Court File and Parties
Ontario Court of Justice
Between:
S.J.K., Applicant
-and-
J.P.G., Respondent
Counsel:
- Glenda Perry, for the Applicant (Responding Party on Motion to Change)
- Ayesha Hussain, for the Respondent (Moving Party on Motion to Change)
Heard: May 13, June 17 and July 4, 2019
Justice: S.B. Sherr
Reasons for Judgment
Part One – Introduction
1The parties are the parents of a six-year-old boy (the child).
2At an uncontested hearing on June 6, 2017, the court made a restraining order (the restraining order) prohibiting the respondent (the father) from having any contact with the applicant (the mother) and the child, or coming within 500 metres of their home, residence, school, daycare or any other place that the father had reason to believe they may be.
3The father has brought an amended motion to change the restraining order. He seeks to set it aside and asked in the alternative at trial to have it terminated or changed to permit him to have access to the child. He sought to have access on alternate weekends and on every Wednesday in his amended motion to change. In his trial affidavit, he asked for access to start at a supervised access center and then gradually progress into the community. At trial, he just asked for access to take place at a supervised access center.
4The mother asked that the father's motion to change be dismissed. She is opposed to any access order.
5The parties agreed to a focused trial of the motion to change. The direct evidence was provided by affidavit for each witness. The parties agreed to time limits for cross-examinations.
6The court heard evidence from the parties, the mother's new partner and the father's mother (the paternal grandmother).
7The issues for the court to determine are:
a) Should the restraining order be set aside?
b) If the restraining order is not set aside has there been a material change in circumstances that warrants terminating it?
c) If the restraining order is not terminated, has there been a material change in circumstances that warrants changing it to permit the father to have any access to the child? As part of this analysis the court must ask if it is in the best interests of the child at this time to make an access order, and if so, on what terms?
Part Two – Background Facts
8The mother is 23 years old. The father is 26 years old.
9The parties never lived together.
10The child is the only child of the parties.
11The mother now lives with a new partner.
12The father was in jail for almost the first two years of the child's life.
13The mother issued her original application on October 31, 2016. She sought custody of the child, no access to the father, child support and a restraining order. The mother made serious allegations of domestic violence against the father.
14On March 14, 2017, the father was granted an extension of time to file his Answer/Claim. He was also ordered to provide the mother with financial disclosure. He was ordered to pay costs of $150 to the mother.
15On March 20, 2017, the father filed his Answer/Claim seeking joint custody of the child and liberal and generous access, including overnight access. The father was represented by counsel.
16On March 24, 2017, the court stayed the father's Answer/Claim until he complied with the March 14, 2017 court order. The mother was given leave to bring a summary judgment motion regarding the parenting issues and to bring a temporary motion for child support. Timelines for filing affidavits were set.
17The mother brought these motions. The father's counsel also moved to be removed as the father's lawyer. The father did not attend court on the return date of May 19, 2017. His counsel was removed from the record and the court proceeded with the mother's motions. Summary judgment was granted. The mother was granted custody of the child (the custody order). A temporary order was made imputing annual income of $36,000 to the father and requiring him to pay child support of $315 each month. The father was ordered to pay the mother's costs of $1,000.
18The court further endorsed that the return date was peremptory on the father. He was put on notice that if he did not attend on the return date, his Answer/Claim would be struck and the court would proceed in his absence. Court staff mailed the endorsement on the same day to the father at the address he had provided in his Answer/Claim.
19The father did not attend on the return date of June 6, 2017. The court struck his Answer/Claim and made the restraining order sought by the mother. The support issues were adjourned for the mother to provide further evidence to support her claim for retroactive support.
20On July 12, 2017, the court made a final support order (the support order) requiring the father to pay child support of $315 each month, retroactive to May 1, 2015.
21The father did not appeal any of these orders.
22The father filed a motion to change on October 17, 2018. In his motion to change, he asked to terminate child support and to rescind significant support arrears. He also sought access to the child. He did not address the restraining order that prohibited him from having contact with the child.
23On February 1, 2019, at a case conference, the father withdrew his motion to change the support order and was given leave to amend his motion to change to seek a change to the restraining order to permit him to have access to the child.
24The father issued his amended motion to change on March 1, 2019. Instead of seeking to change the restraining order to permit him to see the child, he asked to set it aside. At trial, the father asked to orally amend his motion to change to include an alternative request to change the restraining order to permit him to see the child. Since the mother had been on notice throughout this case that the father wanted to remove any barriers to his seeing the child, the court permitted this amendment.
25On April 17, 2019, the parties agreed to the format for the focused trial.
26The father has not seen the child since at least February, 2018.
Part Three – Should the Restraining Order Be Set Aside?
3.1 Legal Considerations
27The court has jurisdiction to set aside an order under clause 25 (19) (e) of the Family Law Rules. See: Gray v. Gray, 2017 ONCA 100.
28Subrule 25 (19) of the Family Law Rules reads as follows:
CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE
25 (19) The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
29The Court of Appeal listed 5 factors that courts should consider in determining whether to set aside a default judgment in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 as follows:
a) Whether the motion to set aside was brought promptly after the defendant learned of the default judgment;
b) The existence of a plausible excuse or explanation for failing to comply with Rules of Civil Procedure;
c) Whether the facts establish that the defendant has an arguable defence on merits;
d) The potential prejudice to the moving party should the motion be dismissed and the potential prejudice to the respondent should the motion be allowed; and
e) The effect of any order that the court might make on overall integrity of administration of justice.
3.2 The Father's Position
30The father led little evidence to explain why the restraining order should be set aside in either his amended motion to change or in his trial affidavit.
31At trial, the father claimed that he never received the restraining order or the May 19, 2017 custody order, which made the return date of June 6, 2017 peremptory on him. He also claimed that he only became aware of the restraining order during the current proceeding.
32The father said that he is not a threat to the mother or the child and there is no basis for a restraining order. He says that he has complied with the restraining order since it came to his attention. He has not contacted the mother or the child. He said that he has not committed a criminal offence since the restraining order was made.
3.3 The Father's Credibility
33The father was not a credible witness.
34The father quickly became evasive when challenged on his evidence, particularly concerning his employment, residence and his knowledge of his criminal release terms.
35The father claimed in his financial statement that he has been unemployed since 2012. In his change information form, he said that he is unable to secure employment due to his criminal background. He acknowledged on cross-examination that he is working cash jobs. He tried to avoid disclosing the name of his employer and was required to answer by the court. He was avoidant about his income. He claimed he couldn't remember when asked if he had previously revealed his employer to the mother.
36The father's history of paying child support is abysmal. He was trying to avoid this obligation by not revealing his income and employer at trial.
37The father gave vague information about where he is living. He claimed that he has lived with his mother (the paternal grandmother) his whole life in Toronto. He became evasive when questioned why he was purportedly living in Toronto while receiving social assistance in Peel.
38The father initially claimed to have paid the court's costs order. When further challenged, he said that he didn't know if he had paid the costs.
39The court does not believe the father's evidence that he had no knowledge of the restraining order for the following reasons:
a) He was not a credible witness.
b) He testified that he was aware that he could not see the child without a court order.
c) The court sent the father notice of the June 6, 2017 court date on May 19, 2017. The notice was sent to the address that the father had provided to the court – the address he testified he had been living at with the paternal grandmother his whole life.
d) The paternal grandmother was in court on May 19, 2017 and was aware of the peremptory June 6, 2017 court date. She acknowledged receipt of the court's endorsement to the mother's counsel.
3.4 Analysis
40The father did not provide a satisfactory excuse for his non-attendance at court when the restraining order was made for the following reasons:
a) He was represented by counsel up until the May 19, 2017 court date but did not come to court that day.
b) The court is satisfied the father had notice of the June 6, 2017 court date. His mother was in court on May 19, 2017 and had notice of the date – there is no reason why she wouldn't have told him about the return date. The court also sent the endorsement to him at the address he provided and where the paternal grandmother lives. Even if he wasn't living there, she would have told him that court papers had arrived for him.
c) The father claimed that he was in jail when the court orders were made in 2017. However, the mother obtained documentary evidence that showed that he was not in jail during this time. The father provided no documentary evidence to rebut this.
d) The father took no steps to find out what happened at court even though he initially participated in the case. He knew that the mother was seeking a restraining order. What did he think happened? Even accepting his evidence at its highest, he exercised wilful blindness.
41The court finds that the father did not move on a timely basis to set aside the restraining order.
42The father does not have an arguable case on the merits that would support setting aside the original restraining order. However, the court will consider the merits of his motion to change it.
43The prejudice to the mother of setting aside the restraining order after this passage of time is very high and exceeds any prejudice to the father (who chose to ignore the proceeding) of not setting it aside.
44It would not be just and it would be contrary to the administration of justice in these circumstances to set aside the restraining order.
Part Four – Should the Restraining Order Be Terminated as Requested by the Father?
4.1 Legal Considerations
45In M.A.L. v. R.H.M., 2018 ONSC 1597, Justice Alex Pazaratz set out the test to change a restraining order in paragraph 66 as follows:
But once the balancing of those considerations has resulted in a final restraining order, the onus switches to the person seeking to change the restraining order, to establish a material change in circumstances justifying the lessening or removal of protection.
a) It is trite law to say that final orders should not be changed unless the person proposing the change can establish a material change in circumstances.
b) But it is doubly important that on motions to change restraining orders we must not lose sight of the unique, extremely sensitive and important subject matter.
c) The court is not just dealing with abstract legal tests, or benign legal arguments. It's not a painless exercise.
d) We are dealing with real people who sometimes end up horribly injured – or dead – if our systems don't vigilantly protect them from domestic violence.
e) Where a court has already made a determination that someone is fearful and requires protection, that person shouldn't be re-victimized by being arbitrarily dragged back to court – at the instance of the abuser – to "prove that they're still afraid."
f) Where a court has already made a determination that someone is aggressive and dangerous, we mustn't allow the bully to use the family court process to re-inflict psychological pain by re-litigating the same emotionally draining issues. What's the point of judges telling victims we believe them, if we then require victims to come back and convince us again?
g) And while on motions to change courts ordinarily only consider events arising since the date of the last order, emotional harm and distress can't be so neatly compartmentalized. Fear is a consequence of accumulated human experiences. It would be doubly offensive for a perpetrator to be able to able to say: "Prove that you're still afraid…but you can't talk about the old stuff."
46In M.A.L., the father moved to change both a no access order and a restraining order preventing contact with his child and the mother. As in this case, the father relied on compliance with no-contact orders and staying out of the criminal justice system in support of his claim that there had been a material change in circumstances. The court noted that it was commendable that the father had had no criminal law involvement for 6 years but that didn't constitute a material change sufficient to vary the restraining order – the father's lifestyle and behavioural problems had been so extreme and ingrained that a few testimonials from friends and the passage of a bit of time didn't nearly address the deep-seated problems which the court must be concerned about. The court found that the father had not taken meaningful steps to address these problems because he did not feel that he had any problems.
4.2 The Evidentiary Basis for the Restraining Order
47It is important in determining whether to change a restraining order to first examine the evidentiary foundation for that order.
48The evidence presented by the mother on June 6, 2017 overwhelmingly supported her claim for the restraining order.
49The mother and child were subjected to considerable domestic violence by the father. The father violently abused the mother, sometimes in the presence of the child.
50The father has had considerable involvement with the criminal justice system. In 2012, he was charged with obstructing police. In 2013, he was arrested and there were 86 charges against him, including armed robbery, forcible confinement and disguise with intent. He was incarcerated from March 2013 until April 19, 2015 for the robbery charges. In October 2016, he was charged with break and enter, as well as other offences related to the mother. In July 2017 he was charged with assaulting the mother. He was under house arrest from 2016 until July 2018. He had a Peace Bond for one year with respect to the mother that recently expired.
51The father physically and emotionally abused the mother, frequently demeaning her. He was jealous and controlling of her, constantly wanting to know her whereabouts.
52In August 2015, the father got on top of the mother and started choking and shaking her. He was charged in October 2016 for this incident.
53In September, 2016 the father overheld the child after a visit and threatened to keep the child away from the mother.
54The mother and the child went to a shelter on October 3, 2016. The father reacted with rage.
55The father called the mother on October 4, 2016 and said that he was in her apartment. He threated to shoot and kill the mother if she didn't bring the child back. He threatened to kill her dog and throw the dog off the fourth floor balcony. When she returned to the apartment a few days later, the mother saw that it was damaged – the drywall had been punched in and her clothes and belongings had been strewn on the floor.
56The mother's sister called the police and the father was charged with multiple offences including threaten death, assault and mischief. The father was given criminal release conditions that included a term to have no contact with the mother.
57The father did not comply with his criminal release conditions. In November 2016, he made threatening phone calls to the mother.
58In the third week of April 2017, the father called the mother and tried to pressure her to drop the family court case.
59On April 23, 2017, the father made multiple calls to the mother. He then came to her apartment and repeatedly kicked and banged the door with his hands and feet because the mother would not let him in. He went away but returned later that day. He again banged at her door. The mother wouldn't let him in. The father then managed to get into the mother's apartment by going into her neighbour's apartment and crossing over the two balconies.
60The mother described her shock when the father grabbed her as she came out of the washroom. He started to choke her. He held her down and dragged her across the floor. The police were called. The mother provided pictures corroborating her injuries. The father was charged with assault, death threats and forcible confinement.
61The mother also deposed that the father angrily approached her at family court on March 24, 2017, insisting that he could talk to her for court reasons. The mother said that he then verbally abused her.
62The court accepted the mother's evidence that the father is a drug dealer and associates with gang members.
63The father did not contest most of this evidence at trial. All he said was:
I regret my behaviour and I have sought anger management to rehabilitate myself. I regret my actions towards the applicant mother.
64The father did deny exposing the child the child to any aggressive or inappropriate behaviour. The court prefers the mother's evidence that he did.
4.3 Is the Restraining Order Still Necessary?
65The father's position is that a restraining order is no longer necessary. He says that he has had no further involvement with the criminal justice system and that he has complied with the restraining order. He says that he has not contacted the mother since April 2017. He submits that he has gone through the court system to obtain access to the child and has not resorted to self-help.
66The period of time that the father claims to have complied with the restraining order while not being charged with a criminal offence is far shorter than the period for the father in the M.A.L. case, supra, where Justice Pazaratz found that this was insufficient to support a material change in circumstances.
67The evidence also establishes that the father has not complied with the restraining order to have no contact with the mother or the child, or his criminal release conditions to have no contact with the mother.
68In support of his claim for access, the father states that he attended a birthday party for the child in 2017, went to Niagara Falls with the child and the paternal grandmother in 2017 and would see the child on occasion at the paternal grandmother's home during 2017. Both the father and the paternal grandmother knew that all of this was in contravention of the restraining order.
69Further, the father attended at the child's first day of school in September 2017. He knew or ought to have known that the mother would be present. This was in contravention of both the restraining order and the criminal release condition.
70The father has not taken any meaningful steps to address the reasons why he was violent and threatening to the mother. He essentially chose to ignore this evidence. He showed no insight into the impact of his behaviour on the mother or the child. They have been forced to go to a shelter and relocate to escape from his abusive behaviour. He was dismissive of the fact that she would be terrified of reengaging with him. His failure to address his behaviour means the risk to the mother and the child remains very high.
71The father continues to be dishonest, as set out above. He also has a long history of non-compliance with court orders, including:
a) He was supposed to reside in Toronto with the paternal grandmother as his surety, but was living at various times with his girlfriend in Brampton.
b) He breached his criminal release conditions several times by calling the mother, threatening her and eventually violently assaulting her.
c) He breached this court's restraining order several times.
d) He has not complied with the court's support order, making just three payments up until the time of the trial.
e) He has not paid the court's costs order.
72The father's dishonesty and non-compliance with court orders gives the court no confidence that the safety of the mother and the child can be protected without the restraining order.
73The court finds that the father has not shown a material change in circumstances to justify the termination of the restraining order.
Part Five – Should the Restraining Order Be Changed to Permit the Father to Have Supervised Access to the Child?
5.1 Introductory Comments
74The issue of whether the restraining order should be changed for the limited purpose of permitting the father supervised access to the child and the issue of access are intertwined. The restraining order prevents the father from having any contact with the child. It is tantamount to a no access order.
75If the court finds that it is now in the child's best interests to have access to the father, this would be a sufficient material change in circumstances to make the specific change to the restraining order to permit this access.
76The court will next determine if access is in the child's best interests at this time.
5.2 Legal Considerations for Access
77Section 24 of the Children's Law Reform Act (the Act) sets out that the court must make custody and access decisions in the best interests of the children. Subsection 24 (2) of the Act sets out criteria for the court to consider. Subsection 24 (3) of the Act indicates that a person's past conduct should only be considered if it is relevant to their ability to parent or in accordance with subsection 24 (4) of the Act. Subsection 24 (4) of the Act sets out that in assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against his or her spouse or the child. The court has considered these factors in making this decision.
78Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.
79It is normally in the interests of children to continue and to encourage their relationships with both parents following the separation of their parents. The ultimate goal is to establish, maintain and promote relationships which are of significance and support for a child. See: Young v. Young, [1993] 4 S.C.R. 3. Children generally benefit from maximum contact with both parents, provided that it is consistent with their best interests. See: Gordon v. Goertz, supra.
80A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access should only be ordered in extreme circumstances. See: Worthington v. Worthington.
81In V. S. J. v. L.J.G., [2004] O.J. No. 2238 (S.C.) at paragraph 135, Justice Jennifer Blishen provided a useful overview of the factors that have led courts to terminate access:
Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.
History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being.
Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.
Ongoing severe denigration of the other parent.
Lack of relationship or attachment between noncustodial parent and child.
Neglect or abuse to a child on the access visits.
Older children's wishes and preferences to terminate access.
82The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D..
83In M.K. v. T.R., [2014] O.J. No. 596, this court denied access to a father and considered the following:
a) The father had been violent and controlling towards the mother during their relationship.
b) The father denied having been violent. This made him a poor candidate to change.
c) The mother's stress and anxiety over the prospect of reintroducing the father into the family life was a significant consideration as it risked destabilizing the children and causing them anxiety.
d) Access is only to be ordered in circumstances where it will benefit the child.
84This case was followed, in very similar circumstances, by Justice Robert Spence in Scarlett v. Farrell, 2015 ONCJ 35. Justice Spence denied access to the father, finding that access would not add anything beneficial to the child's life, but rather that it would likely risk destabilizing the child, thereby resulting in significant emotional harm (par. 161).
85A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.
5.3 Positions of the Parties
86The father seeks supervised access to the child at the Toronto Supervised Access Centre (TSAC). He submits that this would sufficiently protect the mother and the child. He submits that the child should have the opportunity to know him.
87The father claimed that since the child was conceived, he has been part of his life. He said that he regularly saw the child after he was released from prison in April 2015 until he was charged with assaulting the mother in October 2016. He said that he also saw the child with the knowledge of the mother after the restraining order was made until February 2018. The paternal grandmother supported this evidence. She described him as a dedicated father.
88The father says that he has a close bond with the child and that the child also has a close bond with other members of his family. He says that he just wants the opportunity to reconnect with his son and be part of his life.
89The father submits that supervised access has never been tried and should be attempted before access is denied. He says that this will allow him to show the mother and the court his commitment to the child and demonstrate that access can take place safely.
90The mother said that the father has had little involvement with the child and that they barely have a relationship. The father was in prison for the first two years of the child's life. She said that after his release from prison, the father saw the child sporadically as he was living in Brampton. She said that when he did see the child, he was inappropriate in front of him. He would swear at the mother and demean her in front of the child. He would also get frustrated with the child, throwing and breaking his toys out of frustration.
91The mother said that the child has bad memories of the father. He still recalls the time that the father threatened to throw the family dog off the balcony (the father was on the speaker phone and the child heard this) and is very wary of him.
92The mother and the paternal grandmother had a positive relationship until the fall of 2017. The paternal grandmother often saw the child and would sometimes pick up and drop off the child from school.
93This relationship changed when the paternal grandmother began allowing the father contact with the child without the mother's knowledge. They fought about this. The mother started to cut back the paternal grandmother's contact with the child. The paternal grandmother tried to take the child out of school one day without the mother's consent. She threatened the mother that she would tell the child that the reason he isn't seeing his father is because of her lies about the father's domestic violence. The relationship was completely ruptured early in 2018. The mother deposed that, without her consent, the paternal grandmother used her SIN number for her Bell Canada home phone, internet and cable television. The mother ended up paying $300 in unpaid charges and her credit was adversely affected. The mother contacted Bell Canada to cancel the services. The mother said that the paternal grandmother called her and verbally abused her about this. Shortly after, the mother moved out of the neighbourhood and cut off contact with the paternal family.
94The mother says that the child is now stable and happy. She believes that any contact with the father will compromise this.
95The mother has been in a stable and respectful relationship with her new partner for many years. The child views her new partner as his father.
96The mother remains very afraid of the father and does not trust him. She does not believe that either she or the child will be safe with a supervised access order. She does not feel that an access order or an order changing the restraining order to permit the father supervised access is in the child's best interests.
5.4 Findings on Contested Facts
97The court preferred the mother's evidence to the evidence of the father and the paternal grandmother.
98The court did not find the paternal grandmother to be a credible witness. The court found her evasive when questioned about her son's knowledge of the restraining order. It was clear to the court that she had knowledge of the restraining order and, given her close relationship with the father, would have told him about it.
99The paternal grandmother was completely aligned with the father. She barely mentioned his inexcusable behaviour – it was apparent to the court she did not view it as that serious. She resents the mother for reporting her son to the police.
100The court finds that:
a) The father has had little involvement with the child.
b) The father's involvement with the child has been negative.
c) The child has a negative view of the father.
d) The father has exposed the child to significant domestic violence.
e) The paternal grandmother breached the mother's trust when the father saw the child without the mother's knowledge.
f) The paternal grandmother and the father knowingly breached the restraining order for the father to have no contact with the child.
g) The father and paternal grandmother both minimize the father's domestic violence and have no insight into its impact on the mother and the child.
5.5 Analysis
101It is not in the child's best interests to have access with the father at this time.
102A starting point to assess a child's best interests when making an access order is to ensure that the child will be physically and emotionally safe.
103It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe.
104The evidence indicates that neither the mother nor the child would be safe with a supervised access order.
105The evidence demonstrates a disturbing pattern of extremely violent and unstable behaviour by the father towards the mother. It also reveals a pattern of anger, jealousy and abusive and controlling behaviour towards her. The father has shown that he quickly becomes enraged when he doesn't get his own way.
106It is very concerning that the most violent incident – on April 23, 2017, took place while the custody case was before the court.
107The father showed very little evidence of change. These violent incidents towards the mother took place from 2015 to 2017. They are recent and not historic as characterized by him.
108The father has taken no meaningful steps to address his behaviour, such as engaging with professional treatment. He shows no insight into why he behaves this way and its impact on the mother or the child. Other than expressing a perfunctory regret, he takes little accountability for his actions. The paternal grandmother enables his perspective.
109The evidence indicates that the father has not changed. He continues to be dishonest. He has not complied with the court's costs orders or support orders. He secretly saw the child contrary to the restraining order – an order the court finds that he was aware of.
110The court is concerned that the father's reengagement with the mother through supervised access would compromise the safety of both the mother and the child.
111The court did not draw an adverse inference against the mother for not contacting the police or bringing the case back to court when she became aware of the father seeing the child. The mother has been the victim of severe domestic violence. It is understandable that she did not want to engage in further litigation. The dynamic was further complicated by the relationship the mother had at the time with the paternal grandmother.
112The court agrees with the mother that access at the TSAC would not adequately protect her and the child. The father has given the court little reason to believe that he would comply with court orders or TSAC's rules. The mother and child would be exposed to contact with the father before and after visits – the TSAC cannot provide the mother complete protection. The father has already shown a determination to confront the mother, and assault her, despite court orders preventing him from doing so. He has previously overheld the child and threatened to keep him away from her.
113Any access order at this time would risk destabilizing the mother and the child. This is not in the child's best interests.
114The benefits of starting access at this time are outweighed by the detriments to the child. This is an exceptional case where access is not in the child's best interests.
115The restraining order will not be changed to permit the father to have access to the child.
116This does not mean that the father should never have access to the child. It is the court's hope that the father does take constructive steps in his life which would give the court some assurance that access will benefit the child. The court hopes that the father and the child will eventually have a positive relationship.
117The court notes that the father expressed a strong desire to have a relationship with the child and to improve his conduct. At this stage though, he has to back up his words with actions.
118The onus is now on the father to show that he has made constructive and sustained change before access begins. It is not in the child's best interests to experiment with access, without such changes taking place. The court will want to see the father do the following before restoring access:
a) Continue to have no contact with the mother or the child for a sustained period of time.
b) Abstain from criminal behaviour.
c) Attend for intensive therapy with a therapist trained in domestic violence issues to address his abusive behaviour and anger management issues. He should provide a report from this therapist that he has meaningfully participated in this therapy and that sets out any gains he has made.
d) Demonstrate that he can understand the impact of his abusive behaviour on the mother and the child.
e) Demonstrate that he has learned and is applying healthier methods to deal with stress and frustration.
f) Demonstrate an ability to accept responsibility for his actions.
g) Show responsibility by accurately reporting his income and paying child support pursuant to the child support guidelines.
h) Pay the outstanding costs orders.
119If the father is able to substantially take these steps over the next year, the court will consider this to be a material change in circumstances. If he takes these steps (and if an agreement cannot be reached with the mother), the court encourages the father to bring a motion to change the restraining order to permit supervised access. He shall not bring a motion to change the restraining order, or bring another access application for at least one year. The court is not prepared, at this stage, to place additional restrictions on the father's access to the court as sought by the mother.
Part Six – Conclusion
120An order shall go on the following terms:
a) The father's motion to change the June 6, 2017 restraining order is dismissed.
b) The father's claim for access to the child is dismissed.
c) The father shall not bring any motion to change the restraining order or bring an access application for one year.
121If the mother seeks costs, she shall make written submissions by July 22, 2019. The father will then have until August 6, 2019 to make a written response. The written submissions shall not exceed three pages (not including any offer to settle or bill of costs) and shall be delivered to the trial coordinator's office on the second floor of the courthouse.
122The court thanks counsel for their professional presentation of this case.
Released: July 8, 2019
Justice S.B. Sherr