Court File and Parties
COURT FILE NO.: FS-18-19345 DATE: 20200529 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Katherine Walton Applicant – and – Michael Walton Respondent
Counsel: Michael Frank, for the Applicant David G. Seaton, for the Respondent
HEARD: May 29, 2020
Endorsement
THIS MOTION HAVING BEEN HEARD BY CONFERENCE CALL PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.
BONDY J.
A. Introduction
1) Background
[1] There were two motions before me. Both parents seek an order for custody of their biological children.
[2] The applicant, Katherine Walton, and the respondent, Michael Walton, were married in 2011 and separated in January 2015. They have three children: Lily-Anna Jane Grace Walton born October 18, 2001 (“Lily”), Owen Michael Joseph Walton born October 16, 2012 (“Owen”), and Judah Matthew Christopher Walton born June 10, 2014 (“Judah”).
[3] There is consensus that notwithstanding the lack of an order, all three children have been primarily resident with the applicant mother since 2015. The respondent father currently has access two times midweek and alternate weekends by the order of Carey J., dated December 20, 2019.
[4] There is also consensus that Owen has some serious behavioural issues.
[5] According to the respondent father, on May 7, 2020 Owen who, as said above, is seven years of age, disclosed that “the applicant had smacked him with a stick all over his body”. According to the respondent father, the child Judah said that “he heard it from the other room”.
[6] The respondent father contacted the Windsor/Essex Children’s Aid Society (“CAS”). After an investigation, the CAS contacted Windsor Police Services (“WPS”).
[7] In a letter dated May 8, 2020, the CAS initially recommended that the children remain in the care of the respondent father for the duration of their investigation. They then agreed that the children could return with the mother providing she was supervised and never alone with the children.
[8] There is also consensus that WPS has charged the applicant mother with assault with a weapon, contrary to section 267(a) of the Criminal Code, R.S.C., 1985, c. C-46. There is consensus that a condition of the applicant mother’s release is that she not contact the children. That condition is subject to a “Family Court Order”.
[9] The respondent father brought a motion requesting custody, including the children’s primary residence and decision-making be with him.
[10] In response, the applicant mother brought her own motion for custody or in the alternative for specified access. She also seeks an order that the CAS provide disclosure of their file in relation to the parties and the subject children.
[11] The applicant mother denies having assaulted Owen. She maintains that the respondent father and his partner are not suitable parents for a variety of reasons, including without limitation, child abuse and parental alienation.
[12] In summary, each makes very serious allegations with respect to the other.
[13] Unfortunately, I was unable to make important findings of fact and conduct a meaningful analysis on the basis of the evidentiary record before me. Accordingly, I adjourned the matter to a date to be set by the trial co-ordinator and ordered that the additional materials be served and filed before the matter continued.
[14] Counsel agreed that the applicant mother should have specified access supervised in accordance with the safety plan put in place by the CAS on May 8, 2020 pending the return of this matter. I found the arrangement agreed upon appropriate.
B. Order
[15] I make the following orders:
1) Windsor/Essex Children’s Aid Society
[16] The Windsor/Essex Children’s Aid Society shall provide disclosure of their file in relation to the parties Michael Walton and Katherine Walton as well as the children Lily-Anna Jane Grace Walton born October 18, 2001, Owen Michael Joseph Walton born October 16, 2012, and Judah Matthew Christopher Walton born June 10, 2014. That disclosure shall be subject to the following conditions:
- The Society shall be permitted to redact and not release any solicitor/client privileged material, third-party confidential information, or any other information which may reasonably be expected to interfere with an ongoing investigation.
- The Society shall be permitted to redact names and other personal information of any individuals referred to in the said records who are not involved in the current litigation proceeding, and shall also be authorized to redact the names, addresses and telephone numbers, as well as any identifying information for service providers, including foster parents.
- The Society shall not release any records relating to adoption of any party or any child of the party, other than the fact of relinquishment of a child for adoption by a third party.
- The Society shall not release any document prepared by third parties, including police reports, medical, psychological or other professional reports, but shall provide the name and address of the author of such reports, so that the parties may contact the author to arrange for the release.
- The Society shall be entitled to levy a reasonable administrative charge in respect of the staff time required for the preparation of the file. Please be advised their hourly rate is $23.
- The parties shall undertake to keep confidential any such information and material and shall make use of the information only for the litigation proceeding currently before the court, and for no further or improper reason.
2) Adjournment
[17] The matter is adjourned to a date to be set by the trial co-ordinator at the request of counsel after the following evidence has been served and filed:
- Applicant mother’s updated form 35.1 affidavit.
- Respondent father’s updated form 35.1 affidavit.
- Form 35.1 affidavit by any proposed access supervisor.
- Affidavit from any proposed access supervisor setting out: i) an acknowledgement of the duty to ensure that the applicant mother is not to be left alone with any of the children at any time; ii) an undertaking to abide by the duty to ensure that the applicant mother is not to be left alone with any of the children at any time; and iii) a consent to supervise access.
- The records of the Windsor/Essex Children’s Aid Society relating to the parties and the children.
- If either counsel concludes that such evidence is reasonably required, an affidavit from a person with knowledge at the Society. Further, if either counsel concludes that such evidence is reasonably required but a person with knowledge at the Society is unable or unwilling to provide such an affidavit, counsel shall be at liberty to identify and subpoena such person and the court will arrange for viva voce evidence to be taken from that individual.
3) Custody
[18] On a temporary and without prejudice basis, and until further order of the court, the respondent Michael Walton shall have custody of the children Lily-Anna Jane Grace Walton born October 18, 2001, Owen Michael Joseph Walton born October 16, 2012, and Judah Matthew Christopher Walton born June 10, 2014. For greater certainty, custody shall include both the primary residence of the children and decision-making for the children.
4) Access
[19] On a temporary and without prejudice basis, and until further order of the court, the applicant Katherine Walton shall have access to the children Lily-Anna Jane Grace Walton born October 18, 2001, Owen Michael Joseph Walton born October 16, 2012, and Judah Matthew Christopher Walton born June 10, 2014, in accordance with the safety plan instituted by the Windsor/Essex Children’s Aid Society on May 8, 2020 on the following terms and conditions, pending further order of the court:
- Supervised access shall be in accordance with the wishes of each individual child.
- Access shall be supervised by Drew Veres. None of the children shall ever be left alone with the applicant mother for any reason whatsoever during a supervised access visit.
- The times of supervised access shall be every Monday, Wednesday, and Friday from 9:30 a.m. until 5:30 p.m.
- At the beginning of each supervised access period, the respondent, Michael Walton, or his partner, Samantha, shall deliver the children to the applicant mother’s home and at the end of each access period, the respondent, Michael Walton, or his partner, Samantha, shall pick up the children from the applicant’s home. Neither Mr. Walton or Samantha shall leave their car nor shall Ms. Walton leave her home during those access exchanges.
5) Ancillary orders
- The parties shall not discuss this litigation with, or in the presence of, the children.
- The parties shall not discuss the outstanding criminal charges with, or in the presence of, the children.
- The parties shall not use or permit any corporal punishment of any of the children for any reason whatsoever.
“Electronically signed and released by Bondy J.” Christopher M. Bondy Justice