W ARNI NG

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: FC-19-CP28-3 DATE: 2024/10/07 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF E.P. (DOB: […] 2015)

BETWEEN:

Children’s Aid Society of Ottawa Applicant – and – N.P. – and – E.P. – and – S.-A. P. Respondents

Counsel: Judith Hupé, for the Applicant Stephen Pender for N.P. E.P.-Self-Represented Kim Pegg, for the Respondent S.- A.P.

HEARD: September 12, 2024

Endorsement

BLISHEN J.

Introduction

[1] This is a motion for summary judgement (SJM) brought by the Children’s Aid Society of Ottawa, pursuant to Rule 16 of the Family Law Rules, O.Reg. 114/99 as am, (FLRs) in the context of a Status Review Application (SRA) filed July 19, 2023.

[2] The major issues of concern regarding this family are the mother’s long standing and significant drug addiction, domestic violence, parents’ lifestyle and its impact on the child, and the father’s long standing and ongoing criminality resulting in periods of incarceration.

Positions of the Parties

[3] The Society requests the following orders:

1. a final custody order placing the child E. (born […], 2015) in the care of his mother, N.P., granting her sole decision-making authority, pursuant to s. 102 of the Child, Youth and Family Services Act, S.O. 2017, c.14, schedule 1, as am. , an order that she be able to obtain a passport without consent and that she may travel domestically and internationally without restriction or consent.

2. an order that parenting time / access to the father, E.P. be fully supervised and take place at a supervised access center. The frequency and duration of the visits is to be determined by taking into consideration the child's wishes and best interests as well as the Supervised Access Center’s availability and to be arranged through a third party agreed upon by the parents. After at least 8 positive visits the access may be supervised by an agreed upon third party such as the paternal grandmother.

3. generous, liberal access/parenting time to the paternal grandmother S.-A.P. as arranged between the mother and grandmother, taking into consideration the child’s wishes and best interests, a minimum of one weekend per month.

[4] The Society argues these are the least intrusive measures in keeping with the child’s best interests.

[5] All parties agree to an order for the paternal grandmother to have access to E. At present the agreement is for access every second weekend. Some visits have been missed.

[6] The mother filed an Answer and an affidavit on the motion. She consents to the order sought by the Society and argues that over the last two years, she has demonstrated an ability to meet E.’s needs. He is now stable, happy, and secure in her care. The access terms proposed by the Society for the father and paternal grandmother are appropriate. Given the father has spent a significant portion of E.’s life in pre-trial detention and serving jail time, the reintroduction of contact through a neutral and professional supervised access program is also appropriate.

[7] The paternal grandmother, S.-A. P. is a party to the proceeding. She has been a great support to the family and has cared for E. on several occasions when his parents were unable. She filed an Answer and affidavit evidence consenting to the Society’s application for access to her and a custody order to N.P. She would like to be notified if the mother travels and her access time is affected. S.-A.P. argued there is no need to have her son’s parenting time supervised. However, if the court determines supervision necessary, she is ready, willing, and able to arrange and supervise the visits. There is no need for a supervised access facility.

[8] The father who continues to be incarcerated, filed an Answer agreeing that E. remain in N.P.’s primary care, pursuant to a s.102 custody order, “as long as she continues to be well”. He further requested joint decision-making and reasonable access with his son, including phone calls and video visits while incarcerated, and unsupervised parenting time when released, including weekends, mid-week visits, and shared holidays.

Evidence

[9] The summary judgement motion was originally returnable June 24, 2024, before Justice MacEachern, but was adjourned. The father had served some material which was not in the form of an affidavit. He was given time to prepare affidavit evidence. Given he was incarcerated and representing himself, he was given extra time to draft, file and serve an affidavit. He was also given permission to serve and file it unsworn, without an affidavit of service. Every effort was made to ensure procedural fairness to E.P. Timelines were set for the filing and serving of all additional material and the motion was adjourned to September 13, 2024.

[10] All parties, other than E.P., filed and served affidavit evidence as follows:

1. the affidavits of Child Protection Worker (CPW) Barbara White filed July 19, 2023, May14, 2024 and Sept 4, 2024,
2. the mother N.P.’s affidavit filed August 16, 2024,
3. the paternal grandmother, S.-A.P.’s affidavit filed June 14, 2024, and
4. the Society also filed a factum.

[11] All the affidavits were reviewed and considered. They provide detailed admissible evidence.

[12] On the day of the motion, E.P. attended via Zoom from Warkworth penitentiary. He had served responding documents on the other parties. Again, they were not in affidavit form and had not been filed. He was permitted to swear on the record that the evidence in the documents was true. The documents were filed over the Bench and time was taken to review them prior to submissions. Again, every effort was made to ensure procedural fairness as E.P. was representing himself. Those documents have also been considered in determining the issues on this summary judgment motion.

[13] In his documents E.P. responds to the affidavits of the CPW and his mother paragraph by paragraph. He refers to excerpts of Society reports provided to him as disclosure which he alleges contradict some of the Society’s affidavit evidence. Neither the reports nor the excerpts were provided.

[14] In essence E.P. argued the Society forced the mother to testify against him at his criminal trial in March 2023 and to turn against him overall, by threatening to remove E. from her care if she did not. The mother denies this allegation and indicates she remains fearful of the father.

[15] E.P also argued any protection concerns regarding E. are due to the mother’s long standing drug addiction. He does not have addiction issues, is a good father and it would be in E.’s best interests that an order be made for joint decision-making and unsupervised parenting time.

[16] His evidence consisted largely of denials, blaming the mother, Society and Police for his most recent criminal charges and conviction, and reference to unfiled documents without dates or context.

Background Facts

[17] The CAS of Stormont Dundas & Glengarry (CAS of SD&G) became involved with N.P. in October 2015 after E. was born, due to concerns regarding her ongoing drug use, effects on the baby, the father’s alleged involvement in dealing drugs and domestic violence.

[18] There were further openings in 2016 and 2018 following reports of domestic violence and the father’s criminal activity.

Criminal History

[19] The father has a lengthy criminal record dating back to Youth Justice Court in 2000. His convictions as a young person include assault, assault with a weapon, possession of a weapon, dangerous driving, possession of property obtained by crime and uttering threats. He served time in both open and secure custody and under supervision in the community.

[20] His convictions as an adult began in 2005 and include: assaults, possession of a weapon, possession of break in instruments, attempted theft, break and enter with intent, uttering threats, obstructing peace officer, possession of a Schedule 1 substance, mischief, dangerous operation of a motor vehicle, impaired driving, break and enter and commit theft, possession of a firearm contrary to a prohibition order and numerous convictions for failure to comply with recognizances or court orders. He has been in pre-trial detention or incarcerated for varying periods of time since E.’s birth, the lengthiest and most recent sentence being a 3-year 4-month term for possession of a firearm or ammunition contrary to a prohibition order. He has also been on conditions of release and probation.

[21] E.’s primary residence has always been with his mother or paternal grandmother both of whom have made the important decisions in his life.

[22] N.P. also has a criminal record dating back to Youth Justice Court in 2005. Her convictions as a young person include numerous assaults, mischief, possession of property obtained by crime, possession of break in instruments, and numerous breaches. As an adult her convictions included unlawfully at large, failure to comply with a probation order and breaches. Her last conviction was 10 years ago in June 2014, before E.’s birth, for failure to attend court for which she received a 5- day sentence and probation. There have been no criminal convictions since then, although there has been some police involvement.

Society Involvement

[23] The Society’s most recent file opening was initiated on January 11, 2019, when the CAS of SD&G received a call from the paternal grandmother concerned about the mother’s ongoing drug use. She had dropped E. off a week earlier. S.-A.P. indicated the mother and E. had been living with her off and on since Christmas. E.P. was in custody.

[24] The Society agreed E. remain with S.-A.P. and commenced a kin assessment. The father who was then released, did not agree with the placement, wanted the child to reside with him and removed him from his grandmother’s care. The CAS and police did not intervene. E. remained in his father’s care for some time in February 2019, was returned to his grandmother’s care, was again taken by his father for a few nights in March before once again returning to his grandmother’s care.

[25] In April 2019, the mother signed a Voluntary Services Agreement placing the child with the paternal grandmother. The Society could not locate the father to sign the agreement. Therefore, a Protection Application was filed seeking a finding the child was in need of protection and requesting an order placing him in the care of his paternal grandmother subject to terms and conditions of a six-month supervision order.

[26] On July 30, 2019, E. was found to be a child in need of protection and a final order was made placing him in the care of his grandmother for six months under terms and conditions of a supervision order. The main issues of concern were the mother’s addictions, domestic violence, parents’ lifestyle, and the father’s criminal involvement. The father did not present a plan to care for E.

[27] The Society brought an early Status Review Application in December 2019 as the mother made progress dealing with her addictions and on January 2, 2020, a temporary without prejudice supervision order was made placing E. with his mother under terms and conditions. Again, the father did not present a plan to care for the child.

[28] In August 2020, the mother overdosed. Paramedics were called and made attempts to revive her, all in the presence of the child. E. was once again removed from his mother’s care and placed with his paternal grandmother under the terms and conditions of a temporary without prejudice supervision order.

[29] In September 2020, a drive by shooting took place at the paternal grandmother’s home. E. was present and witnessed the shooting. The mother’s car was used in the shooting. The father alleges it was the mother’s boyfriend and his associates who were involved. The paternal grandmother indicates N.P.’s boyfriend at the time sent texts and phone messages threatening to shoot up her home.

[30] On May 12, 2021, a final order was made placing E. with his paternal grandmother under terms and conditions of a three-month Supervision Order.

[31] Over the following year, N.P. made significant progress. She attended and completed a residential addictions treatment program in December 2021. She provided random supervised drug screens which were negative. She attended visits regularly which progressed from fully supervised to partially supervised to unsupervised in the community and finally to in home and overnight visits. E. enjoyed the visits and indicated a desire to return to his mother’s care.

[32] A SRA was filed requesting a supervision order placing E. with his mother. A final 12- month supervision order with terms and conditions including terms for the father’s and paternal grandmother’s access, was made on August 30, 2022.

E.P.’s Access and Involvement with E.

[33] Prior to Dec. 2020, E.P. had visits as arranged between him and S.-A.P., when E. was placed with her.

[34] On December 12, 2020, E.P. was arrested on multiple charges. He remained in custody for a few days and was released on several conditions including to have no contact with N.P. or E. His access was suspended.

[35] In March 2021, E.P. was again arrested and charged with several offences, including attempted murder and conspiracy to commit murder. He was denied bail and remained in custody until September 2021 when he was released on conditions to reside with sureties in Windsor.

[36] After his release and move to Windsor, E.P. had video visits with E. twice weekly, arranged and supervised by the Society. After a few months the video visits were arranged and monitored by the paternal grandmother.

[37] Although E. wanted in person visits with his father and needed coaching to remain engaged in the virtual visits, the video contact was regular, consistent, and positive. E. enjoyed seeing his father who was appropriate during the contacts.

[38] E.P. was also offered in person supervised visits with E. every two weeks. He attended two in person visits February 25, 2022, and March 11, 2022, but did not attend any further in person visits. E.P. indicated the cost to drive back and forth from Windsor (approximately 16 hours) and stay in Ottawa for a three-hour visit was simply too high. He couldn’t afford it, and his sureties refused to come.

[39] A visit had been scheduled for March 25, 2022, but was cancelled by the sureties the day before after the Society expressed concerns about them acting as access supervisors. E. was expecting this visit and was disappointed.

[40] Unfortunately, the video calls facilitated by S.-A.P. were suspended in October 2022 when E.P. removed his ankle bracelet and left the residence of his sureties, which was a breach of his conditions of release. The police were able to locate him. He was arrested and has been incarcerated ever since.

[41] E.P.’s trial on the March 2021 charges was held in March 2023. N.P. testified for the Crown. Both the paternal grandmother and the father deposed that the mother was influenced by the Society to provide a statement and testify against E.P. to continue to have E. in her care. N.P. denies this as does the CPW.

[42] E.P. was ultimately acquitted of the murder charges but convicted of the firearm charge and is still serving his sentence on that charge. He indicated there will be a hearing soon to determine if he can be released on parole.

[43] N.P. deposed she remains fearful of E.P. and does not want to have direct dealings with him. She has however, permitted some phone contact between E. and his father. She feels badly for E. who wants contact with his father, so she relents and allows the calls. The Society worker reminded her that E.P. needs to contact the Society if he wishes to have contact with his son which was one of the conditions of the supervision order.

[44] E.P. indicated he has spoken to his son regularly and he does not need permission of the CPW who is biased and believes he should be in jail for crimes he did not commit. He has not contacted the worker to arrange calls or any other form of access or regarding any other issues.

[45] In summary, E.P. has had limited involvement with E. over most of this little boy’s almost nine years due to ongoing criminal activity, periods of incarceration and pretrial/ presentence custody. He has not had any unsupervised in person contact with E. in almost four years, since December 2020. He had two supervised in person visits in February and March 2022 and no other in person contact.

[46] E. has been clear he would like contact and would enjoy seeing his father again.

The Law

[47] Justice Corthorn canvassed and provided an excellent summary of the post- Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 49 approach to Summary Judgment in child protection matters at paragraphs 29 through 35 of The Children’s Aid Society v. S.P. and K.L., 2019 ONSC 5624 as follows:

Summary Judgment

a) General Principles

[29] It is well-established that a summary judgment motion may be brought in a proceeding under the Act. The governing two-part test was articulated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. First, the judge must determine, based only on the evidence in the record, if there is a genuine issue requiring a trial. Resort to additional fact-finding powers is not permitted at this first stage. If there is no genuine issue requiring a trial, then the matter may be summarily determined.

[30] If there appears to be a genuine issue requiring a trial, then the second step requires the judge to look beyond the evidence in the record. At this stage, the judge determines whether the need for a trial can be avoided by utilizing the additional fact-finding powers available to the judge under the relevant procedural rules. If it can, then the matter may, at the discretion of the judge, be summarily determined. If not, then summary judgment is not granted (Hryniak, at para. 67).

[31] Rule 16 of the FLR governs motions for summary judgment. The additional fact- finding powers are set out in r. 16(6.1). Those powers permit the judge hearing a motion for summary judgment to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, unless it is in the interests of justice that such powers be exercised only at trial.

[32] Pursuant to r. 16(4), the burden of proof rests with the moving party to set out “specific facts showing there is no genuine issue requiring a trial.” A party responding to a motion for summary judgment is not entitled to “rest on mere allegations or denials” (r. 16(4.1)). A responding party is required, through affidavit or other evidence, to set out specific facts that demonstrate there is a genuine issue requiring a trial. In summary, each party on a motion for summary judgment is required to put their best foot forward.

b) Child Protection Matters

[33] In its recent decision in Kawartha-Haliburton Children’s Aid Society v. M.W., the Ontario Court of Appeal set out “the proper approach to summary judgment in child protection matters” (2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 1). Coincidentally, that case involved a motion for summary judgment in which the mother consented to an extended society care order but sought access.

[34] The Ontario Court of Appeal identified a number of principles to be applied on motions for summary judgment in child protection cases. Those principles are summarized at para. 80 of the decision:

1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child.

2. The burden of proof is on the party moving for summary judgment. Although r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial.

3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.

4. Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.

5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

[35] In Kawartha-Haliburton, the Court of Appeal directs that judges on motions for summary judgment in child protection proceedings undertake a best interests analysis (paras. 31 and 49). Above all, a cautious approach should be taken on motions for summary judgment in child protection proceedings (paras. 63 and 70- 79). The Court of Appeal described the requisite approach as “highly cautionary” (para. 74).

Analysis

[48] In this matter I must consider the following issues based on the evidence:

1. Is there a genuine issue requiring a trial as to whether an order granting custody of E. including primary residence and sole decision making to the mother N.P. pursuant to s. 102 of the CYFSA, is in the child’s best interests as outlined under s. 74(3) of the Act?

2. Is there a genuine issue requiring a trial as to whether it is in the child’s best interests that the father’s access (parenting time) be supervised by a supervised access facility?

[49] If the answer to both questions is no, then I may grant summary judgement and make the order requested by the Society and the mother.

[50] If the answer to either question is yes, then I must move to the second stage of the inquiry and determine whether the need for a trial can be avoided by using the additional fact-finding powers outlined under R 16(4.1) of the FLRs.

Custody to the Mother

[51] After considering all the evidence filed on this summary judgment motion, including the documents submitted by E.P., along with the relevant legislation and jurisprudence, I find there is no genuine issue requiring a trial on the issue of whether a custody order to S-A.P. is in the child’s best interests, for the following reasons.

[52] There is no question N.P. suffered from long standing and serious drug addiction issues which had a serious impact on her ability to parent and were a major factor resulting in E. being found a child in need of protection and orders being made placing him with his paternal grandmother under terms and conditions of supervision orders, the last one on May 12, 2021.

[53] However, N. P. made significant progress and on August 30, 2022, after argument on a previous SJM, the court found it in E.’s best interests to place him with his mother under terms and conditions of a 12-month supervision order.

[54] In her reasons, Justice Summers made the following findings:

“The child has always been in the care of either his mother, or paternal grandmother. The father has never been the primary caregiver to his son. In addition, there have been long absences over the years when the father was in jail and had no contact with the child.

28. The mother has made considerable progress since the Society brought its Status Review Application in 2021. She has worked hard to regain her health, change her lifestyle, and remain apart from the father. She completed a residential treatment program, has voiced her commitment to sobriety, and to being an involved mother. She is abstaining from drug use, has supports in place, continues to cooperate with the Society, and recognizes that she could benefit from counselling to address past trauma, addiction issues and how to maintain healthy relationships. She has a job, an appropriate home, and a new partner who does not raise concerns for the Society. Her access has progressed from fully supervised, to semi-supervised community visits, to full weekend home visits. She also had the child in her care for one full week in both July and August.

29. I accept the Society’s evidence that the child’s time with his mother has been positive, by and large, that he enjoys his visits, appears happy to spend increasing amounts of time with her, and wants to live with her. Nevertheless, there have been many impactful changes in the child’s life and routine, that have provoked anxiety and behavioural challenges. The child has a therapist to help him with his mood, behavioural dysregulation and past trauma, including domestic violence between his parents.

30. The Society does not dispute that the father loves his son, and agrees their visits are positive. However, the father has not addressed their protection concerns nor has he been cooperative. Moreover, while his criminal charges remain outstanding, his future is uncertain. The child’s life has been fraught with upheaval for a long time now. The uncertainty of the father’s situation is contrary to the child’s need for stability and security.

31. I find the child, E.P., continues to be in need of protection and that a twelve- month supervision order to the mother is in his best interests. She has been his primary caregiver in the past and has worked hard to address the Society’s concerns, to prove herself, and her ability to have the child returned to her care. Nevertheless, her abstinence is relatively recent, her recovery is ongoing, and the child is still adjusting to the various changes in his life. These factors indicate ongoing supervision is appropriate. Considering all of the circumstances, this is the least disruptive order the court can make.”

[55] E. has remained in his mother’s care. N.P. has done her best to follow the terms and conditions of the supervision order. According to the evidence of the CPW, she and E. are doing very well.

[56] The CPW deposed she has continued to meet with N.P. and E. monthly over the past two years and has not observed any significant protection concerns.

[57] The CPW noted:

1. The home is well furnished, clean, the fridge is stocked, and E.’s room and toys are age appropriate.
2. All of N.P.’s ongoing random supervised drug screens have come back negative.
3. She has continued treatment with her methadone doctor, attended AA and NA meetings, accessed addiction services and personal counselling.
4. E. attended counselling and N.P. worked with Crossroads in the home to assist with some of E.s behavioural issues.
5. E. has been seen by a counsellor on a regular basis to address trauma.
6. N.P. is working with E.’s school and helps him with homework.
7. N.P. has made significant progress in her parenting and can offer more structure, routine, and natural consequences when E. is not listening to her.
8. N.P. takes E. out to do activities in the community and has activities for him at home.
9. There have been no calls from the community and despite concerns expressed by E.P. in his responding documents, no evidence she is using drugs or participating in her old lifestyle of dancing/clubs and escorting.
10. N.P. has started her own cleaning business and works four days a week.
11. E. reported to the worker he is happy at home with his mother and enjoys the time he spends with his grandmother. He misses his father but understands he is in jail at this time.

[58] The paternal grandmother, S.-A-P., has always played an active and positive role in E.’s life. E. continues to see his paternal grandmother a minimum of once a month. He enjoys the visits with her and her older daughters.

[59] In his evidence and submissions E.P. indicated a concern that N.P. is missing appointments and may be “using” again. He references some reports and excerpts of reports from the CAS disclosure. The dates of those reports and the context is not provided and none of the reports or excerpts of reports referred to by E.P. were filed. Given N.P.’s history of serious drug addiction over many years, E.P.’s concern is understandable. However, he has had no direct contact with her for several years and has been incarcerated since his last arrest in October 2022. There is no evidence to substantiate those concerns.

[60] E.P. has never been E.’s primary caregiver, nor has he been able to actively participate in making decisions for E. There have been long periods of time when he has been absent from his son’s life due to criminal convictions and periods of incarceration.

[61] The relationship between the parties is highly conflictual. The mother who has been the decision maker over the last two years subject to the terms of a supervision order, is fearful of E.P. and does not wish any direct dealings with him.

[62] The detailed evidence of the CPW supports the order sought for custody to N.P. pursuant to s. 102 of the CYFSA as being in the child’s best interests. The paternal grandmother who has cared for E. on many occasions also supports an order placing E. in his mother’s custody.

[63] As outlined in Catholic Children’s Aid Society of Hamilton v. A. (V.), 2022 ONSC 4684, I find on the evidence before me the protection issues related to N.P. have been adequately addressed such that E. can safely remain in her care. There is a need for an order to protect the child, but the ongoing supervision of the Society is no longer required, nor would it be beneficial.

[64] There is no genuine issue requiring a trial on the first issue.

E.P.’s Access

[65] The fact that E. loves his father and wants to see him, preferably in person, is not in dispute. There is also no dispute that once E.P. is released, in person visits would be in accordance with E.’s expressed wishes and overall best interests, unless there is a material change in circumstances. It is unclear when E. P. will be released.

[66] The issue is whether supervised parenting time as requested by the Society and the mother and contested by the father and the paternal grandmother, is in the child’s best interests. Is there a genuine issue requiring a trial? If not, is there a genuine triable issue as to whether supervision, should begin at a supervised access facility as being in the child’s best interests? Or should the access be supervised by the paternal grandmother as requested by the father and grandmother?

Supervised Access

[67] Based on the admissible evidence before me, I find the Society has met the burden of proving there is no genuine triable issue. It is in E.’s best interests to have his father’s access (parenting time) once he is released from jail, supervised for the following reasons.

[68] As noted above, E.P. has never been the child’s primary caregiver. He has been absent from E.’s life for lengthy periods of time during which the child has been cared for by his mother or his grandmother. The history of his contact and involvement with his son is outlined above.

[69] E. has only seen his father in person twice in the last four years supervised and the last regular video call was two years ago. Since then, the only contact has been via some telephone calls from the jail which the mother allowed despite the condition that access was to be at Society discretion, facilitated by the Society or an agreed upon third party, not the mother. E.P. has not contacted the Society regarding access or any other issue for several years.

[70] E. is now almost nine years old. There have been many changes in his development, behaviour, and maturity level. In addition, over the last two years he has resided full time with his mother with weekend access at least once a month (usually every two weeks) with his paternal grandmother. He has a consistent, stable routine.

[71] Although there is no evidence that E.P. has ever physically harmed his son or put him at direct physical risk, caution must be exercised in gradually reintroducing him into his son’s life. The child’s emotional needs must be considered. In addition, E.P.’s criminal lifestyle is of concern.

[72] As found by Justice Summers in August 2022: “Considering the father’s history of criminality, his association with potentially dangerous people, and his failure to address other protection concerns, there remains a risk of serious harm to the child if community visits were to be permitted.”

[73] There is no evidence to alleviate those concerns. E.P. was rearrested in October 2022 and has remained in jail.

[74] In addition, it was clear in his material and submissions that E.P. blames not only the Society and Police for his most recent conviction and incarceration, but also N.P. Given E.P.’s extreme distrust and animosity towards N.P. it will be important to ensure he does not undermine or speak negatively about her in the presence of E. who loves his mother and is happy living with her.

[75] Finally, N.P. indicates she is fearful of E.P. and does not want to have any direct dealings with him.

[76] I find no genuine triable issue that it is in E.’s best interests to have the access (parenting time) with his father initially supervised by a reliable third party.

Parameters of Supervised Access

[77] I find the evidence before me sufficient to determine there is no genuine triable issue that it is in E.’s best interests for his father’s first in person contacts with him in over two years to be at a supervised access facility and not supervised by the paternal grandmother. The Society has again met its’ burden.

[78] As noted in the CPW’s affidavit the paternal grandmother has always played an active and positive role in E.’s life. She has cared for him for many months at a time when neither parent was able – N.P. due to her drug addiction issues and E.P. due to his ongoing criminality and incarceration. There is no question it is in E.’s best interests to continue to have her in his life and to see her for weekend visits a minimum of once a month.

[79] S.-A.P. however is supportive of her son and despite the evidence as outlined above, argued he should have unsupervised access or in the alternative that she supervise his parenting time.

[80] N.P. who has been and will continue to be E.’s primary caregiver has a high conflict relationship with E.P. and is fearful of him. She is also concerned that S.-A.-P. will continue to be influenced and pressured by him as she herself has been in the past.

[81] In addition to concerns that S.-A.P. is aligned with her son, given the long absence of the father from E.’s life and his animosity towards N.P., it is very important for E’s emotional well being and in his overall best interests, that the initial visits with his father be supervised by a reliable, neutral, professional third party. There is no genuine issue for trial in this regard.

Conclusion

[82] Therefore, having carefully considered all the evidence filed on the motion, the relevant legislation, and the jurisprudence, I grant the Society’s motion for Summary Judgment pursuant to Rule 16 of the FLRS and order the following:

1. The child, E.P. (DOB: […], 2015), shall have his primary residence with his mother, N.P., and be placed in her custody pursuant to s.102 of the Child, Youth and Family Services Act, 2017 granting her sole decision-making responsibility.

2. N.P. shall have authority to apply for and retain a passport for the child without any requirement for other consents or authorizations.

3. N.P. shall be permitted to obtain or renew government documents for the child such as passport, health card, social insurance number (SIN), citizenship card and birth certificate, without the consent of any other party.

4. N.P. may travel domestically and internationally, without restriction or requirement for other consents or authorizations.

5. N.P. shall provide 30 days written notice to the father E.P. and the paternal grandmother, S.-A.P. of any intention to travel as noted above, and provide the location, departure and return dates and other details regarding the travel and arrange for make up parenting time for the father and the paternal grandmother as agreed between the parties.

6. Once E.P. is no longer incarcerated, the paternal grandmother, shall contact the mother to arrange parenting time for the father, E.P.

7. E.P.’s parenting time is to be fully supervised at a Supervised Access Center a minimum of once every two weeks for a minimum of 2 hours. Both parties are to complete the Intake forms as required.

8. The Supervised Access Center is to provide reports regarding each visit to the parents and the paternal grandmother. After the reports indicate the father has completed six positive visits, the visits may be supervised by a third party agreed upon by the parents. The paternal grandmother has indicated her willingness to supervise the visits.

9. E.P. is to have telephone or video access with E. as arranged by the paternal grandmother during her access time.

10. The paternal grandmother S.-A.P. is to have liberal, generous parenting time with E. as arranged between her and the mother, a minimum of one weekend a month. The current arrangement is for every second weekend.

Released: October 7, 2024 Blishen J.