WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
87(8) Prohibition re identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
87(9) Prohibition re identifying person charged.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.— (3) Offences re publication.
A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Between:
Highland Shores Children's Aid Society Applicant
— AND —
K.R., S.M., B.R. Respondents
Before: Justice Penny J. Jones
Heard on: March 26, 28; April 8, 9, 10; May 1, 2, 3, 2019
Reasons for Judgment released on: July 26, 2019
Counsel
Jane Howlett — counsel for the applicant society
William Watson — counsel for the respondents K.R and B.R.
Jeff van de Kleut — counsel for the respondent S.M.
C. Roderick Rolston — counsel for the Office of the Children's Lawyer, legal representative for the children
Judgment
Introduction
1This is my judgment on a protection application brought by the Highland Shores Children's Aid Society (the Society) in relation to the children D. born […], 2007 and A., born […], 2009. My judgment relates only to the issue of disposition as the parties, on May 18, 2017, consented to a finding that the children are in need of protection.
Position of the Parties and Orders Sought
2In relation to disposition, the Society seeks an order pursuant to section 102 of the Child, Youth and Family Services Act, 2017 (S.O.2017, Chapter 14, Schedule 1) (the Act) for sole custody to K.R. (the mother) of the children with no access to S.M. (the father). They also seek an order that any further motions or applications for access can only be made by the father with service on the Society, the Children's Lawyer and with leave of the court, and that any such request for access be accompanied by proof that the father has attended therapy and has made significant gains addressing his mental health issues.
3The mother seeks an order for sole custody of the children, and a restraining order, restraining the father from directly or indirectly contacting or communicating with the mother or the children in her custody and from coming within 200 metres of her home, her place of employment, the place of worship and the place of vacation of the mother or any child in the lawful custody of the mother. She also seeks costs payable by the father to the mother on a substantial indemnity basis, and any other relief as the court shall deem just.
4B.R., who is the husband of the mother and the step-father of the children, currently lives with the mother and the children. He did not present a separate plan, nor did he attend court. The mother sought an order for custody and included her husband in the plan she presented to the court.
5The father seeks to reinstate his access with the children, with a view to restoring his joint custodial status as set out in the parties' 2010 separation agreement. He is opposed to the court imposing a restraining order or an order for costs. If the court were to make a no access order, he seeks an order for a goodbye visit.
6The Children's Lawyer supports an order for custody to the mother and adopts the proposal of the Society relating to the restrictions to be placed on any future motion or application for access that the father may bring but takes no position on the mother's request for a restraining order.
Background and Findings of Fact
7The mother and father were married on June 24, 2006. They are the biological parents of D. and A. They separated on or about August 1, 2009 and entered into a separation agreement on April 21, 2010 which provided that the parties would share joint custody with primary residence to the mother.
8Both parties testified that at first their relationship was a happy one. However, by the time the mother was pregnant with A., the relationship had deteriorated to the point that both parties wanted to separate.
9The mother testified that when she was pregnant with A., the father became both more distant and more agitated in his behavior towards her. She indicated that he began to put her down emotionally and mentally and they began to spend less time together.
10The father agreed that it was around the time the mother was pregnant with A. that the relationship began to "go south". He attributed this to the fact that they both began to "disrespect" the other, and he testified that his needs were not being met. For example, he told the court that he would come home after a 14-hour shift and find that the mother had not cooked him dinner; he said that she would ignore him and talk on the phone for hours.
11When A. was just months old, the mother, with the father's approval, moved out of the matrimonial home with the children. The father began to exercise weekend access with D. immediately after separation but was content to wait until A. was 18 months old before exercising overnight access with her.
12Other than the fact that the mother was unfailingly late for every drop off of the children for access, the father told the court that he felt the co-parenting arrangement worked fairly well for a number of years. The father testified that he became increasingly irritated with the mother because of her failure to timely deliver the children as he viewed this fact as a sign of disrespect by her of his role as a father.
13The mother did not have such a positive view of the workings of the joint parenting arrangement. The mother testified that access, even before the Society intervened, was difficult for her and, when her former husband was upset or angry, he would lose control and yell and call her vulgar names such as "cunt", "bitch" and "ho" and would make comments such as "he wished she were dead", often in front of the children.
14The mother told the court that she became concerned about the father's mental health because he would often start off very "pleasant" only to become "very irritable and agitated" if things didn't go his way. He would make accusations, make threats, and then he would apologize for his actions and promise not to do it again, only to proceed to do them again. She testified that she was afraid of her former husband then and she is afraid of him now.
15In 2011 the father went to Homewood Health Centre (Homewood) as an in-patient for treatment for his cannabis use disorder and his emotional dysregulation. While at Homewood he was diagnosed for the first time as suffering from complex chronic post-traumatic stress disorder (arising from sexual abuse as an adolescent and a difficult upbringing in his early years) and cannabis use disorder. In all, the father attended Homewood on three occasions from 2011 to 2013. In 2011 he was placed on long term disability by his employer, and since that time, has not returned to work.
16The Society became involved with this family for the first time in 2011 in the following circumstances as described by the father. The father testified that his hours of work had been changed in 2011, and he wanted to confirm with the mother an alternate pick-up time for access. He said that he tried unsuccessfully to call the mother and set up a new time. Apparently, she refused to take his calls. Frustrated and angry at being ignored and feeling "disrespected", he decided to personally confront the mother and settle this issue in person. Knowing the mother's routine, he located the mother's car while she was out running errands and slipped into the back seat of her car. When the mother got into the driver's seat of the car, he leaned forward, placed his hands on the mother's shoulders and said, "Do you see what it is like to be ignored, Bitch." The father acknowledged that the mother was very upset and shocked and was so badly shaken that she had difficulty inserting the key into the ignition. Words were exchanged, and the father got out of the car; the mother drove to her school and told her coworkers what had happened, and they called the police. No charges were laid as a result of this incident, although the school took the situation seriously and locked down the school until the police located and spoke to the father.
17Shortly after this incident, another one occurred at an access transfer. On this occasion, the father was charged with two counts of assault on his former wife. According to the mother, the father became frustrated when the mother took too long saying goodbye to the children at the access drop off and he shut the car door on the mother, striking the mother. He also punched her in the foot (the father acknowledges striking the mother with the car door but denies punching the mother in her foot.) The police charged the father with two counts of assault and contacted the Society because the children were present at the time of the assaults. The Society commenced a protection application and assisted the parties in arranging supervised access until the charges were resolved.
18The evidence was confusing as to how these charges were resolved. However, it seems that the father completed a diversion program focusing on domestic assault (the P.A.R.S. program) and the charges were withdrawn after the father accepted responsibility and entered into a twelve-month recognizance to keep the peace. After the father resolved his charges, regular, unsupervised access resumed.
19In 2016, the police once again contacted the Society expressing concerns about the safety of the mother and the welfare of the children. This referral related to the following incident. On July 1, 2016, the parents were transferring the children from one car to another after an access visit. The father indicated that he and the mother were arguing about the children going to a religious-based camp. He acknowledged that their voices were raised and there was yelling and swearing. The father said that he was putting A. into the car seat in the mother's car, when the mother "smashed" on the brakes while the rear passenger car door was still open, and the car door struck him on his wrist as the car started away. He acknowledged that he had delayed leaving and justified his actions by saying that "he was concerned that the mother would not allow him to see the children ever again."
20He testified that he decided to contact the police and have the mother charged with assault as he felt that the circumstances in this instance mirrored the events that gave rise to his charges in 2011. When the father finally found an officer to whom he might report the incident, that officer told him that he was with the water police, and as such, was not able to take this report. Frustrated, the father said to the officer, "If I killed the Bitch and put her body in your body of water, would you be working the case then." (the father acknowledged using these words when he reported this incident to his psychiatrist.) Hearing these words, the officer became concerned for the welfare of the mother as he reported these words to his superiors who recommended to the mother that she and the children not return home that evening. The mother and the children spent the night at a hotel and the Society was contacted. No charges were laid against the mother.
21The Society spoke to the parents about this incident. Initially, the Society provided services to the family on a voluntary basis. A major area of conflict related to the parties' access schedule, and the Society became an intermediary hoping to settle this issue and defuse the conflict. Far from settling the issues, the situation worsened. The father saw the Society as taking sides and supporting the mother and he felt his role as a father was being diminished and disrespected by the Society. He transferred his anger from the mother alone, to the Society and the mother and began to blame the Society for limiting his access. As well, he began to involve the children in his campaign to reinstate the access he felt he was being denied. D. reported that the father told him that if he loved him he would support his claim for expanded access.
22This situation continued to escalate. In late November 2016, he told the children and the mother that if he did not get his Mondays and Tuesdays access time reinstated, he would not allow the children to see their mother at Christmas. The father admitted that he had involved D. in this adult scheduling issue and regretted this as he recognized that doing so had upset the child.
23The children were upset about the issue of Christmas access. D. told Society worker Megan Fabian on December 1, 2016, "if mommy doesn't change he'll take them away at Christmas". According to Ms. Fabian, D. was crying when he made this statement, and he said that he wanted to see his mother on Christmas. D. also said that "he did not want to go back to his father's home because his father would yell at him and make him feel bad." He also said that "his father would ask him all kinds of questions and would not leave him alone about it." On this occasion, D. went on to say that it would be easier to just live with his mother, and there would be no questions and they would not have to worry about what his father would do. A. also expressed upset at this time and agreed with her brother. (All counsel agreed that this statement by D. could be considered by me for the truth of the facts asserted.)
24At this point, given the upset of the children and the concern that the father was involving the children in adult matters, the Society began a protection application. From that time forward to the date of the trial, the children have refused to resume regular access with their father.
25The father was very frustrated when he was advised that the children were refusing to see him, and he blamed the mother and the Society for alienating the children. On a regular basis he would phone the Society and would alternate between discussing the issues rationally and swearing at the Society workers and telling them to "do their fucking jobs."
26In an attempt to restart access, the Society involved Paul Robichaud, a registered member of the Canadian College of Professional Counselors and Psychotherapists, to oversee a reintroduction to access. Mr. Robichaud testified that within three sessions the father and the children were enjoying access. He felt that he had made substantial progress in resolving the access impasse. He made recommendations including:
The father engages in therapy to address his PTSD and self-regulation issues.
The mother ensures that the children not be present when discussing the father.
The children would benefit from counselling to address their perceived responsibility in the conflictual co-parenting relationship.
Both parents attend a parenting after separation course to develop strategies, so the children would not be impacted by their conflict.
The children attend supervised access once every two weeks with father.
In the alternating week, the children have video access via SKYPE with the father to discuss how their week went.
Access to be reviewed in two months.
27Unfortunately, the supervised access as recommended by Mr. Robichaud never occurred. The children refused to participate, notwithstanding the urgings of the mother and the Society to do so. The mother testified that the children were very upset around the time Mr. Robichaud was working to reintegrate the father into the children's lives. She reported to the court that they were tearful and made it very clear that they did not want to have any access to their father. Ms. Fabian, the worker assigned to support the children, testified that she would meet with the children on a regular basis to revisit the question of access, and the children were consistent, over time, in their wish not to have access with their father.
28Further efforts were made by the parties and the court to restart access. A second attempt to involve Mr. Robichaud failed when he decided to withdraw because he felt that the mother was not supportive of his efforts as she expressed the opinion that he was too aligned with the father and was not independent.
29In a last-ditch effort to restart access, the parties agreed to eight court-ordered supervised access visits at the Society offices in early 2019. Only four visits actually took place before the Society discontinued access.
30The four supervised access visits were not successful.
The Supervised Access Visits
First Visit
31At the first visit the children and the father were in separate rooms and the children were crying and upset and were refusing to join their father. Approximately 20 minutes before the end of the scheduled visit, D., who had been voicing a desire to tell his father he did not want to see him again, entered the adjoining hallway and stood at the doorway of the room in which his father was waiting. Ms. Fabian admitted that she had urged D. to tell his father how he was feeling. (She told the court that she believed that this might be a way for the father and son to begin a conversation. In hindsight, she agreed this was not a good idea.)
32The father overheard Ms. Fabian's words, and told the court that he was shocked and upset because he had not seen his children for over 16 months and had been told that these visits were designed to reinstate access, if possible. After asking a few questions, the father confronted D. and asked him if there was something he wanted to tell him. D. told him in a quiet voice, "me and A. don't want you in our lives." D. then left the room.
33The father raised his voice and said that the children had been coached. The father said this in a loud voice and his words were overheard by D. D. asked that the door be closed saying he could still hear his father, and he put his fingers in his ears to block out the sound. A. never entered the access room on this occasion. Both children cried while they waited for their mother to pick them up.
Second Visit
34The second visit occurred one week later. On this occasion, the children were not crying, but were clearly stating that they did not want to go see their father. Near the end of the scheduled visit time, after unsuccessful urgings by Ms. Fabian that the children join their father, Ms. Fabian asked the children whether they wanted her to bring the father into their room. At this point, D. went to the door of the room in which his father waited, and A. put herself in a position where her father could see she was present, and the father said that he was proud of them for coming that day. The children then walked away and there was no further interaction between the father and the children.
Third Visit
35The third visit occurred the next week. The Society discussed with the father a new strategy to make the children feel comfortable in his presence. The Society suggested that he and the children share space for the next visit, with no direct interaction between the father and the children and see how that develops. The father agreed to this, and the children were advised of this new plan.
36On this occasion, the Society decided to bring the father into the room in which the children were located as the children again refused to go to the room where the father was waiting. A. was crying and turned her chair towards the corner of the room. D. got up and sat in the chair closest to the door at the far end of the room. He pulled his hat down and put his hood over his face and turned his chair towards the corner of the room. Notwithstanding instructions to the father that he only share space and not communicate directly with the children, he continued to try to engage the children in conversation. At one point, D. asked to go to the bathroom, and when he finished, he began to cry and told Ms. Fabian that he did not want to go back into the room. Asked why he felt this way, D. responded that his father was starting conversations even though he had been told that this would not happen. D. was told by Ms. Fabian that she saw nothing wrong with how his father was behaving and urged D. to go back into the room.
37Ms. Fabian asked D. if he would like to listen to music and D. asked for headphones. When D. returned to the room, he sat in the chair closest to the door furthest from his father. Ms. Fabian reminded the father that he should not initiate direct communication with his son. D. pulled his hat over his face and pulled his hood over his head. When Ms. Fabian told the father that she was going to get headphones for D., so he might listen to music, the father objected as it had previously been agreed between the father and another worker that there would be no headphones.
38Hearing this conversation, D. began to cry and to kick the wall -- lightly in the opinion of Ms. Fabian, and strongly in the opinion of the father. Ms. Fabian jokingly told D. not to hurt himself (she told the court that he was not kicking the wall so hard that he could hurt himself and made this comment to break the tension). D. replied that he would not hurt himself. Ms. Fabian testified that the father intervened and told D., in a harsh tone of voice, that if he did not stop, he would have to "sit and face him for the entire next visit." D. then leaned his head against the wall and started to cry. He asked if he could leave. Ms. Fabian said yes, and the father said no. The father told D. that he could only leave "when the timer on my phone goes off, the visit is done." At this point, a Society worker stopped the visit and the father began yelling and swearing.
Fourth Visit
39The fourth and final visit occurred one week later. The children sat in opposite corners of the room furthest from the door through which their father would be expected to enter. They had their coats on, and they sat with their backs to that door. D. had pulled his hood over his face, and A. had positioned herself so that her face was hidden in a portable lectern where she was playing with modeling clay. The father entered. Upon arrival, the father thanked the children for coming; neither child responded.
40The father began to ask questions of the children; neither child responded. At this point, the father commented that this "was retarded" (referring to the prohibition against speaking directly to the children.)
41The father continued to attempt to engage the children in conversation. When the father noticed what appeared to him to be a snowboard tag or ski tag on his son's jacket, he asked D. if he had been skiing. D. shook his head, and Ms. Fabian reminded the father that he was not to be asking the children questions directly, and that this visit was all about sharing space. As his tone was, in her opinion, beginning to reflect his frustration with the process, she reminded him to change his tone as he was upsetting the children. Unable to control himself, according to Ms. Fabian, he said, "fuck you Megan" in a loud voice and gestured with his middle finger. The father testified he said, in a whisper, "fuck off Megan" and pointed to the door with his index finger. Society worker Ms. Kennedy was also in the room, and she testified that the father said "fuck off Megan" in a voice everyone in the room could hear, and that he gestured with his middle finger.
42After this incident, the Society terminated the visit, and the children were moved to another room when the father refused to leave the access room. As the children were being removed from the room, the father began yelling and swearing so loudly that everyone in the office, including the children, could hear his angry tone and his abusive words. He became angrier and more out of control and began calling Ms. Fabian a "fucking cunt". Concerned about how this behavior by the father was affecting operation of the office, the father was asked to leave the building.
43The Society reviewed the situation and decided to discontinue the court ordered access and return the matter to court for further directions. They made this decision citing an inability, because of the father's out of control behavior, to provide the children with emotionally safe access.
44The court set the matter for an expedited trial. No further access occurred after this attempt failed. The children have maintained their position that they do not wish to exercise access to their father at this time.
Father's Mental Health Status
45The father testified that he has been diagnosed, and is receiving treatment, for a post-traumatic stress disorder. He told the court that he had a difficult up-bringing and, as a young teenager, he was sexually abused on multiple occasions, over a considerable period of time, by a family friend. He attributed his inability to regulate his emotions to his PTSD.
46He testified how his former wife and Society workers would push his buttons when they showed him a lack of respect and how their behavior would act as triggers to his emotional dysregulation.
47He acknowledged that he has sworn at his former wife in the presence of his children, and that he has sworn and yelled at Society workers when he would lose control of his emotions. The court heard a loud, lengthy, abusive telephone message in which the father called Ms. Fabian a "cunt" because she was "not doing her fucking job" Seemingly without shame, he acknowledged that "he would not change how he acted, and he would bring them (Society workers) flowers and call them cunts as he left the building."
48Although he said that he acknowledged that he had made mistakes in the past, he was unable to say how he would be able to avoid making the same mistakes in the future, other than to say that he would not repeat those mistakes in the future. Almost in the same breath, he would justify his verbally abusive behavior by saying that when another person showed him no respect, that person deserved no respect from him. I had the opportunity of observing him in the witness stand, and even while testifying, he would say contradictory things, lose control of his emotions, and would cry, get angry then ask for forgiveness.
Dr. Kayhan Ghatavi
49In order to better understand the father's diagnosis and prognosis, his treating psychiatrist, Dr. Kayhan Ghatavi was called to testify. He told the court that he has worked with the father for approximately five years, and over that period of time, he has seen the father approximately every three months. It was his diagnosis that the father suffers from three conditions, namely:
Complex, chronic, post-traumatic stress disorder,
Somatic symptom disorder,
Cannabis use disorder.
50The complex, chronic post-traumatic stress disorder was the primary diagnosis. The doctor indicated that such a condition arises when an individual has been exposed to "very disturbing, horrific, traumatic experiences in their childhood" and, that such experiences can affect the individual in a number of ways throughout their life. He described the effects of such experiences as giving rise to feeling of "helplessness, loss of control, disintegration, shame, all these strong experiences," and that it can continue to haunt them throughout their lives with "recurrent intrusions, intrusive memories……..like a flashback type of thing…being in a hyper-arousal state" and that they would be easily startled with panic-like symptoms.
51Dr. Ghatavi also indicated that the trauma is often so potent that it lands in the body as chronic pain (somatic symptom disorder). He testified that to deal with this pain, the father had been prescribed cannabis. Dr. Ghatavi testified that he was concerned that the use of cannabis, although perhaps effective in dealing with his physical pain, might interfere with the father's ability to recover from his PTSD. He agreed that a diagnosis of cannabis use disorder was simply another way of saying that the father suffered from an addiction to cannabis.
52He noted that the father, like many trauma survivors, experiences emotional dysregulation and an inability to control his impulses in certain circumstances. He felt that the father's loss of the children has sparked intense anger at the system and authority figures, and that his recent experience of powerlessness, helplessness and loss of control in this situation, harkens back to his childhood sexual abuse where he experienced feelings of intense anger, loss of control, helplessness and powerlessness.
53Dr. Ghatavi spoke to treatment and the father's prognosis for recovery.
54As to treatment, he recommended the father continue with anti-depressant medication. He also recommended that the father continue with skills-based treatment such as anger management programs and embark on a program of neurofeedback approved for payment by his long-term disability provider. He also suggested the father might benefit from family therapy as he was concerned about the father's experience as a child with harsh and rigid parenting might be affecting his experience as a parent. He did not recommend that the father engage in individual psychotherapy until it was clear how the case would be resolved.
55As to prognosis, Dr. Ghatavi felt the father's prognosis for recovery was fair to good. He testified that he originally would have said the chance of recovery was fair, but that since the father had developed a supportive network of friends in Nova Scotia and was speaking positively of his future there, the doctor felt the father's prognosis for recovery had improved.
56Dr. Ghatavi testified that the father has recently made considerable progress in controlling his emotions. He recommended that the father have access to his children, although he agreed that he had never seen the father with the children and was speaking from his experience with the father alone. He noted that the father had taken anger management courses and was taking medication that should help him in dealing with his emotional dysregulation and poor impulse control. When confronted with evidence of his patient's inability to control his emotions (he listened to a tape of a voice message left on the Society's telephone system, wherein the father was yelling and calling the worker's "fucking cunts" who should do their job, and was advised that such a recording was not unusual and had been made after the father had completed his anger management course), the doctor said, "I know he has problems with emotional regulation…it's concerning, it's compatible with the difficulties with emotional regulation, not to condone it in any way. It's egregious" and the doctor agreed that more work needed to be done.
57When asked if he viewed the father as a danger to his former wife if the Society were to withdraw from the situation, he said he did not. He agreed that the Society had become a focus of the father's anger. He was asked if the father might transfer this anger to the mother if the Society were to terminate their involvement in this case. He hesitated, then he said that it was his role to reassess the situation and to report any concerns in this regard to the appropriate authorities and he would be monitoring the situation to assess ongoing risk.
58If access were granted, the doctor recommended that access transfers be at a neutral, supervised location. If no access were granted, it was his opinion that the father would leave the province and rebuild his life in Nova Scotia.
Issues
59The main issue in this case is whether access to the father is in the best interests of these children. A determination on the access issue will inform what disposition order under section 101 or 102 of the Act, is the least intrusive order consistent with the children's best interests.
60Mother's counsel is seeking a restraining order and costs.
The Law
61The Society, supported by the mother and the Children's Lawyer, seek an order under section 102 of the Act granting the mother sole custody of the children, no access to the father, with an order that any further motions or applications for access brought by the father can only be made with service on the Society, the Children's Lawyer and with leave of the court, and that any such request for access be accompanied by proof that the father has attended therapy and has made significant gains addressing his mental health issues. Mother is also seeking a restraining order.
62The father seeks an order under section 104 of the Act for access with a view to reinstating a joint custodial parenting arrangement. The father agrees that the Society should step out of the situation and allow the parents to deal with their custody and access issues under the Children's Law Reform Act, R.S.O. 1990, c. C.12. He is opposed to a restraining order or a costs order being made in these circumstances.
63Section 102(1)-(4) reads as follows:
102(1) Custody Order — Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
(2) Deemed to be order under s. 28 Children's Law Reform Act — An order made under subsection (1) and an access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be made under section 28 of the Children's Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give directions that it may give under section 34 of that Act.
(3) Restraining order — When making an order under subsection (1), the court may, without a separate application, make a restraining order in accordance with section 35 of the Children's Law Reform Act.
(4) Deemed to be final order under s. 35 Children's Law Reform Act — An order under subsection (3) is deemed to be a final order made under section 35 of the Children's Law Reform Act and shall be treated for all purposes as if it had been made under that section.
64Section 104 reads as follows:
104(1) Access order — The court may, in the child's best interests,
when making an order under this part; or
upon an application under subsection (2), make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
65Section 74(3) of the Act sets out those factors a court shall and those factors a court may consider in determining a child's best interests. Section 74(3) reads as follows:
74(3) Best interests of child — Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained,
(b) in the case of a First Nations, Inuk or Metis child, consider the importance in recognition of the uniqueness of First Nations, Inuit and Metis cultural heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child's physical, mental and emotional level of development,
(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child's cultural and linguistic heritage,
(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,
(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
66I accept the proposition that any access order that I make must be made in these children's best interests as seen through the lens of section 74(3) of the Act.
67This case involves children caught in a high conflict separation. The parents consented to a finding that these children are in need of protection because of this domestic conflict and how it was negatively affecting the children. The evidence I heard satisfies me that intervention through a court order is necessary to protect these children in the future, and that an order under Section 101 or 102 should be made in their best interests.
68According to the evidence I accept, the children are doing well in their mother's care, and there would be no basis for making a dispositional order under the Act, absent the domestic conflict between the parents and the access difficulties between the mother, father and children, a conflict exaggerated by the father's mental health difficulties.
69I begin with the proposition that when parents separate, access to the non-custodial parent should generally be ordered as children have a right to maintain their relationship with the other parent through access. See V.S.J. v. L.J.G., 2004 CanLII 17126 (ON SC); Jafari v. Dadar, (1996) N.B.J. 38 (NBQB).
70A parent does not have an absolute right of access. Access should only be ordered where access will benefit the child but should only be refused in extreme circumstances. See I.A. v M.Z., 2016 ONCJ 615 para 36, referring to Worthington v Worthington, 2000 CanLII 22469 (ON SC).
71In making an access order, 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. No. 27.
72However, if access to a parent is harmful to a child, access can be restricted, but that only in extreme circumstances should access be terminated. In most cases, before access is terminated, supervised access should be attempted. See V.S.J. v. L.J.G., supra. Jennings v. Garrett, 2004 CanLII 17126 (ON SC)
73Violence and abusive behavior and continued harassment can form the basis for terminating access. See Abdo v. Abdo, (1993) CanLII 3124 (N.S.C.A.); Jafari v Dadar, supra, Studley v. O'Laughlin, (2000) N.S.J. 210 (N.S.S.C.); M.(B.P.) v. M.(B.L.E.D.), (1992) CanLII 8642 (Ont. C.A.); Stewart v. Bachman, 2003 CanLII 74265 (Ont. C.J.); Maxwell v. Maxwell, [1998] N.B.J. No. 769 (N.B.Q.B.).
74Supervised access is generally a short-term solution although it can continue if access is seen to be in the child's best interests, and unsupervised access is not possible for some reason.
75The children's views and wishes must be considered in making this decision on access, given section 74(3)(a) of the Act. In giving due weight to the children's views and wishes, the court is instructed to consider their level of maturity and whether the court can be satisfied that the children's wishes can be ascertained.
Discussion
76This most recent protection application was begun in December 2016. In April and May 2019, the court heard evidence for eight days on the issue of disposition. I have set out the evidence in some detail earlier in my decision and I do not intend to repeat all that evidence at this stage.
Custody and Access
77In deciding to terminate access, I have considered the following factors relevant in this case:
1. Children's Expressed Wishes
The children have expressed in words and in actions their desire not to have any access to their father at this time. They have had the benefit of counsel through the Office of the Children's Lawyer who has expressed their consistent and clear view that they do not want to see their father.
2. Emotional Harm from Forced Contact
The children have been witnesses to their father's dysregulated emotional outbursts towards themselves, their mother and towards the workers at the Society. The children have expressed their upset at the father placing them in the middle of their parent's dispute. The tears and body language of the children, most graphic during the court ordered access in January and February of 2019, cannot be ignored. I find on the evidence I accept, that forced contact with the father is upsetting and harmful to these children.
3. Father's Mental Health and Emotional Control
The father suffers from complex, chronic post-traumatic stress disorder that is not well controlled. When challenged by authority and/or when feeling disrespected, the father loses emotional control and becomes loud, abusive, vulgar and profane in his language. He has called his former wife and workers from the Society such names as bitch, ho, cunt. His lack of control renders it extremely difficult, if not impossible, to work cooperatively with the Society and his former wife around the issue of access to his children.
4. Risk to the Mother
The father has expressed intense anger towards the mother and the Society workers. He has assaulted the mother in the past. He has made comments to the police such as, "if I had killed the Bitch and placed her body in your body of water, would you be working the case then?" and seemed not to understand why others, including the mother, might feel threatened by such comments. I accept that the mother is fearful of the father and given how the father has lost control of his emotions in the past and actually assaulted the mother, I find that the mother has reasonable grounds to fear for her safety in the future.
5. Failure of Supervised Access
The children were found in need of protection because of domestic conflict between their parents. Given the refusal of the children to even see their father for two and one-half years, unsupervised access is not possible, nor is a good bye visit possible at this time. Supervised access has been tried and has failed. If I were to order supervised access to continue there is no reason to believe anything would be different. Terminating access at this time is the only way to address the risk of emotional harm to these children caused by forced contact with the father.
As I have determined that access shall terminate, and I find that the children are doing well in their mother's care, a sole custody order in favour of the mother is the least intrusive order available to me under section 102 of the Act. (If I were inclined to grant access, I would not be doing so without a continuing supervision order as the mother would require assistance in managing access.)
78In the circumstances of this case, there will be an order for no access to the father. I recognize that the father loves his children unconditionally, and through no fault of the father, he suffers from PTSD. However, I view this as an extreme case with facts that justify a no access order. In my opinion, a no access order is the only way to address the risk of emotional harm to these children, and to protect the mother, if the Society were allowed to withdraw from access supervisory role.
79I will also be making an order that any further motions or applications for access can only be made by the father with service on the Society, the Children's Lawyer and with leave of the court, and that any such request for access be accompanied with proof that the father has attended therapy and has made significant gains addressing his mental health issues.
Restraining Order
80The mother seeks a restraining order. It is her position that she has reasonable grounds to fear for her own safety and the safety of her children, especially as the Society is seeking to terminate the supervision order and is requesting the court make an order granting the mother sole custody with no access to the father. She is concerned that if the Society is no longer exerting authority over the father and controlling his access to the children, it would be her responsibility to limit and control access. She is concerned that her former husband will redirect his anger from the Society to her. In the circumstances, she requests the protection of a restraining order going forward.
81The father takes the position that a restraining order is not necessary as he poses no risk to the mother and children.
82He testified that he has abided by court orders in the past and would do so in the future. For example, he told the court that he has never called the mother since he was told not to do so, and he has never attended at the mother's home or the children's school or the children's sporting events even though he was aware of the mother's home address and the address of the children's school. As well, he testified that he has never gone to the Society's office unannounced once he was told to call before coming. He said that if he were denied access to the children, it was his plan to move to Nova Scotia to live in his home on the coast and build a new life there.
83However, at other points in his evidence, he told the court that he would be leaving for Nova Scotia because if he did not "get his kids…. I can't be this close to my children and not have a restraining order." At another point in the evidence he said that if he did not get his kids, he would "go to war" and that his kids were "his life."
84It is unclear to me what the father will do if he is denied any access to his children; I am not sure the father knows what he will do. While testifying he expressed inconsistent and contradictory intentions. Clearly the issue of access to his children is very important to him and he is very emotional and angry about how he has been treated and how he has been wrongly (in his opinion) denied access. The father has said many things and some of his comments could be interpreted as threats by the mother. For example, he expressed frustration with the access situation and said he was ready to move on, but then made a comment about how other fathers, in similar situations, would have done the "crazy thing" and "would've killed them. They probably would've killed her." He admitted telling the police in 2016, when frustrated with their refusal to take a report, "If I killed the Bitch (referring to the mother) and put her body in your body of water, would you take the case then."
85The father will be upset with my decision to terminate access and he will be confused and angry. A restraining order at this time will assist everyone in regulating the situation going forward.
86Accordingly, in the interest of maintaining the peace and protecting the safety of everyone involved, I will be making a restraining order in the form requested by mother's counsel, namely, that the father be restrained from directly or indirectly contacting or communicating with the mother or the children in her lawful custody and from coming within 200 metres of her home, her place of employment, the place of worship and the place of vacation of the mother or any child in the lawful custody of the mother.
Costs
87The mother is seeking an order that the father pay her costs on a substantial indemnity basis.
88In my opinion, this is not a case for costs. Orders for costs in protection applications are the exception and are especially unusual against a parent who finds himself or herself in court brought there by a state agency against his or her will. As a general rule, parents should not be discouraged from putting forth their case for return of their children or for access to their children for fear that they would be ordered to pay costs if they are unsuccessful. The fact that one parent is arguing for costs against the other parent does not change my view that a cost order is not appropriate in this case.
89The father in this case suffers from a mental health condition that has affected his behaviour and, in many ways, has dictated the result of this litigation. His mental health condition has also resulted in his being on long term disability.
Closing Remarks
90This case needed to be tried. The father needed to have his day in court.
91The father also needs to hear the court's ruling if there is to be any chance that this family will be able to move forward with their lives.
92I would like to thank the lawyers for their able assistance in this very difficult case.
Released: July 26, 2019
Signed: Justice P.J. Jones