Court File and Parties

Court File No.: D28589/05 Date: 2015-07-14

Ontario Court of Justice

Between:

S.M. Acting in Person Applicant

- and -

E.M. Acting in Person and assisted by counsel, Merrick Siegel Respondent

Douglas Millstone, for the Office of the Children's Lawyer, on behalf of the child, C.M.

Heard: July 13, 2015

Justice: S.B. Sherr

Endorsement

Background and Relief Sought

1The respondent (the father) has moved to change the court's final order dated September 9, 2011 (the existing order). He seeks unsupervised access to the parties' child, C.M., born on November 25, 1998. C.M. has Autism Spectrum Disorder and is developmentally delayed. He also seeks termination of a restraining order preventing him from contacting or communicating with the applicant (the mother) or the parties' children.

2The motion to change was argued on July 13, 2015. It was opposed by the mother and the Office of the Children's Lawyer, on behalf of C.M.

3The father asked to make submissions on his own behalf. He had counsel with him at counsel table for the purpose of consultation only. The court granted this request. The father filed written submissions and provided oral submissions in reply to the submissions of the mother and counsel for C.M.

The Existing Order

4The existing order granted the mother custody of C.M. It also provided that the father was to have no access to C.M., without further court order and restrained him from contacting or communicating with the mother, C.M., or the parties' children, D.M. (now 24 years old) and M.D. (now 26 years old).

5The no-access and restraining orders were made for the following reasons:

• a) The father had a long history of severe mental illness.
• b) The father would demonstrate disturbing and delusional behaviours that scared the mother and the children.
• c) The mother and children were at risk of physical and emotional harm from the father due to his behaviour.
• d) The Catholic Children's Aid Society of Toronto had lengthy involvement with the family to protect the children from the father's behaviour.
• e) The father had considerable involvement with the criminal justice system due to his behaviour. This included an assault charge with respect to the mother and threatening letters sent to the Prime Minister.
• f) The father had spent considerable time in psychiatric institutions.
• g) C.M. has Autism Spectrum Disorder and is developmentally delayed. He was particularly vulnerable to the father's bizarre behaviour.

Procedural History

6The father issued his motion to change on December 5, 2013.

7A referral order was made to the Office of the Children's Lawyer on February 4, 2014. It appointed counsel for the child and assigned a clinical assistant (Joanna Seidel) for counsel Douglas Millstone.

8The father provided medical evidence that his mental health had stabilized. It was agreed that, in a cautious and gradual manner, the father would start to have access to C.M.

9On July 14, 2014, the parties agreed that the father could have supervised access to C.M. as arranged by the Office of the Children's Lawyer. The restraining order was also amended to permit this.

10On November 14, 2014, the parties agreed that the father could have access to C.M. in the community supervised by either L.M. (a friend) or the parties' daughter, D.M. The first few visits went well.

Deterioration in Father's Behaviour

11Since the start of 2015, the father has been exhibiting disturbing and threatening behaviours, similar to those exhibited at the time of the September 9, 2011 order. These behaviours are set out in considerable detail in the affidavits of Joanna Seidel, L.M. and the mother.

12L.M., in paragraphs 6-8 of her March 3, 2015 affidavit, sets out in detail a disturbing incident. She deposed that she is feeling very stressed and scared of the father. She is no longer prepared to supervise access.

Abusive and Threatening Emails

13The mother attached abusive and threatening emails sent by the father to D.M. She also provided evidence of the father sending such emails to her and D.M. under assumed names. She deposed that the emails are causing her and the children stress and trauma. One of the emails begins:

Dear Bitter D.M. otherwise known as Kelbo which means the "Daughter of a prostitute in Tigre….."

14In this rambling and abusive email the father goes on to blame D.M. for his having gone to jail and being involved with the Catholic Children's Aid Society of Toronto and says that he disowns her as a daughter.

15On February 6, 2015 he sends an email to D.M. that includes:

You know your mother is a very sad woman. She is an imbecile who does things unknowingly and sometimes deliberately.

You I know virtually everything that is in the petition and you are preparing to go to jail because your days are numbered as a free woman if you don't disassociate yourself from your mother's evil ways and do it at once.

Now you have to do something brave. Your brother C.M. is going to be killed in the next forty-eight hours……

So, save C.M. I plead. I don't want to lose him and if he dies know that he was murdered by his mother……….But please!!! Please!!! Save C.M.'s life and don't let him die prematurely.

16Joanna Seidel also deposed that she had received harsh emails from the father, including one where he disguised himself as another person. She also attached to her affidavit abusive emails sent by the father to C.M.'s counsel, Douglas Millstone. One email to Mr. Millstone, dated March 4, 2015 includes the following in the first paragraph:

This is to acknowledge receipt of your email and your gross and unlawful manner of irrelevant message and method of asserting your inferior manner or deleted Satan avowed machination of white supremacist nature.

I shall be well prepared and shall henceforward inform you that I shall represent myself and shall inquire and adopt a position that you should be striped of all and even scant involvement with my son for I fear for his life and safety and your groomed white tendency of avowed pedophilia asserted law of Canada……

17The balance of the email continues in the same vein. It is abusive, insulting and threatening.

18The father's abusive behaviour was also reflected in a January 23, 2015 email he sent to Joanna Seidel. This email was sent in response to a request by Ms. Seidel to meet with the father. Excerpts from this email are as follows:

I never thought you would invite me to your office until May, our next court appointment. It must be of grave concern for you to violate and disturb my peace by inviting into your nefarious den of pedophilia.

Nowhere does it say that you filthy slut will have any communication with me.

I know so much about you and Doug Millstone. You should put firewall and other necessary precautions in your system if you want to prevent my information from leaking out. I get many emails regarding my conversations and the way you take decisions on my behalf and my autistic child, C.M. I highly disturbed by especially Millstone's records and those of his children. I never thought my child could be represented by a declared pedophile.

Hence, I will do you a favor and asume (sic) that the invitation to meet you in your filthy and pedophilia inhabited garage was sent to me by accident and so shall it be deemed. However, it you so desire at your own discretion and send me another email of that nature I shall be forced to take legal action against you and ensure you don't represent black children and families again, at the extreme end of it.

If I don't desire you you vamooze to oblivion and will not have to see again the ugly Satan looking Millstone again and ever again.

19In submissions the father claimed that he was forced to send an angry email to Ms. Seidel because Mr. Millstone had told him not to communicate directly with her. If this explanation was accepted at face value, it still shows an appalling lack of judgment and self-control by the father.

20The mother and Office of the Children's Lawyer presented many other emails sent by the father of the same nature as those described above.

Mental Health Assessment

21Ms. Seidel also received information from the father's mental health worker on March 2, 2015, that the father's psychiatrist (on February 10, 2015) was concerned about the father's ability to think rationally. The mental health worker advised Ms. Seidel that the father demonstrated no insight into his mental illness.

22On April 20, 2015, the father's access was suspended pending further court order. The court endorsed that the father should provide the court with a current, comprehensive, mental health assessment.

23The father provided the court with long, rambling and unfocused affidavits that only reinforced the protection concerns for the child and the mother. A current, comprehensive mental health assessment was not provided.

Legal Framework

24Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for varying a custody or access order. It states:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

25The Supreme Court of Canada decision in Gordon v. Goertz, 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct:

• a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
• b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

26The onus is on the father to meet the threshold requirement of demonstrating a material change in circumstances affecting the child.

Analysis and Findings

27Sadly, despite the efforts to restore the father's relationship with C.M., the father has failed to meet this threshold requirement.

28The evidence indicates that:

• a) C.M. remains a vulnerable child.
• b) The father has been demonstrating disturbing behaviour since the start of 2015 that is similar to the behaviour he was exhibiting at the time the original order was made. This disturbing behaviour includes sending abusive, insulting and threatening emails to the mother, D.M., Douglas Millstone and to Joanna Seidel. The emails reflect a lack of judgment, self-control, deep-rooted anger and an abusive personality.
• c) The father is not taking meaningful steps to address his disturbing behaviour. He does not even recognize that his behaviour is frightening and abusive to others. He submits that his issues are under control and were always overstated by the mother.
• d) The emotional risk of harm to C.M. remains the same as at the time of the original order. It is not in his best interests that he not be exposed to the father's abusive and erratic behaviour.

29Even if a material change of circumstances had been established (the improved mental health of the father at one point in this proceeding), the best interests of the child dictate that the father have no access to him at this time. Access would threaten the child's emotional and physical safety and undermine his sense of security.

30The evidence also indicates that there has not been a material change in circumstances that warrants changing the original restraining order. The risks to the physical and emotional safety of the mother and the children remain at least as high as when the original order was made. It is very concerning that the father has breached the restraining order by sending hostile emails to the mother and D.M.

Future Proceedings

31It is imperative that C.M. and the mother's well-being that they not be subjected to further litigation unless the father's mental health and behaviour improves over a sustained period of time. The father will be required to provide a comprehensive mental health assessment showing a sustained period of mental health stability before this court will entertain a further motion to change.

Final Orders

32Final orders shall go as follows:

1. The father's motion to change is dismissed.

2. The terms of the final restraining order dated September 9, 2011 are restored. This means that the father is to have no contact with the mother or the children or come within 500 meters of them at any time or for any purpose.

3. Pursuant to subrule 14(21) of the Family Law Rules, the father cannot bring any further court proceedings in this court without prior leave of the court. Any motion for leave must be served by Form 14B. It is to be a maximum of 3 pages, not including any mental health assessment, which should be attached. The father should not serve the other parties with this material. The court will determine if leave is to be given, prior to notification being given to other parties.