COURT FILE NO.: FC-19-CP38

DATE: 2020-11-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Children’s Aid Society of Ottawa, Applicant

AND

S.F and Y.L., Respondents

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Brian Fisher, Counsel for the Applicant Mellington Godoy, Counsel for the Respondent Father (Y.L.) S.F., Self-represented Respondent Mother Alexandra Kirschbaum, Counsel for the Office of the Children’s Lawyer

HEARD: November 9, 2020 by video conferencing

ENDORSEMENT

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87. (7) Order excluding media representatives or prohibiting publication. Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(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.

M. Smith J

[1] The Respondent Father brings a Motion for in-person access (2 days per week) with S.L. (12 years old), as well as increased phone access (at a minimum 2 times per week). Alternatively, the Father seeks gradually increased access.

[2] The Children’s Aid Society of Ottawa (the “Society”) opposes the Motion.

[3] The Respondent Mother did not participate in the Motion.

[4] The Office of the Children’s Lawyer (the “OCL”) supports the Society’s position.

BACKGROUND

[5] S.L. was brought to a place of safety on May 3, 2019. On May 8, 2019, Justice Beaudoin granted a temporary without prejudice care and custody order placing S.L. in the care of the Society.

[6] On November 21, 2019, a final Order of four (4) months interim Society care was granted to the Society by Justice Shelston.

[7] On August 27, 2020, Justice Labrosse granted a temporary Order placing S.L. in the temporary care and custody of the maternal grandmother, D.M., subject to a supervision Order by the Society with terms and conditions. In terms of access to the parents, it was ordered that it be at the discretion of the Society subject to the best interest of S.L.

[8] The Father commenced having access with S.L. on or about April 27, 2020.

THE ISSUE

[9] The only issue in this Motion is whether it is in S.L.’s best interest to increase access with his Father.

POSITION OF THE PARTIES

The Father

[10] The Father takes the position that it is in S.L.’s best interest that access be increased. He acknowledges that there have been some difficulties with access thus far and it has not been perfect.

[11] The Father understands that he has to change his behaviour on a go forward basis, but he explains that he has previously been stressed, frustrated and he has feelings/perceptions of being targeted by the Society.

[12] The Father submits that despite some issues that have arisen during access, there have been some positive aspects. He points to the evidence of a Child and Youth Counsellor (“CYC”) who has been covering the access visits. The Father’s strengths observed by the CYC were:

a. He is enthusiastic during the access calls;

b. He has shown affection towards S.L. and expressing his love;

c. He is an emotional man and at times, cries in front of S.L.

d. He tends to praise S.L.; and

e. He teaches S.L. the history of his country of origin Congo.

[13] The Father is of Congo descent and he wishes to foster the relationship and culture with S.L. However, he finds it difficult to achieve this goal when access is limited to one hour per week through the Zoom platform.

The Society

The Society does not doubt the Father’s love for S.L. However, at this time, S.L. does not wish to see his Father. S.L. refused to participate during the last two access calls in October. It is explained that S.L. only joined the calls to make his Father happy, but he no longer sees the point.

[14] The Society argues that S.L.’s views and preferences are clear. During some of the access visits, S.L. appeared uncomfortable and disengaged in the conversation by putting fingers in his ears. S.L. is content with once a week virtual access.

[15] The Society acknowledges the importance of preserving S.L.’s cultural identity, but given S.L.’s wishes to limit access, it is difficult to accomplish. In October 2020, the Child Support Worker (“CSW”) suggested to the Father that he consult with the Regroupement Ethnoculturel des Parents Francophones de l’Ontario (“REPFO”). This organization provides a variety of programs, services and advocacy. It is unknown if the Father has reached out to REPFO.

[16] The Society is concerned about the Father’s behaviour. There have been altercations at the Society’s offices, aggressive communications with the CSW and the Father’s conduct during the access is not acceptable. During his access visits with S.L, the Father has raised his voice, smoked cigarettes and weed, and has made numerous inappropriate comments to S.L. which has visibly upset him.

The OCL

[17] The OCL shares the same concerns enunciated by the Society. The Father needs to increase his sensitivity and modify his behaviour.

[18] The OCL says that it is not in S.L.’s interest to have in-person visits when the Zoom platform visits have gone so poorly.

[19] The OCL submits that although the Father has acknowledged that his behaviour is inappropriate, he has not managed to change or put forward a plan to improve.

[20] S.L. does not want to terminate access with his Father, but at present, S.L. wishes to maintain the current access.

THE LAW AND ANALYSIS

[21] Section 104(1) of the Child, Youth and Family Services Act, 2017, S.O., c. 14, Sched. 1 (“CYFSA”) provides that a Court may, in the best interest of the child, vary or terminate an Order respecting a person’s access to the child.

[22] In assessing the best interest of the child, section 74(3) of the CYFSA sets out some factors to consider. In this case, I find that the following factors are relevant: S.L.’s views and wishes, his mental and emotional needs, his race, the importance of his development of a positive relationship with his Father, his relationship and emotional ties to his Father,

[23] The Father loves S.L. That is not disputed. He has expressed his love for his son on numerous occasions during his video access visits and that is acknowledged by the Society. S.L. is very interested in his family and wants to maintain contact.

[24] S.L.’s Mother and Father have different cultural backgrounds. The Father, who is of Congolese descent, is concerned that his son is growing up completely disconnected from his culture, being raised by a white family (Franco-Ontarian). The Society recognizes that S.L.’s race and culture is important and has suggested that the Father reach out to REPFO. On the evidence before me, it does not appear that the Father has followed the Society’s recommendation or utilized the services of this organization.

[25] I have reviewed the numerous texts/emails written by the Father to the Society. They are aggressive and accusatory in nature. They also tell the story of a Father who desperately wants to be with his son. He is extremely frustrated in the system and finds that he is being judged by the Society. The Father has been unable to work cooperatively with the Society. He has not responded well to the Society’s suggestions nor is he prepared to hear them. His written and verbal communications with the Society have been highly inappropriate.

[26] The Father has expressed remorse for his past conduct, and he admits that he must change his behaviour. He states that his son is his priority and that he is taking steps to better himself. He has enrolled in an online accounting and business management course. The Father needs to be commended for his desire to improve. With these good intentions, the Father must now take the necessary steps towards achieving his goal of improving as a person and as a parent to S.L. He is going in the right direction, but he needs to make some progress before being authorized further access with S.L.

[27] Until very recently, the Father has lacked any demonstrated interest in managing his anger and emotions. I find that the Father has exhibited conduct that is unacceptable and not in S.L.’s best interest. Subjecting S.L. to more of this undesirable conduct could cause S.L. more harm than good. Before increasing access, the Father needs to stop behaving inappropriately and demonstrate, on a consistent basis, that he has changed his behaviour. The Father must refrain from communicating with the Society in an aggressive and accusatory manner. He must not use threatening language when dealing with the Society, either verbally or in writing. In the best interest of his son, the Father must remain calm and act in a courteous/respectful manner with all those that are involved with S.L.

[28] Turning to the video access with S.L., these visits only started in April 2020, and the Father had not seen S.L. for approximately one year. Since this summer, the Father has missed five visits with his son, which he explains is due to connectivity issues. At present, I do not find that the evidence establishes that the Father has a very strong bond with his son or that S.L. has developed a positive and strong emotional tie to his Father. While I agree that an increase in access visits will assist in building a parent-child relationship, it cannot take place until the Father modifies his approach in the way that he interacts with his son. There are numerous instances where the Father has demonstrated a lack of judgment during his access visits, which has caused discomfort and embarrassment to S.L. Some of these access visits have been unpleasant and not beneficial to S.L. I find that the following conduct, which has been observed by the Society, must be eliminated, modified and/or improved while the Father exercises virtual access with his son:

a. using the F words;

b. smoking cigarettes or weed;

c. speaking negatively about the Society and criticizing others;

d. talking about topics that are uncomfortable or inappropriate for S.L.;

e. accusing, insulting and mocking S.L.; and

f. yelling and raising his voice.

[29] I find that the Father’s behaviour during access visits, as described above, has contributed to S.L.’s desire to limit the access visits with his Father as opposed to increasing them. As stated earlier, S.L. wishes to maintain one virtual visit per week (1 hour). Although S.L.’s views and preferences are not determinative in deciding the issue, I find that it is an important factor to take into account. At times, S.L. has been completely disengaged in the virtual visits with his Father. He expresses his disapproval of what is being discussed and/or communicated by his Father by inserting his fingers in his ears during the access visit (it happened more than once). More recently, S.L. has chosen not to attend two visits in October. He explained to the CYC that he did not attend these because he does not see the point. S.L. described the visits with his Father as follows: “He speaks, I listen. He becomes angry, then yells and he doesn’t listen.” This type of behaviour is not conducive to building and fostering a meaningful relationship with a child.

[30] S.L.’s best interest, protection and well-being is paramount. And while I agree that it is important that the Father establishes, builds and maintains a relationship with his son, it cannot be contrary to S.L.’s best interest. In my review of the evidence, I find that S.L.’s feelings about limiting access with his Father are valid. Thus far, the Father has been unable to read S.L.’s cues during the access visits and he has shown a lack in judgment with his comments.

[31] I have carefully considered the Father’s request for in-person access or increased access, along with the factors set out above. At the present time, the evidence does not favour a change in the Father’s access with S.L. Justice Labrosse’s Order dated August 27, 2020 which provides that parent access shall be at the discretion of the Society, subject to S.L.’s best interest, remains.

[32] In the future, some change in access may be possible, but it is dependent upon the Father improving his behaviour and conduct, on a consistent basis. The Father has acknowledged that he needs to work slowly towards increasing access. I encourage the Father to continue on his path in taking positive steps to becoming a better person/parent. In doing so, the Father must make some meaningful changes and work collaboratively with the Society.

[33] This matter is adjourned to December 8, 2020 at 10:00 a.m., to be spoken to.

M. Smith J

Released: November 24, 2020

COURT FILE NO.: FC-19-CP38

DATE: 2020-11-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Children’s Aid Society of Ottawa, Applicant

– and –

S.F and Y.L., Respondents

ENDORSEMENT

Justice Marc Smith

Released: November 24, 2020