Children’s Aid Society of Algoma v. M.M., 2010 ONCJ 706

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 48(7) , 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85. —

(3) Idem. — A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. Sault Ste. Marie Registry No. 55/2003 DATE: 2010·XII·07 CITATION: Children’s Aid Society of Algoma v. M.M. , 2010 ONCJ 706 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA, Applicant, — AND — M.M. and M.A., Respondents. Before Justice John Kukurin Heard on 15 November 2010 Reasons for Judgment released on 7 December 2010

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], subsection 37(3) ,

section 57 ,

section 58 , subsection 58(1) , subsection 58(2) ,

section 64 , subsection 64(2) and subsection 65(1) . Family Law Rules , O. Reg. 114/99 [as amended], rule 14, subrule 14(18), subrule 14(19), rule 15 and subrule 15(3) . Jack Squire .................................................................................... counsel for the applicant society Eric D. McCooeye ............................................................. counsel for the respondent mother, M.M. No appearance by or on behalf of the respondent, M.A., even though served with notice [ 1 ] JUSTICE J.

KUKURIN:— This is a decision on a motion (at tab 5, volume 3) of the respondent mother, M.M., brought in this status review case under the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (“the Act”). There are two claims in this motion, each seeking an interim order. The first is for a change in the placement of the child K. from his paternal grandparents [1] to his mother. The second is for a change to the terms of the existing order of maternal access. The mother, M.M., did not pursue her claim for a change in placement.

Her argument was limited to seeking a change to her access on an interim basis, pending a final order in this case. 1: BACKGROUND [ 2 ] K. is nine years old. He was born in July 2001. The society claims that it has been involved with K. since February 2002 when he was seven months of age. The society first apprehended K. from his mother’s care in October 2003 at age two, apparently because she was found in possession of illegal drugs. He was placed in a foster home while the society pursued a child protection application. Eleven months later, a finding was made that K. was a child in need of protection.

K., at age three years, returned to his mother subject to a supervision order. A year later on 5 November 2005, that order was terminated. [ 3 ] However, the society had not totally withdrawn from contact with K. and his mother. In early 2007, it became re- involved with the mother, M.M., mainly because she was in a relationship with a physically abusive partner and had exposed K. to physical and verbal violence. There were other concerns as well, most notably, illegal drugs within the home and M.M.’s growing addiction to them.

Exacerbating the situation were M.M.’s mental health issues, instability in many aspects of her life and involvement in criminal conduct. [ 4 ] On 2 November 2007, when K. was just over six years old, he was again apprehended and the society started a second child protection application. K. was in a foster home for only two months. This time, however, he was not returned to his mother’s care. In early January 2008, he was placed in the temporary care and custody of his paternal grandparents. He has never left.

That child protection application resulted, in December 2008, over a year later, in a finding that K. was a child in need of protection. An order was made formally placing K. with his grandparents subject to a six-month supervision order. Both this finding and this protection order were made by way of a motion for

summary judgment. The mother, M.M., although represented, filed no evidence in response to that motion. Nor did she have any argument to oppose what was being sought. [ 5 ] A status review application, brought in May 2009, resulted in the continuation of this status quo for another year. It was not contested by M.M. [ 6 ] The present case before the court is a second status review in which the society’s claim is for another 12 month extension of the status quo . This proceeding was started in May 2010. It is now six months old. The mother’s answer and plan of care is positively skeletal.

However, M.M. makes it very clear that she plans to have regular and frequent access visits with K. and, at some point, to have him returned to her. [ 7 ] K. has now lived continuously with his grandparents since early January 2008, almost three years. His mother, M.M., has always had a right of access, from the time that he was removed from her care. The terms of that access have remained identical since November 2007, simply carried forward to successive protection orders. Those terms have been somewhat generic.

There is no specification in the access order of time, location, frequency or duration of maternal access visits. There are a number of terms and conditions that apply to her access, mostly designed to promote safety and enjoyment of access visits by the child. The three most significant aspects of the order are that the mother’s access is to be reasonable, that it is to be supervised in the discretion of the society, and that any overnight access is to be in the society’s discretion. [ 8 ] This is the context of the mother’s motion.

After three years of the same maternal access provisions, M.M. is now asking for a change, and on an interim basis. 2: THE LAW [ 9 ] The status review application before this court is brought pursuant to subsection 64(2) of the Act . [2] [ 10 ] The care and custody of a child who is subject of such a status review application is to continue throughout the proceeding unless the court is satisfied that the child’s best interests require a change in that care and custody. [3]

[ 11 ] The court has a number of available options in the orders it may make in a status review application case. [4] One of these includes a variation of: a term or condition or a provision for access . . . that is part of the original order made under subsection 57(1) . . . [ 12 ] I do not consider the mother’s motion seeking an interim variation of a final access order, to have been brought under

section 64 of the Act . Nor do I interpret subsection 65(1) of the Act as authority to make interim orders varying final orders. What subsection 65(1) and, in particular, clause (

a) thereof, authorizes, is the making of a final order varying an existing final access order that forms part of the existing protection order that creates the status of the child that is being reviewed. [ 13 ] In fact, none of the orders for maternal access with respect to K. have ever been made under

section 57 of the Act . There is no provision in

section 57 for the making of any order for access, or with respect to access. [ 14 ] The only authority for making access orders in child protection proceedings is found in

section 58. [5] This includes orders that vary existing orders of access. As to who may apply and in what circumstances such persons can apply, this is governed by subsection 58(2) of the Act . [6] This applies to interim access provisions included with temporary care and custody orders as well. [7] [ 15 ]

Section 58 of the Act , as the gateway for access orders, has an important criterion, namely, that whatever access order is made, varied or terminated, must be done in the child’s best interests.

This statutory criterion reels in subsection 37(3), which requires the court to take into account a number of considerations to the extent that they apply in a particular case. [ 16 ] In short, for the mother M.M. to vary her maternal access terms, she must show that the changes that she seeks are in K.’s best interests. [ 17 ] But even before she gets to that point, she has to satisfy the court that there has been a material change in circumstances since the order that she seeks to change was made.

This is a threshold requirement for any variation. [ 18 ] For purposes of this motion, the mother must also satisfy this court that the changes that she wants should be made now, on an interim basis, pending a final resolution in this status review case. Moreover, she wants these changes made on the basis of affidavit evidence, as there was no viva voce evidence entertained on hearing of her motion. [ 19 ] This leads into the final aspect of the law that has some importance. That is the quality of evidence that the parties have presented, and how that evidence is to be considered judicially.

The Family Law Rules , O. Reg. 114/99, as amended, apply to status review proceedings under the Child and Family Services Act . Although the mother’s motion is clearly a motion to change a final order, it is not subject to rule 15. [8] However, it is clearly governed by rule 14, the general rule applicable to all motions. Subrules 14(18) [9] and 14(19) [10] contain provisions that apply to affidavit evidence that is relied upon by the parties to a motion. My view is that litigants should interpret these as commandments rather than suggestions.

Moreover, although the court is permitted to admit and to act on evidence that it considers “credible and trustworthy”, it may do so only at certain stages in a case. [11] None of these stages are found in status review proceedings. [ 20 ] Although the standard of proof on this motion is the civil standard of proof on the balance of probabilities, that standard has to be met with admissible evidence. If the quality of evidence does not meet the level prescribed the rules, it should not be admitted.

To permit its admission so that judicial weight can be assigned to it is tantamount to doing an end run around the rules. 3: MATERIAL CHANGES IN CIRCUMSTANCES [ 21 ] Although the date of the most recent order that contains maternal access provisions is dated 8 July 2009, that order is almost identical to all other maternal access orders relating to the child K. going back to 7 November 2007. So for the purposes of material changes in circumstances, does the court look back to November 2007 or to July 2009?

From a logical point of view, I would look to the earlier date as the starting point to see what material changes have occurred. This will incorporate the more recent period in any event. Moreover, it could be unfair to exclude evidence of what transpired over one and one-half years in this case, which would result if the more recent order is taken as a starting point for considering material changes. [ 22 ] In this case, I am satisfied that the mother has satisfactorily met the threshold of demonstrating that material changes in circumstances have taken place.

In fact, the majority have taken place more recently, since the 8 July 2009 order was made. [ 23 ] Most of the changes relevant to the issue of maternal access have been changes related to mother, Ms. M.M.. These include the following. [ 24 ] M.M. was addicted to drugs, using cocaine, opioids and cannabis. This drug abuse appears to have continued on until late 2009. She seems to have stopped active use at some point in 2010, likely early in this year.

She entered the methadone program at the start of 2010. [12] Her methadone urine samples for the first quarter of 2010 are almost completely negative for anything but methadone. Her testimony is that she is currently at level six which permits her to carry home methadone dosages for six days. She did provide hair follicle samples, in May and September 2010. These also suggest that the mother is no longer using. On the negative side, the mother attended a residential drug treatment program but left within one week with a very poor prognosis for relapse.

She dropped out of counselling at the Addictions Treatment Clinic (ATC) in early July. She was a non-starter at the ATC Continuous Care Program. All in all, however, it seems clear that the mother has made very significant progress in addressing what was the major source of risk of harm for K.. Is she still an addict? Probably so. But one that appears to be working successfully to overcome her addictions.

[ 25 ] A second fairly major source of risk of harm was M.M.’s choice of partners. She had exposed K. to a partner with whom she was involved in a relationship of violence and domestic abuse. However, that relationship ended long ago. Her former partner was charged with assault and was convicted. She resides with her current partner, Kenny, and Kenny’s 12-year-old daughter Sasha, of whom he has legal custody. This relationship has some stability as it has persisted for almost a year and a half. Kenny provides a home environment and seems to be a supportive partner for M.M.

The society started a child protection case involving Kenny and his daughter but did so primarily because of protection concerns relating to M.M.’s presence in the family. It has since backed off and settled for an agreement with Kenny. This is very much a material change in M.M.’s life. But this is not a fairy-tale relationship. Kenny is an admitted regular cannabis user. He has declined the society’s request for hair-follicle testing thereby preventing any reliable way to determine whether he has been using anything else.

This places M.M. with a partner who is clearly still involved in illegal drug use, not an ideal place for someone working on addressing her own drug addictions. M.M. and Kenny have not always been affectionate. One incident is recounted in the evidence that involved a knife wound to Kenny in the course of an altercation with M.M..

Although this is not the perfect relationship, it is a major improvement and offers both support and stability for M.M., things that were lacking in her life for a number of years. [ 26 ] A third very important area for purposes of this motion in particular is the history of maternal access with K.. M.M. has always had rights of access ever since K. was apprehended in November 2007. For almost two years, 2008 and 2009, M.M.’s record of access was fairly dismal. At one point, she more or less dropped out of K.’s life for about ten months.

I infer that it was during these two years that she was nurturing her addiction, living an unstable and unhealthy lifestyle, and talking a lot about changing, but doing little. That seemed to change in the past year or so. The society has been in practical control of the amount of her access. A review of the evidence discloses that access has expanded when the mother has shown positive gains, and it has been reduced when concerns of one kind or another have arisen. For 2010, the mother has become much more faithful in attending whatever access visits have been made available.

Even more important, however, is the fact that the reports of access visits are, on average, considerably more positive than they have been in the past. M.M. is less prone to losing her temper, engaging in verbal arguments with workers, being critical of K., and stating things without regard for the negative impact they may have on the child. Again, this is a trend for the better. There remains a number of disquieting things about M.M.’s access. She is not always sensitive to K.’s feelings. Her insight into his challenges could use some improvement. She still has frustrations with his misbehaviour.

She has been ill herself for some visits. At times, she has fallen asleep. She still fails to attend some visits. [ 27 ] Another area of concern has been the mother’s relationships and attitude to others. For over two years following K.’s removal from her care, she appeared to make no headway. It seemed like she was determined to achieve her goals going against the current all the way. Her relationship with the paternal grandmother was fairly acrimonious. She made contacts with supportive persons and agencies but these never really went anywhere.

There is no great endorsement for the mother from Willard Pine, her mental health counsellor. Her friend, Ms. J.C., discontinued her role in facilitating access visits for a time because the mother was too troublesome. M.M. has completed only one program (Women in Trauma) so far as I can tell. Her start with the Iris Centre aborted in less than a week. She connected with the Addictions Treatment Clinic, but that fizzled out by early July 2010. She never actually attended at the Concurrent Disorders Program, even though she indicated an intention to do so.

She had an opportunity to attend Freedom From Abuse but missed the chance to register for it. Although she professed to be a regular attendee at the Indian Friendship Centre, she fails to say what she is doing there. She mentioned an “Anger and Wellness” Program for early fall. She apparently registered, but is she attending? She also mentioned her plan to upgrade academically to grade XII, with ambitions of starting a chef’s program at the local community college. Where are those plans today?

Even as late as September and October 2010, M.M. has been noted to be argumentative, agitated and inappropriate in her relationship with others. She does not talk with the grandmother. Her two positive and lasting relationships have been with Kenny and with the Methadone Clinic. [ 28 ] There have been changes in K. in the past three years. Considerably more is known about him today. He has a diagnosis of ADHD. He displayed characteristics of trauma related disorders such as post-traumatic stress disorder (PTSD) in his psychological assessment. He also has a learning disability.

K. takes medication prescribed for him and it has had some beneficial effects. To this is added the stability and security of being in his grandparents’ care for almost three years. Over those three years, there has been a great deal of inconsistency in his relationship with his mother. For a long time, there was no contact. Access times, durations and frequencies have been tweaked from time to time and access visit ratings have fluctuated from bad to good to bad. K. is now three years older, and has had the benefit of individual psychotherapy with a counsellor.

He also has his present involvement with a cognitive therapy team. He is no longer exposed to an environment of drugs and violence. Of particular note is K.’s verbalization of his wish to see his mother and, at times, to return to live with her. It seems that the parent-and-child attachment has survived some very difficult times in K.’s young life. [ 29 ] One other change has only recently developed. The grandparents had stated their intention to seek custody of K.. The society had supported this role. However, they have since changed their minds. They no longer have this intention.

It is unclear why not. [ 30 ] Overall, there has been a definite sea change since K. was removed from M.M. three years ago. She seems to have squandered her chance of getting her child back in the first two of those three years. That is a long time for a child to be out of the care of his primary caregiver. The mother is fortunate that the grandparents stepped up to provide care for K. when they did. M.M. should be kissing the ground on which they walk. Had K. remained in foster care, he would likely be a Crown ward today, if not the adopted child of another family.

The Child and Family Services Act and the courts expect parents to move with a lot more dispatch to address the problems that prompted the removal of their child. [ 31 ] M.M. has finally, in 2010, come around to do what she should have completed by now. The door to a return of K. to her care remains, if not wide open, at least ajar. That the paternal grandparents are not seeking a custody order may favour an eventual reuniting of mother and child.

The absence of any explanation for this change of plans makes it more difficult to determine best interests, especially in the more limited context of a change to maternal access terms. [ 32 ] To anyone reviewing the various circumstances that are mandatory considerations within the “best interest” test set out in subsection 37(3) of the Act , it should be obvious that these were devised with custody or placement in mind as the issues in which the test was to be applied. They do not seem to be tailored particularly well to issues of access. Nevertheless, these considerations are

statutorily established as the components of the test for determining access. 4: INTERIM CHANGE TO ACCESS [ 33 ] The society opposes any formal change to the maternal access order. First, it argues that M.M. has failed to demonstrate a “need” for change based on best interests. This argument relies on the premise that need, or necessity for change is a pre-requisite. M.M. disagrees with this premise. I am not exactly sure of what it is that she argues should trigger a change to an existing final access order on an interim basis. I do, however, agree that need for such a change is not a statutory requirement.

Besides, what does “need” or “necessity” really mean in legal parlance. There is some judicial authority to the effect that “necessary” really means “reasonably necessary”. This leads down the road to what is reasonable, a road not known to be straight and level and beautifully surfaced. [ 34 ] In actual fact, the existing court order says: The mother, [M.M.] shall have reasonable access . . . I interpret her argument to be that the access that she is being permitted by the society is not “reasonable access” in the present circumstances.

Moreover, she maintains, the society should not be permitted to dictate the fundamental elements of her access with K., namely, where, when and how it takes place. She wants the court to set the parameters of her access visits for the time being so that they will be binding not only on her but also on the society.

Put another way, she wants the court to take away from the society what she suggests is the society’s ability unilaterally to decide at any particular time what is reasonable in terms of her access to K.. [ 35 ] What the mother is seeking in practical terms is a variation that will specify her access to include: (

a) a more normalized relationship between herself and K.; (

b) a maximization of the time she and K. spend together; (

c) included in such time should be overnight access; (

d) because of the imminent Christmas season, a specified period of time at Christmas. [ 36 ] What the mother currently has by way of access, and this is a relatively recent change, is: (

a) visitation for three hours on each Tuesday and Thursday at the mother’s home supervised by a society access worker; and (

b) visitation for three hours every second Sunday at the home of, and supervised by, Ms. J.C.; [13] (

c) Kenny is permitted to attend and has attended at these maternal access visits; (

d) on four days each week (Monday-Wednesday-Friday-Sunday), M.M. has telephone access visits with K. by calls placed to him at the grandparents’ home. [ 37 ] The society does, in fact, make the call under the terms of the current order in terms of location, frequency, duration, and times of access, as well as who may be present, and whether and to what extent such access will be supervised and by whom. It does not want to surrender anything in terms of what it presently does, and does not want any specific terms that might restrict its ability or flexibility to adjust various aspects of access from time to time.

It insists that the wording of the existing maternal access order has given it the authority, subject to any specific terms contained in the order, to set the parameters of the mother’s access visits, and to readjust them if circumstances call for any readjustment. This authority, it maintains, has been exercised reasonably and responsibly, having regard to the evidence, and ought not to be reduced. [ 38 ] First, this is a case of a mother with her foot on the gas and the society with its foot on the brake. This is not a situation of its being either one or the other.

The evidence is not so strong that it can be said clearly to favour the position advanced by either side. [ 39 ] I am not inclined to order overnight access, at the mother’s home, at this time. There are no reasonable means to monitor such overnight access. The mother is still an addict. Kenny is a daily user of marijuana. He clearly is not a suitable access supervisor for M.M. on this account alone. There is no evidence available about what other substances he may be using.

It is within the ability of this court to make an adverse inference from his refusal to undergo testing. [ 40 ] The mother may be on the right path but she can hardly be considered as a shining example of rehabilitation from what I consider chronic, well-established drug addiction. I would have considerably more confidence in her prospects of remaining drug free if she were not living with a drug user, if she was actually involved with some reputable drug relapse prevention agencies on a committed basis, and if she had some better and independent evidence of positive changes in her lifestyle.

I believe that she is wanting to move too quickly and she has not persuaded me that the changes that she wants are appropriate to implement at this time. [ 41 ] On the other hand, the society may be moving too slowly and too cautiously in what it decides in connection with maternal access. The society’s claim in its status review application and in its plan of care is for a continuation of K.’s residence with his grandparents. That has not changed since the start of this current application. However, the society has changed the mother’s access in that time.

It has increased the duration of visits and the frequency of visits. It has changed the location. It has permitted Kenny to attend. It has withdrawn its protection application relating to Kenny’s twelve-year-old daughter despite being well aware of Kenny’s marijuana use and the fact that M.M. resides in that home. So why limit access visits to only three hours each, and why on Tuesdays and Thursdays? If this is because of limitation of society resources, there is no evidence presented on any such limitations. [ 42 ] Why cannot access visits be longer and perhaps on days when K. is not in school?

If it is because of concern that he will be in the presence of persons who are using drugs or under the influence of drugs, I do not consider this as a realistic reason at this time. Surely it can observe whether there is drug use going on or whether someone present is under the influence. It is not a question of removing the society’s right to supervise such access if it wishes to do so.

[ 43 ] There are several considerations under subsection 37(3) that favour an expansion of maternal access, not the least of which is the wishes of the child who is nine years of age. The evidence in this case, considered in the context of the circumstances listed in paragraphs 37(3) ¶1 to 37(3)¶6 of the Act can easily be argued to favour an expansion of maternal access. As for paragraphs 37(3) ¶11 and 37(3)¶12, these deal with risk. Three years ago, two years ago, and even a year ago, risk to K. as a result of maternal contact was greater by far than it is today.

This favours expansion of maternal contact through access. [ 44 ] A court can take into account other circumstances that it finds to be relevant [paragraph 37(3)¶13]. In this case, there are some considerations that touch on the effects on K. of any delay in the disposition of this case [ paragraph 37(3) ¶10]. It is clear from the evidence of Dr. Ulzen, the child psychiatrist who treats K., that K. has, and continues to, suffer from anxieties relating to issues of access with his mother, and where he will live. [14] K. is aware of the contest between his mother and his grandparents.

He is clearly torn between these family members with all of whom he has a loving relationship. While this status review case is not particularly aged, relatively speaking, for K., his future has been floating in limbo for three years. It is desirable that a resolution of some permanency is achieved sooner than later. In other words, it is time to move this case into a higher gear. Expanding maternal access is one way of doing so. I am confident that some expansion can be effected without compromising the health or safety of K.. [ 45 ] Accordingly, the order that I propose to make will provide: (

a) for day access on one weekend day (Saturday or Sunday) weekly for a duration of four hours increasing by one hour in each successive week, up to a duration of 10 hours; (

b) for such day access to take place in the home of the mother, and elsewhere in the community, such locations to be approved in advance by the society; (

c) the society shall be permitted to supervise any portion of such weekend day access that it wishes, with any access supervisor it may choose; (

d) this access is in addition to the Tuesday and Thursday access visits currently in place of three hours duration each; (

e) the telephone access shall continue as currently in place, namely Mondays, Wednesdays, Fridays and Sundays; (

f) for the Christmas 2010 break, there shall be day access of six hours at the home of the mother for two week days in addition to any other access provided in this order, such two days to be chosen by the parties, failing which they shall be 22 and 29 December, the particular time to be agreed upon by the society and the mother, failing which the time will be 10 a.m. to 4 p.m. [ 46 ] This is intended to be an interim variation of the existing order. If it turns out to be problematic, it can be adjusted.

It is intended that Kenny or his daughter, Sasha or both will be permitted to be present during the maternal access visits unless the society determines that Kenny is under the influence of alcohol or drugs. There is no intention to eliminate the access at the home of Ms. J.C. The weekend day access can incorporate this established access time, or the parties can make other accommodations. It is also expected that the mother will accept suggestions from any access supervisors with good grace, if and when made, and will try to comply with the recommendations of any such persons.

What is to be avoided is to have K. find himself in circumstances in which there is conflict, disagreement and emotional exchanges between adults in his environment.

(2) Society to seek status review. — The society having care, custody or supervision of a child, (

a) may apply to the court at any time for a review of the child’s status; (

b) shall apply to the court for a review of the child’s status before the order expires, unless the expiry is by reason of subsection 71(1); and (

c) shall apply to the court for a review of the child’s status within five days after removing the child, if the society has removed the child from the care of a person with whom the child was placed under an order for society supervision.

(8) Interim care and custody. — If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody. 65. Court may vary, etc .—

(1) Where an application for review of a child’s status is made under

section 64 , the court may, in the child’s best interests, (

a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order; (

b) order that the original order terminate on a specified future date; (

c) make a further order or orders under

section 57; or (

d) make an order under

section 57.1. 58. Access order.—

(1) The court may, in the child’s best interests, (

a) when making an order under this Part; or (

b) upon an application under subsection (2) make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

(2) Who may apply.— Where a child is in a society’s care and custody or supervision, (

a) the child; (

b) any other person, including, where the child is an Indian or a native person, a representation chosen by the child’s band or native community; or (

c) the society, may apply to the court at any time for an order under subsection (1).

(3) Exception.— This rule does not apply to a motion or application to change an order made under the Child and Family Services Act , other than a final order made under

section 57.1 of that Act.

(18) Affidavit based on personal knowledge.— An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.

(19) Affidavit based on other information.— The affidavit may also contain information that the person learned from someone else, but only if, (

a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and (

b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.

(7) Evidence on adjournments. — For the purpose of this

section , the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.