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Background Facts

The mother in this case brought a motion for in person access at her home of her five-year-old daughter, at a minimum of three times per week. In 2019 the Children’s Aid Society (CAS) commenced a protection application which included safety concerns of the mother’s alcohol use and domestic conflicts with her occasional partner. In May of 2019, an order was made that the daughter be placed in the temporary care and custody of the father, subject to the supervision of CAS. The mother was to refrain from using alcohol and could not allow any contact between her daughter and her partner. After a few temporary orders were made allowing the mother some access to the daughter, a final 3-month supervision order allowing the father custody and care of the child was made in March 2020, which gave the mother access to the child 3 times per week at the discretion of CAS. The access became limited to telephone, FaceTime or other video-calling as per the policy of CAS during COVID-19.

In April 2020, the mother reported that her partner had assaulted her to the Ottawa Police Service. The daughter was not in the home during the assault, but the mother’s other child was. The police contacted CAS and had concerns the mother was intoxicated.

In the motion at hand, neither the father nor the Children’s Aid Society believed the mother’s actions were in the daughter’s best interest as she continued to see her partner after a court ordered he not be near the daughter. The mother expressed that the daughter’s best interest required meaningful in-person access with her mother.

Legal Analysis

The Court looked to the Child, Family and Youth Services Act to determine what access schedule would be in the daughter’s best interest. The following factors were considered relevant to the case:

  • the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;
  • the child's physical, mental and emotional level of development,
  • the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,
  • the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,
  • the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

Although the Court recognized the mother’s continued relationship with her partner, in looking to the above factors it determined that in-person access was in the best interest of the daughter.

The child was accustomed to spending time with both parents and both parents reported the child being happy in their respective homes. There was no evidence of her preferences and but there was evidence of her having a close bond with both parents. Nevertheless, the Court explained the risks with in-person access would be mitigated by imposing a supervision order for access. A friend of the mothers, who had been approved by CAS as a supervisor, was to live with the mother temporarily and the mother cannot expose her daughter to her partner.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.