Reasons for Decision

[1] The respondent mother, who has supervised access to the parties’ seven year-old child, brings a motion for unsupervised access on a graduated basis as follows:

(a) For six weeks, every Tuesday and Thursday from school pick-up to 7 p.m., and every Sunday from 12 p.m. to 7 p.m.; and

(b) After the first six weeks, alternate weekends from Friday school pick-up to Saturday at 7 p.m.

[2] The applicant father, who has sole custody of the child, opposes the motion citing concerns for the child’s safety and well-being, due to the mother’s mental health condition.

Background

[3] The parties were married in Iran in May 2006 and moved to Canada in December 2006. They both obtained Ph.D.’s in Engineering from the University of Manitoba.

[4] They have a daughter, A, born […], 2013.

[5] After the mother gave birth, she suffered from postpartum depression that she claims was not appropriately treated. The father claims that the mother has a history of mental illness since her teenage years that was not disclosed to him until it resurfaced in 2012.

[6] The parties initially separated in October 2015, reconciled in December 2016, and separated finally in April 2017.

[7] After their first separation, the parties entered into a Marriage Contract which was subsequently declared invalid by Horkins J.: M.O. v. F.S., 2019 ONSC 5091.

[8] Between 2015 and 2018, the mother has required five hospitalizations due to mental health breakdowns. Her last hospitalization was from March 24 to April 5, 2018. The mother states that she is diagnosed with schizoaffective disorder or bipolar disorder, for which she is prescribed medication. An Office of the Children’s Lawyer (“OCL”) Report from October 2018 states that the mother has a diagnosis of depression and schizophrenia with psychotic episodes.

[9] In January 2018, the father obtained an ex parte order granting him sole custody of A, and granting the mother supervised access to A.

[10] From January 2018 to March 2020, the mother was seeing A once a week for four hours, supervised at a public location of the father’s choosing, except that on alternate weeks, two of the four hours took place at Access for Parents and Children Ontario (“APCO”). In March 2020, APCO suspended in-person visits due to COVID-19. Between March 9 and May 24, 2020, the father only permitted the mother to have FaceTime, not in-person, access to A for about two hours each week.

[11] From May 24, 2020, the father permitted the mother to have in-person visits once a week for four hours at a park where the father supervised.

[12] By way of a June 12, 2020 consent order, obtained at a settlement conference before Nishikawa J., the parties agreed to increased supervised access of six hours per week over three visits. Leave was granted to the mother to bring a motion after September 1, 2020, for greater supervised or unsupervised access.

The Mother’s Position

[13] In support of her request for unsupervised access, the mother provided the following evidence:

(a) Reports from the mother’s treating psychiatrist, Dr. Zare-Parsi, dated October 17, 2019, and October 5, 2020;

(b) Letter from Case Manager, Garmen Eliennazio, of Good Shepherd/Bayview Community Services dated May 27, 2020; and

(c) Letters from Sheida Bamdad, a registered social worker at Unison Health and Community Services, dated June 5 and November 11, 2020.

[14] Dr. Zare-Parsi has been the mother’s psychiatrist since April 2018. In the October 17, 2019 report, Dr. Zare-Parsi states that the mother’s mental health has been stable and that she has been compliant with medication and treatment which includes an injectable antipsychotic. The mother has not manifested any symptoms of bipolar disorder nor any psychotic or mood symptoms. The mother has been following up regularly with her psychiatrist and “has been quite rational and reasonable”. The psychiatrist is not concerned with relapse and is confident that the mother can handle the care of her child. In the October 5, 2020 follow-up report, Dr. Zare-Parsi reports that the mother continues to be stable, and compliant with treatment and follow-up. The psychiatrist confirms the absence of any psychotic symptoms and that the mother is capable of returning to her normal duties of parenting her child. The mother will continue her follow-up psychiatric treatment.

[15] Good Shepherd/Bayview Community Services is a non-profit agency providing housing and case management for people with mental health issues, addiction, and homelessness. The mother has been a client of the agency since May 2018, meeting on a weekly basis. In her May 27, 2020 letter, Case Manager Eliennazio reports that the mother “has been working determinedly towards her goals and plans“ including in respect of improving her health and relationship with A. The mother has “never missed a meeting, always engages, shows interest and opens to new ideas to try and learn.“

[16] Ms. Bamdad, the social worker from Unison, reports that since September 2017, the mother has attended 80 counselling sessions and “is doing very well and does not need counselling support as she needed in the past.” Since January 2017, the mother has been attending counselling sessions on a monthly basis. She describes the mother as a “rational and well-oriented individual, and a deeply caring mother who has been working durably to meet her daughter’s developmental needs“. Ms. Bamdad considers the mother fully capable of having unsupervised access to her daughter.

[17] The mother submits that she has been candid about her mental health condition. She has been stable for over two and a half years and receives injectable medication every three months. From 2018 to 2019, she was seeing her psychiatrist every month, and thereafter every three months, due to her progress.

[18] The mother claims that her visits with A, supervised by the father, are problematic as the father hovers around A, and uses the access time to berate her about their legal issues and his support payments. The mother also complains that the father has, on at least five or six occasions, converted in-person access to FaceTime visits.

[19] The mother is asking for unsupervised and gradually increased visits with no restriction on the location. She would like A to attend at her apartment which she describes as “a five minute drive from the Father’s home”, where she rents a room on the main floor of a three-bedroom home. The other two rooms are rented by a 19-year old female student and a male accountant.

The Father’s Position

[20] The father, self-represented, explained that the mother suffered a mental breakdown in December 2015 with one attempt of self-harming while A was in her care unsupervised. The Muskoka Children’s Aid Society became involved and placed A under his care on a protection application.

[21] The father stated that he has previously been down the path of health professionals claiming that his wife was stable, only to have her relapse with significant consequences to his daughter. On the strength of Royal Victoria Regional Health Centre psychiatrist Dr. Eric Mulder’s opinion in April 2016 that the mother was stable, which opinion was supported by a social worker (Maureen Gadon), joint custody was awarded in September 2016. The mother then had a psychotic episode in 2017, and again on January 28, 2018, when A was staying with her. The father then obtained sole custody following an emergency ex parte motion.

[22] The OCL became involved and provided a comprehensive report dated October 25, 2018. The OCL report recommended that the father obtain sole custody of A, and that the mother have supervised access. Two key excerpts from the OCL report state:

[The mother] has a verified history of mental health which includes diagnoses of depression and schizophrenia with psychotic episodes. She was diagnosed with postpartum depression in 2013 and diagnosed with psychosis in December of 2015. In 2016, [the mother] expressed feelings of self-harm. In March 2018, she physically assaulted her mother. [The mother] recanted the comments she made to a Physician in January 2016, where she reported that as a teenager, she exhibited unusual behaviours which involved telepathy, auditory hallucinations, and depression during her undergraduate years. From December 2015 to April 5, 2018, there were five hospitalizations due to [the mother] exhibiting delusional behaviour with hallucinations. There is a history of [the mother] being non-compliant with medication, as she has complained of the side effects.

[The mother] has consistently blamed her illness on [the father], as she has maintained that her illness is a result of [the father]’s maltreatment of her. This does not seem logical. As indicated, [the mother] is denying that she had any childhood mental health issues, even though she reported otherwise during an earlier hospitalization. There are documented notes made on March 26, 2018, with North York General Hospital, where it is reported that [the mother] had a family history of mental health illness, i.e. her sister has schizophrenia, and her father is bipolar. [The mother] has portrayed [the father] as non-supportive, and at times violent towards her. A review of collateral reports demonstrates that [the father] has been supportive of [the mother] through her illness.

[23] The father provided evidence that, in his care, A is flourishing at school and outside school. A has received school-wide awards, as well as from the Farsi weekend school. A is doing well in swimming and is engaged in skiing, skating, and biking. A’s school report card for Grade 2 describes her performance as “excellent” in almost every category.

[24] In addition to the October 2018 OCL Report, the father provided two external reports recommending against unsupervised access:

(a) Report from Dr. Fadie Amin, A’s family doctor, dated December 1, 2020; and

(b) Report from Dr. Hemal Shroff, A’s clinical psychologist, dated December 18, 2020.

[25] Dr. Fadie Amin has been A’s family doctor since December 2015. He provided a letter dated December 1, 2020, stating that it would not be in A’s best interest for her mother to have unsupervised time. Dr. Amin indicates that he has been made aware of the mother’s mental health issues overs the years (he does not say how, but presumably by the father), and that “unsupervised access can be introduced once the mother has developed full insight into her condition, and that she has demonstrated an extended period of stability”. Dr. Amin agrees that this can only be determined by the mother’s physician or psychiatrist and that he is uncertain if she is indeed stable at this time. Dr. Amin indicates that, at only 7 years of age, A is “simply not old enough to understand her mother’s condition, and she is definitely unable to implement her own safety plan.” Dr. Amin recommends revisiting the issue of unsupervised visits in A’s late teenage years when both criteria can be met. In Dr. Amin’s clinical judgment, it is unsafe for A to be unsupervised with her mother at this time.

[26] Dr. Hemal Shroff is A’s clinical psychologist. He provides psychological therapy services to help A with the following goals:

• Becoming more aware of her mother’s mental health difficulties and being prepared for an emergency situation if her mother is in distress; and

• Developing more sensitivity and empathy for her mother’s mental health difficulties.

[27] Dr. Shroff indicates that “A has developed some awareness of how to respond in emergency situations but her awareness is fairly concrete (sic) at this time (i.e. she has the theoretical knowledge of what she is supposed to do in rehearsed situations). She has not displayed the ability to apply her knowledge and use these skills across multiple situations. A has a positive attitude towards meeting her mother, but has not expressed a desire to spend more time with her.”

[28] I note that neither parent, nor any report that they provided, addressed health and safety concerns or measures in respect of the current COVID-19 pandemic or related lockdown.

Discussion

[29] I agree with the mother’s submission that under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 16(10), a child should have as much contact with each parent as is consistent with the child’s best interests, and that supervised parenting time is exceptional and should not be prolonged.

[30] I also find the discussion of the law in Smith v. Ainsworth, 2016 ONSC 3575, to be apposite:

[18] Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, requires that the merits of an application for access shall be determined on the basis of the child’s best interests. Those are identified in subsection 24(2) as including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[19] The primary focus is the child. As Abella J. (as she then was) stated in MacGyver v. Richards (1995), 22 O.R. (2d) 481 (C.A.) it “is the child’s right to see a parent with whom [the child] does not live, rather than the parent’s right to insist on access to that child.”

[20] In V.S.J. v. L.J.G. (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. Sup. Ct.) the court was tasked with determining whether a father’s access to a child should be supervised or terminated. Blishen J. observed,

There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort. See Jafari v. Dadar, [1996] N.B.J. No. 387 (Q.B. (Fam. Div.)).
A review of the case law reveals that there are no standard criteria for termination of access within the best interests test. Madam Justice Abella noted at para. 81 of M.(B.P.) v. M.(B.L.D.E.) (1992), 1992 CanLII 8642 (ON CA), 97 D.L.R. (4th) 437 (Ont. C.A.):

It is not a question of what standard should be used to deprive a parent of access, it is a question of what standard should be used in deciding what form of access, if any, should be ordered. The answer is clear from the statute: the standard is the child’s best interests.

[21] In Kroupa v. Stoneham, 2011 ONSC 5824, a father consented to a final Order terminating his access to his four year old son. One and a half years later he brought a Motion to Change for access. Relying on MacGyver and V.S.J., Gray J. concluded that, while the father’s past drug-fueled behaviour and refusal to pay child support were “less than exemplary”, these were not sufficient reasons to deprive the child of the right to access with his father. A period of transitional supervised to unsupervised access was ordered.

[22] In Dhaliwal v. Dhaliwal, 2015 ONSC 6172, the father had no contact with his six year old son for about two and a half years. While the reasons for non-contact were unclear it was “common ground…that, at some point, Mr. Dhaliwal had a significant substance abuse problem.” Transitional supervised access was ordered coupled with regular drug testing and family counselling, all to be monitored by the court.

[23] The father is seeking an order for supervised access. That is the plan. However, supervised access, as Blishen J. observed in V.S.J., “is seldom viewed as an indefinite order or long term solution”. It is an appropriate solution to consider to,

“…protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.”

[24] Supervised access is, at best, a short term expedient while a range of other initiatives are explored to regularize a parenting relationship.

[31] The question at the heart of this case is whether unsupervised parenting time, by the mother to A now, is in A’s best interests and, if so, to what extent? The mother urged that if I did not think that her proposed parenting schedule was appropriate, she would be prepared to accept some alternative schedule so long as it was unsupervised.

[32] Although the only test that matters is the child’s best interests, I find that there are two aspects to consider. One focuses on the mother’s mental health, the other focuses on the mother’s plan regarding unsupervised parenting time.

[33] On the first aspect, there is no doubt that the mother’s mental health has improved significantly over the last two plus years. She has not had a mental health breakdown since April 2018, now more than two years and nine months ago. As well, the mother appears compliant with the medication, treatment, and counselling necessary to maintain her mental health. The mother’s psychiatrist, Dr. Zare-Parsi, confirms the absence of any psychotic symptoms and that the mother is capable of returning to her normal duties of parenting her child.

[34] I am concerned, however, by the brevity of Dr. Zare-Parsi’s two reports. The psychiatrist’s first February 4, 2019 report is eight lines long, and contains the statement, “She has done quite well with her functioning and has been coping with the stresses in her life.” It would have been helpful for the report to provide much greater detail about what functioning and what stresses the mother has experienced, or is experiencing and coping with. The psychiatrist’s second and more recent October 5, 2020 report is four lines long, albeit it does confirm that the mother is “capable of parenting her child as she is symptomless and able to return to her normal duties.” I do not find that the level of detail in the psychiatrist’s reports is commensurate with the important question before the court concerning the mother’s unsupervised access of A.

[35] I am also troubled by the fact that Dr. Zare-Parsi’s two reports, which paint a positive picture of the mother’s mental health, do not mention, let alone explain, the psychiatrist’s previous observation on March 14, 2019, that the mother’s “thought disorders” are “continuous” and the prognosis is “likely to remain same”, see para. 163 of Horkins J.’s decision in M.O. referencing the psychiatrist’s observation on the mother’s ODSP benefits form.

[36] I also have concerns about the generic nature of Case Manager Eliennazio’s report, which while positive, does not provide much detail. The language is aspirational, “has been working determinedly toward her goals and plans, focusing on improving her mental and psychical (sic) health, her relationship with her daughter, staying connected with her professional supports.” The report does not describe the mother’s activities or speak to her ability to handle stress.

[37] Similarly, the social worker, Ms. Bamdad’s two reports speak positively of the mother’s mental health status, but are short on details concerning decision-making or parenting related situations. Medical health professionals’ reports are often brief but, in my view, the mother’s evidence falls short of what is needed to confirm that the mother can currently handle the occasionally stressful nature of looking after A unsupervised for hours at a time or overnight.

[38] I also did not receive sufficient details of the mother’s plan for A while in her care. In her affidavit in support of the motion, the care plan is only described as follows:

The schedule that I have proposed in my Notice of Motion would give A frequent contact with me. I am asking for no restriction on the location of these visits. I would like to be able to take A to my apartment which is a five minute drive from the Father’s home. I rent a room on the main floor of a three-bedroom home. The other two rooms are rented by a 19-year old female student and a male accountant. I would supervise A all the time when she is with me to ensure that she is comfortable and protected…. At my home, we would work on her homework (especially from her Farsi school) and we would watch cartoons and play board games and cook together. I would feed her lunch and/or dinner.

[39] The mother is candid that she is asking for no restriction on the location of the unsupervised visits. This makes sense if, for instance, she wants to take A to the library, or a park, or some other location. Yet, there may be activities and locations that could require a higher level of supervision such as travel by subway, or a visit to a more crowded shopping mall. Even within her apartment, the mother has not provided enough of a plan which speaks to her ability to supervise and safeguard a seven year-old child in a multi-tenant setting.

[40] Although I find that Dr. Amin’s negative view of the mother’s access request is based on his ignorance of her mental health status, I largely agree with his assessment that, at seven years old, A is not old enough to understand her mother’s condition, and is unable to implement her own safety plan. A’s young age makes it more important that the mother present a fuller picture of what her unsupervised care of A would look like, including with respect to unexpected incidents. My concern is consistent with Dr. Shroff’s view that A, like most seven year-olds, only has a limited view of how to respond in emergency situations. The point is not that the mother’s unsupervised access must wait until A learns how to respond, but rather, that the mother should have put a more detailed plan forward for what A’s unsupervised time would look like, from a care and contingency planning point of view.

[41] The entire question of the mother’s request for unsupervised access is complicated by the current COVID-19 pandemic and the on-again, off-again lockdown. The parties provided me with absolutely no information on this point. At this time of physical distancing, transitions must be kept to a minimum which, combined with the dearth of information from the mother about her living arrangements, is a point in favour of putting the mother’s request on pause, pending the provision of further information.

[42] The mother argues that the father’s reasons to deny her unsupervised access are based on his fears concerning her mental health condition from almost three years ago. I agree with the mother on this point. The mother stated that she was mentally well, albeit spending much of her day engaged with self-help resources, meditation, and affirmation exercises. She is not currently working and does not think she will be able to do so for several months. This is consistent with Horkins J.’s decision in M.O. at para. 162:

[162] Since the spring of 2018, the wife has not experienced any further set backs in her mental health that have required hospitalization. This does not mean she is functioning and able to work as an engineer. She continues to experience anxiety. Every day, she must work to overcome her anxiety. As a result, she says that it is not easy to look for a job. She has financial problems and does not see her child without supervision.

[43] I appreciate that these are a judge’s comments from 18 months ago, but they are consistent with the mother’s submission on the motion before me. They present a picture of an individual who has made enormous strides with her mental health, but who still experiences anxiety.

[44] Overall, I cannot accede to the mother’s request for unsupervised access at this time. The evidence as to the mother’s mental health condition, her everyday functioning, and her care plan for unsupervised parenting of A, is incomplete. The evidence provides me with an insufficient basis to determine that unsupervised access by the mother at this time is in A’s best interest. But this does not necessarily mean that the status quo is acceptable.

[45] Instead, I find that, given the circumstances of this case, referral to the OCL is warranted. I note that the OCL was involved previously in 2018 and provided a comprehensive report. The OCL can provide a clinician’s assessment that would paint a fuller picture. It would provide an independent viewpoint that would assist the court rather than the current fractured viewpoints of the mother’s mental health professionals on the one hand, and the child’s family physician and clinical psychologist on the other. The OCL would also be able to better speak to the merits of the mother’s care plan for unsupervised parenting, including at a time of COVID-19.

[46] An Order shall go directing the parties to complete the OCL intake forms within 14 days and the OCL shall provide such services as it sees fit. The parties should also attend a Settlement Conference on May 17, 2021 which is anticipated to be after the OCL has issued its report.

[47] Given the disposition on the motion, I do not consider it appropriate to award costs.

Pinto J.

Released: January 22, 2021

COURT FILE NO.: FS-18-4002

DATE: 20210122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.O.

Applicant

– and –

F.S.

Respondent

REASONS FOR DECISION

Pinto J.

Released: January 22, 2021

M.O. v. F.S., 2021 ONSC 492

Case Summary

Reasons for Decision

Background

The Mother’s Position

The Father’s Position

Discussion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 2