Simcoe Muskoka Child, Youth and Family Services v. J.M.W. et al.

COURT FILE NO.: FC-22-1225

DATE: 20230131

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Simcoe Muskoka Child, Youth and Family Services Applicant

– and –

J.M.W. C.M. J.W. Respondents

COUNSEL:

Jeffrey Hustins, Counsel for the Applicant

Jillian Bowman, Counsel for J.M.W. C.M. and J.W., self-represented Audrey Doxtdator, OCL for the child M.W.W.

HEARD: January 23, 2023

REASONS FOR DECISION

MCDERMOT J.

[1] This was a temporary care hearing which was argued on January 23, 2023.

[2] There are three children who are the subjects of this application, M.W.W., who is 12, W.M., who is nearly 4 and M.M. who is nearly 2. The Respondent Mother, J.M.W., is the mother to all three children. J.W. is M.W.W.’s father. C.M. is M.W.W.’s stepfather and is in a long term common law relationship with J.M.W. He and J.M.W. are the natural parents of M.M. and W.M.

[3] This hearing is necessary because the Society believes that the Respondent Father, C.M., poses a risk to the children. On November 1, 2022, he was charged with sexual interference, sexual exploitation and sexual assault concerning M.W.W., his stepdaughter. There is no evidence that C.M. did anything to the other two children. C.M. was removed from the family home. He is living with his parents in Kitchener. The children remain in the care of the Respondent Mother.

[4] M.W.W. disclosed, firstly to her friends, then to her friends’ mother and then to the Respondent Mother that C.M. sexually touched her on a number of occasions when she was between the ages of 7 and 9. M.W.W. said that C.M. touched her on her breasts, her vagina, between her legs and thighs and that he licked her ear in a sexual manner.

[5] In an interview with the police on November 1, 2022, the child also disclosed this to the police. Charges were laid. C.M. was asked by the police to leave the home and he was released on an undertaking. No one has seen fit to provide me with that undertaking although C.M. deposed to the terms which prevent him from having contact with J.M.W. and M.W.W. and prevent him from going to the family home. I have been told that C.M. can only see the children M.M. and W.M. if the family court orders it, but C.M. denies this to be the case. I am also told there was a revocable non-communication order between C.M. and J.M.W. If this is the case, this differs from the terms of the undertaking disclosed to me by C.M. in his materials. Although I am unclear as to the terms of the undertaking, it is common ground that I can order parenting time between C.M. and the two younger children under its terms.

[6] Care of M.W.W. is not in issue. C.M. has said that he consents to an order that M.W.W. continue to live with the Respondent Mother and he is not seeking parenting time with her. The major issue concerns the two younger children. C.M. is asking for return of the two younger children to his care on a shared basis. He says that the children were with him and his wife when the Society intervened and that they should be returned to their joint care. It has to be noted that there would be some challenge to the logistics of this suggestion as C.M. is now living in Kitchener, more than two hours away from the family home in Collingwood.

[7] C.M. has seen neither M.M. nor W.M. since he was arrested on the evening of November 1, 2022. Pending this temporary care hearing, Jain J. and I have both ordered that, because of risk of harm, he can not have access to either M.M. or W.M. except in accordance with Society discretion and to be supervised by a person acceptable by the Society. On December 21, 2022, a restraining order was made by Justice Jain at the request of the Children’s Lawyer because of inappropriate communication between the Respondent Father and J.M.W.

[8] C.M. had previously requested of the Society worker that his parents be named as access supervisors pending this motion. The Society attempted to interview them as potential access supervisors but the Respondent Father cut the interview short when the worker asked if they knew why the Society was interviewing them; C.M. suggested that the Society was attempting to engage in a “fishing expedition” to elicit information from them. No other supervisors have been suggested and because of this, and because C.M. disagrees strongly with the need for supervision, M.M. and W.M. have had no contact with their father since his arrest.

[9] C.M. filed a great deal of material on this motion. Most of that material did not comply with the Family Law Rules[^1] and did not use the prescribed forms: the filing office refused to accept the material for filing as a result. I ordered that the material be filed on the continuing record as requested by C.M. and I reviewed that material prior to hearing the motion.

[10] Included was a cross-motion requesting that M.M. and W.M. be placed in his care jointly with the Respondent Mother. However, he also filed a “Notice of Constitutional Issue”, stating that his rights under the Charter of Rights and Freedoms[^2] had been infringed by the actions of the Applicant Society. He served the Attorneys General of both Canada and Ontario with this material on January 9, 2023 but did not serve the Society, the Respondent Mother or the OCL with the constitutional challenge and cross-motion until January 18, 2023, too late for them to adequately respond. When faced with a further adjournment to allow them to do so, he abandoned that argument for the purposes of this motion. The constitutional issues are therefore adjourned to a date to be spoken to which may be arranged through the trial coordinator.

[11] I mentioned above that Jain J. made a temporary restraining order against C.M. pursuant to s. 137 of the Child, Youth and Family Services Act[^3] (the “CYFSA”). She made that order on December 21, 2022 and it expired on the return of this motion on January 23, 2023. C.M. wished unrestricted communication with J.M.W. and wanted the court to allow it to expire. Ms. Doxdtator for the OCL asked that it continue.

[12] C.M. also requests in his motion that his parents be named as access supervisors if supervision of access is necessary. In requesting this, I expect that he wishes to circumvent the approval process of the Society which requires an interview with the potential supervisors of access. As noted, C.M. found this interview to be offensive and refused to allow the interview.

Analysis

[13] The following issues were raised in this motion:

a. Who had charge of the children immediately prior to the Society intervention in this matter?

b. Are there reasonable grounds to believe that there is a risk of these children, W.M. and M.M., suffering harm if they are in the unsupervised care of the Respondent Father?

c. Did the Society fail to bring the matter before the court within five days as required by s. 88 of the CYFSA or otherwise comply with the legislation or the regulations? Does it matter?

d. Should the court name the Respondent Father’s parents as access supervisors?

e. Should the restraining order continue?

[14] The first two issues require an analysis of the temporary care of M.M. and W.M. based on s. 94 of the CYFSA. The relevant parts of that provision read as follows:

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

(8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.

(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

Charge of the Children

[15] Who had charge of the children “immediately before intervention” by the Applicant Society? This question is important because it dictates who the Society has the duty to return the children to if possible. Section 94 provides that the Society should return the children to the person who had charge of the children immediately before intervention, either with or without supervision, unless there is a reasonable belief that the children would otherwise be at risk of harm.

[16] C.M. says that the children were in the charge of both he and the Respondent Mother, prior to intervention. He left the home on November 1, 2022 after the police arrested him and released him on an undertaking requiring him to leave the family home, but he says that the Society was involved and intervened from that date onward, citing the fact that a C.A.S. worker was present for interviews between the children and the police on November 1, 2022.

[17] The Society says that they did not intervene in any sort of active way until well after C.M. was removed from the residence. They say that the first time they intervened was on November 7, 2022 when C.M. demanded access to the two younger children, but was not permitted to do so by the Society worker. C.M. says it was actually Friday, November 4, 2022 when he was refused access. The matter ended up in court on a first return on Monday, November 14, 2022 (child protection dates in Barrie are Mondays and Fridays and the Friday before that return date, November 11, 2022, was Remembrance Day and the courts were closed).

[18] The word, “intervention” is not defined anywhere in the CYFSA. It is defined in the Cambridge Dictionary[^4] as “the action of becoming intentionally involved in a difficult situation, in order to improve it or prevent it from getting worse”.

[19] Paragraphs 11 to 16 of the affidavit of the Society worker, Virginia Edwards, sworn November 10, 2022, outline the initial involvement of the Society in this case. The referral concerning the sexual assaults on M.W.W. initially came from the parent of a friend of M.W.W. M.W.W. had disclosed the assaults to her friend who told her mother. The referral initially was made to the Society as protection issues often are and the Society assigned an after-hours worker. It is unclear from the affidavit who called the police, but it is likely that it was the Society, not M.W.W.’s friend’s mother who did so; in any event, the Society after hours worker, Johanna Sinclair provided a Society presence when the police became involved.

[20] Ms. Sinclair met with the police prior to them going to the home to investigate. When the police went to investigate and attended at the home, they interviewed M.W.W. in the living room with her mother present. M.W.W. confirmed the disclosures that she had earlier made to her friend. A decision was made to conduct a “forensic” interview at the police station and M.W.W. and her mother agreed to go to the station. At that point, C.M. was asked to leave the home and he refused, telling M.W.W. and her mother not to say anything to the police. It was unclear from the affidavit who asked him to leave the home, but it was certainly the police who told him to stop interfering with the investigation or he would be charged. Ms. Edwards deposes that M.M. and W.M. were asleep and were awakened to go to a neighbour’s home to be babysat.

[21] C.M. deposes in his “Affidavit & Factum” sworn January 18, 2023[^5] that it was both the C.A.S. worker and the OPP officer who told him that the younger children could not stay in his care and would be “brought to a ‘place of safety’”. He does not disclose who said this to him. Although he says that they spoke of the children being in a place of safety, this clearly did not occur as the children remained in the family home, which was only made safe by his removal. He was later charged and his undertaking provided that he could not return to the home. It was clearly the undertaking that removed him from the family residence as C.M. deposed that he was not willing to leave the home voluntarily when asked.

[22] To become intentionally involved in the matter involves more than observing. The word “intervention” suggests that the Society would have to take an active role in addressing the placement of the children and the initial removal of threats to the children arising from the situation. It appears that on November 1, 2022, although the C.A.S. worker was assisting the police, she was not actively involved in the investigation at that time other than, perhaps, in calling the police and attending on the interviews of the children. It was the police who removed C.M. from the family home and the C.A.S. after hours worker was only along for the ride. There was no apprehension necessary because the police attended to having C.M. removed from the home, thereby providing acceptable protection for the children. If there was involvement, it was passive in nature in order to provide advice and support. I therefore do not find that the C.A.S. had intervened in this matter on November 1, 2022 which was when both parents last had “charge” of the children in this matter.

[23] By the time that C.M. says that the Society first refused access of M.M. and W.M. to him on Friday, November 4, 2022, the children were in the charge of J.M.W. only as C.M. had been removed from the home.

[24] From this, it can be inferred that C.M. was not a parent having “charge” of the children when the Society first intervened. That is therefore my finding for the purposes of this temporary care hearing and accordingly C.M. has no rights to care of the children under s. 94(2)(a) or (b) of the CYFSA.

Risk of Children Suffering Harm

[25] If I am wrong, and C.M. has a right to M.M. and W.M. being returned to his care under s. 94(2), the question then is whether there “are reasonable grounds to believe that there is a risk that the child is likely to suffer harm” within the meaning of s. 94(4) of the CYFSA. If not, the children must be placed with the person having charge of the children prior to the Society intervention with or without supervision.

[26] As noted, the Respondent Father says that the children must be placed with both himself and the Respondent Mother jointly as they had care of the children prior to Society intervention.

[27] I would firstly note that courts will often place a child with only one of the parents when he or she is apprehended from the care of both. As suggested in C. v. Children’s Aid Society of Peel, 2018 ONCJ 885 [at para. 13], citing Children's Aid Society of Algoma v. M. (S.M.), 2014 ONCJ 12, “The first part of the two-part test [reasonable belief in risk of harm] only has to be met against one of two parents who had charge of the child. Either will do. It is a low threshold.”

[28] It has always been unquestioned that the court can place children into the care of one parent when they have been in the care of both prior to Society intervention. There is no requirement that the children must be placed with both. To make it all or nothing would deprive the court of the necessary flexibility to place children in the care of one protective parent where the other poses a risk. This is supported by the requirement for imposing the least disruptive remedy as set out in s. 1(2) of the CYFSA and past practice. There is no requirement that the court must place the children with both parents or alternatively in care and to suggest that the legislature intended this in s. 94(4) would be contrary to the spirit and the goals of the CYFSA.

[29] On the issue of onus, in considering whether M.M. and W.M. should be placed with C.M., he says that s. 94(4) requires the Society to prove risk of harm to the children on the balance of probabilities. He says that the Society, when it placed his younger children in the same category as C.M.’s alleged victim, M.W.W., has failed to prove actual risk to the two younger children on the balance of probabilities.

[30] That is not what the section says, however. The section adds a layer on top of the risk of harm test: it says that there must be “reasonable grounds to believe” that there is that risk of harm to the children. That requires evidence, not that there is an actual risk of harm, but that there need only be reasonable grounds for belief of harm. In other words, a Society need only prove a reasonable belief that there is a risk of harm which is different from proving actual risk of harm.

[31] In D.(L.) v. Durham Children’s Aid Society, 2005 63827 (ON SCDC), [2005] O.J. No. 5050, the Divisional Court considered an appeal of a decision by the court to place a child in the care of his father. In determining that the criteria for leave to appeal were not met, the court considered the criteria for interim placement of a child and the onus of the Society.

[32] The court cited Children's Aid Society of Toronto v. M. (A.) (2002), 2002 45665 (ON CJ), 26 R.F.L. (5th) 265 (Ont. C.J.) which considered that onus of proof and spoke of it being tempered by the stage of the investigation at which the temporary care hearing is brought. The court stated, at para. 26:

In my view, this passage, in the context of the remarks as to the very early stage at which this type of proceeding occurs, indicates that the standard is not the balance of probabilities as to the actual existence of real risk, but is an evaluation of the reasonableness of the grounds for the CAS' belief. That is a lesser standard of proof than the one actually applied by the motion judge to the CAS' case. If, as the appellant contends, the motion judge erred in adopting the standard of a balance of probabilities, it does not, in these circumstances, give reason to doubt the correctness of his actual decision since the "error" benefited the appellant. The appeal is, after all, from the result and not from the reasons. There is, at the least, sufficient evidence in the record to support the view that there were reasonable grounds for the CAS' belief.

[33] In his factum, the Respondent Father says that these cases are wrongly decided because the Supreme Court of Canada determined that there is only one onus of proof in civil matters in Canada being the “balance of probabilities”: see F.H. v. McDougall, 2008 SCC 53. That is, of course, correct and binding on this court. He says as a result, Justice Katarynych in suggesting in Children’s Aid Society of Toronto v. L.P., 2010 ONCJ 320 that there is a different onus of proof is wrongly decided.

[34] In that case, Katarynych J. appears to suggest at one point in the case [at para. 88] that:

The standard of proof at the temporary care and custody stage of any case, regardless of the grounds for a need for protection finding asserted by the society, is cast in "reasonable grounds to believe" language. There is reason for the language.

[35] However, I do not believe that Justice Katarynych is suggesting in L.P. that the courts depart from the balance of probabilities onus in temporary care hearings; all that she is saying that the court must decide whether there are “reasonable grounds to believe” that there is a risk of harm on the balance of probabilities. That does not mean a change in the onus of proof; it only means that the court does not have to find an actual risk of harm but only a reasonable belief in that risk, using the balance of probabilities standard of proof. As noted by the Divisional Court in D.(L.), the issue is the “standard of proof” for the finding under s. 94(4) which is reduced by the introduction of the words “reasonable grounds to believe”. That does not change the onus of proving those reasonable grounds for belief, which is on the balance of probabilities. The Respondent Father is confusing the issue of onus of proof from what actually has to be proved under s. 94(4).

[36] Therefore, the question is, in the present case, whether the Applicant Society has reasonable grounds to believe that the children, M.M. and W.M., would be at risk of harm if they are returned to the Respondent Father’s care.

[37] C.M. has refused to participate in any sort of risk assessment as requested by the Society. He feels that a risk assessment would be nothing but prejudicial without being probative. He said that it will produce generalities which would not assist the Society or the court in determining risk. He sums up in his affidavit:

Considering that the Society is asking that I participate in a “risk assessment’, which is ultimately a psychological assessment of a person’s sexual preferences, so that the Society can better assess my risk to the children, the Society really should know that [W.M.] and [M.M.] don’t fit the same profile as [M.W.W.] did. On this issue the Society needs to make up their minds as they seem to be arguing for two contradictory points. If the Society is actually capable of fully understanding the disposition of a ‘risk assessment’ at a high enough level to effectively assess my risk to [W.M.] and [M.M.], then they would already know that [W.M.] and [M.M.] won’t fit the same preference profile as [M.W.W.] did. The Society should also know that statistically it’s highly unlikely an individual would have a preference for both of these two profiles.[^6]

[38] However, the Respondent Father does not offer any evidence that there are different “preference profiles” for W.M. and M.M., who are about 4 and 2 years of age, as there would be for M.W.W., who says that she was sexually touched between the ages of 7 and 9 at which point it stopped. M.W.W. was a child when the supposed abuse occurred (and still is) and W.M. and M.M. are also children. I am being asked to make a finding that M.M. and W.M. are of different preference profiles to a potential sexual offender from M.W.W. and, without evidence of that, I cannot do so unless I can take judicial notice of that fact. I am not willing to take judicial notice of the fact that there are different “profiles” for very young children as there would be for an older pre-pubescent child. As stated in R. v. Find, 2001 SCC 32 at para. 48:

Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), 1982 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055.

[39] It does not go without saying that it is the case that the “preference profiles” of children differ with age for child sexual offenders. No authority is offered for this proposition. I decline to take judicial notice of that fact or make that finding as requested by the Respondent Father.

[40] Moreover, it would be expected that any risk assessment would concentrate on the children who are in issue, M.M. and W.M., and not necessarily M.W.W., respecting whom C.M. is not seeking parenting time.

[41] As well, the disclosures by M.W.W. to the police and the worker are consistent and were corroborated by the disclosures that M.W.W. made to her friend well prior to the police being involved. There were reasonable and probable grounds to lay the charges and there are obviously reasonable grounds to believe that M.W.W. would be at risk if C.M. had parenting time with her. M.W.W. is a child as are M.M. and W.M., and without more, if C.M. is under suspicion of having abused a child, other children are at risk. Accordingly, there are reasonable grounds to believe that M.M. and W.M. are also at risk.

[42] It was suggested during argument that all children are at some risk in the care of their parents. Most risk is minor in nature. The Society has completed its investigation and apparently they have determined that M.M. and W.M. are at moderate risk from the Respondent Father. His actions in refusing to participate in a risk assessment and in refusing to allow his parents to be interviewed do nothing to allay the concerns of the Society. The circumstances of this case are sufficient for the Applicant Society to have have a reasonable belief of risk of harm to C.M. and M.M. and in insisting upon supervision of access.

[43] Moreover, as suggested by Ms. Bowman, we often forget about the effect that parenting time between a perpetrator and the victim’s siblings has on the victim. M.W.W. has made disclosures resulting in criminal charges having been laid and it can only be imagined how difficult this would be for her. If access or shared care of her siblings, M.M. and W.M., is provided to the Respondent Father, what does this say to her about the weight being given to her disclosures? In cases such as this where disclosures of sexual assault have been made by a child, the court must not only bear in mind the risk of potential harm of parenting time to the siblings of the victim, but also the unseen harm that this order would cause to the victim: see J.R. v. W.M., 2021 ONSC 1698 (S.C.J.).

[44] Finally, C.M. complains about his rights being infringed; he brings, after all, a constitutional challenge which he did not proceed with. However, as confirmed by the Supreme Court of Canada in Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 83, [1994] 2 S.C.R. 165 and Winnipeg Child & Family Services (Central Area) v. W. (K.L.), 2000 SCC 48, [2000] 2 S.C.R. 519,[^7] in child protection matters, the rights of the parents are secondary to the welfare of children.

[45] I therefore find that there were reasonable grounds for the Society to believe that the younger two children were at risk of harm if placed with the Respondent Father on an unsupervised basis.

Society Misdeeds

[46] C.M. complains that the Society has acted in bad faith. When I asked him what evidence that he was submitting that there was bad faith behaviour, he could not point me to any evidence of that fact in his affidavit. He implied that he had not provided evidence to avoid acrimony. An accusation of bad faith behaviour without evidence is nothing other than a unsupported allegation which is no better than name-calling.

[47] C.M. points out in his affidavit that the Society has breached the statute and the regulations on a number of fronts. He said that they did not complete their investigation within 45 to 60 days as required by the regulations. He says that the Society did not bring the temporary care hearing within five days as required by s. 88 of the CYFSA. He also said that the Society has failed to prove that these children are “children in need of protection” as defined by the statute.

[48] None of these affect the application of s. 94 or in determining whether the children should be returned to the care of C.M. The fact that the Society may have failed to comply with the legislation is irrelevant to the rights of the children to the protection of the courts during the adjournment period as provided for in s. 94.

[49] Moreover, respecting the suggestion that this hearing was not brought in time, there are two narratives as to when the Society first intervened. It was either November 4 or 7 and if it was November 4, it is acknowledged that the five day rule was not followed. However, under s. 88, that rule only applies where the child was brought to a “place of safety”. Although the police and the Society worker spoke of this term on November 1, 2022, these children were never brought to a place of safety; they remained in the family home and C.M. was removed from that home. The five day rule is inapplicable to the present case even though the temporary care hearing was brought as promptly as possible considering the intervening holiday where the courts were closed on Remembrance Day.

[50] C.M. says that these children are not “in need of protection” as defined by the CYFSA and the regulations. There is no need to prove that these children are “in need of protection” in a temporary care hearing. That only needs to be proven if the Society is asking for a final order under ss. 101 or 103 of the CYFSA. These are early days and there is no need for a finding at this time.

Access

[51] The Respondent Father requests in his cross-motion that his parents be named as supervisors of his access to W.M. and M.M.. The Society agreed to this subject to them being approved as access supervisors by the Society worker.

[52] Unfortunately, the Respondent Father did not allow the Society to complete the interview with his parents to satisfy itself that they would be appropriate access supervisors. He says that this was because he perceived that the Society was on a fishing expedition, trying to glean information from them. However, the Society was only trying to find out whether the Respondent Father’s parents were aware of the allegations against him so that they would understand the risks for which they were supervising access. That was the first question in the interview (that C.M. insisted upon recording) and when that question was asked, he terminated the interview. The Society has not had the opportunity to approve the Respondent’s parents as supervisors and because of this C.M. has not seen his younger children since November 1, 2022.

[53] I am not going to second guess the Society or intervene in their approval process. They have a right to know that the proposed supervisors know the reasons that access is being supervised and know the risks to the children that they are being asked to prevent. The Society has a right to know that the proposed supervisors know their duties of supervision: to know why they are supervising access and the risks involved; to always be present when the parent is with the child; to promptly end a visit in the event of the children being at risk; and to promptly call the Society worker if that occurs. Without that, there would be no point to the supervision of access and if the Respondent does not allow the Society to complete its approval process, he will be left with access in the Society office supervised by a Society worker.

[54] The only order that I am willing to make is that the Respondent Father’s parents may supervise access once approved by the Society as access supervisors.

Restraining Order

[55] At the last court appearance, on December 21, 2022, on oral motion by OCL counsel, Justice Jain found that there was a need for a restraining order under s. 137 of the CYFSA. In finding this, she expressed a concern that C.M. “declined sending a copy of [his undertaking] into the court.” Justice Jain noted that the Respondent Mother was “inconsistent… re. the type of communication that she was comfortable having with C.M..” However, the Respondent Mother eventually found the “phone calls and emails [with C.M.] to be harassing and distressing.” Justice Jain said that J.M.W. attempted to revoke her consent but was having difficulty in doing so. C.M. continued to communicate, including about M.W.W., and refused to agree to any limits on his conversations with J.M.W. Justice Jain found that to be “unreasonable and controlling” and ordered the restraining order.

[56] The restraining order was set to expire on return of this matter on January 23, 2023 and I extended it pending the release of these decisions.

[57] Nothing has changed since Justice Jain considered this issue in December. The court continues to be in the dark about the terms of the undertaking and neither C.M., nor any of the other parties saw fit to provide me with a copy of the undertaking which apparently was amended to provide for a revocable prohibition on communication between C.M. and J.M.W. I was told by Mr. Hustins that the undertaking contained a provision that there was no contact between C.M. and M.M. and W.M. unless subject to a family court order; C.M. denied this to be the case. Again, I was unable to review a copy of the undertaking to confirm whether this was the case.

[58] The only information that I have about the undertaking is what C.M. said in his affidavit, which was that it contained a provision that C.M. “must not communicate, directly or indirectly, with … [J.M.W.] (RM), except in accordance with the following conditions: Through the children’s aid society for the purpose of childcare and child access.” If this remains in force, C.M., by sending the emails that were attached to the worker’s December 15, 2022, was in breach of the undertaking and could be charged with breach of that undertaking. However, everyone appears to agree that the undertaking was amended to provide for a revocable consent to communicate between the parties and that J.M.W. did consent to communication, a decision that she says she now regrets:

I acknowledge that the Society had concerns with me potentially being protective of [C.M.], but the no contact conditions had alleviated that concern. Currently the no contact conditions have been removed and I do communicate with [C.M.] regarding the children. During our conversations I have discovered that [C.M.] tends to minimize this situation by putting blame on [M.W.W.] and alluding to her “making the situation worse” by “lying”. I recognize that this is harmful discourse, and I am seeking to remove myself from this potential influence by [C.M.] by seeking to revoke my consent to communicate directly with [C.M.]. If this is not possible in the criminal court, I ask that this Honourable Court consider imposing terms on our communication either through the Society, legal counsel or an agreed upon third party.[^8]

[59] Certainly, in the email communications attached to Ms. Edwards December 15 affidavit, the Respondent Father requests telephone communication and when J.M.W. refuses, he accuses her of covering up “something you don't want to share with me, specifically something related to how [M.W.W.] has been doing.”[^9]

[60] The Respondent Father did not address the restraining order in his affidavit sworn December 20, 2022; indeed, how could he when the motion was oral and not served upon him? However, he did know that the restraining order would be reviewed on the return of this matter on January 23, 2023 as he knew that it would expire on that date. He did not address the restraining order in his “Factum & Affidavit” which contained sworn statements of fact and which was sworn on January 18, 2023. He still has not provided a copy of the undertaking to prove that it adequately addresses the safety of M.W.W. and the Respondent Mother.

[61] There is therefore no evidence other than that which was before Justice Jain when she determined that a restraining order was necessary. I am not here to review that order where there is no more fulsome evidence to demonstrate that the court should revisit that decision. I am not going to distract judges in dealing with this matter by forcing them to consider the restraining order on future returns of this matter. The restraining order shall therefore continue in force on a temporary basis until further order.

Order

[62] Therefore, there shall be an order as follows:

a. The children shall remain in the care of the Respondent Mother.

b. The Respondent Father shall have no access to M.W.W. until further order.

c. The Respondent Father shall have access to the children, M.M. and W.M., according to the discretion of the Applicant Society as to time, duration, location and supervision. Provided that the Respondent Father’s parents may supervise access between the Respondent Father and those children upon the Society approving them as supervisors.

d. The Respondent Father’s constitutional challenge to the temporary care of the children is adjourned to a date to be set by the trial coordinator and shall only be returned to the court on 14 days’ notice to the Society, to the other parties including the OCL and to the AG Canada and AG Ontario.

e. The balance of the relief claimed in the Respondent Father’s notice of cross-motion is dismissed.

f. The restraining order shall remain in force and effect until further order.

g. Matter adjourned to April 19, 2023 for a Case Conference.

Justice J.P.L. McDermot

Released: January 31, 2023

[^1]: O. Reg. 114/99 [^2]: Part 1 of the Constitution Act, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [^3]: S.O. 2017, c. 14, Sched. 1 [^4]: https://dictionary.cambridge.org/dictionary/english/intervention [^5]: It is unclear as to whether this document was served on the Society. It had greater factual detail than did C.M.’s affidavit sworn December 20, 2022, but the latter is what the C.A.S. responded to in its reply affidavit sworn January 23, 2023. There does not appear to be a response to C.M.’s “Affidavit & Factum” at this temporary care hearing. There is no affidavit of service of the affidavit and factum sworn January 18, 2023 on the Society although the AG Canada and AG Ontario were served this document. [^6]: Affidavit of the Respondent Father sworn December 20, 2022, para. 51 [^7]: Cited in C. v. Children’s Aid Society of Peel, supra at para. 160. [^8]: Affidavit of Respondent Mother sworn December 12, 2022, paragraph 7. [^9]: Email from Respondent Father to Respondent Mother dated November 29, 2022, attached as Ex. A to the affidavit of Virginia Edwards sworn December 15, 2022.