COURT FILE NO.: FC352/20
DATE: November 3, 2023
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Ruth Ann Morley and Codie Louis Joseph Morley, Applicants
AND:
Mikayla Madisone Leanne Doucette, Respondent
BEFORE: MITROW J.
COUNSEL: Stephanie Ouellette for Ruth Ann Morley
David Winninger for Codie Louis Joseph Morley
Alexander Hodder for the Respondent
HEARD: Written submissions filed
ENDORSEMENT
INTRODUCTION
[1] The parties bring a form 14B motion in chambers for a final parenting order on consent regarding a five-year-old child. The applicant, Ruth Ann Morley, is the child’s paternal grandmother; the co-applicant, Codie Louis Joseph Morley, is the child’s father; and the respondent, Mikayla Madisone Leanne Doucette, is the child’s mother. For convenience I refer to the parties as the grandmother, the father, and the mother.
[2] The parties are commended for resolving all parenting issues. However, as noted below, additional material needs to be filed.
[3] The proposed final order includes a regular parenting-time schedule where each week the child spends three consecutive days with the grandmother and four consecutive days with the mother. The father’s parenting time is to be supervised during the grandmother’s parenting time. The draft order needs to clarify whether the supervision is to be done by the grandmother or others. Regarding decision-making responsibility, the parties agree that the grandmother and mother shall make medical decisions jointly, and in relation to decision-making responsibility regarding education, religion and the child’s general well-being, the parties agree that the mother should consult with the grandmother and that in the event of a disagreement, that the mother shall make the final decision.
POLICE RECORDS CHECK
[4] I start with the matter of police records checks because this appears to be an ongoing issue in this court where a non-parent seeks an order for decision-making responsibility.
[5] In the present case, the grandmother has provided a London Police Service record check, which is described as a “vulnerable sector check.” As the grandmother is a non-parent of the child and is seeking a parenting order that includes decision-making responsibility, the grandmother is required to file with the court “… the results of a recent police records check… in accordance with the rules of court”: section 21.1(1), Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Section 21.1(4) authorizes regulations to be made defining “police records check” for the purposes of section 21.1(1).
[6] Such a regulation has been enacted. O. Reg 24/10, section 1(2) states:
(2) For the purposes of subsection 21.1 (1) of the Act, a police records check in respect of a person is defined as written information, prepared by a police force or service and based on information available to the police force or service at the time the police records check is prepared, respecting the particulars of,
(a) every criminal offence of which the person has been convicted, except an offence in respect of which a pardon has been issued or granted under the Criminal Records Act (Canada);
(b) every criminal offence of which the person has been found guilty and has been discharged, except an offence in respect of which the Criminal Records Act (Canada) requires that the record be purged;
(c) every offence of which the person has been found guilty and for which an adult sentence has been imposed under the Youth Criminal Justice Act (Canada), as described in section 117 of that Act, except an offence in respect of which a pardon has been issued or granted under the Criminal Records Act (Canada);
(d) every outstanding order of a judge or justice of the peace made against the person in respect of a criminal matter, including a probation order, prohibition order or warrant;
(e) every outstanding restraining order made against the person under section 35 of the Act, section 46 of the Family Law Act or section 137 of the Child, Youth and Family Services Act, 2017, or any predecessors of those sections;
(f) every outstanding criminal charge against the person;
(g) every criminal charge against the person that,
(i) resulted in a finding of not criminally responsible on account of mental disorder,
(ii) resulted in a stay of proceedings,
(iii) was dismissed by the court, or
(iv) was withdrawn by the Crown;
(h) subject to subsection (3), every contact between the person and a police force or service for which the police force or service has a written record; and
(i) every contact between the person and a police force or service in relation to actions taken against the person under the Mental Health Act because of a determination under that Act that the person was suffering or apparently suffering from a mental disorder of a nature or quality that would likely result in serious bodily harm to the person or to another person or in serious physical impairment of the person.
[7] The London Police Service records check form lists four types of checks: (1) criminal record check; (2) criminal record and judicial matters check; (3) vulnerable sector check; and (4) adoption.
[8] While the present case does not involve an adoption, it is important to note that the other three types of criminal records checks are authorized specifically by the Police Record Checks Reform Act 2015, S.O. 2015, c. 30, (“PRCRA”). That Act contains the following relevant provisions:
Section 1(1) provides that a “police record check” means a record check described in section 2(1);
This Act generally applies to screen individuals for certain activities or employment. The types of searches to which this Act applies are described in section 2(1):
2 (1) This Act applies to persons who require a search to be conducted of the Canadian Police Information Centre databases or another police database maintained by a police service in Canada to determine whether the databases contain entries relating to an individual in order to screen the individual, including without limitation,
(a) for the purposes of determining his or her suitability for employment, volunteer work, a licence, an office, membership in any body or to provide or receive goods or services; or
(b) for the purposes of assessing his or her application to an educational institution or program.
This Act specifically does not apply to a search required under the CLRA regarding an application for a parenting order respecting decision-making responsibility by a person who is not a parent of the child: section 2(2), clause 1;
The types of police record checks authorized by this Act are described in section 8(1):
8 (1) A chief of police or a member of a police service designated by a chief of police for the purposes of this Act shall conduct the following types of police record checks:
Criminal record check.
Criminal record and judicial matters check.
Vulnerable sector check.
[9] It is not unusual in this court for a party to file one of the three police records checks authorized by the PRCRA in purported compliance with section 21.1 of the CLRA.
[10] It is evident that the police record checks authorized by the PRCRA are directed towards determining an individual’s suitability for employment, volunteer work and other reasons as listed in section 2(1). In the present case, the London Police Service records check lists the name of a school as the requesting agency. This clearly is unrelated to a non-parent application for decision-making responsibility. It is apparent that the police records check required by section 21.1 of the CLRA and the O. Reg. 24/10 has a defined and very wide scope as to the searches to be conducted. For example, the search includes criminal charges that have been dismissed, stayed or withdrawn. Finally, as noted earlier, the PRCRA states explicitly that it does not apply to CLRA records checks.
[11] Accordingly, the grandmother should apply for a police record check in compliance with the CLRA. It is noted that the “ontariocourtforms” website, under Family Law Rules Forms, includes a consent form to be submitted to the local police service for a police record check for a non-parent application for decision-making responsibility.
[12] Also, police records checks are not valid unless embossed by the police service seal. It is not possible to determine the presence of a seal from a digital copy, and therefore a notarial copy of the original police record check always should be filed.
EVIDENCE
[13] Parties must always be cognizant that parenting orders that are dealt with in chambers still require sufficient evidence to permit the court to make a finding that the order being sought is in the child’s best interests.
[14] The present case is complicated somewhat because decision-making responsibility is sought by a non-parent; further, this case commenced in 2020 and has had a number of temporary orders, including an order requiring the mother to return the child from Prince Edward Island to Ontario. The only evidence is the form 35.1 and form 35.1A affidavits, which in this case is insufficient. The parties are encouraged to file a Statement of Agreed Fact that sets out the background of this case, each party’s current situation, and that provides an explanation as to why the order sought is in the child’s best interests including an explanation as to why the father’s parenting time needs to be supervised. Alternatively, the parties may provide this evidence by affidavit.
ADDITIONAL INFORMATION REQUIRED
[15] The grandmother indicates that she has resided in London and St. Catharines as an adult. However, no report on records has been filed from Family and Children’s Services Niagara.
[16] The grandmother attained age 18 in 1982. However, her form 35.1 affidavit lists where she has lived since 1983. There is no record where she lived in 1982 as an adult. An updated form 35.1 affidavit needs to be filed showing her residence history from 1982, and if necessary, any additional society reports on records should be filed.
[17] The father’s form 35.1 affidavit refers to his criminal record being attached but it is not attached. Further, paragraph 7 dealing with pending criminal charges is blank.
[18] The evidence regarding the father’s current address is unclear. In his form 35.1 affidavit, the father’s address on page 1 is shown as “unknown”, but in the draft order, an address is shown for the father. In paragraph 12 of his form 35.1 affidavit, the father discloses the address where he intends to reside as “undetermined.” The father should provide an updated form 35.1 affidavit giving a better explanation as to his proposed living arrangements and also explaining where he is currently residing and with whom.
[19] There is no form 35.1A affidavit from the father.
[20] The grandmother’s form 35.1A affidavit states that the mother was involved with the Children’s Aid Society of London and Middlesex during 2022 and 2023 regarding “concerns about abuse.” The mother’s form 35.1A affidavit discloses no society involvement. This conflict in the evidence must be explained. If the mother has had society involvement, she needs to provide an affidavit explaining the involvement and she should provide a letter from the society, appended as an exhibit, summarizing its involvement.
[21] In her form 35.1 affidavit, at paragraph 8, in relation to violence and abuse, the mother refers to her affidavit sworn May 19, 2020. That affidavit was not included with the material submitted to the court for the form 14B motion. The mother shall prepare a fresh from 35.1 affidavit detailing in paragraph 8 her allegations relating to violence and abuse.
ORDER
[22] I make the following temporary order:
The grandmother shall obtain, from the London Police Service, a police records check in compliance with section 21.1(1) of the Children’s Law Reform Act and O. Reg. 24/10, and the grandmother shall serve and file a notarial copy of the police records check verifying that the original was embossed with the London Police Service seal;
The parties shall provide a Statement of Agreed Fact, or alternatively affidavit evidence shall be served and filed, explaining briefly the background of this case, summarizing any temporary parenting orders, the current situation of each party, the current parenting schedule, why the father’s parenting time should be supervised and why the order sought is in the child’s best interests; further, the draft order shall specify whether the grandmother or others will be supervising the father’s parenting time;
A report on records regarding the grandmother shall be obtained from Family and Children’s Services Niagara, and shall be served and filed;
The grandmother shall serve and file an updated form 35.1 affidavit disclosing her residence history as an adult since 1982, and if necessary, she shall obtain and file any additional reports on records pursuant to section 21.2 of the Children’s Law Reform Act as may be required as a result of disclosing the additional residence history;
The father shall serve and file a form 35.1A affidavit;
The father shall serve and file an updated form 35.1 affidavit with paragraphs 7 and 12 being completed properly (including in paragraph 12, an explanation of where he currently resides and with whom) and also appending his criminal record as an exhibit;
Affidavit evidence shall be served and filed explaining the conflicts in the form 35.1A affidavits of the grandmother and the mother as to the mother’s alleged involvement with the Children’s Aid Society of London and Middlesex, and if the mother has had involvement with that Society, then she shall serve and file an updated form 35.1A affidavit providing sufficient details of her involvement with the Society and she shall append as an exhibit a letter from the Society summarizing its involvement with the mother; and
I am not seized with this matter, but if I am available when the additional material is filed, then this matter may be placed before me.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: November 3, 2023