COURT FILE NO.: FC-23-1554 DATE: 2024/07/16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

W. B. Applicant – and – W. K. Respondent

Counsel: Cynthia Squire, for the Applicant Respondent, self-Represented and noted in default

HEARD: July 15, 2024

Reasons for Decision on Uncontested Trial

SOMJI J.

[1] The Applicant W. B. is the great aunt of S.K. aged 14. S.K. has been residing with her since May 2023. W. B. seeks a Final Order to have S.K. reside primarily with her, to have sole decision-making responsibility, and for other corollary relief that would allow her to effectively parent S.K.

[2] The Respondent parents are W. K. and A. S. Both have failed to file an Answer and did not attend for these proceedings.

[3] The issues to be decided are one, have the grounds been met for an uncontested trial, and two, what Final Order is in the best interests of the child?

Issue 1: Have the grounds for an uncontested trial been established?

[4] Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.

[5] An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”

[6] W. K. was served the Application and failed to file an Answer in the requisite time period. On April 2, 2024, Fortier AJ found her in default and ordered that the matter may proceed to an uncontested trial. The mother was served with the materials for the uncontested trial on July 2, 2024.

[7] S.K. does not have a father listed on her birth certificate, but her biological father is understood to be A. S. W. B. and her counsel have made efforts to find contact information for him were only able to secure a Facebook Profile. AJ Fortier validated this form of service, and W. B. used the Facebook Profile to serve the father both the Application and materials for an uncontested trial. The father has not provided any response.

[8] Neither W. K. nor A. S. attended the uncontested trial.

[9] I am satisfied that the requisite conditions for an uncontested trial have been met.

Issue 2: Is the order requested in the child’s best interests?

[10] S. 21 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am (“CLRA”) allows any person other than the parent of a child to apply for a parenting order respecting decision making responsibility with respect to the child.

[11] Orders relating to decision-making responsibility, parenting time, contact and guardianship with respect to the children will be determined in accordance with the best interests of the child: 19(a) CLRA.

[12] The best interests of the child framework requires primarily consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss 24(1) and (2). However, s. 24(3) lists additional factors that must also be considered: CLRA, ss 24(3). The 24(3) factors include:

a. the child's needs, given the child's age and stage of development, such as the child's need for stability; b. the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life; c. each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse; d. the history of care of the child; e. the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained; f. the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; g. any plans for the child's care; h. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; i. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; j. any family violence and its impact on, among other things, i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and k. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[13] While I have considered all the best interest factors in arriving at my decision, I address below the most pertinent factors that have informed my decision.

History, stability of care, and plans for care

[14] The mother W.K. is 35 years of age. She had eight children. S.K. is the second eldest child. The eldest child who would now be 18 died of a drug overdose when she was 16. W. K. lives with her other six children ranging in ages from 1 to 12 with her present spouse V. I. There is some suggestion she may have given birth to another child.

[15] In the summer of 2021, S.K. was unhappy in her home and went to reside with W.B.’s daughter K. and her fiancé. They reported no problems with having her.

[16] On several occasions, S.K. would tell W. B. that she did not like living at her mother W. K.’s home because there was never enough food, the home was messy, and there was a lack of structure.

[17] On May 16, 2023, S.K. came to reside with W. B. and has not returned home since. The situation arose when in the last week of April 2023, W. K. called W. B. There had been a verbal argument at W. K.’s home involving W. K., her husband, and W. K.’s mother Ms. M. Ms. M. is also the sister of W. B. Upon arrival at the home, W. B. alleges that V.I. was yelling and calling out names. W. B. was able to calm the situation. She asked S.K. if he wanted to come home with her for the night and she did. S.K. did not stay long and returned home.

[18] A few weeks later on May 16, 2023, W. K. called again and asked W. B. if she would come pick up S.K. as they had got into an argument. W. B. complied with the request and picked S.K. up who was upset and angry. S.K. indicated they had an argument over a phone charge. Since that time, S.K. has not wanted to return home.

[19] W. B. understands that S.K.’s father has been incarcerated for a large part of her life. She believes he was recently released and had contact with S.K. for a period via Instagram. A. S. does not appear to have been involved in S.K.’s life.

Plans of care

[20] W. B. is 52 years of age. She lives with her husband R.B. and her son J. who is 24. Both of them have a good relationship with S.K. and support her residing with the family. W. B. also has an adult child K. who is presently 30, who has taken S.K. into her home on previous occasions, and maintains a close relationship with S.K.

[21] R.B., J., and K. all work at Costco. W. B. has worked all her life as a receptionist/dental assistant. W. B. and her spouse are able to provide for S.K.’s needs. S.K. has adjusted to their home life and they have not experienced any issues with her.

[22] W. B. supports S.K.’s wish to attend St. Matthew’s Catholic High School for the 2024/2025 grade 9 school year. The school is in her catchment area. It is the school where S.K. wanted to attend in 2023, but there were challenges in having her mother cooperate in registering her for that school. W. B. then brought a motion and on September 29, 2023, MacEachern J ordered that S.K. be permitted to attend St. Matthew’s school as per her wishes.

[23] While it was initially W. K. who called W. B. to come pick up S.K., W. B. has contacted the police four times since May 2023 suggesting that S.K. is missing or was kidnapped. In each instance, the police have left S.K. with W. B. On June 9, 2023, for example, W. K. attended S.K.’s school, opened her locker, removed items, and then advised staff she would be picking S.K. up from school. It took several hours and the involvement of the police and J.W., the CAS Worker to resolve the matter and allow for S.K. to safely leave school and return home with W. B.

[24] W. B. also reports that W. K. and V. I. have engaged in harassing behaviours towards her and her daughter K. However, at this time, W. B. is not seeking any restraining orders as things appeared to have calmed down. W. B. expects that with a Final Order, arrangements can be made with the school to limit the parents’ interference and access to S.K. other than in accordance with S.K.’s wishes.

[25] According to W. B., S.K. has made friends at school. She plays soccer both during the school year and summer. She also has a gym membership which she uses outside of school time. She has started earning funds through babysitting the neighbour’s kids.

[26] W. B. purchased Calypso passes for S.K. to spend some time there in the summer. S.K. will also attend camp for one week in July. S.K. will also participate with the family on their outings to nearby places like Niagara Falls, Toronto, or shopping in Montreal or the USA.

[27] W. B. hopes to place S.K. on her medical/dental insurance and to receive benefits. She would like her to get her eyes checked. Given W. B. works at a dental office, she has been able to have S.K. get dental services at no cost until such time as she is insured.

Child’s views and preferences

[28] S.K. has reported to W. B. that she does not want to return to her mother’s home for some of the following reasons: 1) there is little food in the home; 2) the house is quite dirty; 3) there have been strange men in the house in the past and they sometimes discipline her and her siblings; 4) there have been parties on school nights and lots of noise; 5) her mother and V.I would threaten to call the police if the children did not listen; and 6) that there was no stable schedule in the home resulting in her staying the night at her neighbours’ places.

[29] S.K. also reported to the Children’s Aid Society Worker J. W. who has been involved with this family that she wishes to live with W. B. A copy of the letter dated June 21, 2023, was filed as an exhibit.

The nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

[30] W. B. has not kept S.K. from contacting her maternal family. She understands that S.K. will speak with some of her siblings over Snap Chat. S.K. has the contact information for her grandmother Ms. M. and well as for W. K.

[31] Recently W. K. contacted S.K. to see if she would like to come to her and V.I.’s wedding, but she declined. S.K. saw her family members at a recent fair and spoke to her siblings. It did not appear that the mother or V.I. would speak to S.K.

[32] W. B. was initially open to attending mediation with W. K. at Family Services Ottawa as suggested by the Society Worker to address S.K.’s best interests, but W. K. declined to participate resulting in W. B. having to bring this Application to the court.

[33] Finally, W. B. did not plead nor is she seeking a support order from the parents. She is mindful that W. K. is on social assistance and has 6, if not 7, other children to support.

Conclusion

[34] Upon review of the submissions made and filed and upon consideration of the best interests factors, I find it is in S.K.’s best interest that there be a custody order placing S.K. in the care of W. B. and for W. B. to have sole-decision-making authority for S.K. on all issues.

[35] In addition, there will be an order that the W. K. will have virtual parenting time with S.K. at her discretion. S.K. is 14 years of age and sufficiently mature to decide if and when she wishes to maintain communications with her mother.

[36] In order to ensure S.K. continues to have a relationship with members of both her paternal and maternal family members, and especially her siblings, there will be an order that W. K. and A.S. will have parenting time with S.K. at the discretion of W. B., the duration, location, and level of supervision for which will be determined by W. B. in consultation with S.K. This will allow for S.K. to have input into the circumstances under which she wishes to have in-person parenting time with her parents while also ensuring that such contact is under safe conditions.

Costs

[37] Given the financial means of W. K., W. B. seeks nominal costs of $1000 for this action and motion. Costs are at the discretion of the court. A $1000 does clearly not reflect the full legal costs of this action. However, I agree with counsel that it is a fair and reasonable amount to be paid by the Respondent parents in these circumstances.

Order

• Condition that visitation be at discretion of W. B. with consultation with the child
• Documents – applicant does not have any documents
  • Clause – to attend residence to obtain documents
  • Adult third party to attend house with daughter to obtain her documents – health card
• Failing which still apply for documents without authorization
• Virtual parenting time at the child’s discretion
• In-person parenting time at W. B.’s discretion in consultation with the child
• Nominal cost of $1000
• $500 costs against each parent

Somji J. Released: July 16, 2024