.

44The Mother, not surprisingly, denies many of the allegations being made. She points out, and I agree, that these are triable issues and do not deal with the narrow issue of whether her access should be suspended in light of COVID-19.

Progression of Access by Mother Since Apprehension

45In late August 2018, access expanded beyond supervised and in the community to include unsupervised visits at the Mother's home for an evening each week.

46In November 2018, full day unsupervised visits commenced.

47In January 2019, unsupervised overnight visits each Sunday to Monday commenced.

48On January 8th, 2020, access expanded to be in line with what it was prior to the blanket suspension of in-person access by the Society.

Concerns Since COVID-19 Blanket Restriction

49The Father A.F. set out his concerns since the suspension of the Mother’s access in light of the COVID-19 blanket in-person access restriction:

• that the Mother was multiple hours late picking up the two older children for access on March 20th, 2020;
• that she was late picking up the child of M.S. from school;
• that he does not trust her to follow public health and government directives regarding COVID-19;
• that based on her history of being untruthful, she cannot be trusted to be forthcoming about her compliance with public health and government directives to protect the children from COVID-19;
• her management of mental health and substance abuse in light of COVID-19;
• she has provided no information regarding a self care and substance abuse management plan throughout the pandemic; and
• her inability to homeschool the children in accordance with the government curriculum.

50The Father M.F. sets out the following concerns since the suspension of the Mother’s access in light of COVID-19 blanket restriction:

• he does not believe that the Mother is taking adequate steps to ensure the children do not come in contact with COVID- 19 because she has admitted that she has contact with her father and her brother, and there is no indication of what steps they are taking to ensure compliance with COVID-19;
• his common-law spouse is four months pregnant and suffers from some form of asthma;
• FaceTime visits are being facilitated;
• he is concerned about P.N.’s safety if the Society cannot properly monitor the access; and
• if she has an alcohol abuse problem she should completely abstain from the consumption of alcohol.

51With respect to the current concerns, I note that A.F. did not take any issue with the Mother's access following COVID-19 (schools were shut down on March 13, 2020 and social distancing was protocolled on or just before March 16, 2020) and her access continued until the suspension, which was procedural in nature by the Society, of which the parties were notified on March 23, 2020. A.F. does not have any evidence of the Mother’s non-compliance with COVID-19 protocol for the period of time her access continued after the pandemic was declared. Accordingly, I do not accept that the Mother will not follow COVID-19 protocol or that the Mother is unable or unwilling to take adequate steps to ensure the children do not come in contact with COVID-19.

52With respect to the allegations of alcohol abuse, the Mother denies said allegations. On a completely without prejudice basis she advised that she is prepared to consent to an order that she not consume any alcohol when the children are in her care. She has made it clear that in doing so she does not admit that she has alcohol abuse issues and that she does not wish such an order to be used against her in a trial.

53With respect to the Mother's mental health and substance abuse, the Mother’s lawyer made submissions at my request as to the status of any programming. She advised that the Mother was taking active steps including zoom meetings/learning with support groups, email communication with her doctor, and taking her prescribed medication. The Mother also confirmed that she has signed all consents and provided all information required by the Society.

54With respect to the Mother’s alleged neglect of schooling issues, the Mother outrightly denies these allegations and, in detail, sets out how the Fathers have marginalized her to the schools, the lack of co-operation and flow of communication from the Fathers on schooling issues.

55In terms of the lateness and picking up the child P.N. from school, that was not addressed in submissions by either lawyer. The Mother, in her responding affidavit, provides a reasonable explanation for this which is that she was “stuck at work” and the Father would not allow a third party on her behalf to pick up the children. In any event, it is unlikely that school will resume this year. Even if it does resume, the Society will continue to monitor the situation and take the action it deems appropriate should a parent fail to meet the schooling needs of the children.

56A.F. raises the concern that he spends 2.5 hours a day on the children's schoolwork. He does not believe that the Mother will do the required school work with the children. He is not willing to send the laptops or other required material and supplies with them to her home given what he states is her refusal to return a Chromebook in the past.

57The Mother outrightly denies the allegations with respect to her ability to do school work with S.F. and C.F. and states that she is more than able and willing to do their schoolwork. She indicates that she purchased the laptops for the boys that they are using when in A.F.’s care, that she has produced a receipt to that effect and that it would be best that the laptops travel with the children for sake of consistency, passwords, etc. She states that, in any event, she has computers at her home and is and will do any required school work with the children

58I accept the Mother will do the children’s school work with them and see no need to limit her time to non-school days.

59I have no jurisdiction in this proceeding to order the laptop to travel with the children. I do issue a general warning to parents that actions taken during this time may very well be considered by a trial judge when making determinations about which parent is best able to put the child’s needs ahead of his or her own needs.

COVID-19

60The real issue here is whether the Mother’s access should be suspended in light of COVID-19, and, if face-to-face access is to resume, what protocols need to be put in place to prevent against the risk of COVID-19.

General Legal Principles

61It is clear that since COVID-19 the court has found that there is no presumptive authority extended to the Society to suspend all in-person access to parents without formulating some alternative measures. See: DCAS v. Quinn, 2020 ONSC 1761; and Children’s Aid Society of Toronto v. T.F., 2020 ONCJ 169, at para. 10.

62In Ribeiro v. Wright, 2020 ONSC 1829, Justice Pazaratz set out the following:

a) 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. b) 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. c) 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). d) 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. e) 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. f) 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. g) 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. h) 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.

63Although Ribeiro is not a child protection matter, the guidelines are applicable. See: Simcoe Muskoka Child and Youth Family Services v. JH, 2020 ONSC 1941, at para. 6.

64In the current exceptional circumstances, the benefit of ongoing in-person contact must be weighed against any risk to the child and to his or her caregivers. See: Children’s Aid Society of Toronto and O.O and J.G-L, 2020 ONCJ 179, at para. 69.

65The onus is on the party seeking to restrict access to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID 19 protocols and expose the child to risk. See: Tessier v. Rick, 2020 ONSC 1886, at para. 12.

66A parent is not permitted to simply engage in self-help, or to interpret public health directives as a license to terminate parenting time. If the parent fears that the current routine may compromise their child's well being, or the health of a person in the home, then the parent must provide specifics and bring a motion to change the order. See: Ahmadi v. Kalashi, 2020 ONSC 2047, at para. 8.

67As Justice Sherr states in C.L.B. v A.J.N., 2020 ONCJ 213, at para. 31:

Medical evidence is important on these COVID-19 motions. If someone is seeking to suspend a person's face-to-face contact with a child due to the child's medical vulnerability, a medical report should be provided setting out the child's medical condition, any increased vulnerability the child has with respect to the COVID-19 virus and specific recommendations about additional precautions that are required to protect the child from the virus.

68It is clear from the material before me that the litigation has been protracted and the parties are unable to communicate. It cannot be overstated that communication is key during this difficult and unprecedented time.

69Parents cannot ignore the other parent's inquiries about how they would comply with government directions. All levels of government in Canada, national, provincial and local have issued public health notices dealing with preventing infection, which include guidelines for physical distancing, and, where appropriate, self-isolating. Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. See: Balbontin v. Luwawa, 2020 ONSC 1996, at para. 11.

70I explained to all parties that if I was going to make any orders with respect to COVID-19 protocol, it would be made with respect to all parents and not just the Mother.

71I accept the submissions of the Mother and the Society and find that it is in the children’s best interests to return to face-to-face contact with their mother. She was having face-to-face contact before the pandemic and the only reason her face-to-face visits were suspended was due to the Society’s policy, not due to anything she did or did not do to put the children at risk.

72The Fathers did not provide any evidence to support the proposition that the Mother would put the children at risk. I do not accept the submissions from the Fathers that the Mother would not follow COVID-19 protocols. In any event, the parents were able to agree to terms that mitigate any perceived risk.

73A.F. sought terms with respect to how grocery shopping should be conducted. The Society has assured me that they have already agreed on a protocol with the Mother. Accordingly, I leave that to the Society's discretion.

74The Society is clear that the Mother has co-operated, and the children are not at risk in her care.

Orders Made

75Access by the Mother shall continue to be at the discretion of the Society which at the current time is:

With respect to S.F. and C.F.: Week 1: Friday after school (3:00 p.m.) until Tuesday morning at 9:00 a.m. Week 2: Saturday at 5:00 p.m. to Tuesday morning at 9:00 a.m. On scheduled PA days, the Friday access to start at 9:00 a.m. instead of 3:00 p.m.

With respect to P.C: Every other weekend, Friday after school (3:30 p.m.) through to Sunday at 5:30 p.m. and every Monday from after school 3:30 p.m. until 6:30 p.m.

And shall resume for all children on Friday May 15, 2020.

Terms on Consent

76Both Fathers have agreed that they will do the pick up and drop off of the children at the beginning and end of the Mother’s access with the children.

77All Respondents shall abstain from the use of non-prescription drugs while the children are in his or her care.

78On a without prejudice basis, the Mother shall not consume any alcohol while the children are in her care.

79No new person or pet shall reside with the Respondents during the COVID-19 pandemic.

Other

80Given the animosity between the parties, I also order that should anyone in either parents’ household exhibit symptoms or be diagnosed with COVID-19, that parent shall immediately advise the other and the Society, the matter shall be returned to court if the parents and the Society cannot agree, and appropriate changes will be made to either the parent’s residence or the parenting schedule.

81All parties shall follow all Government and Public Health protocols and directives as they relate to COVID-19.

82Notwithstanding 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. A party who wishes to prepare a formal order for approval and issuance may do so and submit materials by Form 14B to the court.

83The settlement/trial management conference previously scheduled for April 9, 2020 but adjourned as a result of COVID-19 shall be rescheduled upon resumption of normal court operations or a further protocol allowing trial management conferences to be heard prior to the resumption of normal court operations.

84Court Staff shall ensure that a copy of this endorsement is provided to counsel for the Applicant, counsel for each of the Respondents and OCL counsel.

85Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.