Court File and Parties
Ontario Court of Justice
Between:
I.A. (Applicant)
Katherine Macdonald, for the Applicant
- and -
M.Z. (Respondent)
Lauren Israel, for the Respondent
Heard: October 21-23, 2019
Before: Justice S.B. Sherr
Reasons for Decision
Part One - Introduction
1This trial was about the applicant's (the father's) motion to change the court's final order dated October 11, 2016 (the existing order). The existing order provides that the father shall have no access to the parties' five-year-old daughter (the child). It also restrains the father from having any contact with the respondent (the mother) or the child.
2The father seeks graduated access to the child, starting with supervised access at the Toronto Supervised Access Centre (TSAC) and moving towards unsupervised access.
3The mother asks that the father's motion to change be dismissed.
4At the mother's request, a focused hearing was held on June 13, 2019 to determine the threshold issue of whether a material change in circumstances affecting the best interests of the child had taken place.
5For oral reasons given on June 13, 2019, the court found that a material change of circumstances affecting the best interests of the child had taken place. The parties then structured a focused hearing to determine what access order, if any, was in the child's best interests. They agreed that evidence for the hearing on June 13, 2019 would be considered by the court in determining the best interests of the child.
6The parties filed affidavits for their direct evidence. They were both cross-examined. The court heard oral evidence from the father's sister, his girlfriend and his psychotherapist. The court also heard oral evidence from two of the mother's counselors and the mother's sister.
7The issue for this court to determine is whether it is in the child's best interests to have access with the father, and if so, on what terms and conditions.
8Although not pleaded, at the outset of the trial the mother consented to an oral amendment to the father's motion to change, permitting him to seek a change to the restraining order that will permit him to exercise access with the child in accordance with any court order. The restraining order has already been changed once, on consent, to permit the father to communicate with the mother through counsel regarding the family court proceedings and to attend at court appearances at the same time as her.
Part Two – Background Facts
9The father is 32 years old.
10The mother is 35 years old. She lives with the child.
11The parties began their relationship in 2013 and ended it in December of 2014.
12The parties had the one child together. They have no other children.
13The father issued the original application on January 21, 2015, seeking access to the child.
14On March 6, 2015, the court made a temporary without prejudice order that the father have supervised access to the child at the TSAC.
15The access did not go well. The child was upset and crying at visits and the father stopped attending.
16The parties reconciled in the summer of 2015.
17The parties separated again on September 5, 2015. The child remained with the mother.
18The father was charged with multiple criminal offences against the mother. He was convicted of Threaten Bodily Harm, Mischief, Breach of Recognizance and Breach of Bail Conditions on December 22, 2015.
19The father has not seen the child since August 13, 2015.
20The first trial took place on October 5, 2016 and the existing order was made on October 11, 2016. The mother has final custody of the child and child support was ordered. The no-access and restraining orders were also made.
21The father issued his motion to change the existing order on August 7, 2018.
Part Three – Findings at the First Trial
22The court relies on the findings of fact that were made in the first trial decision dated October 11, 2016 (the first trial decision). See: I.A. v. M.Z., 2016 ONCJ 420.
23In brief, the court found that:
a) The father had been extremely abusive to the mother, physically, emotionally and psychologically. Details of this abuse were set out in paragraph 54 of the first trial decision.
b) This abuse had taken place in front of the child.
c) The father was controlling. He would frequently threaten the mother. He isolated her from her family and friends.
d) The father was quick to be enraged.
e) The father's behaviour was exacerbated by alcohol abuse.
f) The father had considerable involvement with the criminal justice system. He frequently breached court orders and had become ungovernable. The court had little confidence that he would follow the rules of the TSAC if access was ordered.
g) The father stalked the mother.
h) The father had maliciously called the Catholic Children's Aid Society about the mother and made false allegations about her. This was an attempt to intimidate and control her.
i) The father was not a reliable or credible witness.
j) The father minimized his actions and was quick to blame others for his behaviour. His lack of insight made him a poor candidate to change.
k) The mother lived in constant fear of the father. She had both an objective and subjective basis for this fear.
l) The father was a stranger to the child.
m) The child was thriving in the mother's care.
n) Any access order would risk destabilizing the mother and the child. This was not in the child's best interests.
24The court found that the benefits of starting access at that time were outweighed by the detriments to the child. It was an exceptional case where a no-access order was in the child's best interests.
25The court wrote the following at paragraphs 88 to 91 of the first trial decision:
[88] This does not mean that the father should never have access to the child. It is the court's hope that the father can 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.
[89] The court notes that the father expressed a strong desire to have a relationship with the child and improve his conduct. At this stage though, he has to back up his words with actions.
[90] The court has asked the father in the past to demonstrate constructive change. He has not done this yet. Now the court will put the onus on him to demonstrate that he has made positive changes 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) Have no contact with the mother for a sustained period of time.
b) Attend for intensive counseling to address his behaviour. The counseling needs to address issues of domestic violence and possibly his own trauma.
c) Demonstrate that he can understand the impact of his behaviour on the mother and the child.
d) Demonstrate that he has learned and is applying healthier methods to deal with stress and frustration.
e) Demonstrate an ability to accept responsibility for his actions and not externalize blame onto others.
f) Take a parenting course that also addresses the impact of conflict and violence on children. Such programs are available through CCAS.
g) Demonstrate that he can refrain from criminal behaviour.
h) Show responsibility by paying child support.
i) Show that he is taking constructive steps with his life, by either working, upgrading his education or taking vocational retraining.
[91] If the father is able to take these steps over the next year, the court will consider this 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 access order.
Part Four – Material Change in Circumstances
26The mother asked the court to dismiss the father's motion to change on the basis that he had not established a material change in circumstances affecting or likely to affect the best interests of the child – she submitted that the father had not met the expectations set out for him in paragraph 90 of the first trial decision.
27A focused trial was held on this issue on June 13, 2019. Both parties testified and were cross-examined.
28For oral reasons given on June 13, 2019, the court found that the father had sufficiently complied with the roadmap set out in paragraph 90 of the first trial decision to establish a material change in circumstances affecting or likely to affect the best interests of the child and that it should continue with an assessment as to what access, if any, is in the best interests of the child. The court commented that the expectation in the first trial decision was for the father to make reasonable progress – the standard wasn't perfection.
29The court made this determination based on the following findings of fact:
a) The father had stayed away from the mother and the child since the existing court order. That was not the case prior to the first trial.
b) The father had not engaged in criminal behaviour since the existing court order was made. He had had significant criminal court involvement with respect to the mother prior to the first trial.
c) The father had been compliant with court orders since the existing court order. That wasn't the case prior to the first trial.
d) The father had taken some steps to address his issues, albeit very late. In particular, he had participated in psychotherapy, starting in February 2019. His willingness to do this was a significant change from prior to the first trial.
e) The father was in compliance with his child support obligations (although he would fall behind and then catch up). This was far different than prior to the first trial. It demonstrated responsibility.
f) The evidence indicated that the father was no longer abusing alcohol. This was a material change in circumstances as the court previously found that his alcohol abuse had fueled his abusive behaviour.
g) The evidence indicated that there was more stability in the father's life. Prior to the first trial, the father's life had been very unstable. Evidence of this stability included:
i) Stable employment – the father is managing over 15 employees at the family business.
ii) He has been in a stable relationship with his new partner for over two years.
iii) He now has the support of his family.
h) There had been some shift in the father's attitude towards the mother. At the first trial, he took little responsibility for his actions and blamed the mother. Now, however, he showed some recognition that his behaviour had been inappropriate and abusive. He expressed regret for that behaviour and apologized to the mother.
i) The father was sincere in his desire to have a positive relationship with the child and hoped that the mother would eventually no longer fear him.
30However, the court also expressed concerns about the father in its oral decision on June 13, 2019, including:
a) Between the time of the existing order and the issuance of his motion to change, he did not engage in intensive counseling. This was not compliant with the court's expectation.
b) He had only attended for counseling after the mother pointed out, in her response to motion to change, that he hadn't done this. Further, only six sessions with his therapist had taken place – this was insufficient to deal with his own issues of trauma and the trauma he had caused the mother.
c) He demonstrated a limited understanding of why intensive counseling was needed and provided a plethora of excuses for not starting it. The reality was that he didn't view it as a priority.
d) He made no acknowledgement of the physical violence he had inflicted on the mother (he admitted to only yelling and screaming at her) and minimized his behaviour by describing his actions as mistakes. He said that he felt it was unreasonable for the mother to fear him. He lacked insight into the impact of his behaviour on the mother.
e) The information he provided about his counseling was sparse.
f) He had only attended four of twenty parenting sessions. There was no evidence that these parenting sessions addressed domestic violence. The father offered flimsy excuses for not attending these sessions.
31The court stressed in its oral decision that just because it was moving to a best interests analysis it did not mean that access would necessarily be in the child's best interests. The court indicated that it would need to hear much more evidence to evaluate this, such as:
a) Evidence about the degree of insight the father has obtained into his behaviour to ensure that the mother and child are safe if access is ordered.
b) Evidence from the father's psychotherapist, including whether the father's trauma has been addressed, whether domestic violence has been addressed and the gains and insights if any, the father has made.
c) Evidence from the father's partner about the nature of their relationship.
d) More evidence from the mother about her functioning. The court indicated that it would need to balance the advantages of the child having a positive relationship with his father with the risk of destabilizing the mother and the child.
Part Five – Legal Considerations
32Section 29 of the Children's Law Reform Act (the Act) provides that a court shall not vary a custody or access order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
33The Supreme Court of Canada decision in Gordon v. Goertz (1996) 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change custody or access as follows:
a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
34In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court of Canada stated that the change must be substantial, continuing and that "if known at the time, would likely have resulted in a different order." It stated that a court should limit itself to whatever variation is justified by the material change of circumstances.
35Once a material change in circumstances is established, both parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing access arrangements. See: Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.
36Subsection 24 (1) of the Act provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.
37Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ).
38Subsection 24 (3) of the Act provides that a person's past conduct shall be considered only in accordance with subsection 24 (4) of the Act or if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.
39Subsection 24 (4) of the Act provides that in assessing a person's ability to act as a parent, the court shall consider whether that person has at any time committed violence or abuse against the other parent.
40Any 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, supra.
41It 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 CanLII 34 (SCC), [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.
42This court wrote the following at paragraphs 60 and 61 of the first trial decision:
[60] A 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.
[61] It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe.
These statements have also been expressed in B.C. v. M.T., 2019 ONCJ 33 and Burley v. Bradley, 2019 ONCJ 615.
43A 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, 2000 CanLII 22469 (ON SC), 2000 CarswellOnt 4889 (SCJ).
44In V.S.J. v. L.J.G., 2004 CanLII 17126 (ON SC), [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. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, 2001 CanLII 38986 (ON CJ), [2001] O.J. No. 3707.
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. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J.No. 769 (N.B.Q.B.); Abdo v. Abdo 1993 CanLII 3124 (NS C.A.), (1993), 126 N.S.M. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.
Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay 1987 CanLII 147 (AB Q.B.), (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct).
Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk, supra.
Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra.
Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.
Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).
45In T.P. v. K.L.S., 2018 ONCJ 785, Justice Robert Spence wrote the following at paragraphs 198 and 199:
[198] All things being equal, it is always better for a child to have two loving and nurturing parents in her life, rather than the one.
[199] But where one of the parents lacks the ability and willingness to be focused on his child, where he has no insight whatsoever into how his behaviour negatively impacts his child, the child will be better off with just one parent, one parent who is a positive and nurturing influence.
46In 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.
47This 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).
48The 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., 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946 (OCJ).
Part Six – The Child
49The child has thrived in the care of the mother. She was described as a happy child with a good sense of humour. The mother described her as loving and caring, "well-behaved, a good girl". The child enjoys basketball, biking and ballet. She is in Senior Kindergarten and is doing well in school. The child is generally healthy, although she has juvenile arthritis that sometimes causes her pain.
50The father is a stranger to the child. He has had no contact with her since she was a one-year-old. The mother testified that the child has never asked about the father. The mother said that she has spoken to her counselor about how to handle this topic if the child asks about him.
51The child is loved by the maternal family. She has a very close relationship with her maternal grandfather and maternal aunt and uncle.
Part Seven – Review of the Parties' Positions and Supporting Evidence
7.1 The Father
52The father is seeking a graduated access schedule. He suggests that he first have fully supervised access at the TSAC once each week for one month. This would be followed by visits in the community with a third-party supervisor to be agreed upon. These visits would take place twice each week – one mid-week after school and on one weekend day for four hours. These visits would take place for one month. The next stage proposed by the father is to have unsupervised access to take place on one day on alternate weekends for eight hours plus the mid-week visit after school. There would be a third party who would conduct the exchanges.
53The father seeks an order permitting him to send the child cards, letters and gifts while he is on the TSAC waiting list.
54The father believes that he has made meaningful changes in his life and that he can exercise safe and positive access with the child. He testified that he is now aware that the mother was the victim of domestic violence by him, that she was traumatized by his behaviour and is afraid of him. He testified that he would yell and scream at the mother and intimidate her. He apologized in his testimony for his actions and promised that this would not happen again. He said that he hopes that the mother will forgive him.
55The father testified that he has learned techniques in therapy and in parenting classes to manage his anger. He says that he has used these techniques to control his behaviour when he is upset. He says that he is no longer violent or unpredictable and that he has had no new involvement with the criminal justice system.
56The father said that he has learned from his past and has a safe and respectful relationship with his current partner. He also says that he is more responsible. He has improved his relationship with his own family and now manages over 15 employees in his family's auto parts business. He has been paying the court-ordered child support.
57The father's evidence about how he has changed his behaviour and become more responsible was corroborated by his sister and his present partner.
58The father says that he is very motivated to be a good father to the child and is committed to resuming their relationship. He wants the child to know him and his family. He wants to share his faith and cultural background with her (his family is from Afghanistan and he is Muslim).
59The father testified that he has done his best to comply with the roadmap set out by the court in paragraph 90 of the first trial decision. He said that any delays in starting programs were because of his finances or work commitments. He said that he has learned a lot in therapy and would like to continue it. He is also prepared to complete a parenting course.
60The father has attended for 12 sessions of psychotherapy since February 2019 with Wajma Omer, a registered psychotherapist who has done mental health counseling for the past 12 years. She works for East Metro Youth Services but also sees clients, like the father, privately. Ms. Omer testified that she has worked on anger reduction techniques with the father to reduce his reactivity when he is upset. She believes that he has made considerable progress and is much better at recognizing the triggers that upset him. He has taken responsibility, she said, for his domestic violence towards the mother. She said that he is engaged with the therapeutic process and that she has formed a therapeutic alliance with him. She said that she will want to work with him on trauma that the father said he suffered while living in Afghanistan and by being bullied when he first came to Canada. They have not started this process yet.
61The psychotherapist testified that the father is very motivated to better himself, have healthier relationships and build a relationship with the child. She is prepared to continue her work with him.
7.2 The Mother
62The mother asks that the father's motion to change be dismissed.
63Put simply, the mother does not trust the father and does not believe that he has changed. She submits that he has learned the right words to say to convince professionals and the court that he has changed, but his actions show that he is the same person as before – someone who is a danger to her and the child.
64The mother testified that she had been making gains in addressing the emotional damage the father has caused her, but this changed when he started his motion to change. She said that her emotional state has become worse. She deposed that she has flashbacks and nightmares about the father's violence to her and has had difficulty sleeping, eating and concentrating since the court case started. She said that she is constantly vigilant, worried that the father may be following her. She is constantly looking over her shoulder and avoids coming home late at night or leaving her home late. She shuts her blinds as soon as she gets home and has three locks on her door. She said that she receives a lot of hang-ups on telephone calls and suspects it is the father doing this (there is no evidence to support this). She is afraid that the father will take the child and her anxiety is escalated whenever she hears an Amber Alert.
65The mother said that she is trying to protect the child from her anxiety but fears that the child will pick up on it and it will adversely affect her.
66The mother is afraid that if the father is given access, he could physically or emotionally harm the child when he becomes upset with her. She worries that he will follow through on previous promises to tell the child terrible things about her, or get information from the child about her. And she is also worried because she believes that the father lacks the ability to look after the child.
67The mother submits that access will have no benefit for the child and risks undermining the child's stability.
68The mother's sister testified and confirmed that the mother's stress has increased since the court case started. She is worried for the mother's safety based on her past experiences with the father.
69The mother has been seeing two counselors in 2019. She sees Carol Soares, a registered social worker and psychotherapist every three weeks for individual counseling at the Scarborough Women's Center. Ms. Soares is experienced at working with victims of domestic violence. She said that it comprises about 70% of her work. She started seeing the mother in January 2019. Ms. Soares testified that she is working with the mother on how to manage her fear and anxiety. She has seen her for eleven sessions. She described the mother as hypervigilant and said that she is suffering from a heightened sense of fear, anxiety and nightmares. She confirmed that the mother is very afraid of the father and afraid for the child.
70Ms. Soares testified that the mother is very focused on the child and is working very hard to ensure that the child is not adversely impacted by her anxiety and fear.
71Ms. Soares described the mother as very engaged with the therapeutic process. She gives her exercises and techniques to reduce her anxiety. She says that she is providing the mother with tools to improve her resiliency. The mother testified that she has found these strategies to be helpful.
72Ms. Soares described the mother as very engaged with the therapeutic process. She gives her exercises and techniques to reduce her anxiety. She says that she is providing the mother with tools to improve her resiliency. The mother testified that she has found these strategies to be helpful.
73Ms. Soares says that she has also discussed safety planning with the mother in the event that access is ordered.
74The mother has also been seeing Trecia Lamey, a registered social worker with a master's degree in social work, every other week for individual counseling at Tropicana Community Services. Ms. Lamey also estimated that 70% of her clients are victims of domestic violence. Ms. Lamey testified that she is working with the mother on stress management and on how to regulate her emotions. She has also worked with her on safety planning.
75Ms. Lamey also described the mother as hypervigilant and fearful that the father will come after her. The mother is worried about how the father will behave in front of the child and how it might affect the child.
76Ms. Lamey stated that the mother has made progress in counseling. She is more assertive and stronger – the mother agreed with this observation. Ms. Lamey testified that the mother is very engaged with and committed to working with her. The mother, she said, was very receptive to strategies and suggestions offered by her to reduce her stress and anxiety. Ms. Lamey observed that the mother is helped by having the support of family and friends.
77Ms. Lamey said that she tried to work with the mother on forgiving the father, but the mother is not ready to do that.
78Until very recently, Ms. Lamey was unaware that the mother was seeing Ms. Soares. Ms. Lamey said that she was concerned about the mother seeing both her and Ms. Soares at the same time as they may have different approaches and the work of one might negate the work of the other.
79Neither Ms. Soares or Ms. Lamey has met the child.
Part Eight – Analysis of the Evidence
80The evidence showed that the father has made positive changes in his life – not to the extent that he believes he has made, but more than the mother gives him credit for.
81The positive changes that the father has made include the following:
a) He has complied with the court's restraining order to stay away from the mother for three years. Prior to the first trial, he had breached, on more than one occasion, criminal release terms not to contact her. This demonstrates an improvement in his impulse control – the lack of which was a major factor in the first trial decision. The court wrote in the first trial decision that it did not feel that access at the TSAC would be safe for the mother and child because it was not confident that the father would follow the court order or the TSAC's rules – he was ungovernable. The evidence satisfies the court that he would now follow a court order and the TSAC's rules and is governable.
b) The father has also abstained from criminal behaviour for three years. The father was charged with several offences respecting the mother prior to the first trial. This demonstrates an ability to act more responsibly.
c) The father no longer abuses alcohol, which previously exacerbated his violent behaviour.
d) The father has had a stable relationship with his girlfriend for over two years. This was confirmed by her. She did not appear to be intimidated or afraid of him. The mother submitted that the father was also wonderful with her until she had a child with him and she fears that the father will become abusive to his girlfriend if they have a child. Perhaps, but drawing such a conclusion is highly speculative.
e) The father has been able to improve his relationship with his own family. His sister confirmed this and commented on how the father has matured over the past few years. He spends a considerable amount of time with his young nieces and nephew (ages 9, 6 and 2) and has an excellent relationship with them. The improvement in his family relationships has meant that the father now works with his siblings at the family auto parts business.
f) The counseling with Ms. Omer has had value for the father. He was able to describe in some detail the anger and stress management techniques he has learned in therapy. These include diversions such as going to the mosque to pray, going to the gym, walking away when he is upset and deep breathing. These techniques appear to be working for the father as he is far less volatile than he was three years ago. It is good that he has built a positive alliance with Ms. Omer, recognizes the value of the therapy and is willing to continue it.
g) The improvement in his interpersonal relationships shows positive growth by the father in the past three years and gives the court more assurance that he can have a safe and beneficial relationship with the child.
h) The father has been able to maintain stable employment in the family business for over one year and has been given management responsibilities. At the time of the first trial, the father's life was unstable and chaotic and the court wanted to see it become more stable and for him to act more responsibly. The court set out in the first trial decision that it would like to see him either go back to school or maintain employment. He has achieved that expectation.
i) The father has also shown more responsibility by paying the court-ordered child support, although it doesn't escape the court's notice that he will often fall behind and make lump sum payments to catch up just before court dates. He is presently one payment behind.
j) By conducting his life in a more responsible and stable manner, the father has given the court more confidence that he can exercise positive access with the child and that it will benefit her.
82The court considered the following benefits of access to the child:
a) The father appears to be highly motivated to have a constructive relationship with her.
b) She would have the opportunity of knowing and being loved by both of her parents.
c) The father has a large extended family who are anxious to see her and know her. She would get to know her paternal family.
d) She could learn the culture and faith of her paternal family. It is a Muslim family that immigrated from Afghanistan. The mother is from a different culture and faith than the father.
83In paragraph 90 of the first trial decision, the court set out its expectations for the father. He met the expectations set out in paragraph 81 above. However, other expectations were not met or were only partially met, as will be set out in the paragraphs below.
84The court set out an expectation that the father should attend for intensive counseling to address his abusive behaviour. The counseling needed to address issues of domestic violence and possibly his own trauma. The reason for this counseling was that at the first trial, the father showed no appreciation that his behaviour was abusive or understanding of the impact that his behaviour had on the mother and the child. This lack of understanding increased the risk of harm to the mother and the child as it was more likely that he would repeat his abusive behaviour.
85The father delayed in obtaining counseling. He presented poor excuses for this. He claimed that his work obligations prevented him from going; however, this was not true. He only works until noon and his therapist testified that she works on evenings and weekends. He also claimed that finances were an issue for him. This was likely a deterrent, but the father could have afforded the therapy – it just wasn't a priority for him. It was only when the mother raised the issue that he hadn't complied with this important expectation in her response to his motion to change that the father went for counseling. There was also a long gap (between April and August 2, 2019) when no counseling sessions took place.
86While the father has made the gains in therapy as set out in subparagraph 81 (f) above, the counseling has not been intensive. The father has gone for 12 sessions since February 2019 and only nine of the sessions dealt with therapy. One appointment was for intake and two were to discuss this case and issues of confidentiality with Ms. Omer. Ms. Omer testified that intensive therapy would need to take place one to two times each week.
87It also became apparent that while Ms. Omer and the father have spent a lot of time in their sessions on anger and stress management, they have spent little time specifically on the domestic violence issue. Ms. Omer acknowledged that domestic violence perpetrators constitute only 1% of her clientele. It is not surprising then that the father's appreciation of the impact of his domestic violence on the mother and the child is not as far along as the court would have liked.
88The court is also concerned that Ms. Omer had little appreciation of the degree of domestic violence perpetrated by the father against the mother (as set out in paragraph 54 of the first trial decision). The father did not share these details with her, other than saying that he would yell and scream at the mother and intimidate her – similar to his evidence at this trial. However, the father did give Ms. Omer the first trial decision. She testified that she just "skimmed it". It is concerning that Ms. Omer is treating the father without a full appreciation of the level of his past domestic violence. This lack of knowledge might be impairing the father's progress.
89The father has only partially met the court's expectation in the first trial decision to attend a parenting course with an emphasis on domestic violence. The father significantly delayed in doing this. He then only attended two sessions of a ten-session parenting program. He started a second time and had a similar attendance record. He offered poor excuses for his non-attendance. The father was able to articulate some positive lessons he learned at these programs. It is unfortunate that he didn't follow through with this expectation – he would likely be further along in his personal progress.
90The father has made partial gains in his ability to acknowledge responsibility for his actions and in his understanding of the impact of his actions on the mother, but he is not as far along as the court would like. He was able to recognize at this trial and with Ms. Omer that his yelling, screaming and intimidating the mother was domestic violence. He admitted that he didn't realize this was the case until he went through the therapeutic process. He recognized that this caused serious emotional harm to the mother. He said, "I did a lot to traumatize the mother. She is traumatized by my being abusive to her". He understood that she was legitimately afraid of him and apologized for his behaviour – admitting that he knows his apology is "not enough".
91However, the father continued to deny many of the findings of fact about domestic violence that the court had made at the first trial. He denied threatening the mother, denied specific acts of physical abuse and the court's finding that the abuse took place in front of the child. He denied making calls to the Catholic Children's Aid Society alleging that the mother was exposing the child to people in the drug trade and the sex trade. In an effective cross-examination by mother's counsel, he became evasive and claimed that he couldn't remember these incidents. In admitting to his domestic violence against the mother, the father still describes his actions as mistakes – his actions were far more serious than mistakes.
92It was concerning that the father continues to maintain that the mother was lying about many of the incidents of abuse.
93Instead, the court finds that it was the father who is being dishonest about many of them. He denied that he had threatened to kick the mother in the head with steel-toed boots. However, his girlfriend testified that she was aware that he had made this threat, but "if you know the father, you know he wasn't serious, he just has verbal diarrhea". She was also aware that he had called the Catholic Children's Aid Society to report that the mother was exposing the child to abuse and that he had removed the child from a moving car.
94Further, the father pled guilty and was convicted of threatening the mother.
95It was apparent that the father hasn't disclosed the full extent of his violence to members of his family or to Ms. Omer (although he did give her the first trial decision). The father's continued denial and minimization of much of his domestic abuse remains a significant concern.
96At the first trial, the father externalized much of the blame for not seeing the child on the mother. He showed some progress in this area and understood why the mother was afraid for the child. However, he continued to partially blame the mother for his actions. He acknowledged that he had to learn to manage his anger better, but hoped that the mother would learn in therapy how "not to push his buttons". This continued externalization of blame on the mother for his actions remains a concern for the court.
97The father also has unrealistic expectations of the mother. He submitted that she delayed in getting treatment. He said that he thought the mother's trauma would heal over time, that "we have to get over it". The father testified that the mother needs to learn to forgive him, maybe she can learn. If not, "that is very hard on him". This evidence indicates that the father doesn't fully appreciate the consequences of his actions and is viewing the domestic violence from the perspective of how it affects him, not the mother or the child. The mother will hopefully continue to heal from the damage that the father has caused her, but there is no timetable for this. The healing process is different for every victim of domestic violence.
98The father's lack of honesty remains a concern. Examples are as follows:
a) He continues to be dishonest about his previous threatening and abusive behaviour to the mother as outlined in paragraphs 91, 93 and 94 above.
b) He gave excuses to the court that made little sense – such as his reasons for not attending therapy or parenting courses.
c) He claimed that he couldn't remember why he had called the Catholic Children's Aid Society on the mother prior to the first trial and stated that he had had no intention of hurting the mother. This was clearly not true. He lied to the Catholic Children's Aid Society that the mother was exposing the child to persons in the drug and sex trades with the intention of causing her trouble and distress. He had given no consideration about how this might also harm the child.
d) He denied that Ms. Omer had given him a referral to parenting courses. She said that she had provided these programs to him in the spring of 2019.
e) He claims to be earning minimal income, but he is managing over 15 employees and has considerable responsibilities at work. He is likely earning more income than he claims.
The father's dishonesty makes it difficult for the mother and the court to trust him.
99There is some merit in the mother's observation that the father is telling people what they want to hear and he doesn't mean what he says. One example was when the father was denying specific incidents of abuse that had taken place before the first trial. He was then asked if he disputed any of the findings made in the first trial decision and he was quick to say, "oh no, I agree with all of Justice Sherr's findings" (even though he had just denied many of them).
100The father demonstrated little understanding of child development. He didn't really understand the impact of domestic violence on children. His aggressive access proposal shows little understanding about the difficulties the child will likely have in adjusting to having access with a stranger whom her mother fears. He had no real strategy for how to handle the child if she is reluctant to see him. He said that he would continue to attend at visits and expected the child to attend access even if she didn't want to see him. If he had taken the parenting courses, it is likely he would have a better understanding of the child's needs.
101In assessing the child's best interests, the court must also consider the impact of access on the child. Part of that assessment is to determine if ordering access will destabilize the mother's parenting of her.
102There is no question that the mother is afraid of the father. Even if her fear and hypervigilance are objectively excessive at this point, it is the father's abusive behaviour that has caused her to feel this way.
103This motion to change caused an increase in the mother's fear and anxiety. Undoubtedly, an access order will do the same.
104The child is presently thriving with the mother. There is a risk that the mother's increased anxiety will adversely impact the child.
105That said, there are factors that reduce this risk such as:
a) The mother is an excellent, caring and child-focused parent. Ms. Soares testified that everything the mother does is focused on caring for the child and that the mother is working very hard to make sure the child is not adversely impacted. The mother described how she is very aware of how her anxiety and fear could harm the child and does not want this to happen to her. She said that she works very hard to protect the child from her feelings. When asked if she could prepare the child for access visits if they were ordered, she said, "absolutely".
b) The mother has wisely sought out individual counseling. She has been able to make progress in this process. The mother finds this a safe place to process her emotions as opposed to exposing the child to them. She describes herself as more assertive and stronger. This was confirmed by both Ms. Soares and Ms. Lamey. She has sought out strategies to reduce her anxiety and stress, applied them and has found them to be effective. She has sought out strategies with Ms. Soares to prepare herself and the child for access – a very child-focused step.
c) Ms. Soares and Ms. Lamey were both asked if they had considered referring the mother to a psychiatrist. Given the emotional symptoms the mother and the counselors described, there was a concern that she needed more expert intervention. Both said that they did not feel this was necessary since the mother was functioning well. Ms. Lamey said that the mother's symptoms of having difficulties sleeping, eating and concentrating were periodic and not ongoing. The evidence indicates to the court that, with professional help, the mother is effectively managing her emotional symptoms. This reduces the risk of instability for the child.
d) The mother is resourceful in seeking services and motivated to make herself a stronger person – particularly in order to parent the child.
e) The mother has a strong support system of family and professionals.
f) The child is happy and well-adjusted. She has no special needs that require a higher level of parenting, or that make her more susceptible to being destabilized due to the anxiety of a caregiver. There is no evidence that she is afraid of the father.
106Ms. Lamey testified that the mother's anxiety is not so much about the father having supervised access, but rather that the supervised access will lead to unsupervised access – that is when the mother feels that the child will be at risk with the father.
107The court questions whether the mother is being best-served by seeing both Ms. Soares and Ms. Lamey at the same time. Ms. Lamey expressed her concerns about this. If the mother is going to see two different professionals at the same time, she should have them communicate with each other so that there is a consistent approach to her counseling.
Part Nine – Best Interests of the Child
108The court wrote in the first trial decision that the no-access order did not mean that the father should never have access to the child. The court expressed the hope that the father could take constructive steps in his life which would give the court some assurance that access will benefit the child and that he and the child could eventually have a positive relationship.
109The court has considered the case law set out in Part Five above in applying its findings of fact to the best interests of the child. The evidence informs the court that it is in the best interests of the child to start having access with the father. It also informs the court that it is in the best interests of the child to move very slowly and cautiously with protections in place so that the child receives the benefits of access while ensuring the physical and emotional safety of the mother and the child. The father still has a lot of work to do before the court will consider unsupervised access. The mother also has work to do to ensure that she remains a strong parent and can properly support the child during this process.
110The court will order that the father is to have supervised access with the child at the TSAC every other Saturday as soon as the TSAC can accommodate the visits. The first six visits will be for one hour, to allow the child to adjust to the visits. The subsequent visits will be for two hours. The times and dates are subject to the TSAC's availability. Supervised visits must take place for one year before the father can move to increase his access.
111The existing restraining order will be changed for the limited purpose of permitting the father to have access with the child at the TSAC.
112The order will include the following conditions:
a) The father is not to ask the child any questions that would reveal the location of the mother's home or the child's school.
b) The father shall not question the child about the mother.
c) The father is to pay for all of the TSAC's costs for him and the mother.
d) The father is to follow all rules and regulations of the TSAC.
e) The father is not to bring any other people to the first ten access visits. After that, he may bring one additional person to the visits. This condition is being ordered as it is important at this stage to focus on the father's relationship with the child and to ensure that the child is not overwhelmed by new people on visits.
f) The mother, with one week's notice, may cancel a visit for a special occasion or a holiday. If she does this, the visit will be made up at the earliest possible date.
g) The parties are to attend as soon as possible to complete the intake process for the TSAC.
113The court is hopeful that access will be a positive experience for the child, but recognizes that it will be an adjustment for her. There is a possibility it will not go smoothly – not necessarily because of anything the father does, but because he is a stranger to her. In the event that access is frustrated because of the child's difficulties in adjusting to the visits, a therapeutic process may be required and either party may bring the matter back to court to discuss this.
114The court has the following expectations of the father:
a) He will attend and complete a parenting course with a domestic violence component and provide the court with a letter from the service provider setting out his attendance and what was taught in the program.
b) He will continue to attend counseling with Ms. Omer and provide a report from her about his attendance and what was accomplished in the sessions. The court has set out its concerns above about the therapy the father is receiving. However, the court recognizes that it was difficult for the father to take this step, that he has formed a therapeutic alliance with Ms. Omer, that the therapy is culturally appropriate for him (they conduct parts of the sessions in Dari) and that the therapy has helped him to make positive gains in his life.
c) The father shall provide a copy of this decision to Ms. Omer. It is hoped that she will thoroughly read both this decision and the first trial decision so that she can provide the best possible therapy for the father.
d) He is to continue to have no contact with the mother.
e) He is to refrain from criminal or violent behaviour.
f) He is to continue to pay the court-ordered child support.
115These expectations are not court orders, but compliance will be an important consideration if the father moves to increase access in the future.
116There will be a delay before the TSAC can accommodate these visits. The court has the expectation that the mother will use this time to prepare the child for the visits and seek therapeutic assistance if required.
Part Ten – Conclusion
117An order will go as follows:
a) The existing order is changed to provide that the father shall have access to the child on the following terms and conditions:
He is to have supervised access with the child at the TSAC every other Saturday, as soon as the TSAC can accommodate these visits. The first six visits will be for one hour. After six visits, the visits shall be for two hours.
The times and dates of the visits are subject to the TSAC's availability.
The father shall not ask the child any questions that would reveal the location of the mother's home or the child's school.
The father shall not question the child about the mother.
The father is to pay for all of the TSAC's costs for him and the mother.
The father is to follow all rules and regulations of the TSAC.
The father is not to bring any other people to the first ten access visits. After that, he may bring one additional person to the visits.
The mother, with one week's notice, may cancel a visit for a special occasion or a holiday. If she does this, the visit will be made up at the earliest possible date.
The parties are to attend as soon as possible to complete the intake process for the TSAC.
b) Supervised visits must take place for one year before the father can move to increase his access.
c) In the event that access visits are not completed for three consecutive visits due to the child's difficulties adjusting to them, either party may bring the matter back to court by way of motion to change.
d) The restraining order dated October 11, 2016, as changed by the order dated June 22, 2018, shall be further changed to permit the father to attend for access with the child at the TSAC. A separate endorsement will be issued regarding the restraining order.
118This may not be a case for costs. However, if either party seeks costs, he or she shall make written submissions by November 12, 2019. The other party will then have until November 26, 2019 to make a written response (not to make their own claim for costs). 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.
119The court thanks counsel for their excellent presentation of this case.
Released: October 29, 2019
Justice S.B. Sherr