Court File and Parties
Ontario Court of Justice
Between:
E.O. (formerly E.T-O.) Applicant
— AND —
O.E. Respondent
Before: Justice S. E. J. Paull
Heard on: December 2, 2019
Reasons for Judgment released on: December 23, 2019
E.O. ........................................................ on her own behalf
O.E. ........................................................ on his own behalf
PAULL J.:
Positions of the Parties
1Before the court is a motion to change wherein O.E. seeks an order for access to his son, N.E. (male) born […], 2007. This relief is opposed by the child's mother, E.O., who seeks an order for child support, no access, and a restraining order.
2This matter proceeded to trial for one day on December 2, 2019 and the parties were the only witnesses. The court also has the benefit of a Report from the Office of the Children's Lawyer.
3The parties are the subject of the final order dated September 26, 2008 of Justice Sherr which was made on consent and provided for sole custody to E.O., with reasonable access on reasonable notice as arranged.
4It is not disputed that O.E. has not seen N.E. for approximately seven years. He brought a motion to change issued July 16, 2018 seeking to vary the order and to commence contact with N.E. on a weekly and supervised basis which would increase pursuant to N.E.'s wishes. He acknowledges a history of drug use and that he had periods of homelessness but submitted that those issues are resolved, and he would like to be part of his son's life.
5In her response to motion dated August 9, 2018 E.O. seeks an order for no access and for child support. She takes the position that a no access order is necessary because of O.E.'s history of abusive behaviour, criminality, drug use, and emotional instability. She brought a motion during this proceeding for a restraining order and this issue was also addressed at trial.
6O.E. disputes that a restraining order is necessary.
Background and Evidence
7Both parties were born and raised in Nigeria. E.O. moved to Canada when she was 18 years old to attend school at Y[…] University. Soon after her arrival she met O.E., who also immigrated from Nigeria. He is 13 years older than her.
8Pursuant to an order of the Court the OCL became involved and appointed clinical investigator, Christine Taylor, who prepared and filed a Report dated June 4, 2019. Ms. Taylor recommended an order for no access. E.O. accepts the factual basis and recommendations in the Report. Although he did not file a dispute, O.E. contests both the facts and the recommendations outlined in the OCL Report.
9During trial management, O.E. indicated an intention to cross examine Ms. Taylor and was directed on November 18, 2019 to summons her for trial for that purpose. At the opening of trial O.E. indicated that he no longer wished to call the clinical investigator as a witness. Ms. Taylor's Report was filed in evidence at trial without cross examination.
10The OCL Report outlines the following background:
The parties had a tumultuous relationship and finally separated when E.O. secured her own apartment when N.E. was one year old.
E.O. reported concerns with O.E. related to domestic violence, his criminal and dishonest behaviour, as well as serious drug addiction.
O.E. acknowledged an addiction to crack and heroin starting in 2007 for approximately five or six years but that this is no longer an issue.
O.E. stated that he fled to Canada in 2004 because his family was trying to force him to be part of their "witchcraft cult". He reported he supports himself doing construction work periodically, and that he is a preacher at a church in Toronto.
O.E. believed that E.O.'s family colluded with his father and other "disowned" family members in witchcraft/cult activities with the aim of keeping him separated from E.O. and his son, and that the parties' separation was due to this pressure.
He last saw N.E. when he was 4 years old.
O.E. advised Ms. Taylor that he is determined that N.E. be "brought up right", which for him means "no homosexuality, psychiatry, or witchcraft".
He indicated he was upset when he became aware that N.E. had a psychoeducational assessment at school and stated to Ms. Taylor that, "I am a genius, so there is nothing wrong with my boy".
He admitted he assaulted E.O. in the past and regrets it and acknowledged he harassed her to gain access to their son.
Apart from one phone call approximately three years ago N.E. has not seen or communicated with O.E. in seven years. E.O. permitted the call but stopped it when O.E. began reciting unintelligible prayers. O.E. stated he did commence a prayer for N.E. because E.O. told him that N.E. was touching himself sexually and saying a voice was telling him to. This was disputed by E.O.
E.O. has no contact with O.E. and does not support access because of the abusive behaviour and comments he posts about her and her family online. She feels O.E. is mentally unstable and a risk to herself and N.E.
E.O. resides with N.E., her current partner and their two children, and N.E.'s maternal grandmother.
11Ms. Taylor did not arrange an observational visit between N.E. and O.E. because N.E. was fearful, and because there had not been contact for several years.
12Ms. Taylor made the following remarks regarding the observation visit at E.O.'s home:
The visit was highly interactive and engaging for all members of this very busy young family. There was a palpable harmony in the family home and many caring gestures were observed between the family members. E.O. engaged with N.E. with an ease and calm which appeared instrumental in maintaining a calm in the home, alongside the needs of N.E.'s two very young sisters.
13In addition to the observational visit, she interviewed N.E. a total of three times and noted the following in her Report:
N.E. presents as a quiet and thoughtful young boy. He was very thoughtful and reserved when interviewed but was forthcoming in his responses.
He reported consistently and strongly that he did not wish to see his biological father because he felt it would be a bad influence on him. He was aware his father was addicted to drugs and "insults his mother on social media". He was also aware E.O. was physically abused by O.E. during the relationship. He indicated that his mom showed him comments his father was posting on social media about her.
N.E. was very worried and anxious about having to see O.E. and that he "doesn't even know him".
14Ms. Taylor interviewed the parties on two separate occasions each and contacted the following professional collaterals:
Ms. R., N.E.'s grade 6 teacher at school. She reported that N.E. has difficulty self-regulating at times and has met with mother and stepfather to discuss this and found them very responsive and engaged. N.E. has an IEP at school to support him with his behaviour. She described N.E. as a very sweet boy with grades in the B-C range.
Dr. Quaderi is N.E. and E.O.'s family physician. She reported that a referral to a psychologist for N.E. was initiated due to the concerns of his parents and the school about his behaviours. Neither N.E. nor E.O. have any significant health issues and she has no concerns.
Dr. Alhansem, O.E.'s current doctor, did not respond to requests for information. She did receive information from O.E.'s previous physician, Dr. Garba, who last saw him in 2015 and indicated that he treated O.E. between 2008 and 2012 for heroin addiction. Dr. Garba reported that he never felt O.E. would be a danger to his child.
15Ms. Taylor received written reports from the following collaterals:
Children's Aid Society of Peel.
Toronto Police Service.
Peel Police Service.
Dr. Mansell, psychological assessment Report of N.E.
16O.E. testified to the following:
He lives on his own in an apartment in Toronto. He wants to see his son and have a say in his son's life. He was strongly of the view that separation from his son was a long planned and premeditated act by E.O. and his parents in Africa.
He acknowledged some of the history in the OCL Report and that he was charged with assault against E.O. He indicated that he took anger management, learned a lot, and that the charges were dropped.
He testified that the further issues he had were the result of conniving by E.O. and not as a result of wrongdoing by him and that he had been the one to call the police at times.
O.E. felt strongly that his son did not know his own identity as a result of being denied contact with his father, and that he needed to get N.E. back on track. In cross-examination when asked about his "visions" he acknowledged that he was a "first-class prophet" and that he can dream and prophesize.
He acknowledged an addiction to heroin, cocaine, and methamphetamine which started around the time of N.E.'s birth. He stated that he addressed the issues by being on methadone from 2008 to about 2013.
17In his testimony O.E. acknowledged sending the texts to E.O.'s brother and making the online posts that were entered as exhibits at trial. The Facebook posts appear to be from between 2016 to as recently as October 2019 and include many posted comments directed at E.O. about her, their son, and about both of their families.
18The following represents a small sample of the postings during this period:
- In posts appearing to reference his family he stated:
"..[E.O.] was planted in my house and life" … "I knew the conspiracy"..
"all I want is confessions and repentance…period… God push you near me well well now. We go knock your door soon… evil father [sic]"
"… Tomorrow i go hang your pictures on Facebook put obituary then you will know how smart i am…"
"i will do whatever it takes to destroy you and your collaborators… it's my spiritual duty… here and abroad…God gave me the power..…papa egbede you people killed osahan…i want answers… you people don't know how far I will go…[sic]"
"Buy enough caskets for your young and old… Evil bastards".
- He posted the following on Facebook on September 3, 2019:
"Not about me or my son
About other families sha has destroyed
Have real police records now
She's an idiot
Told her she didn't have discretion and compassion to handle case
You made ur people put my son through mental torture
May God forgive you
I will shake people around you
My son is not and will never be a bargain for evil or cultism
Ever
Warning
I know what I know
The court is studying more [sic]"
- He posted the following on Facebook on September 6, 2019:
"… I want to straighten up my boy before his high school
Very very important
He has a Great role to play in humanity…"
He posted on September 7, 2019 directed to E.O. that he would be in court early on the next date (September 23, 2019) so they would have time to talk because he knows she is scared to talk on Facebook because of fear for the government.
He posted the following on Facebook on September 14, 2019:
"Spiritual rats
Demonic entities
Naga [E.O.'s brother] go see me dey conjure for em car
You and my disowned half siblings get the same identical behaviourfake pretenders [sic]"
Your mama no deserve mercy
She will pay 4 what she did
Demonic entity
Prepare come court pls…[sic]"
- On September 22, 2019, a day before a court appearance, he posted the following directed at E.O.:
"Happy new week
Ready for tomorrow? "
He then requests that she please bring him some "egusi soup".
- On September 23, 2019 he posted the following on Facebook:
"Will never leave my son his mother or sibling stranded
When I'm blessed they are to…
Am a man of my words
I got my words and my egusi…
I am a business tycoon
Know that today
Business socially tycoon [sic]"
- October 23, he posted the following on Facebook:
"Restraining order died when they found out I wasn't guilty and drop the case
You have always set me up
I have a right to justice know this
Lied on me and stuffs
Hiss
If we didn't have child together I will give you all ur boundaries
And you will have that as soon as court hv set it…[sic]"
19The text messages from O.E. and E.O.'s brother in 2019 leading up to trial involve similar ramblings and make references including the following which are clearly in reference to E.O.:
"The only woman I chose with God. I take responsibility for the past as was my duty to protect her. Beg her for me. I love her and my children. She's prolonging our glory. Were destined to shine together…".
" If you people hurt my son? Ishan women. I know how you people behave. Before my son's birth you people had plans with my disowned father. Efe and ur mum are witches…. You people keep getting instructions from my disowned family. I'm going to disgrace them all on Facebook now… They planted ur sister in my life to kill me but she failed… Your mum is a known witch…[sic]."
"You people don't deserve mercy."
"Tell …[E.O.] to repent. I pray for her… Lied against me to my son. Brought me down. Destroyed my documents. I don't want to be provoked again pls. Tell her to straighten my son… Bring him to me make i watch am cleaning…[sic].
"Nobody should provoke me anymore. [E.O.] has not learnt any lesson. She's still evil. I know her well… I will destroy all their families. Him encourage. Warn your sister. Ur papa warn her too…[sic]."
"Demons. Your mother will soon run bad. And ur sister if not very careful. You are demons. Mostly [E.O.]. God is about to thwart your conspiracies…[sic]."
20O.E. does not deny sending the texts or making the posts on Facebook and insisted that these were the only ways he could "reach out" to his family and others who were laughing at him.
21Various emails were put to O.E. that he purportedly sent to E.O. in early 2015. He denied sending them stating that he was locked out of the email account from 2009 onwards. The messages were often rambling in nature and included the following references:
"I want my wife and son back. You better start thinking about how God will settle this."
"Whatever is done to you is done to me just as what is done to me is done to you. I want you back, I have chosen you…".
"… every one says you are great but your mom is evil. Before God and man, you hold the key to your family now, you are a chosen one, if you think am faking put my God to the test. those your so-called friends that envy you will not even have time for you now because soon they will have enough on their plates to worry about [sic]."
"…I never free u, u still remain my wife. What ever u do now is iniquity [sic]."
22E.O. testified that she accepted the OCL Report and its recommendations. She testified to a history of physically assaultive behaviour by O.E. when they were together and that he would apologize afterwards but the behaviour would continue.
23Following their separation and the court order of September 26, 2008 she testified that his behaviour became harassing and she spoke to the police several times which resulted in warnings and the criminal harassment charge that was resolved by a peace bond to have no contact with her. She stated that this did not stop the calls and she was forced to change her phone number several times.
24She remains fearful of him for herself and her son because she believes his behaviours have not changed.
Law and Analysis
Custody and Access
25The Report of the Office of the Children's Lawyer is not an expert report such as might be had under s. 30 of the Children's Law Reform Act. The author of an OCL Report is a fact finder. Section 112 of the Courts of Justice Act does give the author of the Report, on behalf of the Office of the Children's Lawyer, the power to make recommendations on the resolution of the issues but the recommendations are only a starting point not the last word. Ganie v. Ganie, 2015 ONSC 6330.
26The weight that the court assigns to the clinical investigator's recommendations depends on the nature and extent of the investigation and the facts upon which the assessor based her recommendations. The court needs to examine how the assessment was conducted, including the process used, how many visits there were, and whether the standard assessment guidelines were met, when determining what value if any to place on the assessment and its recommendations. Ganie, supra, para. 20.
27The Court of Appeal in Woodhouse v. Woodhouse, 1996 CanLII [DA(1] 902 (Ont. C.A.) confirmed that an assessor's evidence was not determinative of the issues before the court but was merely one piece of the evidence for the court's consideration. In other words, it is up to the court, not the assessor, to determine the facts.
28With respect to the contents of the OCL Report I have carefully considered the observations that she made during her investigation, and the facts provided to her by collateral sources, which include several professional collaterals whose personal knowledge and impartiality lend credence to the information they provided.
29I accept the factual basis outlined in the Report. I find that Ms. Taylor conducted a thorough investigation which included contacting the appropriate collaterals and meeting repeatedly with the parties and child. In the circumstances it was also appropriate that she did not conduct an observational visit between N.E. and O.E.
30I find that the evidence that was provided by O.E. has not cast substantial doubt on the accuracy of Ms. Taylor's observations or the information she received from collateral sources. Further, O.E. has not successfully challenged or discredited the conclusions she has reached, or the facts upon which those conclusions are based.
31Where the evidence of the parties differs from that of Ms. Taylor, I accept the evidence as outlined in the OCL Report. Further, where the evidence of E.O. and O.E. differs, I accept the evidence of E.O.
32E.O.'s evidence was clear convincing and cogent. She testified in a straightforward manner and remained consistent. Her evidence of the parties' history was also consistent with the collateral information outlined in the OCL Report.
33More importantly I have serious concerns about the credibility of much of O.E.'s evidence regarding the parties' history and his current circumstances. There were significant inconsistencies in his evidence related to his criminal past. He testified that the charge for assaulting E.O. was dropped when he took anger management. His 35.1 affidavit filed in support of his motion (Exhibit 8) notes only a harassment conviction from 2013 under the findings of guilt.
34However, as noted in the OCL Report Ms. Taylor obtain police records from Toronto and Peel Police Service which outline a significant criminal record which included periods of incarceration as follows:
- June 18, 2007: assault – conditional discharge, probation for six months.
- August 9, 2011: criminal harassment – common-law peace bond for one year.
- November 19, 2013: theft under – conditional discharge and probation for 12 months.
- May 27, 2014: use of a forged document – suspended sentence and probation for 12 months.
- August 9, 2014: assault with a weapon – time served (six days) and probation for two years.
- January 8, 2015: failure to comply with probation order – resolved by diversion.
- June 29, 2017: possession of a stolen credit card and attempted fraud under $5000 – six month conditional sentence and probation for two years.
- December 16, 2017: mischief under $5000 – six month conditional sentence.
- February 5, 2018: use of a forged document and failure to comply – six month conditional sentence.
- July 7, 2018: assault – suspended sentence and 12 months probation.
- July 10, 2018: failure to comply with recognizance – one day deemed served with 22 days presentence custody.
35The police records also note numerous further occurrences including separate complaints in recent years from a member and former member of O.E.'s church about his harassing and threatening behaviour.
36When asked about any other recent police involvement, O.E. testified to police involvement with respect to a child he stated he had slapped for "smoking weed". He added that the police "let him off" as they said he had done a good thing. He also spoke of further recent police involvement regarding guns, however, he testified that he collects Airsoft guns and that he is addressing this matter in court. He first testified that he was addressing the police action in civil court, then stated it was ongoing in criminal court in Toronto. He provided no other clarity or explanation.
37O.E. was dishonest about the nature of his criminal background in his sworn 35.1 affidavit. He swore this document in July 12, 2018 and neglected to include several convictions entered just days before, which included a period of incarceration. This along with his varying and evolving answers about recent police involvement and the parties' history which is clearly at odds with the collateral information bring into serious question his entire evidentiary narrative.
38Overall I accept the factual basis as outlined in the OCL Report, and the testimony of E.O. I did not accept the evidence of O.E. as credible where conflicts with the contents of the OCL Report and the evidence of E.O.
Material Change in Circumstances
39Both parties seek to vary the current order pursuant to section 29 of the Children's Law Reform Act which reads as follows:
29. Order Varying In Order – a court shall not make an order under this Part that varies in order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
40The previous order is presumed to be correct and, as a result, any party seeking to vary an order has the initial burden of establishing that since the making of the order there has been a material change in circumstances that affects or is likely to affect the child. The action fails if the moving party is unable to establish a material change.
41In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, the court held that the change in circumstances must not have been foreseen or reasonably contemplated by the judge who made the original order. The change must relate to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. Change is not enough. The change must have altered the child's needs or ability of the parents to meet the child's needs in a fundamental way. Further, the change should represent a distinct departure from what the court could have reasonably anticipated in making the previous order.
42In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that, "if known at the time, would likely have resulted in a different order." The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.
43Continued conflict can result in a material change in circumstances if it results in a failure of the order to be in the child's best interests. Litman v. Sherman, 2008 ONCA 485 and Goldman v. Kudelya, 2017 ONCA 300.
44Ongoing conflict and actions running completely counter to the spirit of the custody order can be, in themselves, enough to constitute a material change: Zinck v. Fraser, 2006 NSCA 14, 22 R.F.L. (6th) 334 (N.S.C.A.). Worsening conflict can constitute a material change. Wreggitt v. Belanger, 2001 CanLII 20827 (ON CA); Hackett v. Sever, 2017 ONCJ 193.
45There must first be a material change, even if both parties are seeking a change in the order. Persaud v. Garcia-Persaud, 2009 ONCA 782.
46In Wood v. Wood, [2005] O.J. No. 3691 (Ont. SCJ), the expressed preferences of a child as to custody may amount to a material change in circumstance sufficient to vary a custody order. However, aging does not automatically mean material change, but it can be big factor. Brown v. Lloyd, 2015 ONCA 46.
47If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child, having regard to section 24 of the CLRA. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of the custodial parent. Bubis v. Jones, 2000 CanLII 22571 (ON SC).
Best Interests of the Child
48The court must decide what access order is in the child's best interests and consider the factors set out in subsection 24 (2) of the Children's Law Reform Act in reaching this decision. This subsection reads as follows:
Best interests of child
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
49Section 24 (4) of the CLRA requires me to consider if a party has committed violence or abuse against the spouse or parent of the child, a member of the person's household, or the child when considering their ability to parent.
50No one factor in the statutory definition of a child's best interests is given statutory preeminence. The court should consider the level of hostility and the extent to which that hostility may undermine the child's stability. Wilson v. Wilson, 2015 ONSC 479.
51The court must ascertain the child's best interests from the perspective of the child rather than that of the parents and the child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.
52There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).
53The 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. M.A. v. J.D., 2003 CanLII 52807 (ON CJ).
54A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615.
55A parent does not have an absolute right of access, however, refusing access should only be ordered in extreme circumstances. Worthington v. Worthington, 2000 CanLII 22469 (ON SC).
56A court may limit or cancel access to minimize risk to a child from a parent's conduct or lifestyle: W.(B.H.) v. W.(S.M.), [2001] S.J. No. 161 (QB). Long term harassment and harmful behaviours towards the custodial parent causing the parent and child stress has qualified. Stewart v. Bachman, [2003] O.J. No. 433 (SCJ); Dixon v. Hinsley, 2001 CanLII 38986 (ON CJ).
57In V. S. J. v. L.J.G., 2004 CanLII 17126 (ON SC), [2004] O.J. No. 2238 (S.C.) at para. 135, Blishen J. 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).
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.R. (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.).
58Blishen J. was also careful to remark at para. 136:
None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child.
59Blishen J. went on to remark that in her view, supervised access should always be considered as an alternative to a complete termination of the parent/child relationship, remarking at para. 140:
Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits; the child reacts badly after visits; or, where the access parent continually misses visits or is inappropriate during the access then termination must be considered. See: Studley v. O'Laughlin, supra; Worthington v. Worthington 2000 CanLII 22469 (ON S.C.), (2000), 13 R.F.L. (5th) 220 (Ont.Sup.Ct.); Lacaille v. Manger 1994 CarswellOnt 2089; Dixon v. Hinsley, supra.
Application to This Case
60With respect to the application of the law to this case, I am satisfied that there is been a material change in circumstance since the making of the order in 2008.
61While the aging of a child does not automatically amount to a material change, in this case N.E. was just over one year old when the order was made. He is now 12 ½ years old, has not seen his father in seven years, and is expressing very strong and consistent views and preferences to have no contact now.
62Further, there is compelling evidence of O.E.'s ongoing erratic and at times harassing behaviour. This behaviour not only runs counter to the spirit of the custody and access order but creates a situation where the existing order for access is no longer serving N.E.'s best interests. N.E. exhibits clear anxiety about the prospect of re-engaging with his father.
63The issue then becomes what order regarding access would be in the child's best interests based on the current circumstances. This case is somewhat different from many cases which seek to terminate ongoing access. In this case there is no relationship between N.E. and his father, he has not seen him in many years and does not know him. The issue is whether it is in N.E.'s best interests to reintegrate O.E. into his life at this time.
64For the following additional reasons, the best interest of N.E. supports an order for no access by O.E.
65I do not accept O.E.'s contention that he has addressed any issues he has, and that he simply wishes to co-parent amicably with E.O.
66He has a criminal history of violence and harassment, including towards E.O., and continues to have significant police involvement. His manner of communicating with E.O. through her brother and by his posts on Facebook are of particular concern. When those communications are viewed, some of which are as recently as October 2019, O.E. displays a pattern of vacillating between statements about wanting to reunite with E.O. and offers of financial support, to bizarre, rambling, and threatening messages directed towards E.O., her family, and his "disowned" family who he believes have conspired to separate him from his son.
67O.E. vacillating in this way was also reflected in his testimony before this court, and in the OCL Report when Ms. Taylor stated the following:
"When interviewed, O.E. was highly focused on the elements of witchcraft and collusion of family members in Nigeria, which he believes have been at work to separate himself and N.E. In the first interview, he presented as agitated and fixated on this topic, almost struggling to remain composed. In the second interview, he was quite the opposite-- calm and reflective about the challenges he has had in seeking access to N.E. The discrepancy between these presentations was consistent with the irregular behaviour evidenced in the Reports from the Toronto Police Service, alongside an admitted history of domestic abuse and addictions."
68Further, in addition to O.E.'s extensive criminal record and police involvement which he was not forthcoming about, his emotional stability remains a question. As noted in the OCL Report his current doctor was unwilling to provide information, and O.E. provided no independent verification of his current status. As a result, an assessment of O.E.'s current sobriety and any mental-health supports was not available from an independent source. Given the evidence of his erratic behaviour, and the findings of this court about his credibility, this information was necessary.
69O.E. also denied or minimized the extent of his abusive behaviour towards E.O. He testified that the assault charge had been dropped after he took anger management which was clearly not the case. The assault conviction against O.E. was confirmed in the police records obtained by the OCL, along with the criminal harassment charge which resulted in the peace bond.
70O.E. acknowledged the harassment charge and testified that he has not engaged in any similar conduct since. However, his communications since that time directed at E.O. through her brother and through Facebook posts are clearly harassing and threatening in nature. His online comments that she has not learned her lesson, is evil and should be "warned", and then asking her brother to "beg" her for him to get back together because he has "chosen" her are particularly concerning. Given his history this continuing manner of communication has caused E.O. to have justifiable safety concerns and have contributed to N.E.'s level of anxiety at the prospect of seeing his father.
71However, I agree with Ms. Taylor that E.O. has exposed N.E. to information about O.E. including his Facebook posts which has exacerbated his fear and anxiety, and she shall be required not to expose him to this information any further.
72Despite this, I accept the views and preferences of N.E. as offered by Ms. Taylor. She reports that N.E. repeated strongly, consistently, and adamantly that he did not wish to see his father at this time. N.E. has not seen him since he was 4. To impose access on him now at 12 ½ years old would not be in his best interests and would likely be emotionally harmful to him. I agree with the conclusion of Ms. Taylor that in all the circumstances access with O.E. at this time would likely be, "highly emotionally detrimental to N.E. and would almost certainly exacerbate his level of anxiety."
73Imposing access would also not be in N.E.'s best interests because of the stress and anxiety it would likely cause E.O. Given the concerns which led to O.E. having no access with N.E. for many years and the evidence of his continuing behaviour, his reintegration into N.E.'s life would risk destabilizing his family life in his home.
74O.E.'s history of domestic violence and harassing behaviour, the 7 years that have passed with no contact, the anxiety access would likely cause to E.O. and N.E., the child's age and strong views and preferences and the fact that he has no current relationship with his father, are all compelling grounds to support no access.
75This is further supported in that the evidence has not convinced me that O.E. has made the positive changes in his life he claims. He provided no independent evidence to establish that he has made changes. He continues to exhibit harassing and threatening behaviour in his texts and Facebook posts and denied the extent of his criminal past and provided few particulars or confirmation of his recent police involvement and criminal charges.
76In the circumstances his desire to be able to co-parent with E.O. reflects a serious lack of insight into the impact of his behaviours on N.E. and E.O. He showed little understanding of how his actions of domestic violence and addictions caused his separation from N.E., or how N.E. has been affected by these both directly and indirectly as a result of their impact on his mother. I agree with Ms. Taylor that O.E. does not have a child centred view or level of sensitivity about what reunification could mean for N.E. emotionally.
77I am mindful that an order for no access should be made only in the most extreme cases, and that supervised access should be carefully considered first. In all the circumstances supervised access is not a viable option. The strong feelings of N.E., the risks of increasing his anxiety and destabilizing his home life that would result from contact are not mitigated if the access is supervised. Further, O.E.'s considerable lack of insight on the impact of his behaviour and the risks they pose to N.E. emotionally are also not mitigated if contact were supervised.
78N.E.'s need for safety, stability, and security in his mother's home outweigh any benefit that there may be of contact with O.E., and on the evidence before me I cannot find that reintegrating O.E. back into his life would in any way benefit N.E. at this time.
79The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the child. Having considered all the factors outlined herein, and in s.24 (2) of the CLRA, the best interests of N.E. support an order for no access.
Child Support
80E.O. seeks an order for child support.
81O.E. was ordered on numerous occasions throughout this matter to file a sworn financial statement with attachments which he failed to do. He only provided an unsworn financial statement, which was not put in the continuing record as a result, attaching only confirmation of receipt of Ontario Works in March 2019.
82At trial he swore under oath to the accuracy of that financial statement and it was entered as an exhibit, as were his Notices of Assessment for 2016 which showed income of $8272, his Notice of Assessment for 2017 which showed income of $8532, and his Notice of Assessment for 2018 which showed income of $8590.
83The financial statement indicated he has been unemployed since 2007 and in receipt of Ontario Works since then. However, his 35.1 affidavit noted at s. 10(d) that he worked part time at the Relax Furniture Company. Ms. Taylor noted in the OCL Report that O.E. advised her that he works in construction at times.
84At trial O.E. testified that his only income is from Ontario Works except that he works as a labourer for a bricklayer occasionally making no more than $3000 cash a year. He provided no verification or any other particulars of this income.
85The Family Law Act imposes an obligation on every parent to provide support for his or her minor children to the extent that the parent is capable of doing so. The purposes of an order for support of a child is to recognize that each parent has an obligation to provide support for the child, and to apportion the obligation according to the Child Support Guidelines.
86The Family Law Act requires that a court making an order for the support of the child to do so in accordance with the Child Support Guidelines. Section 19 of the Child Support Guidelines provides that the court may impute to a spouse "such amount of income … as it considers appropriate" and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:
19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse;
87Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the Guidelines is perceived as being a test of reasonableness. Drygala v. Pauli, 2002 CanLII 41868 (ON CA).
88The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage, or reasonable health needs?
If not, what income is appropriately imputed?
89The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.
90Under the first question in Drygala the onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya, 2009 ONCA 322.
91Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. Filippetto v. Timpano, 2008 CanLII 3962 (ON SC).
92The court should draw an adverse inference against the respondent for his failure to comply with his disclosure obligations as provided for in s. 21 of the Guidelines and impute income. Gray v. Rizzi, 2016 ONCA 494; Smith v. Pellegrini, 2008 CanLII 46927 (ON SC); Maimone v. Maimone, 2009 CanLII 25981 (ON SC). In Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure to disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
93Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way. Riel v. Holland, 2003 CanLII 3433 (Ont. C.A.), at paragraph 23. It must be reasoned, thoughtful and highly practical. Hagner v. Hawkins, 2005 CanLII 43294 (ON SC), (Ont. S.C.) at paragraph 19.
94As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 CanLII 22560 (ON SC).
95If there is no reasonable excuse for the payor's under-employment, the third question in Drygala requires the court to determine what income should properly be imputed in the circumstances. The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. Lawson v. Lawson, 2006 CanLII 26573 (Ont.C.A.).
96A party must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. The onus is on O.E. to provide a full and complete financial picture. He has failed to do so. There were significant inconsistencies in what little evidence of income and employment he did provide.
97On the basis of these considerations an adverse inference is appropriate for O.E.'s failure to comply with his disclosure obligations. This mitigates the obligation on E.O. to establish an evidentiary basis to impute income and supports a finding that O.E. is intentionally underemployed.
98Once underemployment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. On the evidence before me O.E. has not established any justification for his underemployment.
99He testified to no current health issues or any other reason he could not pursue full time employment as a construction labourer. Further, O.E. provided no evidence of any efforts to find employment.
100O.E. has failed to establish any justification for his being on Ontario Works since 2007 and for his failure to obtain gainful employment. He has simply presented the Ontario Works income he claims to have received and takes the position that this should be the basis for any support. To justify his underemployment, which has resulted in annual incomes at much less than he would make working for minimum wage, O.E. is required to justify his choices in a reasoned, practical, and compelling way. He has failed to do so or to provide any information on why he has not pursued or achieved gainful employment.
101The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices. On the basis of these considerations there is no reasonable excuse for O.E.'s underemployment.
102The issue then becomes what is the appropriate income to impute in the circumstances. O.E. testified he worked as a labourer in construction when it is available. There is no reason why he would not be capable of pursuing minimum wage employment which amounts to approximately $30,000 of annual income. In the circumstances an imputed income of $30,000 per year is, in my view, the appropriate level of income as it reflects his capacity to earn income in construction or other labour type employment.
103O.E. was served with the response to motion to change claiming child support on August 9, 2018 and, as such, it is appropriate that the child support commence on September 1, 2018.
104O.E. testified he paid E.O. $4000 in the last year which he directed was to be applied to karate lessons. If not used for this purpose he indicated he wanted the money back.
105E.O. acknowledged receiving $3000 in the last year from O.E. and that it was not used for karate lessons. A parent cannot impose conditions on child support, and there was no agreement between the parties regarding the use of the funds. These monies shall be applied to his child support obligations and he is entitled to a credit of $3000.
106On the basis of the foregoing there shall be a child support order commencing September 1, 2018 in the amount of $256 per month payable by O.E. for one child based on an imputed income of $30,000 per year, with a credit of $3000 applied towards the arrears which have accumulated under this order.
Restraining Order
107E.O. seeks a restraining order in favour of herself and the child.
108Her request for a restraining order is made pursuant to section 35 of the CLRA and section 46 of the FLA. Section 35 of the CLRA reads as follows:
Restraining order
35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
Provisions of order
(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate.
109The legal principles for the court to apply are as follows:
a. Restraining orders are serious and should not be ordered unless a clear case has been made out. Ciffolillo v. Niewelglowski, 2007 ONCJ 469.
b. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person's ability to work. F.K. v. M.C., 2017 ONCJ 181.
c. Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds for the person to fear for his or her own safety or for the safety of their child. McCall v. Res, 2013 ONCJ 254.
d. The person's fear may be entirely subjective so long as it is legitimate. Fuda v. Fuda, 2011 ONSC 154; McCall v. Res, supra.
e. A person's subjective fear can extend to both the person's physical safety and psychological safety. Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).
f. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. Fuda v. Fuda, supra.
g. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behavior with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. Purewal v. Purewal, 2004 ONCJ 195.
h. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears. Fuda v. Fuda, supra.
i. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. D.C. v. M.T.C., 2015 ONCJ 242.
j. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. D.C. v. M.T.C., supra.
k. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. D.C. v. M.T.C., supra.
l. A no-contact or communication order made pursuant to section 28 of the Children's Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. F.K. v. M.C., supra.
m. Further, the court should be alert to the fact that parties may improve their behavior when the eyes of the court are on them. This might not continue once the case ends. F.K. v. M.C., supra.
110I have already found that O.E. has and continues to engage in a persistent pattern of harassing and at times threatening behaviour towards E.O. through the communications with her brother and in posts which he makes to his Facebook page.
111He did not present at trial as having any insight into why this was inappropriate or likely to create fear and anxiety in E.O. and N.E. He stated that this was the manner in which he expresses himself. On this basis I am satisfied O.E.'s conduct will continue unless he is under court order terms to refrain from behaving in this manner.
112While there is no evidence he has physically stalked E.O. or N.E., or attended at their home, work or school, the persistent and threatening nature of the communications, given O.E.'s history of violence and harassment, creates reasonable grounds for E.O. to fear for her and N.E.'s safety.
113Given the history of the parties, and of the present concerns with O.E. found by this court, I am not of the view that specific terms imposed under section 28 of the CLRA will be sufficiently protective. Further, much of O.E.'s recent harassing communications come indirectly through her brother and from posts on O.E.'s Facebook page. A section 28 order will not be adequate as it cannot restrain a party from harassing the other party to third parties. However, in the circumstances there shall also be an order under s. 28 of the CLRA that he remove or make unavailable any content he has posted on social media that includes or refers to E.O. or N.A.
114When the entirety of the evidence is considered a restraining order is necessary and appropriate, and O.E. shall be restrained from communicating, directly or indirectly with E.O. and N.E., and not to be within 100 meters of any place he knows either of them live, work, go to school, or any place he knows them to be except for required court attendances.
Final Order
115On the basis of all the considerations outlined herein, there shall be a final order as follows:
The order of September 26, 2008 shall be varied by removing terms 2-4 therein and replacing them with an order that O.E. have no access to N.E.
The applicant shall not expose the child to any of the respondent's communications or online posts, or to information concerning the respondent or this litigation, except to outline for him the order made.
Child support payable by the respondent to the applicant for one child in the amount of $256 per month based on an imputed annual income of $30,000 commencing on September 1, 2018 and monthly thereafter. O.E. is entitled to a credit of $3000 towards arrears which have accumulated pursuant to this order.
A restraining order shall issue prohibiting O.E. from communicating, directly or indirectly, with E.O. and N.E., including through social media, and not to be within 100 meters of any place he knows either of them to live, work, go to school, or any place he knows them to be, except for required court attendances.
Pursuant to section 28 of the CLRA the respondent is directed to take all reasonable steps to remove and make unavailable any content on social media he has posted that includes a refers to E.O or N.A, and he shall refrain from any further posts referencing them.
The clerk of the court shall forthwith arrange for service of this order on the respondent pursuant to the Rules.
Both parties were self-represented and in the circumstances I will likely not be inclined to make an order regarding costs. However, if the applicant seeks an order for costs she shall serve and file written submissions, not to exceed three pages, excluding attachments by January 10, 2020, with the respondent serving and filing written submissions, not to exceed three pages, excluding attachments by January 24, 2020. If no submissions are received from the applicant by the deadline there shall be no order as to costs.
Released: December 23, 2019
Signed: "Justice S. E. J. Paull"
