Court File and Parties
Ontario Court of Justice
Between:
D. B. Applicant
— And —
R. S. Respondent
Before: Justice P. J. Jones
Heard on: July 27 and 30, 2015
Reasons for Judgment released on: October 20, 2015
Counsel:
- Mr. William Hutcheson, counsel for the applicant
- R. S., on his own behalf
Judgment
Introduction
1This is a judgment after trial in an application commenced August 13, 2012, brought by the applicant, D. B. (the mother) for sole custody of K. B.-S. (the child) born […], 2012, for an order that the Respondent, R. S. (the father) have only supervised access to the child, for guideline and section 7 child support, for spousal support, and for costs.
2A final order for sole custody in favour of the mother was made on consent on August 7, 2013. As well, final orders for child support in the amount of $837 a month based on the Respondent's annual income for Guideline purposes of $94,606 and annual disclosure were made that same day.
3On the first day of trial, the mother withdrew her claim for spousal support.
4By the time this matter came before me for trial, the only issue which remained outstanding was the issue of access.
5When the trial began there was an outstanding temporary access order in favour of the father which specified that access shall take place once per week at a Supervised Access Centre. Since the application commenced, the father has only exercised supervised access to K. B.-S.
Orders Sought
6The mother seeks an order that access continue to be supervised until certain questions, as particularized in the motion decision of Justice Katarynych, are satisfactorily answered by the father. Until such time, she requests that access remain supervised and that she be permitted to increase or decrease access in her discretion.
7The father seeks an order that he have unsupervised access to the child, which would increase on a gradual basis to include alternate weekend access, with an additional one day access in the week in which weekend access does not occur, as well as extended holiday access to be determined.
Background
8The mother is 40 years old. Prior to her enrolling and successfully completing a teaching diploma at Queens University in 2015, she graduated from the University of Windsor, Ontario with a Bachelor of Fine Arts and worked as a private music teacher, actor and singer.
9The father is 49 years old and has been employed for the past 20 years as a high school teacher with the Toronto Catholic District School Board. He teaches Grade 11 Law, and Grade 12 Family Studies, as well as other courses not specified, and has coached a number of student sports teams over the years.
10K. B.-S. is the first and only child born to either parent.
11The relationship between the parties was of relatively short duration. The parents met and began dating in July 2010. In October 2010, the mother left Toronto to accept employment on a Disney Cruise Ship as a singer; she returned to Toronto in April 2011, and at that time, she moved into the father's home. Within two months the mother was pregnant with K. B.-S., in what I understand was an unplanned pregnancy.
12K. B.-S. was born […], 2012, and the parties separated in June 2012.
13The parties both describe an unhappy relationship but for different reasons.
The Mother's Evidence
14The mother told the court that it was very difficult to live with the father because of his substance abuse problems and his volatile temper. She said that the father frequently drank until he passed out.
15The mother testified to the following in relation to her concerns about the father's drug and alcohol use:
At an examination at a special examiner's office, the father was asked about his drug use. He was asked whether he ever consumed marihuana, ecstasy, hash, cocaine, acid, or heroin. He refused to answer all the questions except the one relating to marihuana which he answered in the affirmative. Even when ordered to provide answers to the questions at least thirty days before trial, he did not do so. At trial he testified that he was not a "chemical drug user" and said that he did not answer the questions asked at the special examiner's office on the advice of his lawyer.
He was asked about having "hot knives" (associated with the consumption of hash oil) in his kitchen as testified to by the maternal grandmother. He responded that he could not recall there being "hot knives".
The maternal grandmother testified that she was present when the father passed out at least three times from the over consumption of alcohol.
An excerpt from what appeared to be the father's diary relating to alcohol consumption in 2011 was filed as an exhibit. That document, in the father's handwriting, contained a chart outlining his alcohol use on a day-to-day basis, and included a notation enumerating the number of days he did not drink at all or only drank one drink on a particular day. The father did not deny that this was so but was extremely irate that this document had been "stolen" by the mother. The father testified that he was only a social drinker.
16As to the father's temper, the mother described a number of occasions when the father lost control of his temper and yelled and swore at her: to demonstrate the father's level of rage on such occasions, she played for the court a tape recording which could only be described as startlingly loud, abusive and full of profanity and personal insults aimed at the mother.
17As well, she said that he was a heavy consumer of pornography and that during their relationship he spent time away from the home partying with other women, attending strip clubs and massage parlours.
18She told the court that after the baby was born, he left the care of the baby to her. She told the court that the first and only time she left the baby with the father, she returned to find the baby crying and the father only too quick to pass the child to her before rushing out of the house to attend a party. On that occasion, she noted that the father had been drinking Jack Daniels. She said that she noted that the bottle of Jack Daniels had been new but was only half full when she returned home (the father admitted to only having one drink although on his examination before a special examiner he denied drinking at all.) She mentioned that on another occasion he took the baby for a walk wearing only pants and a shirt on a cold day. She told him that a tiny baby needed to be kept warm: he ignored her and did the same thing the next day. They argued and that after that, according to the mother, he left the baby's care to her.
19The mother also described comments made by the father about the baby and some of the ways he acted around K. B.-S., which led her to believe that he might be "sexualizing her infant body." She testified to the following:
The father expressed his discomfort in changing diapers because he did not want to touch K. B.-S.'s private parts and because he did not want to look at her private parts. He asked if he should wear gloves when changing diapers.
When K. B.-S. was being changed and her legs were splayed out in the process, he commented that K. B.-S. was more flexible than her mother. (A comment that the mother interpreted as a sexual innuendo).
He said to K. B.-S., "Daddies don't kiss their daughters on the lips."
When the baby was having a bath, he insisted that the baby's private parts be washed first.
When the baby was posing for photographs, he complained that the baby was showing her "boobs" when dressed only in a diaper.
At the access centre he decided to practice diaper changes even when the baby did not require changing until he was told to discontinue this practice by centre staff.
The access notes (which are part of the record) include many incidents when the father was holding and touching the child and the child was reluctant/resisting.
The mother described an incident which occurred during the time the parties were still cohabiting. According to the mother the father was wearing only track pants and had been out at a massage parlor the night before. When he sat on the bed holding the baby, he asked the mother for a baby blanket to place between himself and the baby because he told her that he did not want the baby to feel his erection.
On another occasion, L. B., the maternal grandmother (who is a nurse), was asked by the father about a video he said his parenting class had watched about a child molestation involving a five month old baby, where he said that he had seen (vaginal) penetration by an adult male. He asked her how this would be possible given the size difference. "A baby is small, a man is big". The grandmother said that she was so uncomfortable about this conversation that she left the room. When she thought about this later she came to believe that no such video would have been played at school and that the video would have had to have been viewed by the father on line.
20Given the concerns noted above, the mother requested that access to K. B.-S. by her father be supervised.
The Father's Evidence
21The father described the problems with the relationship between himself and the mother from his perspective. He said that when he and the mother first met, they were both partying and drinking quite heavily. Within four months of their first meeting, she left Toronto to work on the Disney Cruise Lines as a singer; when she returned to Toronto six months later, she moved into his home. He said that he agreed to this only until she re-established herself in Toronto. He told the court that he expected her to contribute to their joint living costs but that she expected him to pay for everything. According to the father, the mother was an individual with "no work ethic."
22He said that even at the beginning there were problems with the relationship. Shortly after the parties moved in together, she got pregnant and he was shocked because he, "knew that the relationship was doomed".
23When K. B.-S. was born, he agreed that he spent very little time with the baby. He said that this lack of involvement was not because he did not want to care for the infant, but occurred because the mother was a "control freak" who interfered with his relationship with the baby. According to the father, the mother constantly criticized his attempts to get to know the child and to learn how to care for a new born. He agreed that at first he felt awkward around K. B.-S. because she was his first child and he had no experience with infants. He testified that since this case commenced, he has taken to spending more time with his nephews and other friends' children with the result that he is becoming more relaxed with young children; he indicated that if the court were to direct him to take a parenting course, although he did not feel it was necessary, he would comply.
24He acknowledged that he has lost his temper on occasion in the past. He agreed that when he is "in the moment", it is hard to control himself but that this should not be a problem in the future as he has successfully completed an intensive anger management course with the Salvation Army. When confronted with instances in which he has lost his temper, he seemed quite dismissive and excused himself by saying such things as, "it was a tense time" and that he, "was not proud of this behaviour", or he "was only human".
25He denied that he drank to excess or was a "chemical drug user". He commented how he attends school regularly and has never been disciplined and that this would not be the case if he were an alcoholic or drug abuser.
26He denied that he "sexualized" his daughter's body. Repeatedly, he said how offensive he found such comments. He told the court that such an allegation would ruin his 20 year career as a high school teacher. He did admit to making the comment about his daughter being more flexible than the mother, but explained that he was a new father and it was his sister, who is a physiotherapist, who explained to him, how newborns have very loose joints. He agreed that he made the comment about using gloves to change the baby, but said that he made this comment because he had never changed a baby before and was "thinking like a doctor". He denied the conversation about a child abuse video as related by the maternal grandmother and also denied that the incident in which he purportedly asked for a blanket so that the baby would not feel his erection, ever occurred. He said both comments were untrue and the mother and the grandmother were both lying about such matters.
27As to being a consumer of pornography, he denied it initially and when confronted with a screen shot of pornographic sites listed on what appeared to be his computer screen, he said the mother might have used those sites and then simply said, "prove it." He called the mother a habitual liar and an evil person who enjoys making other people miserable.
Justice Katarynych's Interim Access Decision
28On November 19, 2013, a contested access motion was heard before Justice Katarynych. With written reasons, she ruled that access should continue to be supervised and to take place at a supervised access centre. In her ruling, she wrote:
"The face of the evidentiary record establishes the need for continued supervision of the access.
The record establishes serious risks to this young child that are presently obstacles to moving this child to unsupervised access with her father. As the parent entrusted by the court with the heavy responsibilities of custody, the mother cannot overlook those risks. Her ability to negotiate settlement of the access issue is severely constrained until both she and the father—and ultimately the court, have a more informed pulse on the extent to which any or all of these risks are likely to play out in an unsupervised access.
The risks to this child's safety and wellbeing in an unsupervised access environment are these:
This man's explosive temper and the extent to which he articulates gratification from his lashing out behaviour;
This man's history of heavy drinking, and whether it has carried forward into his present;
This man's historical possession of illegal drugs and whether that interest has carried forward into his present;
The unknowns about this mans' physical response to this young child; specifically, whether there is a legitimately grounded concern about the risk of sexualized touching as the father and child grow their relationship.
Father is understandably distressed about these concerns. That distress has not translated into an evidentiary response from him that assists in calibrating the degree of concern for this child.
What is before the court is more than allegation at this point. Each concern is rooted, with particulars of the worrying behaviour, in sworn evidence of those who have observed specific conduct of the father that has fuelled one or more of the concerns. Careful scrutiny of each affidavit filed in the case to date yielded the conclusion that the mother's factum accurately reflects the particulars identified in those affidavits as the basis for concern about this child's safety in an unsupervised access with her father."
Discussion
29At first blush, it seems hard to understand how a high school teacher in good standing with his school board has only been granted supervised access to his three-year-old daughter for one and one half hours per week at a government licensed supervised access centre.
30Equally, it is hard to understand why supervised access should remain in place for over three years with no movement towards a liberalization of access when the father has been regular in his access, and has shown his commitment to his daughter by traveling three hours to and from Kingston each week, in all types of weather, in order to spend one and one half hours with his daughter in a supervised access centre.
31After trial, how this might be so became apparent. This is a very unusual case.
The Child
32K. B.-S. is now three and one-half-years-old and has been described by both her parents as a delightful and engaging child. Since she was four months old, she has lived with her mother and visited with her father. According to the Children's Lawyer's Report, her mother is providing her with a loving and stable home environment. She attends a French speaking preschool where she is thriving and where she is described as a happy, well-adjusted child.
33It is uncontested that the father has been regular in his attendance at the supervised access centre. From a review of the supervised access notes and from his testimony, it is clear that he is on time, and comes prepared with gifts and snacks. He enjoys his time with the child. He is loving and patient and clearly derives great pleasure from her company.
34Heather MacInnis, clinical investigator with the Office of the Children's Lawyer, observed a visit between the father and child in December 2014. On that occasion, she noted that the child seemed slightly apprehensive about attending the visit and required the worker's hand to lead her to the visiting room. She also noted from a review of the access note, that there have been other times when K. B.-S. has resisted attempts to bring her to the access room where her father was waiting for her and that she had to be coaxed by the mother and the staff to do so.
35Ms. MacInnis noted in December 2014 that the father was very affectionate with K. B.-S., but that she sometimes did not respond to his overtures in kind.
36It would appear from my reading of the access notes filed, that the father frequently tells the child how much he loves her. Over time, K. B.-S. appears to be relaxing more during access with her father and is becoming more spontaneous in her expression of affection for him. On occasion, the father has brought members of his family to his visit. (His 82 year old mother has come as has his sister and her two sons who are 11 and 13 years old.) According to the father, K. B.-S. enjoys her time with him and with her extended family and they seek to spend more time with her.
37The mother tells a different story about how the child is viewing access with her father. It is the mother's evidence that K. B.-S. frequently requires encouragement to get ready for her visit with her daddy and that this reluctance is becoming more pronounced as time passes. This observation is corroborated by the maternal grandmother. According to the mother, the child never asks about her father and on occasion has said that she does not want to see him. To make her point, K. B.-S. has cried, kicked and hit her mother saying, "no, mommy, no" when told that it is time to get ready for a visit. To date the mother has been able to distract K. B.-S. and get her ready for the visit although there are times when she has been a few minutes late for the visit because of the child's reluctance to go. The mother testified that she does not know why the child is reacting in this way. The mother said that she is concerned that the father is manipulating the child during the visit as the child has recently said to her, "I want to be happy to see daddy, don't I?" The mother also testified that the child has said, "I want to be happy." or "I don't want to upset daddy."
38The mother testified that she does not criticize the father to the child and is unable to understand why the child is making such comments or reacting to access in the way she has described. If there were concerns about the child's reaction to access, the father blames the mother for "alienating" the child.
Concerns Expressed by the Mother
39The mother identified the following factors to justify the continuation of a supervised access order, namely:
- The father's volatile temper
- The father's manipulative personality
- The father's response to the child, possibly in a sexualized manner
- The father's excess alcohol use and use of illicit drugs
40These concerns were echoed in Justice Katarynych's ruling on the interim access order and were mentioned in the Children's Lawyer's Report as concerns that were still unaddressed and which justified the continuing need for supervision. The 2014 Office of the Children's Lawyer report recommended a continuation of supervised access and made the following recommendations relating to putting to rest the identified concerns before access should become unsupervised. The clinical investigator wrote:
Mr. S. will complete a psychological assessment and/or parenting capacity assessment at a community resource like CAMH or the Willow Centre. The assessment will focus on his parenting ability, address concerns around sexualized behaviours and help him develop positive coping strategies.
Mr. S. will follow through with the recommendations of the above assessment.
Mr. S. will attend and complete a program for fathers, either one-on-one or in a group setting, in order to learn more about the ages and stages of child development. Mr. S. will follow through with recommendations and work together with the staff and the access centre to incorporate what he has learned.
41Despite this recommendation, to date, Mr. S. has not attended for a parenting capacity assessment nor a psychological assessment. Since November 2013, when the ruling by Justice Katarynych was released, the father has known that the concerns raised by the mother needed to be addressed and he has chosen not to do so.
42He told the court that he could not afford the costs associated with such assessments but would complete such an assessment if the court felt such an assessment were necessary. He said that he had understood that the assessment had to be performed at CAMH and that he had proof that CAMH had refused to conduct the assessment. I find that comment to be disingenuous given the fact that the father is a well-educated man and the recommendation of the Ms. MacInnis clearly states that the father "will complete a psychological assessment and/or parenting capacity assessment at a community resource like CAMH or the Willow Centre."
43Certain of the concerns identified may be more easily addressed than others. I would think that the mother's concerns about the father in relation to possible pedophilia could be addressed by phallometric testing. If such testing were completed and a sexual interest in young children was ruled out, the court might be able to accept the father's explanation that the ill-considered comments he made about bathing and diapering the baby as well as his comments about the baby's body, were simply a manifestation of his inexperience and awkwardness arising from his status as a first-time father.
44The father contends that he is not drinking to excess nor is he using illicit drugs at this time. If the father's alleged use of drugs and alcohol at this time, were the only impediment to unsupervised access in this case, the court could devise an unsupervised access regime that would likely manage such concerns. For example, access exchanges could take place at a supervised access centre and trained staff would be in a position to assess the sobriety of the father at the point of contact. If so advised, random testing could be instituted. The court could build on the information gathered and move the case along.
45Other concerns remain. On the evidence I accept, I find the father's volatile temper and his manipulative personality may well pose the greatest challenge to the court in fashioning an access regime that is in the child's best interest.
46I am satisfied that the father has no insight into how his behaviour, which I would characterize as emotional abuse of the mother, has affected the mother and will over time, if not controlled, negatively affect the well-being of K. B.-S., who is in her mother's custody and who is totally dependent upon her.
47I am concerned about the father's efforts to control the mother through intimidation, emotional abuse, isolation and blaming. Ultimately, this abuse can only harm the child. I have come to this conclusion for the following reasons:
The Father's Volatile Temper is Quite Extreme
48While the parties resided together, the mother described the father as losing control of his emotions on a regular basis, and while out of control, he would scream, curse, threaten and insult her, and she said that these episodes would continue until his "rage played itself out." As I previously indicated, the court heard a tape recording of such an episode that clearly showed an individual out of control. In that tape, I heard the father hurling insults at the mother in an unrestrained manner. To give some substance to these general observations, I heard comments like:
Mr. S.: "You won't fucking leave my house. I pay for that house. Why don't you just leave? Do us both a favour just leave! This is hell this is a nightmare! I work all week. What, you're gonna find some loser and do what? What's wrong with you?"
Ms. B.: "What's wrong with me?"
Mr. S.: "You even sound psycho to me. I'm getting help right now to deal with you fucking loser, like, I mean, you're a nightmare! You're an absolute nightmare. What have I done in the past three days? I cleaned the garage the house the basement, I didn't go out all weekend, and now I'm going to see a counsellor after you went through my cell phone."
49The maternal grandmother gave evidence concerning the father's temper and how she saw the father attack the mother verbally in her presence and act in a physically intimidating manner towards her. She said that:
"The father would move surprisingly quickly from being calm to being mad and agitated within a very short period of time. One second things were normal and the next second he was flipping out. Again his body language was very hostile, frightening and unpredictable. He later apologized to me again for his behaviour and told me that he was happy I was in his life."
50It was not only members of the applicant's family who described the out of control behaviour of the father towards the mother. The court received two affidavits from two independent witnesses who attested to the angry and intimidating behaviour of the father towards the mother.
51I reviewed an affidavit from Alexandra Lincoln sworn November 20, 2012. Ms. Lincoln is a Service Ontario employer who worked out of the Leslie and Lakeshore centre in 2012. She outlined in her affidavit her contact with the mother and the father on November 7, 2012, when the parties came to the office to transfer a vehicle from the mother's name to the name of the father. She said that the father was speaking aggressively to the mother and he began to relate inappropriate details of their separation to her which made her feel uncomfortable. When the mother expressed a wish to leave, the father refused to let her go. She said that at some point his anger shifted to her. At that point, he leaned over the desk and presented himself in an intimidating manner and she became frightened. Ms. Lincoln said that the father was "quite vitriolic in both his demeanor and tone of voice." She said that he, "gave out an aura of hostility and seemed unable to listen to reason."
52I also had the opportunity of reviewing an affidavit sworn by Vladimir Chapligin, who is a security guard at the Jewish Community Centre at Bloor and Spadina. He related an incident that occurred on July 21, 2012, when he came into contact with the mother, father, maternal grandmother and a baby. He said that on that date he observed the father, who was visibly shaking, yelling at the two women and the baby, who he later learned, were the mother, maternal grandmother and K. B.-S. The father was blocking the women's exit from the main entrance to the building. He heard the mother asking the father to calm down and she kept stepping backwards trying to stay out of his reach. He said that he then went over to see if everything was alright and the father said it was and the women said that it was not. Mr. Chaplign asked the women if they wanted him to remove the father and the mother asked the father if he could calm down and he agreed to do so. Mr. Chaplign indicated that he has not seen people yelling or mad in the way the father was mad and yelling, especially when it involved parents, and especially when their children were present.
53As well, the father has lost his temper in his dealings with Mr. Hutcheson, the mother's counsel. I heard from the mother and her friend L. N. about an incident that occurred outside the courtroom on September 24, 2013. At that time, the father was expressing frustration because he felt that the mother was not prepared to work with him to resolve things. As the father and his family were leaving the building, the father stopped walking and turned to Mr. Hutcheson and said, "grow some balls". Then he said, "Hutcheson, don't you have any self-respect, being an officer of the court?" According to Ms. N., he said a few other things along the same lines and said, "grow some balls" a couple of times. As he was leaving, he said that, "that felt good."
54The father did not deny that he was prone to losing his temper. At no point did he appear to appreciate that his bouts of temper were unusual in their quality and presentation. He did assure the court that he had gone to counseling to learn how to control his temper and seemed to feel that the court should accept this as an adequate answer to the anger issue.
The Father Has No Boundaries and Exhibits Poor Judgment
55The father is an educated man who teaches law at high school. Inexplicably, he wrote two letters to Justice Katarynych, who was the case management judge responsible for his file, sent two emails to the judicial secretary and sent Justice Katarynych a Christmas card. In his first letter he wrote, "Thank you for being our judge. I was so happy that you took our case. I know you are a good person and that you want what's best for my beautiful daughter, K. B-S". In that letter he proceeded to flatter the judge and then to complain that he has been treated as a "criminal" and his family has been deprived of contact with his daughter. He then went on to complain about the mother's lawyer, and wrote, "Mr. Hutcheson has absolutely no respect for older people. He is very phony to you because he badly wants to impress you. I am sure you know that. I have repeatedly asked him for my parents to be shown more respect; he ignores me." He then says, "One of the many obstacles I had to face was the manipulation of my own lawyer, Mr. Leo Monaco …In the context of my case … he has yelled at me, reprimanded me for asking questions." He proceeds to complain about his legal bill. He then sets out for the judge what he is willing to do, which includes: counselling sessions for anger, daily yoga, counselling on money matters, first aid course, reading about child development, moderate alcohol consumption, no drug use, willingness to take drug and alcohol tests and no alcohol use when in a caregiving role. He then reiterated his position that he wanted more access to K. B.-S. and ended with, "Thank you from the bottom of my heart for reading this. God bless you! You're a wonderful person".
56On July 29, 2013, he wrote another letter to the court and filed it as an exhibit to an affidavit. In that letter he complains about his treatment by the mother and Mr. Hutcheson. In the letter he writes, "Mr. Hutcheson has abused the legal aid system. A system I believe in. He has no moral backbone when it comes to his out of control client. He needs to be reprimanded by wasting the money of tax-payers." He then tells Justice Katarynych what he is doing concerning counselling and expresses a wish to see his daughter more often. He ends with, "God bless you!"
57Justice Katarynych told the father that he could not communicate with her in this fashion. In her decision she refers to the handwritten letters to the court filed in the continuing record and writes, "It is reasonable to expect this educated man to know that it is improper to attempt private communication with the court."
58Notwithstanding this direction from the court not to communicate directly with her, the father sent the judge a Christmas card. In the card he told the judge that he would no longer be participating in the court proceedings and would be settling the matter directly with Mr. Hutcheson. He commented on her ruling released in November and said that he was "devastated by her ten page criticism of him; completely broken." He said that he has purposefully not attacked the applicant. He notes that she "continues not to seek employment and continues to manipulate and control events." Near the end of the letter he tells the judge that he wishes he had a lawyer but his current legal bill is $62,000. He said that, "he had never been presumed innocent and that the applicant's words seem to be worth more than mine". He concludes by saying, "Nevertheless, it was wonderful meeting you. I know you're a good person. I wish you the best in your career and personal life. God Bless you!" In the Christmas card he sent pictures of the child with him and a note, obviously penned by an adult, signed K. B.-S., which says that she is, "lucky to have two people that love me so much!!"
59The father has threatened the mother. On October 3, 2014, the father wrote an email to the mother in which he denied being sexually attracted to K. B.-S. and threatened the mother with a defamation action. He indicated that Mr. Hutcheson has to write a written apology to him and that written apology will be entered into the court records and into his file with the Law Society.
60He then wrote:
There are plenty of things I can do…you can use your imagination. It will not be good for you. I want you to have a good life and I want us to work together. Furthermore, my parents are getting older and I want them to see K. B.-S. during the Christmas holidays.
61The mother felt threatened by the contents of this email and contacted the police and the father was cautioned not to communicate directly with the mother in future.
62When both his efforts to reach out to the mother directly and his plan to bypass the court process by reaching out to the judge on a personal basis failed, the father continued his vendetta against the mother's lawyer. I use the word vendetta advisedly. From the evidence before me, it is clear that the father complained to the Law Society on at least ten occasions seeking to have Mr. Hutcheson disciplined. In an email he wrote to Mr. Hutcheson on May 6, 2015 he said:
I have filed my seventh complaint against you on May 5th, 2015 with the Law Society. I will file a complaint every week until you are severely reprimanded. I will not give up until I am heard and you start treating me as a loving father who simply wants to be in his daughter's life. I will stop complaining about you if you actually do something about access. I don't care what your client wants. This is a bizarre case that will in the end not serve both of you. I will be in my daughter's life forever and ever. Grow up Hutcheson.
Every day you make thing worse for yourself and your family. I will be meeting with the manager of the Law Society soon; I have several people at the Law Society that are helping me. Most people are good and care about kids, but then there is you who cowardly hides behind his client.
I strongly recommend you start improving access immediately and salvage what will be left of your career. Better yet, leave this case and get out of my daughter's life forever. [Emphasis added] You will not be missed.
Several journalists will be contacting you in the next 2 months …"
63On June 4, 2015, he once again emailed Mr. Hutcheson and this time included Ms. Christine O'Neill, who is employed by the Law Society in the professional practice unit. In the email he complained that Mr. Hutcheson was not answering his emails and Ms. O'Neill was doing nothing to reprimand Mr. Hutcheson. He wrote that he expects a letter of reprimand to be immediately placed in Mr. Hutcheson's file. He said that he will be filing more complaints, will be talking to the Ombudsman, talking to her superiors, contacting the media and so on. He said that he will do whatever it takes "to save my daughter's life".
64Near the end of the letter he said:
"If you are not going to do anything then you should transfer this file to someone else or find a new career. My complaints are valid and the public will quickly become aware that a lawyer can make false allegations with no evidence and face no consequences from the Law Society. This will eventually blow up in your face if you don't do something to protect yourself."
65When this letter did not have the desired effect of either increasing his access or scaring Mr. Hutcheson or Ms. O'Neill off, he began to write critical comments on the lawyers' web site and on the Law Society's web site under assumed names. I am satisfied from the evidence adduced, that on a balance of probabilities, the father was the author of the emails authored by "Stan Stanly" and "Mike Last".
66On June 29, 2015, he emailed Mr. Hutcheson accusing the lawyer of carrying on a vendetta against him. He again sought gradual increase of access and wrote, "I will be contacting numerous police stations in the next month to have you charged with multiple criminal charges. I was shocked to learn what I can have you charged with ...."
67The father has attempted to separate the mother from her lawyer as he has found it impossible to "negotiate" with her as long as she has Mr. Hutcheson as her legal representative. He has made it clear that he is not prepared to participate in the legal process except at a most basic level. In particular, he has not tried to address the issues raised by the mother, Justice Katarynych, or the Children's Lawyer in any meaningful way.
68Understandably, the mother is concerned about what will happen once the case is over and a decision is made and she no longer has a lawyer to stand between her and the father. The father has made it very clear that he will never give up until he gets what he wants which is an open access arrangement. He has complained to Legal Aid, to the Law Society, and to the judge, in an attempt to discredit the mother's lawyer as he has seen him as an impediment to getting what he wants. His attempt to negotiate directly with the mother resulted in a visit from the police. At court he said that he had considered complaining to the dean of the Teacher's College in Kingston about the mother's behaviour but at the last moment decided not to because he felt it might damage her career.
69The father's actions demonstrate that he has poor impulse control, no boundaries and poor judgment. They also demonstrate an attempt to control the course of this litigation by intimidation and threats to those who stand in his way of achieving the access he feels he is entitled to enjoy.
70In many ways, these misguided extra judicial actions by the father have been counter-productive as they in no way answer the concerns raised in this application. Indeed, they only serve to corroborate the mother's allegation of emotional abuse and provide evidence of his explosive temper and manipulative behaviour.
71The mother completed her examination in-chief with the following comment which is right on this point when she said:
"I am very worried about what will happen after this trial ends. Because of all of the above, I absolutely don't believe that Mr. S. can have unsupervised access with K. B.-S. I am also worried about the harassment and abuse that Mr. S. will heap on me once I no longer have a lawyer to shield myself from him. Right now Mr. S. heaps that abuse on Mr. Hutcheson. I am asking for the ability to increase or decrease Mr. S.'s access, based on what is best for B-S. I do not see any other way forward. B-S and I cannot afford to have a court case that just goes on and on for the rest of her childhood. I still want Mr. S. to do the tests that I have asked him to do. If he does those tests, maybe they will point towards solutions. If he doesn't then I believe his access will have to stay supervised. If he says inappropriate things to K. B.-S. in his access, maybe his access will have to be reduced. I still have hope that Mr. S. will one day stand up and be a father that K. B.-S. can be proud of. Not a perfect father but one that chooses her well-being over his impulses. I absolutely believe that Mr. S. needs help before he can get to that point though."
Conclusion
72I began my discussion with the comment that this is a very unusual case. Unfortunately, for all the parties and the child, the way forward is not clear. Given the refusal or the inability of the father to address the concerns in this case, unsupervised access is not an option at this time.
73The father indicated to the court that he was prepared to undergo testing if the court felt it was warranted and I would urge the father to complete the testing suggested by Justice Katarynych and the clinical investigator with the Office of the Children's Lawyer.
74As I indicated, some issues can be more easily put to rest than others. Even if the concerns about the risk of "sexualized touching" and the concerns about the heavy use of alcohol and possession of illegal drugs as identified by Justice Katarynych could be put to rest, the court would still have concerns about the father's emotionally abusive behaviour to the mother and the mother's ability to manage the father's behaviour in a way that would not jeopardize her ability to provide quality parenting for K. B.-S. The father's attempts to coerce and control the mother through intimidation, insult and isolation is very concerning to the court.
75Until the court is in a position to assess the risk to the mother and to the child posed by the areas of concern raised herein, access must remain supervised at a government operated supervised access centre. I find that at this point supervised access is in the child's best interest.
76Justice Abella in M.(B.P.) v. M.(B.L.D.E.), 42 R.F.L. (3d) 349 at 361 wrote that supervised access over the long term is not in a child's best interest and that supervised access was meant to be a short term solution only.
77Since that time some courts have approved supervised access as a long term solution if the alternative to supervised access is no access and access is seen by the court to be in a child's best interest. See C.A.M. v. D.M., [2003] O.J. No. 3707 at para 24.
78In this case, I find that access in the form of supervised access is in this child's best interest at this time. The central figure in any access determination is the child and the court's focus must remain on the child and her best interest. Access is the right of the child, not the right of the parent. I am satisfied that the supervised access that is taking place is allowing K.B.-S. to get to know her father and her father's family in a safe and controlled environment. In that environment, I am confident that K.B.-S. will not become an unwilling witness to her father's rages against her mother or become the subject of such rages.
79However, in my experience, supervised access is inherently impermanent. Children grow too old for supervised access and refuse to continue; parents rebel against the artificial structure and cease to attend.
80I have made this order with the expectation that the father will begin to address the identified issues at his earliest opportunity. Until he does so, I expect him to respect the supervised access structure and limit his contact with the mother to the form of contact I have set out hereinafter. If the father does not do so, he must understand that supervised access is the only alternative to no access when unsupervised access is not in a child's best interest.
Order
81Accordingly, I make the following order:
For three out of four weekends (either Saturday or Sunday) the father shall have supervised access to K. B.-S. at an approved supervised access centre for a period of two hours.
The mother shall be entitled to cancel three access visits per year on two weeks' notice to permit her to enjoy holiday time with the child.
The mother shall be entitled to apply for the child's passport and other government issued documentation for the child without the father's written permission and shall be entitled to travel with the child outside the jurisdiction for vacation purposes only for a period not in excess of one month without obtaining the written permission of the father.
The father shall not knowingly be within one hundred metres of the mother's home, her place of employment, or the child's school.
The father shall communicate with the mother using a communication program such as Family Wizard. The cost for program shall be paid for the father. The mother shall cooperate with the father in facilitating such communication. Communication shall be limited to discussing the child and be used to rearrange access if necessary. All communication between the parties shall be civil, and the father shall not use the communication to denigrate or harass the mother.
The father shall not bring a motion to change without first obtaining leave of the court. Any such motion for leave shall be brought on 30 days' notice to the mother and may be served upon her using the Family Wizard communication system or such other communication program as agreed to by the parties.
Costs
82The issue of costs remain outstanding. If the mother seeks costs, she shall submit her claim for costs in five pages or less and shall attach to her claim her bill of costs within 30 days of the release of my decision. The father shall have a further 30 days to respond, in five pages or less, and the mother shall have a further 15 days to reply, in five pages or less.
Released: October 20, 2015
Signed: Justice P. J. Jones