Janelle Patterson v. Patrick Park, 2024 ONCJ 705
DATE: March 8, 2024 Court File No.: FO-23-0000055 ONTARIO COURT OF JUSTICE FAMILY COURT
B E T W E E N:
JANELLE PATTERSON Applicant
v.
PATRICK PARK
Respondent
P R O C E E D I N G S O N M O T I O N
BEFORE THE HONOURABLE JUSTICE S. PAULL
On March 8, 2024, at GUELPH, Ontario
APPEARANCES: R. Rohr Counsel for the Applicant D. Russell Counsel for the Respondent
FRIDAY, MARCH 8, 2024
COURTROOM CLERK: We are calling case number 55 for the year 2023, Patterson v. Park. By order of this court any audio recording of this court proceeding is strictly prohibited. Your Honour, for the record, the applicant and counsel for applicant are present, and the respondent and counsel for the respondent are present as well.
THE COURT: Ms. Rohr, you are here as counsel for Ms. Patterson?
MS. ROHR: That is correct, Your Honour.
… SUBMISSIONS MADE BY BOTH COUNSEL.
R U L I N G O N M O T I O N
Thank you. I see everybody is present. The parties before the court are the parents of Colton, born […], 2015. He currently lives with his mother.
Mr. Park has brought a motion to change the final order of October 21, 2022 in which his parenting time was suspended until further order of the court, and where child support of $418 a month on an imputed income of $45,000 and costs of $10,000 payable within 120 days were ordered.
Ultimately, Mr. Park seeks to return to his previous and regular parenting schedule, set aside the costs order, vary the imputed income, and adjust the child support accordingly.
Ms. Patterson says that there has been no material change in circumstances and that the motion to change should be dismissed.
There are two motions for temporary relief before the court today.
Mr. Park seeks to set aside the order of October 21, 2022, and seeks an order fixing a graduated parenting time order starting with virtual and proceeding to in-person supervised by his parents. Alternatively, if the order is not set aside, he seeks to vary the order for parenting time and commence with graduated parenting time.
Ms. Patterson seeks an order striking Mr. Park’s pleadings or otherwise that his motion to change not proceed until the outstanding costs orders are satisfied. She further seeks an order that he shall not proceed with any motion without leave and clear evidence of a material change in circumstances.
In addition to the submissions of counsel, I have reviewed the affidavits filed by the parties, their attachments, and the factums of each party.
The litigation history in this matter is not disputed. It includes the following; there is a final order of October 2, 2019 made on consent which provided for sole decision making to Ms. Patterson, regular parenting time to Mr. Park including alternate weekends and equitable sharing of holidays and special occasions.
Mr. Park brought a motion to change that order as Ms. Patterson was re-locating to Guelph. At a Trial Management Conference of that motion to change on May 4, 2022 a final consent order was made that dealt with all the parenting time issues, essentially continuing the parenting time arrangements per the existing order with exchanges taking place in Guelph. All the other parenting time and decision making issues were withdrawn.
The order of May 4, 2022 also included a temporary order regarding financial issues because Mr. Park had not yet filed a financial statement. He was ordered to serve and file a financial statement with 2019 to 2021 Notices of Assessment and 2022 year to date income by June 6, 2022. It was ordered peremptory on him. It was adjourned to a Settlement Conference July 18, 2022 on the remaining financial issues.
On July 18, 2022 the matter was back before the court. Mr. Park was not present, had not provided the disclosure, and had not filed a Settlement Conference Brief. He was ordered to pay costs of $700. The court further ordered that he was to comply with the order of May 4, 2022 for disclosure by September 21, 2022 as well as pay the costs. If he had done so, a Settlement Conference would be convened on October 21 at 10:00 a.m. If he had not complied with those terms the endorsement indicated that Ms. Patterson could move by motion for a determination of arrears and ongoing child support to be returnable and argued on October 21. Again this order was peremptory on Mr. Park. Mr. Park did not pay those costs and did not provide financial disclosure by the extended deadline. He deposed that he did not have his tax return information and that his phone was broken on the return date.
Mr. Park was aware of the order of July 18, 2022 despite his non-attendance. The court provided the endorsement by email to him on July 18, 2022. Meanwhile, on September 10, 2022 he was arrested and held in custody on serious criminal charges until approximately November 22, 2022. Pursuant to the endorsement of July 18, 2022 Ms. Patterson served a motion and affidavit on October 13, 2022 seeking to strike. It was served on Mr. Park by email. He states that he did not receive it as he had no access to the internet or email while in custody. When the matter was before the court on October 21, 2022, no disclosure was provided, the costs order remained unpaid, and Mr. Park was not present.
The court proceeded with the motion that had been brought pursuant to the earlier endorsement striking Mr. Park’s pleadings and noting him in default. On a final basis, child support was imputed on an income of $45,000 at $418 a month starting November 1, 2022. $10,000 in costs were also ordered to be paid within 120 days. The court also suspending his parenting time on a final basis, pending further order of the court.
Mr. Park has outstanding costs awards against him totalling $10,700 as of October 2022, and as of today’s date still owes approximately $9,706. He acknowledges numerous and serious outstanding criminal charges including multiple sex assaults, utter threats, exploitations and procurement for sexual purposes, and unlawful confinement. Sixteen of these charges remain outstanding and are proceeding to trial. He was in custody on these charges when the order of October 21, 2022 was made. He currently resides with his parents who are also his sureties. They have attempted on his behalf to contact Ms. Patterson regarding his parenting time, without success. Ms. Patterson did allow Mr. Park to speak to the child on Father’s Day in 2023, but has refused all other requests for telephone or other parenting time.
Mr. Park’s position is he simply cannot afford the costs award. He was unable to work. He remains unable to work because of his release conditions which require him to remain in his residence daily and the exceptions to the order do not permit him to work. His only source of income is just over $700 per month from Ontario Works and he indicates he is attempting to pay $300 a month towards the costs order.
In terms of parenting time Ms. Patterson does not believe that Mr. Park should have any. He is charged with numerous serious criminal offences which the court was aware of on October 21, 2022 when his parenting time was suspended.
The primary objective of the Family Law Rules as outlined in Rule 2(2) is to deal with cases justly. Rule 2(3) of the Rules prescribes that dealing with cases justly includes ensuring that the procedure is fair to all parties; saving time and expense; dealing with the case in ways that are appropriate to its importance and complexity; and, giving appropriate court resources to the case while taking account of the need to give resources to other cases.
Rule 25(19) provides that the court may, on motion, change an order that: under sub (e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court to be present. Appellate case law in Ontario confirms that the remedies available to the court under Rule 25(19) are broad including the jurisdiction to set aside the whole of the order; change, vary, suspend or discharge the final order or set aside part of the final order; or correct, or add to the final order.
The Court of Appeal in Mountainview Farms v. McQueen, 2014 ONCA 194, sets out factors that the court must consider when determining whether to set aside default orders. These include whether it was brought promptly, whether the moving party has established that there is a plausible excuse or explanation for default, whether the moving party has sufficient evidence to establish an arguable case on the merits, the potential prejudice to the moving party should the motion be dismissed and the potential prejudice to the respondent party should the motion be allowed, and the effect of an order that may be made on the overall integrity of the administration of justice.
The Court of Appeal in Mountainview explained that these factors are not to be treated as rigid rules. The court must consider the particular circumstances of each case to decide whether it is just to relieve the party from the consequences of his or her default. Further, the court in Mountainview indicated that the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default order even if the other factors are unsatisfied in whole or in part. The party need not show that the defence will inevitably succeed. They must simply show that the defence has an air of reality. What this requires is the motions judge to take a good, hard look at the merits and analyse whether the moving party has established an arguable case.
While there is broad discretion and flexibility under the rules, and under 25(19) in particular, at least one of the five pre-conditions is outlined in Mountainview must be engaged before the broader discretion can be invoked.
In terms of setting aside the final order of October 21, 2022 I am going to address the financial issues as distinct from the parenting issues. The court has the authority to vary, change, or set aside all or part of an order. For the following reasons the court is not prepared to set aside the child support or costs component of the final order of October 21, 2022.
In addition to being in breach of the Rules regarding financial disclosure, Mr. Park was in breach of two prior peremptory orders for financial disclosure, the first being the order of May 4, 2022 which was made while he was present, the second on July 18, 2022 was made in his absence because he failed to file or otherwise attend court. He did receive the endorsement from the court on July 18, 2022. He ought to have been under no misapprehension of what was going to happen if he continued to breach his disclosure obligations. The order of July 18, 2022 which he received from the court was clear. Ms. Patterson could move to seek a final order on the financial issues on the return date.
Further, Mr. Park made no efforts to provide what financial disclosure he did have or disclose what efforts he was making to obtain it if he did not have it, or what efforts he made to attend or otherwise contact the court if his phone was broken as he alleges. He simply failed to provide anything or attend court on July 18, 2022.
He received the endorsement which indicated that the return date was October 21, and despite being in custody there was no evidence he took any reasonable steps to contact the court directly or indirectly (including through his parents) or to seek to participate remotely. He had access to a phone at times as he acknowledged calling Ms. Patterson while he was in custody.
While he did retain counsel in January 2023 his motion to change was not brought until March 2023 and his motion before the court today was not brought until July 2023. The delay since then appears to have resulted from a lack of judicial resources and scheduling issues. Overall, there has been some degree of delay on Mr. Park’s part on this issue. However, while the motion to set aside was not brought as promptly as one would expect he did retain counsel relatively quickly to assist him with these issues and ultimately brought the matter back to court soon thereafter.
Further, in terms of the merits of his case on child support he has an uphill struggle. It is not open to a litigant to fail to produce financial information, run the risk that a trial judge would impute income and then come back to a new court to suggest that the imputed income is wrong (Trang v. Trang, 2013 ONSC 1980).
Support claimants should not be required to go through this two-step process. Indeed, one of the purposes of imputing income is to address the issue of continuing non-disclosure as was the case here. The issue of the merits will be discussed further below when the court considers Ms. Patterson’s motion to strike the motion to change in its entirety.
Overall, the child support order of October 21, 2022 was made following continued and ongoing breaches of peremptory disclosure orders. These were orders that Mr. Park was fully aware of. There was no evidence he took meaningful steps before his incarceration in September of 2022 to address his disclosure obligations, no evidence he took any reasonable steps while in custody directly or indirectly to seek to participate or communicate with counsel or the court about his circumstances.
Likewise, Mr. Park was already in breach of the costs order of July 18, 2023 for $700 and on that date costs were also reserved for the return date. He was aware that costs were going to be considered. He has provided no evidence that he would or could have complied with the disclosure deadline by September 21, 2022 but for being in custody starting on September 10. This disclosure had been outstanding for several months by that point and the court would have been in a position to address Ms. Patterson’s motion for final orders on the support issues even had Mr. Park been in attendance.
The prejudice to Mr. Park is minimal for reasons that will be outlined further below. The prejudice to Ms. Patterson is significant. She has been put to significant costs litigating the child support issue, costs made higher by Mr. Park’s non-compliance and non-disclosure.
I will address Mr. Park’s reasons for non-payment below. However, despite his limited resources he has only started to address partial payments towards these costs orders after over a year of time has lapsed since the order was made. Overall, I see no basis to set aside the order of October 21, 2022 as it relates to child support and costs.
The portion of Mr. Park’s motion seeking to set aside the order related to child support and costs is dismissed.
Ms. Patterson seeks an order striking Mr. Park’s motion to change and barring him from bringing further motions without leave. Section 106 of the Courts of Justice Act reads; “A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.” Rule 1(8) of the Family Law Rules outlining failure to obey an order indicates that if a person fails to obey an order in a case or a related case the court may deal with the failure by making an order that it considers necessary for the just determination of the matter, including, an order for costs, an order dismissing the claim, an order striking pleadings, as well as an order that a party is not entitled to any further order from the court unless the court orders otherwise. Rule 14(21) of the Family Law Rules states that if a party tries to delay the case or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court’s permission.
It is trite to say that parties are required to comply with court orders. As Justice Quinn noted in Gordon v. Starr, 2007 ONSC 35527, [2007] O.J. 3264 (Ont.S.C.), “An order is an order, not a suggestion.”
In Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, the Supreme Court of Canada has affirmed the general rule that a court will not hear a litigant who has wilfully breached a court order until the litigant has cleared the breach. This discretion is grounded in the inherent jurisdiction of the court to control its own process and the Courts of Justice Act and Rule 1(8) provides an operational and procedural mechanism by which the court’s inherent jurisdiction to control its own process is implemented in case of breach of court order. There is an overarching consideration of ensuring respect for the administration of justice through compliance with court orders.
The approach to non-compliance with a court order is generally a three-step process (Ferguson v. Charlton, 2008 ONCJ 1, [2008] O.J. 486 (Ont.C.J.)). First, whether there is a triggering event. Second, if there is a triggering event, the court should ask whether it is appropriate to exercise its discretion in favour of the non-complying parent by not sanctioning them under Rule 1(8). Thirdly, if not, the court is left with a broad discretion as to the appropriate remedy pursuit to 1(8). The onus is on the non-complying party to show on a balance of probabilities why the sub rule should not apply, and discretion in favour of non-complying parties will only be granted in exceptional circumstances.
Ms. Patterson seeks an order striking Mr. Park’s pleadings and barring him from bringing further motions without leave. Mr. Park has failed to comply with the costs order of October 21st, 2022 and has made minimal sustained efforts since that order was made to pay these costs. He did make some payments which have largely paid the earlier costs order. Since October of 2022, of the $10,700 costs owing, a total of $9,706 or thereabouts remains outstanding. Despite Mr. Park’s precarious financial circumstances brought about by his criminal charges, he is living with his parents and getting just over $700 a month from Ontario Works. His lack of efforts to meaningfully comply with the order does not persuade me that this is one of those cases where the court should exercise its discretion in favour of the non-complying party. There is no evidence he has attempted to vary his release terms in order to work. If he had continued to make $300 per month payments starting when the order was made in October of 2022 the court may have considered this differently.
The unpaid orders for costs are clearly a triggering event, and the court is not prepared to exercise its discretion in favour of the offending party on this issue for the reasons outlined. As such, the court is left with a very broad discretion as to the appropriate remedy pursuant to the provisions of Rule 1(8). Staying orders are an alternative to striking pleadings where costs orders have not been paid.
As previously detailed in terms of the merits of his case Mr. Park has an uphill struggle to challenge the imputed income and child support order. Unlike an original application where the recipient must show that the payer is deliberately under or unemployed, once income has been fixed in a final order the onus is on the payer to show a change in circumstances. If income is imputed the issue is often viewed as res judicata on a motion to change although the court always has the jurisdiction with respect to the issue of res judicata and can consider fraud, fresh evidence, additional disclosure or issues of fairness (Nejatie v. Signore, 2014 ONCJ 653).
The principle of res judicata provides that generally a matter cannot be re-litigated once it has been determined on the merits. As noted in Trang v. Trang, 2013 ONSC 1980, when a court imputes income it is a determination of fact. It is not an estimate, It is not a guess. It is not a provisional order awaiting better evidence or further review. It is a determination that the court had to calculate a number because there was a lack of representations by the payor. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent declared income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which established that either it is no longer necessary or appropriate to impute income, or if income should still be imputed, the changed circumstances that suggest a different amount. If declared income automatically prevailed on a motion to change it would defeat the purpose of imputing income in the first place. Support claimants should not be forced to go through a two-step process where a payer has simply ignored disclosure obligations, the court imputes income, and when dissatisfied the payor returns to court with disclosure to suggest that the original court made an improper or incorrect imputation.
Similarly, the onus does not fall on the support recipient to establish why income should stay the imputed amount on a motion to change. That determination has already been made. If an aggrieved party feels that income was wrongly imputed they can take timely steps to correct that determination. They can appeal or they can bring a motion to set aside based on a mistake or misrepresentation. The order was not appealed and for reasons previously outlined the order regarding child support and costs has not been set aside.
If the payer proceeds by way of a motion to change they face the presumption that the original order is correct. However, despite the issue of res judicata and the challenge of establishing a material change when income was imputed due to non-disclosure, courts have re-adjusted income back to the original order when accurate disclosure is produced. It is important to remember the courts always have the discretion and can consider fresh evidence or issues of fairness. The court has the discretion under the Family Law Act to retroactively recalculate support based on correct information once it has been found that there has been a material change in circumstances (Tremblay v. Dalsy, 2012 ONCA 780).
Overall while Mr. Park has an uphill struggle to vary the child support I cannot conclude that his case is entirely without merit or frivolous. Neither should Ms. Patterson have to fund a further piece of litigation on the issue when Mr. Park has not taken steps to meaningfully comply with the costs order of October 21, 2022. As I indicated, stay orders are an alternative to striking pleadings when costs orders have not been paid. Striking pleadings is a drastic remedy and one of last resort. This is a circumstance where an order staying his claim regarding child support until he has paid a meaningful portion towards the unpaid costs order is appropriate.
His motion to change regarding child support shall be stayed until he has satisfied the following: he will pay a minimum of $400 per month toward the outstanding costs order. When he has paid a total of $6,000 towards the costs order he may move by 14B motion on notice seeking to lift the stay. Any motions shall be accompanied by an affidavit attaching confirmation that the above payments have been made, an outline of any child support paid under the order, a sworn financial statement with three years notices of assessment, a current pay stub and an up to date FRO statement.
In addition to imposing pre-conditions to lift the stay the court may order that these pre-conditions are time limited. It is unfair to the non-offending party to have the litigation delayed indefinitely. As such, Mr. Park shall have until January 1st, 2025 to comply with these conditions to lift the stay. If he has not done so Ms. Patterson may move by 14B motion on notice that Mr. Park’s motion to change child support be struck. If at any point during the stay Mr. Park’s financial circumstances change he shall also be required to provide the particulars thereof. This order seeks to balance Mr. Park’s limited resources and his obligations under prior orders with the notion that Ms. Patterson should not be forced to re-litigate issues without meaningful compliance with previous costs orders.
With respect to the issue of parenting time I reach a different conclusion. I find that the final order of October 21, 2022 as it pertains to parenting time was made without proper notice and ought to be set aside pursuant to Rule 25(19).
The parties agreed on May 4, 2022 to a final order on the parenting time issues. The only issues which remained before the court were financial in nature. If Ms. Patterson felt the intervening events, including Mr. Park’s criminal charges, warranted a review of this final order then a fresh motion to change was required. A motion to change is an originating process which would have required special service under the Rules. Ms. Patterson raised these issues in a motion served by email when the parenting time issues were no longer before the court. Mr. Park did not have the notice he was entitled to or that was required under the Rules that Ms. Patterson was seeking to vary the final order the parties had consented to only five months previously.
Mr. Park was aware the financial issues were outstanding and what was very likely to happen if he continued to breach his disclosure obligations. However, it was not reasonable for him to expect the parenting time order would be varied or suspended given that it was no longer before the court and there was no originating process subject to special service. There was nothing in the endorsement of July 18, 2022 which adjourned the matter to October 21, 2022 which gave any indication that parenting issues would also be addressed. Mr. Park did not have formal notice as required. Neither did he have informal notice. It was not disputed that he was in custody when he was served by email and when the hearing took place. I accept that he likely did not have access to the internet or his email while in custody. Even if he had it would not have cured the problem of the lack of proper notice. He was entitled to special service of an originating proceeding if Ms. Patterson wished to vary the final order for parenting time.
As such, the order of October 21, 2022 as it relates to parenting time is hereby set aside.
As a result of this court’s rulings thus far it would be helpful to pause to confirm the operative orders now under review. This is relevant because it determines who carries the onus. For child support it is the order of October 21, 2022 which father seeks to vary. Therefore, he has the onus of establishing a material change in circumstances and providing evidence sufficient to support a review.
Now that the suspension of the parenting time in the order of October 21, 2022 has been set aside, parenting time remains pursuant to the final consent orders of May 4, 2022 and October 2, 2019. As a result, on the motion to change going forward the onus is on Ms. Patterson to establish a material change in circumstances since she seeks an order for no parenting time.
I am not prepared to grant an order striking Mr. Park’s pleadings or to impose a similar stay on the issues of his parenting time. The case law is clear that more caution should be taken in ordering a stay or striking where parenting issues are involved. Ordering a stay is an uncommon remedy for a person who has disobeyed court orders when the issue is about what is in the best interest of a child. Parenting time is the right of the child and it would be prejudicial to the child to not have the issue of what, if any, relationship he is to have with his father made on the merits with notice to both parties.
Ms. Patterson’s claim to strike or stay the motion to change regarding parenting time is dismissed.
Section 29 of the Children’s Law Reform Act provides the statutory authority to change a parenting time order either on a temporary or final basis. It states that a court shall not make an order under this part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
The Supreme Court in Gordon v. Goertz, 19 R.F.L. 177 (S.C.C.) sets out the two stage process on motions to change. First, the parent applying for the change in the order must meet the threshold requirement of the material change. If that threshold is met the court embarks on a fresh inquiry into the best interests having regard to all the relevant circumstances related to the child’s needs, and the abilities of the respective parents to satisfy them. In determining whether there has been a material change in circumstances courts look to various components including a change in the condition, needs or circumstances of the child and/or the ability of the parents to meet those needs. The change must materially affect the child and the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order under review (Licata v. Shure, 2022 ONCA 270).
On the motion to change the court has the option of changing the existing order to address a specific issue while maintaining the general integrity of the order (Elazizu v. Wahba, 2017 ONCA 58). If the material change is found the court embarks on an inquiry of best interests considering section 24 of the Children’s Law Reform Act. Section 24(2) provides that the court will give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
The following non-exhaustive list of factors has been articulated in the case law as basic principles with respect to best interests. Best interests are not merely paramount, they are the only consideration in the analysis. Best interests are ascertained from the perspective of the child rather than that of the parents. No one factor in the statutory definition is given pre-eminence. A young child with attachments to both parents needs sufficient contact with both without prolonged separation to maintain a meaningful and close relationship with them. In resolving custody disputes emphasis is placed on the critical importance of bonding, attachment and stability in the lives of young children. The court should also consider the level of hostility and the extent to which that hostility may undermine the child’s stability.
A starting point to assess a child’s best interests when making orders is to ensure that the child would be physically and emotionally safe. It is also in the child’s best interests when making parenting time orders that his or her caregiver be physically and emotionally safe. The best interests analysis is not a checklist to be tabulated with the highest score winning. Rather, it calls the court to take a holistic view of the situation and of the child.
This is a temporary motion being argued on untested affidavits which limits the ability of the court to conduct a detailed best interests analysis. However, I am satisfied that there is sufficient evidence to make certain findings. I am satisfied there has been established on the evidence a material change in circumstances since the final order of May 4th, 2022 which also supports a temporary variation of the terms therein. In fairness, Mr. Park does not appear to be disputing that there has been a material change in circumstances since May of 2022. He recognizes that there has been a significant gap in his parenting time since sometime in mid-2022, and that this is a significant change from the status quo of his regular parenting time under the previous order.
The issue before the court now is what order regarding temporary parenting time, if any, is in the best interests of the child given all the circumstances. I note that Ms. Patterson consented to the orders as recently as May of 2022 which continued the regular and unsupervised parenting time for Mr. Park. That order is presumed to be correct, and it is further presumed that she would have felt that these terms she consented to served the best interests of the child at that time. However, since that order Mr. Park faces numerous and very serious criminal charges and other than denying that there was any basis for the charges there is no other information or evidence before the court. Further, Mr. Park has not seen the child since prior to his arrest in September of 2022 and has only spoken to the child once in June of 2023. This issue of the gap alone represents a material change in circumstances and supports a temporary order that differs from the final order.
Ms. Patterson also alleges that the Children’s Aid Society involvement since May 4, 2022 has continued and that they were investigating just prior to Mr. Park’s arrest in September of 2022. The historic evidence is that the Children’s Aid Society have been involved and verified concerns with both parents prior to the final order of May 4, 2022. The CAS closing report of August 4, 2022 notes no new verified concerns. That report notes no serious concerns with the child’s parenting time with either parent and there is no evidence of any other CAS involvement since that time. Despite this, Ms. Patterson is of the view that there remain serious safety concerns with father that support an order for no parenting time. However, both parties consented to two previous final orders with unrestricted and regularized parenting time for Mr. Park despite the historic concerns both parties are now alleging.
While no findings have been made in the criminal proceeding the criminal charges facing Mr. Park cast a large shadow here. They include multiple counts of sex assault, procuring, threatening, in addition to other serious charges. While these do not relate to Ms. Patterson or the child, the extent and seriousness nonetheless create a reasonable apprehension of risk that the court cannot ignore. The evidence provided here does not permit even a preliminary assessment of the circumstances that form the basis for the criminal charges. Beyond a blanket denial and that the charges do not involve Ms. Patterson or the child, there is nothing further offered. The court has no further information to allay the apprehension of risk that these charges indicate. The serious criminal charges and the lack of contact over a significant period of time support the varying of the order on a temporary basis.
Further, while a parent does not have an absolute right of parenting time, refusing parenting time should only be ordered in extreme circumstances. The court must consider all other options that have been tried and have not worked. The right of a child to visit with a non-custodial parent and to form an attachment with them is a fundamental right that should only be forfeited in the most extreme and unusual circumstances (D.G. v. A-G.-D, 2019 ONCJ 43).
Supervised access is beneficial for children who require a gradual re-introduction to a parent or where safety concerns require it until such time as those safety concerns have been addressed (I.O. v. I.G., 2023 ONCJ 520). The person supporting supervised parenting time bears the burden of establishing that supervision is necessary (K.S. v. K.M., 2023 ONCJ 106). A lapse in time without seeing a child is also a very important consideration in access decisions (H.P. v. P.L.C., 2013 ONCJ 460).
As outlined by counsel, Justice Blishen in V.S.J. v. L.J.G., 2004 ONSC 17126, [2004] O.J. No. 2238 (S.C.) provided a useful overview of factors that have led courts to terminate access. I note that Justice Blishen was careful to remark that none of those issues dealt with those cases where parenting time is terminated deal with one factor alone. In every case there is generally a multitude of factors which must be carefully considered and weighed in determining whether to terminate access. Justice Blishen went on to remark that supervised access should always be considered as an alternative to a complete termination of the parent/child relationship, and only consider termination if that has proved unworkable or inappropriate.
The CAS in this case have been involved and verified protection concerns related to both parents over time, but there is no evidence of verified concerns since the order of May 4, 2022. The most recent allegations in August 2022 regarding sexual harm were not verified as noted in the Society’s closing report. There is nothing to suggest the child was a victim of sexual harm. The report noted that both parents were appropriately concerned, and both agreed to ensure the child’s use of social media was more closely monitored. There is no other evidence that the Society has verified concerns with either parent since the final order of May 4 of 2022.
As I previously indicated, while there have been no findings in the criminal proceedings, they are extremely serious charges that, in the absence of any further evidence or explanation, create an apprehension of risk despite these charges not relating to Ms. Patterson or the child.
Overall, I am of the view that the circumstances do not support that a termination of parenting time is in the child’s best interest. Supervised parenting time is appropriate. The orders under review included liberal and regular and unsupervised parenting time to Mr. Park. Despite the historic concerns these orders were made on consent. However, the seriousness of the charges with no evidence to permit a preliminary review of the merits of those charges contributes to a reasonable apprehension of risk that cannot be ignored. The right of the child to visit and form an attachment and maintain that attachment with a parent should only be forfeited in the most extreme and unusual circumstances. This is not a case where supervised access has been tried and failed. The present circumstances of Mr. Park’s charges, and the gap in contact between him and the child, support an order for supervised parenting time rather than no parenting time.
Supervision will satisfactorily address the safety issues that may be present as well as the lapse of time since the last contact. I agree, however, that the supervision be undertaken by a third party supervised access facility which can address the safety issues and provide independent evidence of the interactions between the parent and child. I am inclined to request that the OCL be engaged to prepare a section 112 Report. If the OCL declines to be involved a Voice of the Child Report may also be considered.
On a temporary basis the child will be permitted to have weekly video calls with Mr. Park supervised by the paternal grandparents on Wednesdays from 5:00 p.m. to 6:00 p.m. or another time as agreed. Neither party shall speak negatively about the other parent or their family or discuss these proceedings other than to confirm the parenting time that has been ordered.
Ms. Patterson shall ensure that the child is available for video calls and that they are uninterrupted. If and when Mr. Park is able to vary his release conditions he shall have supervised parenting time biweekly for two hours at a supervised access facility in Guelph. He shall provide a copy of his new release terms to Ms. Patterson and the parties shall complete their intakes within ten business days of that confirmation being provided that the terms have been varied. Overall, this is not a case where the evidence since May 4, 2022 is sufficiently clear or compelling that the fundamental right of Colton to know and have his father in his life should be forfeited on a temporary basis when supervised parenting time at a third party access facility will address these immediate concerns.
For oral reasons given, an order shall issue as follows:
The respondent/Park’s motion to change the child support in the order of October 21, 2022 shall be stayed until he has satisfied the following: (a) He has paid a minimum of $400 per month towards the outstanding costs order of October 21, 2022. (b) When he has paid a total of $6,000 towards the costs order he may move by 14B motion to lift the stay. (c) Any motions shall be accompanied by a sworn affidavit attaching confirmation that the above payments have been made, an outline of child support paid pursuant to the order including an up to date FRO statement, a sworn financial statement with three years Notices of Assessments, year to date income, and two current pay stubs. (d) If at any point during the stay Mr. Park obtains employment or there is a change in his financial circumstances he shall within ten days disclose the particulars in writing including the name and address of his employer, hours worked and wage earned. He shall also provide his first two pay stubs within 30 days of commencing employment. (e) Mr. Parks shall have until January 1, 2025 to comply with these conditions to lift the stay. If he has not done so, Ms. Patterson may move by 14B motion to have Mr. Park’s motion to change child support struck.
Paragraph one of the final order of October 21, 2022 suspending the respondent’s parenting time is set aside.
On a temporary basis, Mr. Park shall have parenting time with the child as follows: (a) Weekly video calls supervised by the paternal grandparents on Wednesdays from 5:00 to 6:00 p.m. or at another time agreed between the parties. (b) Neither party shall speak to the child about this proceeding or any of the issues between the parties. (c) Ms. Patterson shall ensure that the child’s video calls are uninterrupted. (d) If Mr. Park’s release terms are varied he shall have supervised parenting time in a community-based access program in Guelph for two hours biweekly. His parents shall be permitted to attend this parenting time with him. Mr. Park shall provide a copy of his new release terms to Ms. Patterson and the parties shall complete their intakes with the access centre within ten business days of the amended release order being provided by Mr. Park.
The Office of the Children’s Lawyer is requested to provide a section 112 Report. The parties are to provide their completed intake forms to the OCL within ten days.
The remaining relief sought in the motions is dismissed.
Where do we go from here? I will start with you, Mr. Russell.
…SUBMISSIONS MADE BY BOTH COUNSEL.
THE COURT: … I am going to order that costs are reserved to the return date or the trial court…
Madam Clerk, you may close court.
COURTROOM CLERK: Thank you, Your Honour.
C O U R T A D J O U R N E D