COURT FILE NO.: FC-17-FO401-0001
DATE: 2020-Feb-4
ONTARIO
SUPERIOR COURT OF JUSTICE – UNIFIED FAMILY COURT
BETWEEN:
The Children’s Aid Society of the Regional Municipality of Waterloo
Applicant
– and –
K.D.D.
Respondent
– and –
M.V.
Respondent
– and –
C.R.
Respondent
– and –
Child Counsel for the children, A. and Z.
Jeffrey W. Boich,
Counsel for the Applicant
Brent Balmer,
Counsel for the Respondent K.D.D.
Not Appearing
Walter Wintar,
Counsel for the Respondent, C.R.
Valeria Ruoso, Agent for OCL representing the children, A. and Z.
Heard: January 22, 2020
The Honourable Mr. Justice R.J. Harper
JUDGMENT
Issues
[1] The Children’s Aid Society of the Regional Municipality of Waterloo brings this Motion for Summary Judgment with respect to two children;
i. A.B.D who is 12 years of age; and
ii. Z.D. who is 6 years of age.
Family Constellation
[2] K.D.D. is the biological mother of the both of the above-named children.
[3] M.V. is the biological father of the child A.B.D.
[4] C. R. is the biological father of the child Z.D.
Applications Before the Court
Z.D.
[5] There is a Protection Application with respect to the child Z.D. The Society seeks a finding that the child is in need of protection pursuant to the Child Youth and Family Services Act, 2017, sections 74(2)(bi),(b-ii) and (g).
[6] As set out below, the child Z.D. was apprehended on July 9, 2017. At this time, E.D. was 4-years old. The child was found with his mother living in an abandoned farm house. The child was taken into care, at that time, and the mother was admitted to hospital pursuant to an involuntary admission under the Mental Health Act.
[7] Z.D. was placed with his biological father C.R. by the Order of Justice Rogers June 26, 2018. At that time, C.R. lived in the Region of Waterloo. He subsequently moved to Windsor, Ontario with his now wife, C.S. and their biological daughter M.R. The child Z.D. has resided with his father and new family since June 26, 2018. Z.D. has been diagnosed with ADHD and has some behavioral issues. The child is doing well in the care of his father even with these challenges.
A.B.D.
[8] With respect to the child A.B.D., she was apprehended by the Society on or about July 10, 2017 after a lengthy search by various Child Protection Agencies and the OPP. She was located, after her brother Z.D. had been apprehended by the Society, on July 9, 2017, following their mother K.D.D. taking the child Z.D., then 4 years of age, to reside in an abandoned farm house.
[9] A.B.D., age 10 at this time, was dropped off at her adult step-sister’s home without any notification to her step-sister. All A.B.D. had with her was a bag of clothing and a few toys.
[10] A.B.D. was placed with her father, M.V. on or about October 27, 2017. A.B.D. was found in need of protection pursuant to the Child and Family Services Act by Justice Oldham on April 11, 2018.
[11] After the father of A.B.D, M.V., was located, he advised that he would be seeking to have his daughter placed in his care. He submitted a plan of care and was placed with the Society. The Society investigated his plan and living circumstances. The Society was satisfied with M.V.’s plan and the child, A.B.D. was placed with him under the supervision of the Society. The Order of Justice Oldham dated April 11, 2018 was a final Order of six months supervision. The Society is presently seeking a Custody Order in favour of M.V. pursuant to the Child Youth and Family Services Act s. 102.
[12] A.B.D. has been thriving in the care of her father. M.V. is very sensitive and supportive of A.B.D.s need to have a relationship with her mother and her other siblings.
[13] K.D.D. has a history of mental health diagnosis. In or about 2008, it was noted by the physician completing a disability form for K.D.D. that she suffered from Bipolar Disorder in post-partum, severe mood swings with auditory hallucinations, Intermittent Explosive Disorder with impulse control issues including anger, and Dissociative Disorder with memory problems, sleep disorder, anxiety impulse control difficulties and a lack of insight into self-evaluation.
[14] In 2010 she was assessed by the crisis team at the hospital emergency room. At that time, K.D.D. reported that she had Bipolar Disorder and had stopped taking her medications. She also stated that: “she always heard voices. They sometimes tell me I’m bad or the world would be better off without you”
[15] In July 2017 K.D.D. was admitted under a Form 1 pursuant to the Mental Health Act. She was noted to be disheveled, disorganized and not making rational decisions. She also presented as paranoid, delusional and had tangential thoughts. She was noted by the doctor as being a risk of harming herself. During this hospital admission, on July 16, 2017 K.D.D. threatened hospital staff that she was going to: “freak out and harm someone”. At this time, it was felt that K.D.D. had been admitted to the hospital due to a drug-induced psychosis and that she would deteriorate back into psychosis as soon as she starts abusing substances again.
[16] Unfortunately, K.D.D.’s mental health struggles have persisted. She was hospitalized in July and August of 2019 due to her mental health issues.
[17] The mother, K.D.D. did not file any responding materials to this motion for summary judgment. She did not attend this hearing, however, counsel acting for her did attend. He did not make submissions relative to the substantive issues other than his support of the position of the Society that there should be access to the mother at the father’s discretion.
[18] I was advised by counsel that the mother was admitted to the hospital for her mental health issues as recently a few days ago. She remained in hospital at the time of this hearing.
The Position of the Parties
[19] The father, M.V. agreed with the Society seeking an order for custody of A.B.D. to him with access to the mother at his discretion.
[20] The father, C.R. agreed with the Society seeking an order with respect to Z.D. being a child in need of protection and for an order placing the child with him for a period of 6 months with terms of supervision as set out in the Society’s request.
[21] The OCL also agrees with the requests of the Society with respect to both children. The OCL represented that the child, A.B.D. has been consistent and clear about her views and preferences. She wants to remain living with her father and she wants to have access to her mother. A.B.D. is aware of her mother’s difficulties with her mental health issues. She loves her mother and she wants to see her mother when her mother is able to see her.
[22] The Society submitted that A.B.D.’s father M.V. has been exceptional in his willingness to keep the contact between A.B.D. and her mother and to arrange access when that access is appropriate given the mother’s changing mental health condition from time to time.
[23] From my review of all of the uncontested evidence presented at this summary judgment motion, I agree that M.V. has been exceptional in both his care of A.B.D. but also in his efforts to retain and sustain the relationship between the mother and A.B.D.’s siblings. He is to be commended for this dedication to all of the children that I find to be important to each other.
[24] The OCL submitted that she agreed with the accolades that should rightly be attributed to M.V. However, she expressed concern that the father of Z.D. was not as proactive in his willingness to foster the relationship with the child Z.D. and his mother.
[25] The OCL sited examples in the evidence in which C.R. places obstacles in the way of getting access between Z.D. and his mother in place and C.R.’s less than cooperative approach with the OCL. While I agree that there are incidents that the father of Z.D. did not cooperate as he should have. I find that there are understandable complications that must be weighed and balanced with all of the considerations with respect the access between the mother and both children.
[26] I will elaborate further on the issue of access later in these reasons.
Summary Judgement
[27] There are two very significant cases of the Ontario Court of Appeal that have recently been released with respect to summary judgments in child protection matters. The first is Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 and the subsequent decision of the Court of Appeal in L.M. v. Peel Children’s Aid Society, [2019] ONCA 841.
[28] The Court of Appeal in L.M. confirms that the summary judgment test in child protection cases remains the same as in all other cases. If the judge hearing the summary judgment motion is able to reach a fair and just determination on the merits on the motion for summary judgment that there is no genuine issue requiring a trial, summary judgment should be granted.
[29] In child protection cases, this test must be applied in the context of the particularly high stakes and sensitive issues in child protection matters that do invoke certain Charter rights of parents and children. With that being said, each case must be decided on the evidence and issues presented on the motion.
[30] In applying these principles, I have no hesitation in granting summary judgment in this case. The mother has not responded to any of the evidence presented by the Society. Her lengthy history and struggle with severe mental health issues places both of these children at risk of both physical and emotional harm. The mother’s mental health challenges have been chronic and present as of this motion. I find that the mother makes gains, at times, complies with her medications and treatment regimen. However, her history shows that she often relapses to the point that she is not able to function without having to be involuntarily admitted to hospital due to a serious risk of harm to herself and others.
[31] Having regard to all of the evidence, I find that there is no genuine issue requiring a trial.
[32] A.B.D is thriving in the care of her father. She has been in his care since October 2017. She is doing well in school. Her father has taken her to and participated in counselling with A.B.D.
[33] M.V. recognizes that the relationship with A.B.D. and her mother K.D.D. his important to her and, at this time, remains in her best interest. As a result, he is willing to foster that relationship and facilitate access when it is appropriate given the changing mental health presented by the mother from time to time.
[34] With respect to the child Z.D. I make the following findings:
i. His full name is as set out in the application of the Society;
ii. He is not a first Nations, Inuk or Metis child,
iii. The location from which the child was removed is the Waterloo Region; and
iv. He is in need of protection pursuant to sections 74(2)(b-i),(b-ii) and (g) of the Child Youth and Family Services Act.
Disposition
[35] The child, Z.D. shall be placed with his father C.R. for a period of 6 months under the supervision of the Society and on the terms as set out in the Society’s factum para 1 (a-n) inclusive paragraphs 2 and 3 of this factum.
[36] With respect to the child A.B.D. there shall be an Order pursuant to the Child Youth and Family Services Act section 102, granting custody of A.B.D. to her father, M.V.
[37] With respect to the continuing relationship between Z.D. and his mother, C.R. has not been as insightful as M.V.. Nevertheless, he articulates that he is prepared to facilitate the relationship and contact between Z.D. and his mother when it can be appropriately and safely accomplished. The added complication with respect to access as it relates to Z.D. and his mother is the geographic distance between Windsor, where Z.D. lives with his father and Kitchener-Waterloo region where the mother resides.
[38] The OCL represented that it has been difficult to obtain the views and preferences of Z.D. however, she advised that Z.D. has verbalized that he does not want to see his mother.
Access
[39] The Society seeks an order that delegates the exercise of discretion as to whether there should be access with the mother to the respective fathers of the children. I am of the view that there is no authority to delegate the exercise of such discretion to either a non party or to a party.
[40] A determination of access must be made after the court considers all of the evidence as it relates to the considerations of the factors set out in the statute for a determination of the “best interests of the child”. This is an essential exercise of the court’s discretion.
[41] I am well aware of the different paths that some of the cases have taken relative to the issue of whether it is permissible to delegate considerations of access to a party or a non party.
[42] Justice Manjusha B. Pawagi in Children’s Aid Society of Toronto v. N.N., 2017 ONCJ 827, reviewed many of the differing paths of cases. She stated commencing at para :
The Court of Appeal in Strobridge v. Strobridge, 1994 875 (ON CA), [1994] O.J. No. 1247, and M.(C.A.) v. M.(C.), 2003 18880 (ON CA), [2003] O.J. No. 3707, held that the court cannot delegate decision making over access. But since those were both custody/access cases and involved delegation to a third party such as an assessor or psychiatrist, courts have distinguished them from child protection cases where the issue is delegation to the society who is one of the parties.
There are two competing lines of cases in the child protection context regarding whether the court has the jurisdiction to delegate decision making authority over access to the society.
In C.H. v. Durham Children’s Aid Society, 2003 57951 (ON SCDC), [2003] O.J. No. 879, leave to appeal refused, [2003] O.J. No. 2825 (C.A.), the Divisional Court held that the court has jurisdiction to order access at the discretion of the society. This jurisdiction was held to be based on the combination of ss. 58(1) and 15(3) of the CFSA. Section 58(1) gives the court authority to determine access in the best interests of the children and to “impose such terms and conditions on the order as the court considers appropriate.” Section 15(3) sets out the responsibilities of a society including to “supervise children assigned to its supervision under this Act.” The Divisional Court found that it would not be in the child’s best interests for the parties to have to return to court for every-day access issues; that maximum flexibility is required to respond to the family’s ongoing needs on a day-to-day basis; and the society has the mandate and expertise to deal with these day-to-day issues.
On the other hand, there is a line of Ontario Court of Justice and Superior Court of Justice cases that hold that the court cannot delegate decision making concerning access to the society. This view is expressed in a frequently-quoted passage from Children’s Aid Society of Toronto v. D.P., [2005] O.J. No. 930 (S.C.J.) where S.R. Goodman J. commented at para. 40:
…While I can certainly understand some of the reasons why it would be efficient, time- or cost-wise, to delegate access issues to the society, children and their parents have a right, in my view, to have decisions in respect of access made in an objective and neutral manner. One would expect that it would be rare, if ever, that legislation would authorize a court to delegate its judicial functions to any third party who or which is a party to the litigation, when neutrality and objectivity are so vital to the decision-making process. In my view, simply put and at least on a final basis, the Act does not permit, either expressly or by implication, the court to delegate its authority to make orders in respect of access under s. 58 to any person or entity, including the children’s aid society.
Justice Goodman distinguished the Divisional Court’s decision in C.H. v. Durham Children’s Aid Society, noting that the decision in that case related to a temporary access order made in the course of a child protection case that granted access to the parent (at para. 33). In contrast, in the case before her, the trial judge had made a Crown Wardship order that indicated it was “silent with respect to access.” See also Children’s Aid Society of Toronto v. B.O., 2003 74523 (ON CJ), [2003] O.J. No. 4247 (O.C.J.), at paras. 4648, and Children’s Aid Society v. C.B., [2007] O.J. No. 3573 (O.C.J.), at paras. 53-55.
[43] Justice Granger in Children’s Aid Society of London and Middlesex v. C.(G.) 2001, 28530 stated commencing at para:
I raised with counsel the jurisdiction of this court to make an order that access, whether supervised or not, be in the discretion of the society. It seemed to me that such an order would be a delegation of authority that is not expressly allowed by the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended.
In child protection cases, access is routinely ordered to be at the discretion of the society. This type of order lessens the burden on the courts by reducing the number of motions brought to vary the access provisions and allows the society much latitude in determining the access that should be afforded to a parent. The past orders of courts and the expediency of such orders cannot clothe the court with jurisdiction that is not founded in the wording of the statute.
It is the independence of the judiciary that provides the parents with the assurance that their views concerning the best interests of their child will be considered by an impartial court that is independent of the society and will make an order that is in the best interests of the child. In order to achieve the objective of an impartial ruling, subsection 58(1) expressly states that “The court may . . . make, vary or terminate an order respecting a person’s access to the child . . ., and may impose such terms and conditions on the order as the court considers appropriate”. It is clear from this subsection that the legislature entrusted the court with the responsibility of making access orders. If the legislature had intended that the society was also to have the jurisdiction to make access orders or to control the access process, it could have explicitly provided for such a power in the society. In the absence of specific language to this effect, the court must be taken to have the sole jurisdiction to make and control access.
If a court orders that “access shall be in the discretion of the society” it is in effect delegating the power that was invested in it by the legislature. As there is no express power of delegation of the making of an access order, such an order is beyond the jurisdiction of the court.
In Children’s Aid Society of Durham Region v. Catherine W. and Keith W., 1991 3973, [1991] W.D.F.L. 588, 4 O.F.L.R. 112, [1991] O.J. No. 552, 1991 CarswellOnt 1794 (Ont. Gen. Div.), Justice Gilbert L. Murdoch stated:
[14] It is the position of counsel for the children’s aid society and for the Official Guardian that, for the learned trial judge to give to Mary Margaret Wells the discretion to decide how the access is to occur, when it is to occur, why it is to occur, or whether it is to occur, is to exercise the very discretion that only belongs to the trial judge and that it was an error in law in delegating the question of access, which is a judicial function, to a non-party.
[15] The position of each counsel is that the effect of what the trial judge did in this instance is that it would be Mary Margaret Wells or “such other play therapist who shall be treating the child or children from time to time” who would exercise that discretion and not the court. This position can be supported by reference to subsection 54(1) of the Act. This section gives to the Court alone the power to make, vary or terminate access orders.
[16] In support of the position that the learned trial judge unlawfully delegated his authority, counsel for the children’s aid society referred to Branigan v. Yukon Medical Council et al (No. 2) (1986), 1 Y.R. 194, 21 Admin. L.R. 149, [1986] Y.J. No. 48, 1986 CarswellYukon 12 (Yuk. Terr. S.C.). The issue there was whether the Yukon Medical Council had jurisdiction to delegate its powers to the Alberta College of Physicians and Surgeons. The supporting legislation was the Medical Profession Ordinance, S.Y.T. 1979 (2nd Sess.), c. 12, which created the Yukon Medical Council. Subsection 8(1) of the legislation gave to the Yukon Medical Council, and only the council, authority for monitoring professional competence. The trial judge ordered that the Alberta College of Physicians and Surgeons exercise the powers and duties of the Yukon Medical Council. On appeal, Justice Stephen Borins held at page 155 [Admin. L.R.]:
It is my opinion that the order of Mr. Justice Power, when considered in its entirety, constitutes a delegation of the disciplinary authority of the Yukon Medical Council granted to it by ss 23, 24 and 25 of the Medical Profession Act to the Alberta College of Physicians and Surgeons. It is absolutely clear, not only from the face of the order and its recitals but also from the reasons for judgment of Mr. Justice Power, that the Alberta College of Physicians and Surgeons was to assume the statutory powers of investigation and decision making which the Government of the Yukon territory had granted solely to the Yukon Medical Council. . . . Nothing in the Act permits such a delegation . . .
[17] At page 156, a reference is found to Ahmad v. College of Physicians and Surgeons of British Columbia (1970), 1970 799 (BC CA), [1971] 2 W.W.R. 60, 18 D.L.R. (3d) 197, 1970 CarswellBC 74 (B.C.C.A.), where Appeals Justice Angelo E. Branca stated:
There is no doubt that judicial functions cannot be delegated unless by express authority or by necessary implication, while on the other hand many administrative functions may be validly delegated . . .
In Vic Restaurant Inc. v. City of Montreal (1958), 1958 78 (SCC), [1959] S.C.R. 58, 17 D.L.R. (2d) 81, [1958] S.C.J. No. 69, 1958 CarswellQue 49, the city was given a discretionary power to issue licences for carrying on trades. The case turns on the point that, in the absence of statutory authorization, the municipal council cannot delegate its discretion on the issue of issuing licences to a departmental head or to a police chief and that, where a municipal council does that, it constitutes an unlawful delegation. At page 90, Justice Charles H. Locke quoted with approval from Bridge v. The Queen (1952), 1952 9 (SCC), [1953] 1 S.C.R. 8, [1953] 1 D.L.R. 305, 104 C.C.C. 170, 1952 CarswellOnt 117 at page 314 [D.L.R.]:
It is within the powers of the council to prescribe a state of facts the existence of which shall render an occupier ineligible to receive a permit for a stated time; but express words in the enabling statute would be necessary to give council the power to confer on an individual the right to decide, on such evidence as he might find sufficient, whether or not the prescribed state of facts exists and there are no such words.
[17] Further in this vein in an article by John Willis at (1943), 21 Can. Bar Rev 257 under the title Delegatus Non Potest Delegare, the following appears at page 257:
The maxim deals with “delegation” by an authority of its statutory discretion. What is “delegation”? “Delegation”, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself . . . it is never used by legal writers, so far as I am aware, as implying that the delegating person parts with this power in such a way as to denude himself of his rights. The fact that the authority named in the statute has and retains a general control over the activities of the person to whom it has entrusted the exercise of its statutory discretion does not, therefore, save its act of so entrusting to him the discretion from being “delegation” and so falling within the ambit of the maxim.
Further at page 259, the following:
When is delegation permissible? The answer to this question depends entirely on the interpretation of the statute which confers the discretion. A discretion conferred by statute is prime facie intended to be exercised by the authority on which the statute has conferred it and by no other authority . . .
[18] In Robert F. Reid and David Hillel: Administrative Law and Practice, 2nd ed. (Markham, Ont.: Butterworths, 1978), under the heading “Sub-delegation of Powers in General” at page 290, the following:
Judicial functions may be delegated only by express authority or necessary implication . . .
[19] In my opinion, the question of delegation is so intrinsically a part of the access order that it cannot be severed from the same and so the entire order of access must fail. In paragraph 3 of the order of the learned trial judge, he gave Mary Margaret Wells and an unknown play therapist the power to decide whether access should occur and, in so doing, he delegated a function that was exclusively that of the court and, in so doing, erred in law.
[20] In my view, there is no express authority to delegate the function of making an access order to the society just as there is no express authority to delegate the function of determining access to a parent in a custody dispute pursuant to the provisions of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended. Nor can it be said that there can be delegation by necessary implication. The court can make an order for access and can vary its order at any time. In addition, a court can define an access order. The fact that it may appear to the society to be more cumbersome or time consuming to have to come back to court to vary or define the terms of access does not mean that access can be delegated to the society by necessary implication. Supervision is a condition of access and, if the parties are unable to agree on whether there should be supervision and the type of supervision, it will be the responsibility of the court to determine whether there should be supervision of access and, if so, the terms and conditions of such supervision.
[21] In Strobridge v. Strobridge (1994), 18 O.R. (3d) 753, 72 O.A.C. 379, 115 D.L.R. (4th) 489, 4 R.F.L. (4th) 169, 1994 875, [1994] O.J. No. 1247, 1994 CarswellOnt 400 (Ont. C.A.), Appeal Justice Coulter A.A. Osborne, speaking for the court said at page 181 [R.F.L.]:
The Access Order
i. The Delegation Issue
All parties agree that the motions judge erred in delegating the actual determination of access to the LCAP. In making the order he did; the motions judge brought a third party into the picture in the hope that an independent professional could “reunite Mr. Strobridge and his children” [at p. 179]. While I can understand why the motions judge proceeded as he did, I agree that he erred in assigning to the LCAP the decisions whether, and under what circumstances, access would be exercised. There is no statutory, or other, authority which would permit this delegation. See Children’s Aid Society of Durham Region v. Catherine W. and Keith W., [1991 3973, [1991] W.D.F.L. 588, 4 O.F.L.R. 112, [1991] O.J. No. 552, 1991 CarswellOnt 1794 (Ont. Gen. Div.)], upheld by this court February 14, 1992 [Children’s Aid Society of Durham Region v. Catherine W. and Keith W., 1992 4096, 31 A.C.W.S. (3d) 1007, [1992] W.D.F.L. 481, 5 O.F.L.R. 125, [1992] O.J. No. 265, 1992 CarswellOnt 3602 (Ont. C.A.)].
Given my views on the delegation issue, the motions judge’s access order cannot stand. It therefore remains to be determined what, if any, access order should be made, or, in the alternative, if the issue of access should be referred to a motions judge in London for a new hearing.
[22] In Behrens v. Stoodley (1999), 128 O.A.C. 58, 3 R.F.L. (5th) 8, 1999 1626, [1999] O.J. No. 4838, 1999 CarswellOnt 4141 (Ont. C.A.), Appeal Justice Robert J. Sharpe speaking for the majority stated at paragraph [40]:
[40] . . . . It is well established that a trial judge should not delegate decision- making authority to an assessor: Strobridge v. Strobridge (1994), 1994 875 (ON CA), 18 O.R. (3d) 753 (C.A.).
[23] Although the delegation in Children’s Aid Society of Metropolitan Toronto v. Loretta C. and Steven H., 1999 15195, 88 A.C.W.S. (3d) 399, [1999] O.J. No. 1793, 1999 CarswellOnt 1459 (Ont. Prov. Div.); Strobridge v. Strobridge, supra, and Behrens v. Stoodley, supra, was to a non-party the rule against delegation, is also applicable to a party to the proceedings.
[24] In Children’s Aid Society of Metropolitan Toronto v. Loretta C. and Steven H., supra, Provincial Judge Heather L. Katarynych, in refusing to order access to be in the discretion of the society, stated:
While the court is given a positive duty to make an order for access between a child and the persons from whom the child has been removed, the terms of that access must be tied to the needs of the children. There is nothing in the Act that precludes an access “in the discretion of the society”. If, however, that proposal is not the subject of an all-party agreement, such an order sets the stage for a perception that access is a privilege granted by the society and not a right of the child. It is particularly vulnerable to that perception when the parents mistrust the society’s motives and actions.
[24] Although I disagree that the proper approach to the power of delegation is to ascertain whether there is anything in the statute that would prevent delegation as opposed to ascertaining whether delegation is expressly authorized or is allowed by necessary implication, I agree that making an order that access will be at the discretion of the society can only lead to the perception that it is the society and not the court that grants access.
[44] Justice Lauwers of the Ontario Court of Appeal, sitting In Chambers in the case of D.G. v. A.F., 2014, ONCA 436 commented on a court’s consideration of: the best interest of children commencing at Para 34:
[34] The best interest of very young children are usually best served by stable custody and access arrangements, and the formation of strong relationships with both parents. The problem of uncertainty in custody and access arrangements was discussed in Van de Perre v. Edwards, at para 13, repeated here for convenience:
First, finality is not merely a social interest: rather, it is particularly important for the parties and the children involved in custody disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of he unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interest of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. (my emphasis added)
[45] I am of the view that a court cannot and should not delegate its exercise of discretion when ordering access. It is the court that must balance and evaluate the evidence within the consideration of the factors set out in the statute. Expediency cannot override such considerations.
[46] I am also of the view that in certain circumstances, after the court has made the determination that access is appropriate it may be necessary to set out certain parameters and guidelines to a party who may be placed in a position of having to facilitate that access given the unique circumstances of each case that is presented a court.
[47] In this case there are unique circumstances that exist that require certain adjustments to the facilitation of access from time to time.
[48] I find that the evidence before me demonstrates that it is in the best interests, at this time, that both children should have access to their mother. I am mindful of the evidence that the mother has not seen either child since the summer of 2019. A substantial reason for her not seeing the children has been due to her mental health functioning. The ability of the mother to function on a consistent basis is a factor that must be monitored in order to determine if it remains in the best interest of the children for the court to order continuing access. These children cannot be continually placed in a position where they are set up for disappointment and possible feelings of rejection.
[49] In the unique circumstances of this case, the frequency and the details of any access are contingent on a number of often changing circumstances.
[50] For both children I am ordering that any access must be supervised.
[51] Access between Z.D and K.D.D. shall be at least once per month having regard to the geographic distances and the varying degrees of mental health functioning of the mother. The Society shall facilitate such supervision and coordinate the timing of the access.
[52] With respect to the child A.B.D, the father M.V. shall supervise the access. The frequency of such access shall be facilitated by the father having regard to the views and preferences of the child from time to time, the child’s activities and the varying degrees of mental health functioning of the mother from time to time.
R.J. Harper J.
Released: February 4, 2020
COURT FILE NO.: FC-17-FO401-0001
DATE: 2020-Feb-4
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children’s Aid Society of the Regional Municipality of Waterloo
Applicant
– and –
K.D.D.
Respondent
– and –
M.V.
Respondent
– and –
C.R.
Respondent
– and –
Child Counsel for the children, A. and Z.
JUDGMENT
R.J. Harper J.
Released: February 4, 2020