We blogged a few weeks back about how a parent’s behaviour during COVID-19 resulted in a temporary loss of in-person access. But as is always the case with the law, issues related to custody and access are rarely cut and dry. A recent decision from the Ontario Superior Court of Justice shows how the courts apply the best interest of the child when making rulings in such situations.

The family background

The parents were together from 2017 through part of 2018 and remained in an on again, off again relationship afterwards. The mother had another child who was five at the time of the trial and lived with her father. The mother has telephone and video-conferencing access.

The child who was the subject of the motion was born in early 2020. There were early concerns about the mother’s use of alcohol as well as domestic violence between her and the child’s father. On April 17 the mother called the police, alleging that the father had assaulted her. When the police arrived, they reported that the mother was intoxicated and unable to care for the child.

The child’s removal from the mother’s care

Following the April 17 incident, the child was removed from his mother’s care and placed in the temporary custody of his maternal aunt. The Children’s Aid Society (“the Society”) had sought a six-month supervision order to the aunt due to risks of exposing the child to inappropriate alcohol use and exposure to adult conflict and domestic violence.  The order also provided the mother and father with access at the Society’s discretion. However, COVID-19 prevented that from happening.

The mother sought an order to return the child to her temporary care pending a final disposition, though the father wants the child to remain with the aunt.

The legal analysis

The court turned to the Child Youth and Family Services Act (CFYSA), which has a paramount purpose of promoting the best interests, protection, and well-being of children. In order to make a determination that the child not return to his mother’s care, the CFYSA states the Society must first meet a two-part test. The first step of this test is to establish that there are reasonable grounds to believe there is a real possibility the child will suffer harm if returned. The second step is that the Society must establish the risk to the child is one that cannot be adequately safeguarded by terms and conditions of a supervision order. Once this onus is met, the court can place the child with a relative or a community member.

The court ran through the mother’s issues with alcohol and the Society’s concerns with her drinking. The court also raised concerns about the domestic violence and conflict that has occurred in the home. This was demonstrated by text messages between the parents. The court described their relationship as “dysfunctional and toxic.”

However, despite all of this, the court was satisfied that the risks of the child returning to his mother’s custody could be mitigated by a supervision order and appropriate terms and conditions. The mother came to court prepared with a safety plan and people who volunteered to oversee her care of the child. The aunt who had temporary custody volunteered to help supervise as well.