Recent Case Summaries: April 17, 2020

Recent Case Summaries: April 17, 2020

Child protection issues

There have been a few child protection cases that the courts have deemed urgent. A number of them deal with arranging some kind of contact between children in care and their parent(s) because agencies are not offering in-person supervised access at this time.

Others address issues of appropriate face to face contact between children in care and their parent(s) if there are concerns by the CAS that the parent may not follow appropriate steps to keep the child safe from COVID-19 exposure.

In one such decision, where the court agreed with the CAS that in-person contact was not appropriate, it permitted virtual contact three times a week vis social media and/or telephone as well as up to 30 minutes a day of texting between the mother and the 13-year-old child. Face to face visits will begin again “upon same being deemed safe by the Society.”

Justice Jain wrote, in part, in her decision:

“We are in ‘extraordinary times.’ The Society rightfully pointed out that it has a responsibility to comply with the COVID-19 considerations for all the children in their care. This means they must limit the children’s activities in favour of social distancing and limiting community and/or face to face interactions as much as possible. It also cannot be overlooked that this responsibility extends to all the people providing care and/or services to the children in care. The Society has a responsibility to comply with COVID-19 considerations for all the children in their care, as well as the foster parents and kin care providers (and any other children residing in those placements).”

Finding a matter to be urgent

In a recent Ottawa case, the father brought an urgent motion in response to the mother’s decision to deny his regular access time with the three-year-old child as set out in a 2018 final order.

The mother cited “the COVID-19 situation” as her reason for doing so. In her affidavits to the court, she raised a concern that the father’s household was not engaging in appropriate social isolation and noted that the father was using public transit to transport the child to and from visits. She was able to provide text messages between the parties to support her concerns.

In her decision, Justice MacEachern wrote:

“There is a presumption that all orders should be respected and complied with. In this matter, the mother has provided material that supports her concerns regarding the child’s exposure to risk while in the father’s care. . . . I am prepared to treat this matter as the mother’s motion to suspend or vary the father’s access . . . . The onus, therefore, is on the mother to provide specific evidence or examples of behaviour or plans by the father that are inconsistent with COVID-19 protocols and expose the child to risk. I find that the mother’s material, although unsworn at this point, provides a basis in support of such a finding.”

She then sent the matter to the Trial Coordinator for a date and time within 14 days for a conference call hearing of the motion. Justice MacEachern also gave the father the opportunity to serve and file an affidavit responding to the mother’s allegations and providing evidence “on the issue of his household’s compliance with COVID-19 safety measures, his use of public transit and any risks to the child as a result,” noting that his affidavit “should include his specific and realistic proposal for access, which adequately addresses all COVID-19 considerations, in a child-focused manner.” The mother then has the opportunity to file a reply affidavit.

Suspending access

In Balbontin v Luwawa 2020 ONSC 1996, Justice Jarvis dealt with a motion by the mother of a three-year-old child in which she sought to suspend the father’s access (as was set out in a temporary order from July 2019) until he could provide evidence of his compliance with COVID-19 protocols.

Both parents submitted unsworn affidavits and then participated in a teleconference with the judge, in which they swore to the truth of the contents of their affidavits.

Justice Jarvis described the relationship between the parents as “high conflict,” noting that the case was awaiting trial.

Some of the evidence the judge considered was:

  • Photos the father sent to the mother on March 11 of the child in a public playground
  • Ongoing emails from the mother to the father about her concerns and asking the father to work with her to develop a safe approach to his time with their daughter
  • The consistent lack of responses by the father
  • Provision by the mother, on March 14, of face masks, hand sanitizer and disposable gloves for use during access and the father’s apparent lack of interest in using these supplies
  • The mother’s decision not to bring the child to the police station for the March 28 access exchange
  • Communication from the mother’s lawyer to the father
  • Requests by the mother for COVID-19 safety measures information from the father, to which he did not respond

In his decision, Justice Jarvis noted that the mother’s concerns were “legitimate about the child’s third-party exposure” and that the father ignored the mother’s concerns until she said she would not bring the child to the access exchange location:

“Rather than engage her and her lawyer in a good faith effort to communicate and allay those concerns, the father insisted that he knew his rights and obligations and would ensure their protection. . . he said there was no evidence of risk. The requests made of the father were respectful and child-focused . . . his refusal to engage with her where the priority should be ensuring the safety and well-being of the child is unacceptable.”

Justice Jarvis ordered a suspension of the father’s access until he filed an affidavit with the court addressing the mother’s concerns and providing the information requested by her, noting that:

“A parent’s failure to communicate and meaningfully cooperate where a child’s safety and well-being are involved is a failure to parent, especially in the current environment.” (emphasis added)

Case found urgent but motion denied

In Amirzada v Alemy 2020 ONSC 1979, the mother was seeking temporary sole custody and primary residence of the child, who was just under three years old, as well as an order permitting her to travel to Vancouver so she could live with her extended family for the duration of the COVID-19 pandemic. She also sought a suspension of the father’s in-person parenting time with the child, to be replaced by FaceTime access and a restraining order against the father. The father opposed this motion and sought an equal parenting schedule and an order prohibiting the removal of the child from Ontario.

The parties in this case had separated and reconciled on several occasions, over the course of which they had entered into two consent orders for joint custody, with primary residence with the mother and scheduled parenting time with the father.

In March 2020, according to the mother’s evidence, she left the father because he assaulted her such that she required hospital care. She provided photographs of her injuries of this assault as well as past assaults. As a result of the most recent assault, the father was charged with assault choking/strangulation, assault and uttering a death threat. He was released on bail subject to a condition that he have no contact with the mother except through a third party for the purpose of arranging parenting time.

The mother’s position was that she had concerns for the child’s safety in the father’s care, for her own safety because she thinks the father will disregard the bail condition and that, for her own emotional safety, she needs the support of her extended family.

The father’s position was that travelling to Vancouver would not be in the child’s best interests in the COVID-19 pandemic and that the child will be safe when in his care. He lives with his mother and siblings, with whom the child has a long-standing and close relationship.

Justice Akbarali determined that it would not be in the child’s best interests to travel to Vancouver for a number of reasons, including:

  • The child’s close relationships with both parents and their extended families; with his relationship with the mother’s extended family already established primarily through FaceTime
  • The importance of stability for the child, including that he continue to reside in his usual home and have regular contact with his father
  • The lack of concerns for the child’s safety in the father’s care based on evidence from the CAS
  • The risk of exposure to COVID-19 if the child were to travel to Vancouver

The judge explicitly noted, nonetheless:

“I accept that the mother’s allegations of abuse by the father are credible, and I am greatly concerned by the content and tone of some of the father’s text messages to the mother, which suggest he has acted in a controlling manner towards her. . . . Accordingly, while I have grave concerns about the father’s behaviour towards the mother, on this urgent motion, I am not concerned about the child’s safety, and the existing restraining order can protect the mother.” (emphasis added)

In order to ensure the child has frequent contact with both parents, Justice Akbarali ordered that he be with the father from Thursdays at 6 pm until Sundays at 5 pm, with exchanges to be handled by the father’s sister at the mother’s home.

She set aside the temporary joint custody order, noting that because of the mother’s allegations of abuse “it is not appropriate, in view of those concerns, to maintain an order for joint custody. Nor is it appropriate to award sole custody, even on a temporary basis, to the mother at this time,” because the allegations against the father must be “properly tested” before “they form the basis to exclude the father from decision-making.”

Case found urgent and motion granted

in Harrington v Dennison 2020 ONSC 2114, Justice Madsen dealt with a motion brought by the mother for a restraining order against the father as well as an order that he have no access and that the police assist with enforcement of the orders.

In her affidavit, the mother stated that there was a history of violence by the father towards her throughout the relationship. An incident on February 5th led to their separation and to the father being charged with assault bodily harm, strangulation and assault as well as assault for a prior incident.

The mother’s affidavit indicated that she was holding the 16-month-old child during the February 5th assault. She called her parents for help and, when they arrived, the father assaulted them, pulling out some of her mother’s hair. The father remained in custody, but the mother feared he could be released at any time.

The father’s perspective was not known to the court at the time of the motion. Nonetheless, on April 6th, Justice Madsen ruled:

“On the materials before the court, I find that the matter is urgent and grant the orders as sought on a temporary without prejudice basis.”

The order and the motion materials were to be served on the father by email and by courier to the correctional facility where the father was being held “if the location is known.” He then had the opportunity to file a responding affidavit by April 13th, after which – whether or not he filed materials – the judge would review the case.

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