Court File and Parties

Ontario Court of Justice

Date: 2016-02-17

Court File No.: Halton 09/365-05

Between:

V.B. Applicant

— And —

M.M. Respondent

Before: Justice Victoria Starr

Heard on: February 12, 2016

Reasons for Judgment released on: February 17, 2016

Counsel:

• Modupe Ehinlaiye, counsel for the applicant(s)
• M.M., on his own behalf

VICTORIA STARR J.:

Overview

[1] This judgment reflects the court's decision and reasons regarding two separate motions to change heard the same day. The first is, in effect, the mother's motion to change the access provisions of the final consent order of Justice S. O'Connell dated November 13, 2013. The second is the mother's motion to change the final child support provisions of the consent order of Justice R. Zisman dated August 14, 2013.

MOTION TO CHANGE 1: Request To Terminate Or Order Supervised Access

Background and Overview of the History of Litigation and Access

[2] The parties have three children:

• 12 year old, J.C.M., born […], 2003
• 10 year old, P.M., born […], 2005
• 7 year old, G.T.M., born […], 2008

[3] The parties separated in October 2008, when the mother left the home with the children and went to a shelter. The mother has sole custody of the children and they all reside primarily with her.

[4] Litigation between the parents began on July 20, 2009. Since that time there have been 27 court attendances, not including any attendances at First Appearance Court. There have been multiple proceedings: one application, three motions to change, one motion for leave to bring a motion to change that was denied, and the present motion, which is the equivalent to a motion to change as the mother seeks a final order terminating or suspending the existing final order regarding the father's access. This does not include the various interim motions heard within each proceeding.

[5] Since separation there have been periods when the children had no access with their father, for example, when he was convicted and incarcerated for eight months for sexual assault of the mother. Beginning in mid-2012, access transitioned from supervised, to supervised exchanges, and then to exchanges in a public place.

[6] On December 28, 2012, the Office of the Children's Lawyer ("OCL") submitted the section 112 report of its clinical investigator, Andrea Barclay. That report, more fully discussed below, included recommendations that the father have access supervised by a supervised access centre; undergo a psychiatric or psychological assessment; and, that the parties' eldest son, J.C.M., begin therapy.

[7] Following the release of the OCL report, on February 25, 2013, Justice O'Connell ordered, on a contested basis, that the father have supervised access to the children at the Burlington Supervised Access Centre for a period of two hours each week. She also ordered, on consent, the father to undertake a full psychological or psychiatric assessment to address the concerns raised in the OCL report. He was to provide a copy of the complete OCL report to the psychiatrist or psychologist conducting the assessment. There is no evidence that he ever complied with this order. That is, that he ever underwent such assessment.

[8] On November 13, 2013, at the parties' request and pursuant to minutes of settlement filed by the parties, Justice O'Connell made the final order granting the father unsupervised reasonable access on reasonable notice.

[9] For 2 ½ years, from November 13, 2013 until October 26, 2015, the father exercised access pursuant to the final order. On October 26, 2015, the mother brought this motion, for among other things, a locate and apprehend order with respect to J.C.M. (the father had refused to return him to her care) and an order terminating the father's access. I ordered J.C.M.' return with police assistance if necessary and temporarily suspended the father's access and contact J.C.M.. Since that date he has only been exercising access to the parties' two younger children. J.C.M. has not had access with his father for about 3½ months.

The Positions of the Parties

[10] The mother seeks termination of the father's access to all three children, and, in the alternative, that his access be supervised by staff at an access supervision centre. She also seeks police enforcement and costs.

[11] The father opposes the motion. He submits that there is no reason to terminate or supervise his access and that it is the mother who is harming the children, not him as she is an incompetent parent, sexually promiscuous, a liar, and mentally ill. He also submits that his 12-year-old son is like a man, capable of deciding where he lives himself and in any event, too big for him to control. He also submits that both boys want to live with him and should be allowed to. He submits, he is too busy and will not see his children if his access is to occur at a supervision centre.

The Material Reviewed

[12] The father filed no responding materials. The mother filed only one short affidavit, that sworn by her on October 26, 2015. This evidence was woefully inadequate.

[13] In an effort to make the best decision possible for these children, I reviewed all of the pleadings, affidavits, financial statements and other documents contained in volumes four and five of the continuing record, as these volumes hold the materials relating to the post-final order litigation. Included in this material is the evidence of the clinical investigator for the OCL, Andrea Barclay. Her evidence is set out in the December 1, 2012 report attached to her affidavit sworn December 20, 2012. The mother relies and referred to this evidence in her submissions. I also reviewed all endorsements and their attachments.

[14] At the hearing the father gave oral evidence and was cross-examined. The mother did not give oral evidence and the father did not seek to cross-examine her.

The Legal Framework

Material Change in Circumstances

[15] The test for changing a previous custody or access order is material change in circumstances. The court shall not make an order that changes a custody or access order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child (Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended, s. 29).

Best Interests

[16] In the event that I find that the mother has met the threshold test of demonstrating a material change in circumstances, it is my task to decide what to do in the face of the circumstance the parties and the children now find themselves. I must decide what is in the best interests of the children. I have considered the criteria in s. 24(2) as well as the principles and direction in subsection 24(3) and 24(4) of the Children's Law Reform Act ("CLRA"). The range of orders that I can make is set out in section 28 of that Act.

Termination and Supervision of Access

[17] The principles of family law suggest 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, to know and maintain or form an attachment to a non-custodial parent is a fundamental right of the child and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort. It should only be considered in limited circumstances and when other alternatives have failed: Jennings v. Garrett, 2004 CarswellOnt 2159 (S.C.J.) and Evangelista v. Galloro 2014 CarswellOnt 5839, 2014 ONCJ 219, [2014] W.D.F.L. 2767, 240 A.C.W.S. (3d) 103.

[18] As noted by Blishon J. in Jennings v. Garrett, supra at paragraphs 135 - 140, the factors most commonly considered by the courts in terminating access and often equally applicable when deciding whether to order supervised access are the following:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.

2. 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 wellbeing.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.

4. Ongoing severe denigration of the other parent.

5. Lack of relationship or attachment between noncustodial parent and child.

6. Neglect or abuse to a child on the access visits.

7. Older children's wishes and preferences to terminate access.

The Evidence

The Circumstances Before and Leading up to the Final Order

[19] In her evidence, Andrea Barclay noted the following about the father:

The father present as friendly, controlled, and courteous. …. demonstrates unusual perceptions, obsessive behaviors, and the theme of victimization.

[20] Andrea Barclay gives a comprehensive picture of the circumstances of the children and the ability of each parent to meet the needs of the children from their parent's separation in late 2008 up to the date when the report was prepared, December 1, 2012. That evidence is very disturbing. It chronicles the father's sexual, emotional, spiritual and physical abuse of the mother; the father's toxic view of the mother; the harmful messaging and behaviours of the father towards the children, J.C.M. in particular; the negative impact and future risk of harm arising out of the father's parenting deficits; and, her recommendations to address the issues. No notice of dispute was filed by either party in response to this report. This evidence is unchallenged.

[21] The mother's description of the father's supervised access from August 2013 until the final order was made November 13, 2013 is set out in her affidavit sworn January 30, 2015 she says:

a. Following the final custody of the children to me on August 15, 2013 the respondent began to have access to the children in the Burlington Supervised Access Centre for a period of two hours, three weekends each month (order of Justice Zisman dated August 15, 2013);

b. During those visits, it was noticed that the respondent continued to speak negatively about me, my family and our relationship in the presence of the children.

Circumstances since the Final Order

[22] I have no evidence to suggest that the father underwent a psychiatric or psychological assessment as was recommended by the OCL and ordered by Justice O'Connell. None of the evidence suggests that the father in any way sought out or received help for his emotional issues or to address any of the concerns raised by the OCL. There is no evidence to suggest that J.C.M. has received the therapy recommended by the OCL.

[23] Given the lack of action on the part of both parents, it is not at all surprising to me that almost all of the circumstances, issues, and problems described by Ms. Barclay persist and have worsened, despite the passage of 3½ years. I turn next to a review of some of the evidence that illustrates this.

Access Generally

[24] The status quo with respect to access during the 35 months that followed the November 13, 2013 order up until October 26, 2015 was that the father had regular, unsupervised access to all three children. The mother offers the following description of how things have gone in her affidavit sworn January 30, 2015:

a. I have made efforts to ensure that the respondent has generous access to the children, in order for peace to reign and to prevent the respondent's frequent complaint to the children that I was depriving them from seeing their father.

b. The respondent sometimes would see the children weekly and without notice to me. As my children were happy, I simply continued to accommodate the respondent. He also did not want to take the children to his home, but to visit them in mine and stay for as long as he wanted, so as not to clean up after them.

Failure to Return Children and Risk of Reoccurrence

[25] There is no dispute that the father has at least twice refused to return J.C.M. to his mother's care. The first occasion followed an access visit permitted by the mother; the second occurred following an impromptu visit on October 25, 2015.

[26] The first occasion started on December 20, 2014 and ended the next day. This can be referenced as the "Barrie withholding". This is described in detail by the mother in her affidavit sworn January 30, 2015 and her evidence is unchallenged and in establishes that the father did not return J.C.M. to his mother's care when requested. It also shows that the father lied to the mother about his and J.C.M.' whereabouts and got J.C.M. to lie. It also illustrates the father's strange and damaging views and messaging in front of J.C.M. and the pressure and stress J.C.M. feels when this happens. Finally, it shows how insensitive and dismissive the father is of the mother, as he ignored her calls and pleas.

[27] For example, while on the phone with the mother the father said that he and J.C.M. were not coming home, because:

a. J.C.M. thinks he is a man who does not need a woman;

b. Burlington (where the mother resides with J.C.M. and his siblings) is bad;

c. The school J.C.M. goes to is against him because he is Iranian.

d. J.C.M. has met a girl who he would like to become friends with and that J.C.M. wants to stay with him and visit the mother over the weekends.

[28] The mother insisted on speaking with J.C.M. and when she did, he confirmed these as his reasons. The mother discovered that father and son were not in Barrie but at the father's apartment in Mississauga. He had lied and had J.C.M. lie about where they were. Later, J.C.M. expressed relief at being retrieved and told the mother that he had felt pressured to say these things.

[29] The second time was on Sunday October 25, 2015. On this occasion the mother arrived home and discovered that the boys were not there. She was worried sick. She called the father who lied to her and said he did not have the boys. She began to panic; she looked around her neighborhood and asked her neighbors if they had seen the boys; nobody had. In desperation she again called the respondent (about 1 ½ hours later). This time he admitted that he had the children. He told the mother that they did not want to come home. She insisted that he return them. The father dropped off the youngest son shortly after that call but immediately left. He did not drop J.C.M. off.

[30] The mother did not want to disrupt J.C.M.' routine and schedule for school. She began to negotiate, beg and plead for the father to bring J.C.M. back. The father's response was the same: J.C.M. did not want to come home, and he was not forcing him.

[31] The police were unable to assist the mother with securing J.C.M.' return as she needed a court order directing them to act. She brought this motion.

[32] On October 26, 2015. I ordered that the father (who was refusing to return J.C.M. to the care of his mother), return him to the mother, failing which the police were to assist in securing J.C.M.' return. I also suspended all contact between J.C.M. and his father pending further order of this court. The motion was adjourned to November 10, 2015.

[33] There is no dispute that J.C.M. was returned to his mother's care with the assistance of the police, rather than voluntarily by the father.

[34] Although the endorsement of November 10, 2015 indicates that the father was not present that day, he was. On that date the father advised that:

He will not force J.C.M. to do anything, including return to his mother's home if J.C.M. does not wish to go.

[35] I adjourned the matter to February 12, 2016 on essentially the same terms as the October 26, 2015 order.

[36] At the hearing on February 12, 2016, the father changed his position somewhat. He said that he would not be able to force J.C.M. to return to his mother's care if he refused because J.C.M. is too big for him to control. When he was asked how he planned to deal with such situations he said that he would show J.C.M. the court order and if he still refused, he would call the police to come and forcibly remove and return J.C.M. to his mother's care. He showed no insight whatsoever into the negative effect that this could have on J.C.M. and he had no other plan to address his parental deficit in this regard. I was not at all assured that the father will be able to comply with his obligations as the access parent, without exposing J.C.M. to further unnecessary and significant emotional harm and risk of physical harm or criminal charges such as could occur if he physically resists the police.

The Father's View and Treatment of the Mother

[37] Andrea Barclay's evidence includes statements made to her by the father about the mother during her investigation and which demonstrate his extremely negative and unsubstantiated view of the mother and her family. These are just a few out of many alarming statements:

a. The mother is "mad", and he circled his finger beside his ear. The mother's family all have mental problems as well. The mother was under psychiatric care and required medication;

b. He did not want the mother contacting her family as he wanted her to forget her past; even if her parents are important to the mother they are not important to him, his children, or anyone in Canada.

c. He could not identify any strengths of the mother and stated that she has no education, she does not work, and make money for Canada and he expressed concern for what kind of life and example does she sets for her children.

d. If the mother raises the children they will become taxi cab drivers, and he stated that he felt J.C.M. would possibly be like another 12-year-old boy he read about who was caught with a gun.

[38] I find that the father's view of the mother has not changed one iota, nor has his propensity for sharing this view with the children, particularly J.C.M. and others. Below are some more current examples that have led me to this conclusion. In his affidavit sworn January 15, 2015 in support of his motion for custody of the two sons, the father makes the following statements:

a. "For the reason of their mother emotional and behavioral issues…."

b. "Improper behavior of their mother has affected the upbringing of my sons."

c. "The management of their residential complex refrain from fixing the unit problem because of their mother's behavior."

d. "The hygiene and nutrition condition of my sons is disastrous to the extent that they have louse in their hair according to the school principals".

e. "The strangers coming and going to her house is still continued. I witnessed myself that in the month of November at about 7:00 PM, three men age about 50, 25 and 20 coming out of her house. And the 25-year-old guy came back to the house and the West neighbor was also watching this incident."

f. "My both sons told me privately that they were sexually raped at their house".

g. "I request the court to help me rescue my sons as soon as possible. They have been living in a very bad unhealthy situation. My sons want to stay with me as they repeatedly asked me to do something about their situation."

h. "I was not happy when I saw my children smell and dirty clothes and their food."

i. "During the last year always weekends I was cleaning washing and cooking and she was sleeping because at night she was busy with men."

j. "I saw empty bottle of whiskey in the basement beside furnace and some cigarettes also."

k. "First week of December I told him if she doesn't stop men to coming in-house, night and day I will report to the court. She was angry and I was changing winter tires of her van she called guy and took emblem of my car and she said she wants to ask them to kill me also."

[39] Further, in his submissions and at almost every court attendance before me, the father has repeated almost all of these allegations.

[40] This state of affairs with respect to the father's conduct is also confirmed by the mother in her affidavit sworn January 30, 2015. For example, the mother says:

a. The respondent however would continue to accuse me of infidelity and being a prostitute, whenever he visited. Sometimes he would visit them and refuse to leave, until I threatened to call the cops on him;

b. The father recently threatened to show J.C.M. the video he claims to have made of his sexual assault on her, in order to show J.C.M. that she was a prostitute. He also stated that he would post the video online, in order to "destroy" her.

[41] There is absolutely no evidence to corroborate any of what the father's says and the mother denies that any of this is true. These same allegations were made in the previous proceedings and as Ms. Barclay points out, "the mother, from all accounts, is a capable, dedicated and positive parent to her children. She says:

"The Halton Children's Aid Society, Peel Children's Aid Society, the school principal, the family doctor, and the Region of Halton, all report that the mother is a good parent and the children are safe and thriving in her care."…

"the mother's allegations about the father have been corroborated by the Halton children's Aid Society, Peel Children's Aid Society and by the Halton and Peel police."

The Father's Negative View and Mistreatment of P.M.

[42] I find that the father has a very negative view of P.M. and has engaged in conduct that I find amounts in some instances to emotional abuse, and in other's, puts her at risk of further and significant emotional harm. These are some examples of the actions he has taken that reflect this:

a. The father filed a motion to change in December 2014, the crux of which was to have custody over the parties' male children only;

b. In his 2015 motion to change child support (ultimately struck), his subsequent motion for leave to bring a further motion to change child support, and in his oral evidence given at this hearing, the father clearly states that he is willing to pay support only for the two male children but not for P.M..

[43] In this regard I have also considered the mother's unchallenged evidence as set out in her affidavit sworn July 30, 2015. Here she says:

a. Following the dismissal of his motion to change custody, the respondent withdrew P.M. from his health insurance plan, knowing full well that P.M. relied heavily on his plan for her medications, having been diagnosed with diabetes;

b. The father believes that diabetes is contagious. As a result he warned J.C.M. and G.T.M. not to play with P.M., so they do not "catch" the disease;

c. The respondent habitually ignores P.M. during access time with the children.

d. "On all occasions, when he visits, he says he has come to visit his sons, referring to J.C.M. and G.T.M.. He always neglects P.M. and would sometimes state that she is not his daughter."

[44] The mother points also out, and the father did not deny, that the father believes that women and female children are disadvantaged and inferior to their male counterparts. As a result, he believes investing in their daughter is a waste.

[45] The mother describes the effect the father's views and treatment of P.M., has had on P.M.. She says it has been very devastating for P.M., who is struggling to understand what she might have done wrong to receive such treatment from her father. This is made more stressful as P.M. must also endure treatment for her condition.

Father's Inappropriate Conduct and its Effect on J.C.M.

[46] I find that J.C.M. is the child at the greatest risk of emotional harm from his father. His father has focused his attention on him and as a result, he is the child whom I find has been exposed the most to the father's harmful, and at times, delusional views. As the evidence of Andrea Barclay makes clear, J.C.M. has been the focus of his father's negative influence and behaviours for a very long time. These are some of the conclusions that Andrea Barclay draws:

a. J.C.M. appears to be the focus of his father's attention. His attention however appears to be the application of father's emotional delusions and obsessions on J.C.M., treating him as an equal, and encouraging him to behave in a defiant and disrespectful manner to his mother, and other authority figures.

b. He further places tremendous pressure on J.C.M. to be educated beyond his capacity. This pressure and influence over J.C.M. is causing J.C.M. anxiety and confusion and he is demonstrating some serious mental health and behavioral issues as a result. J.C.M. would benefit from some children's mental health intervention on an ongoing basis.

c. The father presents as uninterested in interacting with P.M. and G.T.M. and he appears to be unable to offer appropriate child management. P.M. and G.T.M. can see that all the father's attention is focused on J.C.M..

[47] These are some examples of statements made by J.C.M. to Ms. Barclay which demonstrate his perceptions and state of mind:

a. His father told him to call the children's aid society of his mother;

b. His father tells him that the school thinks negatively about him and are against him;

c. He was mad at his father for not talking positively about the things he cared about including his maternal grandfather who he called crazy, and it was good he had "died like a dog". He said this is the opposite information he gets from his mother.

d. His father is negative about his mother, saying she looks like she was bit by a coyote, has broken rotten teeth, dirty long hair when she first came to Canada.

e. His father tells him that the maternal side of the family are "wild animals" and he has overheard him telling other people negative things about his mother. He said that his father told him he wanted him to stay forever with him but that J.C.M. does not want this, but that a couple of days was okay.

[48] Moving forward to J.C.M.' current circumstances. In her affidavit sworn January 30, 2015, the mother gives the following unchallenged evidence:

a. The father has stated that J.C.M. was his priority and that he needed to show J.C.M. how to behave, and how to be a man.

b. The father has continued to confuse and tricks J.C.M. with a "bait" system. For example, he set up an RDSP account for J.C.M. and gave him all the paperwork, asking him to check up "his" money online. He also buys J.C.M. phones and several other things to buy his affection. I note that the father confirmed in his evidence that he gives the children each $40 a week. Since his contact with J.C.M. has been suspended he has been sending J.C.M. $40 to him, via P.M..

c. The respondent calls J.C.M. and speaks with him to the exclusion of the other two children.

d. The respondent has done everything in his power to dissuade the children, especially J.C.M., from integrating into the community, while coaching him to believe that he is hated and cannot do well in activities. For example, J.C.M. told his mother that the respondent stated that because J.C.M. is Iranian, he would amount to nothing with hockey, he would never be relevant because Canadians do not like Iranians.

e. The respondent engages J.C.M. in adult and inappropriate conversations, treating him like a friend and an equal rather than an 11-year-old child.

f. J.C.M. informed his mother (following the Barrie incident) that he was happy that she came to pick him up from the respondent's care because he was feeling pressured to stay and say the things he said about school, Burlington and his friends.

g. The respondent discusses inappropriate topics with J.C.M., such as "I got your mother to have sex with me".

h. The respondent gave J.C.M. driving lessons and allow J.C.M. to actually drive around the parking lot at her apartment.

[49] J.C.M.' exposure to such inappropriate behaviour and messaging has been going on for many years with little or no abatement.

[50] There is evidence of the harmful effects of all that J.C.M. has been enduring. For example, the mother asserts that the father's comments are also affecting J.C.M.' behaviour at home. He is more difficult to manage and often defiant of her. She describes how difficult it is to teach J.C.M. right from wrong behaviour. She says this is difficult because the father has told J.C.M. that if she complains it is because she does not love him.

[51] The mother's evidence is also that each time J.C.M. comes back from visiting the respondent, he is always very upset. He asks questions such as why she made his father to sell the "mansion" they used to live in and why she makes him and his siblings live in a co-op apartment building, which would destroy his life.

[52] According to the mother, his father's comments about how others view J.C.M. because of his Iranian heritage etc., has led to J.C.M. quitting hockey, swimming, basketball and figure skating where he was at the top of his team. This is unfortunate as these are the type of normal activities that one would expect a 12 year old boy to participate in and which, for many, often provides an outlet for their frustrations, supportive social ties, a sense of belonging to a community, discipline and self-control, self-confidence and positive self-esteem.

[53] The most disturbing evidence of the risk of harm and possible effect of allowing J.C.M. to continue to be exposed to the views, inadequate parenting, and inappropriate conduct of his father came from the father's oral evidence at the hearing (albeit provided by him for a very different purpose). He again described J.C.M. as a very big boy. At just 12 years old he stands as tall as his father. If he does not want to do something the father cannot control him. Indeed, he does not want to control him as J.C.M. is like a man, he is capable of making decisions about his life like a man. More significantly, he stated that J.C.M. is unhappy with his mother and he speculated that if things continue, J.C.M. might turn out like those Canadian kids who get a gun and shoot people; J.C.M. might even get a knife and cut his mother's throat someday.

Effect on the Mother, the Children's Primary Caregiver

[54] The mother gave evidence about her view of the father's motives and the effects of the father's actions on her and her parenting. Two examples from her evidence illustrate the toll. She says that every time there is peace, the respondent drags her to court just to destabilize her one way or the other. He makes several false allegations about her which he knows to be untrue. She is "drained from the constant harassment"; and, "each time the respondent serves her with court process it affects her routine and emotional well-being. Ms. Barclay found that, while the mother had appropriate supports and was managing well, she has a history of anxiety.

[55] The mother has continued to reinforce the children's self-esteem, but in the face of the respondent's constant harassment and demoralizing behavior, this is becoming harder by the day.

Analysis

Should access be varied and if so, should it be terminated or supervised?

[56] A final order terminating all access and contact between all three children and the father would be an extreme measure and warrants the most serious consideration. It is necessary to weigh and balance numerous factors in the context of each child's best interests.

[57] I find that the father has relentlessly continued to be verbally and emotionally abusive of the mother, including in front of the children. As he did during the marriage and during the OCL investigation, he has continued to make similar unsubstantiated allegations about her parenting and her moral character. The father has continued to threaten her such as when he surmises that J.C.M. might slit her throat one day, and such as when he threatened to show J.C.M. the video that will provide his mother is a prostitute.

[58] The father's repeated use of court processes as a means to embroil the mother in unnecessary and meritless litigation serves him as a further means to continue to attempt to control the mother by scaring and destabilizing and exhausting her emotional and financial resources. His use of court attendances as a forum within which to publicly demean, degrade, belittle and attack the mother's parenting and moral character is not just an abuse of her but an abuse of process. I find that the father's abusive conduct towards the mother has not abated or lessened with the passage of time.

[59] As verified by the children's aid society and others, the children witnessed much of the father's abuse of their mother prior to separation and I find that it is highly probable that they continue to be exposed to the father's verbal and emotional abuse of the mother. In making this finding I have also taken into consideration the many times the father has appeared before me, and engaged in such attacks. I also place weight on his general failure to deny that he has said and done the things I have recounted both in and out of the presence of the children. He simply does not see his behaviour as abusive or harmful to the mother or the children, or he does, and his motivations are far more nefarious and malicious.

[60] I find that the constant emotional and verbal abuse inflicted upon the mother by the father has caused the mother a great deal of stress and unnecessary, heightened anxiety. Given her close attachment to the children and status as their primary caregiver, this indirectly impacts the children and is not in their best interests.

[61] I find that the father, has, through his inappropriate parental conduct caused J.C.M. emotional harm and that the risk of this continuing, given the views and behaviours of the father, is high. He has on more than one occasion enlisted J.C.M. in his deceit of the mother; used him as a pawn; engaged and exposed him in inappropriate adult conversations; placed him in a loyalty bind by "baiting" him with money and material objects; and, placed J.C.M. at the centre of the conflict by forcing him to be an accomplice in lying to his mother and by supporting his refusal to return him to his mother. This is to say nothing of his chronic and relentless exposure of J.C.M. to his delusional and very negative views about the mother.

[62] He has also given J.C.M. negative messaging about his place in the world and at home. This messaging is not in J.C.M.' best interests. It threatens to undermine J.C.M.' sense of security and his view of his place and value in Canadian Society, in his community, and among his peers. Through his messaging the father has also undermined the mother's role as a good, capable and loving parent who will protect J.C.M. as well as J.C.M.' view of his mother and her role as his parent. This too undermines J.C.M.' sense of safety and security within his mother's home and care. The father's actions also undermine the mother's ability to provide J.C.M. guidance through advice, modelling, and effective discipline. The negative effect of all of this is evident in the growing change in J.C.M., in his dismissive and defiant behaviour towards his mother, and from his withdrawal from extracurricular activities.

[63] The father's evidence also makes clear that he is unwilling or unable to control J.C.M.. As such he leaves the court with little doubt that there will be other occasions when J.C.M. is not returned to the custody and care of his mother following a visit with his father. The father offers no insight into the problem. His solution is to show J.C.M. the court documents or call the police to have them forcibly remove J.C.M. if he refuses to return to his mother's home. His proposed solution is not acceptable to the court as it cannot possibly be in J.C.M.' best interests to repeatedly subject him to apprehension by the police.

[64] Similarly, the father's view and treatment of P.M. has emotional harmed her and places her at even greater risk of harm if it continues. His open expressions of his preference for his male children; cautioning of his sons to stay away from their sister, his daughter, because they might catch a disease from her; and other actions are hurtful not just to P.M. but to her brothers. The father's behaviour in this regard is completely unacceptable. His actions have left P.M. confused. If left unchecked, they will likely undermine her self-confidence, self-esteem, and sense of security within her family unit and as a female.

[65] There is very little evidence with respect to G.T.M.. What evidence there is illustrates that his father has exposed him to negative messaging and, like J.C.M., has placed him in a loyalty bind and at the centre of parental conflict by over holding him following at least one access visit. There is also evidence that he experiences his father's focus and preferential treatment of J.C.M.. While the risk of emotional harm may be lower, it must be taken into account. He is just a little boy. He is vulnerable and would likely be more vulnerable if his father only had access to him.

[66] The father must stop all of this harmful behaviour. The problem is that there is no evidence to suggest he can, let alone will. The father does not even acknowledge that he has done anything wrong. He lays the blame for everything at the feet of the mother, the court, and ancillary legal professionals for not sharing his view of the mother and the situation.

[67] I find therefor that at this time the father is unable or unwilling to recognize or meet the emotional needs of his children. He is not a good role model. He either cannot or chooses not to separate his needs from those of the children, and he most certainly is unable or unwilling to place their needs ahead of his own. There is no stronger evidence of this than his own evidence that he is too busy with other commitments and would rather walk away from involvement in his children's lives, rather than have supervised access to them. So long as he has unfettered access to them, he stands in the way of these children having a stable and secure life and relationship with their mother, each other, and their community.

[68] Based on the evidence of Ms. Barclay and the mother, and the tone and content of the father's affidavit material, oral evidence, and submissions to this court, the father continues to be a deeply disturbed individual with long term emotional difficulties which must be addressed as they have and can continue to impact on the children. The OCL previously recommended and the court ordered with the consent of the father that the father undergo psychiatric or psychological assessment and follow through with any recommended additional assessments or recommendations. The father has not done this or sought out any form of help. Given that the underlying reasons for the OCL's recommendations for supervised access and for assessment generally persist, the current access arrangements leave the children vulnerable.

[69] The continuation of the father's chronic and harmful behaviour without abatement for an additional 2½ years could never have been an expectation of Justice O'Connell nor the mother. I am certain that if either of them knew then what is known now, the final order would never have been agreed to by the mother, nor ordered by the court. I find that there has been a material change in circumstance that necessitates an immediate need to change the nature of the father's access.

[70] I do not have important evidence that I require to consider terminating the father's access. For example, I do not have evidence as to:

a. The children's views and preferences.

b. The possible effect on each child of a termination of access;

c. The mother's plans to address the risk of emotional harm to each child, and J.C.M. in particular, if access is terminated.

[71] The children each have a relationship with the father. I also have no evidence to suggest that any of the children dislike or do not want to spend time with their father or that they do not generally enjoy their visits. Similarly, there is no evidence that any one of the children lacks a meaningful attachment to the father. Given these crucial deficiencies in the evidence I am not prepared to find that it is in any of the children's best interests to completely terminate the relationship each has with the father.

[72] Supervised access has been successful in the past and I have no reason to doubt that this will be the case once again. Through a supervision order it will be possible to do the following: protect the children from risk of harm; continue or promote the parent/child relationship; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the negative impact upon the children. Supervised access will also allow the father to benefit from professional intervention through the access centre staff where necessary. It will also ensure that the children and father maintain a connection while the father gets help. I have thus made an order for supervised access with no direct or indirect contact between the father and the children instead. I have also ordered police enforcement of this order to ensure compliance.

[73] Given the previous use and success with the Burlington Supervised Access Centre and the children's familiarity with that centre, I find that it is in the best interests of all three children for supervised access to occur at that centre. I have ordered such access to occur a minimum of once per week for two hours at such times as the centre has available but preferably on a Saturday or Sunday.

[74] It is my hope that the father will not follow through on his threat to walk away rather than exercise supervised access. However, given his resistance, I have directed that he shall be the parent responsible for initiating the process with the centre and for paying any fee associated. Control over whether he exercises access, or not, is his.

[75] Supervised access is not intended to be a long term solution to access problems. Although there are situations where it might be in a child's best interests to use it as a long term solution, this is not one of those cases. In this case its purpose is to serve as an intermediate solution while the father corrects those problems that justify supervised access. An in depth psychiatric or psychological assessment of the father must be completed, if there is to be any hope of correcting or eliminating such problems. If the father does not seek out and begin the process of undergoing such an assessment within the next three months, and if he does not cooperate fully with such an assessment and follow up with any recommendations for treatment, consideration could be given to a termination of access.

[76] On the other hand, if the father seeks out and is cooperative with such assessment, completes the assessment, commences any treatment recommended and makes progress, consideration could be given to gradually increasing access and reducing or eliminating supervision. The evidence of the treating psychiatrist or psychologist would be crucial in making any further decisions regarding the father's access to his children.

Is this an appropriate case for a final, rather than temporary one?

[77] The mother did not use the proper form or process to bring this motion as she did not use the motion to change form. I have decided that this is an appropriate case in which to exercise my discretion to dispense with this procedural formality so as to pave the way for a final order to be made. I do so pursuant to my authority to make such order as is in the best interests of the children under section 28 of the CLRA and as an exercise of my discretion to deal with cases justly pursuant to Rule 2 of the Family Law Rules, O Reg. 114/99.

[78] I reach this conclusion for these reasons:

(a) The process has been fair for the father. He has had notice, 3 ½ months to prepare and present his case, an opportunity to cross-examine the mother as well as give oral evidence. He gave oral evidence and made full submissions at this hearing. The father has been clear, he has said and done all that he intends to do in relation to this issue/motion;

(b) Motions to change are ordinarily determined summarily, on the basis of affidavit evidence, with the possibility of limited cross-examination. Each party has filed all affidavit material he or she intends to file. The father was cross-examined. He did not request to cross-examine the mother, however, the opportunity to do so was made available to him;

(c) The father raised no objection and it seems to me that both parties are expecting me to make a final order;

(d) There is nothing to be gained by postponing final adjudication solely so that the mother can cure a procedural deficiency. Doing so will only waste the court's time and the mother's resources, financially and emotionally.

(e) It is not in the best interests of the children for the resolution of this issue to be delayed.

MOTION 2: Variation Of Child Support

Background

[79] The current order for child support is the final order of Justice Zisman dated August 15, 2013. Justice Zisman found that the father's annual income for child support purposes was $78,740. The father was ordered to pay $1509 in child support monthly. This is the Ontario Child Support Guidelines, O Reg 391/97 ("the Guidelines"), Table amount for three children based on this level of income.

[80] The father brought a motion to change dated June 12, 2015 wherein he sought to terminate child support for the party's daughter and that he pay child support only for the remaining two children in the amount of $1096 per month, based on an annual income of $82,920. The mother defended the proceedings by way of response to motion to change dated July 30, 2015. She sought an increase in child support.

[81] I struck the father's motion to change on September 29, 2015. The father brought a motion for leave to bring yet another motion to change child support. That motion was heard and dismissed by me on January 5, 2016.

[82] As a result of his motion to change having been struck the only claims left to be adjudicated are the mother's claim for costs and her request that child support be increased to the Table amount payable based on the father's 2014 income.

[83] I allowed the father to participate in this portion of the proceeding despite the fact that his child support claim had been struck.

Position of the Parties

[84] The change the mother seeks is that the father pay $1,847 per month commencing July 1, 2015. This is the Guideline Table amount for three children and is based on the father's 2014 Line 150 "Total Income" on his T1 General Return filed with the Canada Revenue Agency ("CRA") $100,120.

[85] The father opposes the change on two grounds. First, his income decreased from $100,120 in 2014 to $78,347 in 2015. Second, ordering him to pay the full Table amount for 3 children, even on this reduced income would cause him financial hardship. He submits that the level of support should be reduced to $1,151 which is the equivalent of the Table amount for two children instead of three, based on an annual income of $78,347.

The Evidence

The Father's Income

[86] The father is a crane operator.

[87] At the hearing of this motion the father filed a financial statement sworn by him on January 6, 2016. Attached to it were copies of his notices of assessment for the past three years. These show the following amounts as the father's Line 150 Total Income:

• 2012 - $81,134
• 2013 - $120,051
• 2014 - $100,120

[88] The father's oral evidence is that his gross income in 2015 was $78,347. He explained that the decrease in 2015 was due to some health issues and due to intermittent employment. He did not describe his health issues or how they affected his ability to work. He did not present any medical evidence to corroborate his claim.

[89] With respect to his intermittent employment, the father's oral evidence lacked specificity. He said that he had worked for two companies in 2015. The first was Niran Construction Limited. He worked there until sometime in October 2015. He said there was a shortage of work. When asked if he was laid off, he became evasive, at first saying yes, and then when asked if he had brought a copy of his record of employment with him to show that he had been laid off, saying no and qualifying his answer. It was not clear to me that he had indeed been laid off. He was also vague with respect to the date when he stopped working for this company. It was sometime in October 2015. He said that he earned $66,003.89 from that employment. He attached a copy of one paystub for pay period ending October 3, 2015. This paystub shows gross year to date earnings of $66,003.89. When asked if he had brought his 2015 T4 from this employment, he said no.

[90] The father also said that he then began working for Rankin Construction Inc. He attached a paystub from that employment for pay period ending November 21, 2015. It shows gross year to date earnings of $12,344.85. He said that he did not like working for this company and left some time in December 2015. Again he was not able to provide specific start and end dates for his employment, a copy of his T4, or a copy of his record of employment. The father's evidence that his income in 2015 was $78,347 is based on the addition of the amounts shown on the two paystubs produced.

[91] The father said he has started a new job in late December 2016. He said that he is paid $38 an hour, and works, at minimum, a 40 to 45 hour work week. This does not include overtime. By my calculation, equates to a minimum annualized gross income of between $79,040 and $88,920. He did not give the name of his employer, provide copies of any pay stubs or other documentation to substantiate his evidence. This despite a requirement that he attach such evidence to his financial statement.

[92] I find the father's evidence about his 2015 and current income completely unreliable and not believable. This finding is based, in part, on his inability to provide specific dates for his employment and his inability to produce copies of his record of employment, T4s, or paystubs from his current employer to corroborate his oral evidence. I also find it unreliable because, it is at odds with his pattern of income over the last three years as reflected above.

[93] The father's evidence is also not credible because it conflicts with other representations he has made to this court with respect to his income. For example, in his change of information form sworn June 12, 2015 he states that his total income:

• will be $82,920 for this year (2015)
• was $82,924 last year (2014); and,
• was $77,336 for the year before that (2013).

[94] In each instance these statements conflict with the income reflected on his notice of assessment for each of these years. Clearly he is or was not being truthful.

[95] Further, in his financial statement sworn June 24, 2015 the father makes these representations:

• Last year (2014), my gross income from all sources was $82,920. This is clearly not true.
• I currently (2015) receive $6910 monthly which equates to $82,920 annually. This is at odds with his oral evidence.

Financial Hardship

[96] The father put forward no evidence indicating that any of the circumstances contemplated in subsection 10(2) of the Guidelines exist in this case. What evidence there is does not support a finding of financial hardship, let alone undue financial hardship.

[97] In fact, the evidence suggests he has more than enough money to pay proper child support, he simply does not want to pay it. For example, the father's expenses as reflected in his most recent financial statement amount to $74,040 annually. This includes the amounts he will pay in income tax deductions and other deductions from pay. It does not include the amount he is supposed to be paying in child support. The father's budgetary needs are less than the $78,347 he says he earned in 2015, less than he says he is currently earning, and much less than the $100,120 I have found as his income for child support purposes. No matter which level of income used, the father has significant residual income with which to pay proper child support. This is more than sufficient to cover his monthly budget and leaves sufficient residual income with which to pay child support.

[98] Further, the father could relieve any financial pressure he feels by reducing some of his discretionary speeding and if he reduced his food budget somewhat. For example, one of his expenses is $240 per month for gifts. This, he explained in his oral evidence is the twice monthly $120 he gives to the three children in direct cash payments. He also spends $900 a month in groceries, an amount that I find high given he is single and lives alone.

The Legislative Framework and Analysis

[99] The Guidelines provide that the basic amount of child support to be paid (the Table amount) depends on the payor's income and the number of children.

[100] There is a presumption in section 3 of the Guidelines that the Table amount of support will be ordered by the court. In fact, the court's discretion to award an amount that is different from the Guideline Table amount is limited to those situations described in sections 3(2) (children over the age of majority), 4 (income over $150,000, section 8 (split custody), section 9 (shared custody), and section 10 (undue hardship).

[101] On the evidence before me, the only possible section under which this court could exercise its discretion to award an amount other than the Table amount would be under section 10. Before the court is able to exercise its discretion it must first find that the father would otherwise suffer undue hardship. As I have found that the father is not suffering from financial hardship, let alone undue hardship, the presumption that the father shall pay the Guideline Table amount for three children, prevails.

[102] Section 16 of the Guidelines provides that a parent's annual income is determined using the sources of income set out under the heading "Total Income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with sections 17 to 20 and Schedule III of the Guidelines. I heard no evidence suggesting a need to make any adjustments to the father's income and he did not file his income tax return. Counsel for the mother submitted that the court is required to use 2014 as the period to determine annual income. I do not agree and although in the result I have done so, I have not done so for the reason submitted by counsel.

[103] Section 16 is silent regarding whether this determination is based on the parent's annual income in the past taxation year, the estimated annual income of the current year, or an estimate of probable future income. However, s. 2(3) of the Guidelines provides that, "[w]here, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used."

[104] In Lavergne v. Lavergne, 2007 ABCA 169, 409 A.R. 57, 76 Alta. L.R. (4th) 47, 402 W.A.C. 57, 283 D.L.R. (4th) 390, 40 R.F.L. (6th) 239, [2007] A.J. No. 580, 2007 CarswellAlta 690, the Alberta Court of Appeal stated the following regarding the period in which the determination of annual income should be made:

[17] Looking at the words of the Guidelines in context indicates that, in most circumstances, the payor's current income is to be used to determine the amount of child support. The Guidelines do not state that the past year's income is the basis for calculating support. Section 16 could have, but does not, define annual income as income stated on the previous year's income tax return. Section 16 should be read together with s. 2(3) of the Guidelines which provides (emphasis added):

(3) Most current information. -- Where, for the purpose of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.

[18] Reading s. 16 with s. 2(3) directs that, for the Guidelines, the most current information about those sources must be used. A court following this directive would end up with an estimate of the payor's current annual income.

[105] In this case the most current, specified, and reliable evidence the court has available with respect to the father's income is his 2014 notice of assessment and the amount reflected there as his "Total Income" from all sources reported in his T1 General for 2014 - $100,120.

[106] The Guideline Table amount for three children based on a gross annual income of $100,120 is $1,847. This is the monthly amount I have ordered he pay in child support.

[107] The mother suggests a start date of July 1, 2015 for the increase in the father's child support obligation. I find that this is more than fair for two reasons. First, he launched his motion to change child support on June 26, 2015 and the mother responded by way of response to motion to change dated and served on July 30, 2016. I have also taken into consideration the fact that the father has had the advantage since 2013 of paying child support far below the level he ought to have been paying.

SHOULD THE FATHER'S ABILITY TO LITIGATE BE LIMITED

[108] The parties have been embroiled in a multiplicity of proceedings before this court for seven years. They have been in court at least 27 times. All of the recent litigation generated by the father has been meritless and he has used the court and legal system to perpetuate his abuse of the mother. The toll on the mother emotionally and the necessary expense in terms of her time and resources, is significant and is compounded by the father's failure to fully support the children by honouring his child support obligation. Little has changed or is likely to change if he is permitted to continue to bring forth meritless motions or take unreasonable positions, based on inadequate evidence.

[109] In the circumstances and relying upon the direction given to me in order to carry out the directive to deal with cases justly in Rule 2(2) and 2(3), I find that it is fair and appropriate for the court to limit the father's access to litigation. Requiring the father to obtain leave of the court in the manner set out below, before taking any further steps or seeking any further relief from the court, is the best way to prevent the father from abusing the process and from depleting the mother's time and emotional and financial resources in future. This is accomplished by allowing the court to be the gatekeeper at the preliminary stage of any child support motions. It is also the way to make sure that the father makes sincere efforts to address the concerns that have resulted in his access being supervised and limited. As he will still have access to the police and the child welfare authorities, there is a mechanism available for him to seek immediate assistance if he perceives the children to be in immediate danger. It is also the only way to bring some measure of finality to the litigation and in that way serves the best interests of the child.

CONCLUSION AND FINAL ORDER

[110] For all of the forgoing reasons I make the following final order:

1. The terms of access found in the November 13, 2013 order are varied as follows:

(a) The respondent shall have supervised access to the children, J.C.M., born […], 2003, P.M., born […], 2005, and, G.T.M., born […], 2008. This access is to take place at the Burlington Supervised Access Centre for a period of two hours on either Saturday or Sunday at a time available to the center. The respondent is responsible for the initiation of the intake process and for paying any costs associated with such access. Once he has initiated and completed his part of the intake process he shall notify the applicant in writing of same whereupon she shall forthwith complete her part of the intake process.

2. The respondent shall not have any contact with any of the children named above, directly or indirectly, outside of his access at the supervised access centre.

3. Prior to any further motions by the respondent to change custody or access, the respondent shall obtain leave of the court. Such leave is to be requested in writing by way of 14B Motion. Subject to the discretion of the judge hearing the motion for leave, such leave will only be granted if a copy of a psychiatric/psychological assessment of the respondent is filed in support of any such motion. The mother need not respond to the motion unless she wishes or is directed by the court to do so;

4. The applicant need not wait the requisite 6 months to vary this order, and shall be at liberty, within three months of the date of this order, to bring a motion to change to terminate access, if:

a. The respondent fails to exercise supervised access within the next three months; or,

b. The respondent fails to provide the applicant with documentary evidence that:

i. A psychiatric or psychological assessment of him that addresses the underlying problems identified in these reasons and in the report of the Children's Lawyer is underway;

ii. He has provided a copy of these reasons and the report of the Office of the Children's Lawyer to the assessor; and,

iii. A copy of a letter from the assessor providing an estimate as to when the assessment will be competed.

5. Pursuant to section 36 of the Children's Law Reform Act any police service, including but not limited to the Halton Regional Police, Peel Regional Police, the Ontario Provincial Police, the RCMP, and any other police service in the jurisdiction where the child(ren) may be located, are directed, authorized to, and shall, do all things that may reasonably be done to locate and apprehend the child(ren) named above, to the care of the applicant, and/or enforce the provisions of this order. For the purposes of locating, apprehending, and delivery of the child(ren), members of such police service may enter and search any place where they have reasonable and probable grounds to believe that the child(ren) may be, with such assistance and force as is reasonable in the circumstance.

6. The terms of child support found in the August 15, 2013 final order are varied as follows: Commencing July 1, 2015 and on the 1st day of each month thereafter, the respondent shall pay $1,847 in monthly child support to the applicant for the following three children: J.C.M., born […], 2003; P.M., born […], 2005; and, G.T.M., born […], 2008. This amount is the Guideline Table amount for three children based on the respondent's 2014 Line 150: Total Income of $100,120.

7. The respondent shall not bring any motion to change child support without first obtaining leave of the court. Such leave is to be requested in writing by way of 14B Motion. The respondent shall file with his 14B Motion a copy of his motion to change, change of information form, and sworn financial statement with all required attachments. The mother need not respond to the motion unless she wishes or is directed by the court to do so;

8. A separate support deduction order shall issue;

9. This matter is adjourned for oral submissions with respect to costs, to February 22, 2016, at 10:30 a.m.

10. A 14C is required to be filed by the applicant and the applicant shall attach to it, a copy of her bill of costs. She shall also ensure that a copy of her bill of costs is provided to the respondent no less than two days in advance of the court date;

11. If the mother does not wish to seek costs, she may file a 14B Motion form indicating that her claim for costs is withdrawn and for an order vacating the February 22, 2016 date.

12. The Judicial Secretary is requested to fax or e-mail a copy of this endorsement to the applicant's counsel and to mail a copy to the respondent.

13. If counsel for the mother or the mother have an e-mail address for the respondent, one of them is to immediately e-mail a copy of this decision to the respondent, so that he is made aware of this court's decision and reasons at the first opportunity.

Released: February 17, 2016

Signed: "Justice Victoria Starr"

Footnotes

[1] The parties interchange the names J. and C. and T. and G.. Except where quoting a statement, I have referred to the eldest son as J.C.M. and the younger son as G.T.M.

[2] The year shown on this material is 2011 but it is clear that this is in error from the letter that accompanied the report and form the order made by Justice O'Connell, shortly thereafter.