Court File and Parties

Date: November 7, 2017

Court File No.: D91299/15

Ontario Court of Justice

Between:

L.W.-A.

PAULA M. McGIRR, for the APPLICANT

APPLICANT

- and -

J.C. and D.W.A.

NATALIA DENCHIK, for the RESPONDENT, J.C. THE RESPONDENT, D.W.A., acting in person

RESPONDENTS

Heard: November 3, 2017

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was about the respondent J.C.'s (the father's) access to his 3-year-old son (the child). In particular, it was about whether his access should be supervised, and if so, by whom.

[2] The issue of supervision exists because of the father's history of sex offences, including sex offences against children.

[3] The father seeks an order for unsupervised visits with the child on alternate weekends.

[4] The applicant L.W.-A. (the mother) is the child's mother. She asks that the father's access be supervised by Brayden Supervision Services Inc. (Brayden), a private fee-for-service supervised access provider.

[5] The respondent D.W.A. is the child's maternal grandfather (the maternal grandfather). He supports the mother's position.

[6] The parties agreed to a focused trial of the access issues.

[7] The father and his mother (the paternal grandmother) testified. The father also filed a transcript from his recent criminal trial. The mother, maternal grandfather and a private investigator also testified. Police records produced by the father were filed, as were court documents from a case involving the Children's Aid Society of Toronto (the society) and the family.

Part Two – Background Facts

[8] The mother is 36 years old. The father is 43 years old.

[9] The mother has an adult child who does not live with her.

[10] The father has 3 other adult children who do not live with him.

[11] The parties had a brief relationship in 2013.

[12] The mother and the child lived with the maternal grandfather and his partner from 2013 until June 1, 2017, when the mother moved to her own apartment. The child has primarily lived with the maternal grandfather since June 1, 2017.

[13] The society became involved with the mother after the child was born, on a voluntary basis, after she had admitted to having alcohol issues during her pregnancy.

[14] The mother and father mediated an access agreement in June, 2014. They agreed that the father would have access with the child on three out of every four weekends, from Friday to Sunday. This agreement was not incorporated into a court order.

[15] No significant problems were reported with the father's access.

[16] The father was charged with three counts of sexual assault and three counts of sexual interference with the child's 15-year-old babysitter in February, 2015. He was jailed for 10 days and released on bail conditions. The child was present when the father was arrested by the police.

[17] The mother was unaware that the alleged victim was a minor and the father's access continued.

[18] The mother was advised by the society in March, 2015 that the alleged victim of the sex offences was a minor and she was asked by the society to ensure that the father's access with the child was supervised.

[19] The society commenced a protection application under the Child and Family Services Act on May 13, 2015. It sought a 6-month order that the child be placed with the mother, subject to its supervision and an order that the father's access with the child be supervised by a person approved by them.

[20] The society subsequently agreed that it would withdraw its protection application if the mother commenced an application under the Children's Law Reform Act (the Act) and obtained a custody order, with access to the father to be supervised by a suitable third party. The mother and father undertook to the society that the father's access would be fully supervised by either the paternal grandmother or the father's step-father (the paternal grandfather).

[21] The mother started her custody application on July 24, 2015 (the domestic case). The domestic case proceeded together with the child protection case.

[22] On August 29, 2015, the father filed his Answer/Claim in the domestic case seeking unsupervised access with the child.

[23] On November 3, 2015, on consent, the mother obtained a final custody order in the domestic case.

[24] On December 17, 2015, the mother and father agreed to an order in the domestic case that the father would have temporary access to the child on alternate weekends, fully supervised by one of the paternal grandparents. It was agreed by the mother, father and the society that the father would pursue his claim for unsupervised access in the domestic case.

[25] The child protection case was withdrawn, on consent, the same day.

[26] On March 15, 2016, the mother and the father resolved every issue in the domestic case except whether the father's access should remain supervised. On a final basis, the father was granted access with the child on alternate weekends and specified holidays. On a temporary basis, the father's access was to be supervised at all times by one of the paternal grandparents.

[27] The case was then delayed for several reasons. The father was slow in producing his police records, he changed his lawyer and he advised the court he was exploring obtaining a sexual risk assessment. Then the mother had a mental health breakdown at the end of January, 2017 and was hospitalized.

[28] The society became involved again, on a voluntary basis, after the mother's breakdown. The maternal grandfather assumed primary care of the child.

[29] The mother deposed that her breakdown came when she received police disclosure revealing that the father had an extensive history of sex offences, including against young children. She deposed that she had been unaware of this.

[30] The maternal grandfather commenced a separate custody application on May 29, 2017. On the same day, on consent, the maternal grandfather's application was consolidated with this case and a final order was made that the mother and maternal grandfather have joint custody of the child, with the primary residence of the child being with the maternal grandfather. [1]

[31] The father lived with the paternal grandparents from February, 2015 until May, 2017 at their home in Markham, Ontario. They were his sureties and residing with them was one of his bail conditions.

[32] On April 18, 2017, the father was acquitted of all charges with respect to the 15-year-old babysitter of the child. He now resides in his own apartment in Toronto.

[33] On June 9, 2017, this trial date was set.

[34] In the last week of August, 2017, the father and the paternal grandparents twice breached the supervision requirement contained in the March 15, 2016 order. The mother brought an urgent motion to suspend the father's access.

[35] On September 20, 2017, the court made a temporary order reducing the father's alternate weekend visits to Sundays for 3 hours, with all other terms of the March 15, 2016 order to remain in effect. The mother was permitted to move to change the final access terms contained in the March 15, 2016 order. [2] Accordingly, her request to change the terms of that order is being made pursuant to a motion to change. [3]

[36] The parties orally consented during the trial that the child's primary residence should now be with the mother. The mother has made significant gains in her mental health. She has worked cooperatively with the society and her psychiatrist. [4] That order will be made.

Part Three – The Father's Involvement with the Criminal and Child Protection Systems

[37] The father is registered as a sex offender on the Ontario Sex Offender Registry.

[38] In 2005, the father was arrested and charged with multiple sex offences, including possession of child pornography. The alleged victims ranged in ages from two and one-half to ten years old. [5]

[39] The father was convicted of three sexual assaults and possession of child pornography. One of the convictions related to his daughter. Two of the offences the father was charged with related to two minors who were friends of the family. [6] The father was sentenced to 10 months in jail in September, 2007, for the convictions, to be served concurrently. Pursuant to section 161 of the Criminal Code, restrictions were placed on the father's contact on the internet with children under 14 for 20 years.

[40] Pursuant to Christopher's Law (Sex Offender Registry) 2000, the father is required to report to the police annually for the rest of his life, so long as he is an Ontario resident. The father testified that he also has to notify the local police within 7 days if he moves to another locality in Ontario.

[41] The father was released from jail on March 25, 2008.

[42] Neither the father nor the paternal grandparents ever advised the mother or the maternal grandfather about the father's sex offence history. They only learned about it after the father was charged with the new series of sex offences in February, 2015.

[43] On May 13, 2015, the society commenced its child protection case regarding the child. The protection application indicates that the society was concerned about the following:

a) The father having been convicted in 2006 of sexual assaults, including against minors, one of whom was his daughter, as well as possessing child pornography.

b) The father's history with Durham Children's Aid Society that included verified concerns about exposing a 14-year-old child to pornography and sexual acts in 2008. [7]

c) The charges of sexual assault against the father in February, 2015 respecting the child's 15-year-old babysitter.

d) The father had not received counseling or treatment. [8]

e) The father's lack of insight into why the society was concerned about the child's well-being and its desire for access to be supervised. [9]

f) The mother's inability to ensure the child is safe and appropriately supervised during the father's access, due to her own personal issues, lack of resources and knowledge. [10]

[44] The father was also convicted in January, 2015 of driving a vehicle while his driver's licence was suspended for unpaid fines. He testified that he is no longer driving.

Part Four – Review of the Evidence on Behalf of the Father

4.1 The Father

[45] The father's position is that he should have unsupervised access with the child.

[46] The father said that he has an excellent relationship with the child and is able to look after all of his needs.

[47] The father said that he loves the child, has never harmed him and never would. He feels that the child is at absolutely no risk of harm with him.

[48] The father testified that there were no problems with his extended unsupervised access with the child until his arrest in February, 2015. He said that the mother never complained about his care of the child.

[49] The father claimed that the mother and the maternal grandfather are attempting to alienate him from the child. When pressed in cross-examination, he could not provide any evidence to support this allegation, other than that they are seeking restrictions on his access through the court process. That is not alienation. The father conceded that the mother and the maternal grandfather have always complied with court orders.

[50] The father's trial affidavit was contradictory about whether he had breached, in August, 2017, the condition that his access be fully supervised. He initially claimed that his access has always been fully supervised and that the mother's evidence about him being alone with the child was manufactured. [11]

[51] Elsewhere in his affidavit, the father admitted to taking the child to a walk-in clinic on his own on August 25, 2017. [12]

[52] When confronted with the mother's evidence of his breaches at trial, the father candidly admitted that he had breached the order on the two occasions presented to him. He said in response to whether he had breached the order, "I won't deny that I took the child to the walk-in clinic without my parents – I can't do anything about that". He said that he made a bad decision that day.

[53] The father then proceeded to rationalize the breach of the order that took place on August 25, 2017. He said that the paternal grandmother had been ill and the paternal grandfather had to drive her to work. He said that both he and the child were ill and needed to go to the walk-in clinic. He said that he had no choice – he couldn't help it if the paternal grandfather had to drive the paternal grandmother to work.

[54] This explanation made little sense. The paternal grandmother testified that it is only a 10-minute drive to her work, that starts at 9 a.m. There was no reason that the child couldn't have joined the paternal grandparents that morning and the paternal grandfather could have taken the child to the doctor after he dropped off the paternal grandmother at work. The uncontroverted evidence was that the father and child were left unsupervised for well over three hours that day.

[55] The father said that the only times he has been alone with the child are the two times when he was caught by the mother. The court has little reason to believe him.

[56] The father has not taken any treatment programs to address his sexual issues since he was released from jail in 2008.

[57] The father deposed that he works in accounting, but is presently unemployed.

[58] The father did not dispute the mother's allegation that he has never paid child support, even when he was employed. He said, "that was our agreement". He said he can't pay any child support now because he is not working.

4.2 The Paternal Grandmother

[59] The paternal grandmother testified that the child has an excellent relationship with the father. She said that the father treats the child very well and plays with him in an "educational way". He takes the child on outings to the Toronto Zoo and Centre Island.

[60] The paternal grandmother said that the child is well cared for in her home. The father changes the child, feeds him properly and takes care of all his needs.

[61] The paternal grandmother was adamant that the father posed no risk to the child. She said that the father loves the child and would never hurt him.

[62] It was clear that the paternal grandmother loves the child very much.

[63] The paternal grandmother's trial affidavit was internally contradictory. She said at paragraphs 18 and 19:

At no material times the Applicant had never provide any proof of the fact that the father has unsupervised access from May 2015 and up until now. (sic)

The Applicant only expressed her suspicions, but was not able to present any compelling proof or evidence to the contrary.

[64] However, earlier in her affidavit (par. 15) she acknowledges deciding to let the father take the child to the doctor on his own.

[65] At the trial, the paternal grandmother initially denied ever leaving the father unsupervised with the child. Subsequently, she acknowledged breaching the court order on August 25, 2017 and apologized. She said that this was the only time the order had been breached. She said that she saw no risk letting the father take the child to the doctor.

[66] The paternal grandmother could not explain why the father had been left alone with the child for over three hours, stating that she thought the paternal grandfather was going home to supervise them. She also claimed to have no knowledge of the father being left alone with the child on August 29, 2017 (an incident the father acknowledged).

[67] The paternal grandmother testified that she was fully aware of the father's sex offence history. She maintained at trial that the father had been wrongfully convicted of sexually molesting his daughter.

[68] The paternal grandmother never told the mother or the maternal grandfather about the father's history of sex offences towards children.

[69] The paternal grandmother also claimed that the mother has tried to alienate the child from the father and his extended family members. When asked if she had any basis for this belief, she replied, "I don't have one".

Part Five – Review of the Evidence on Behalf of the Mother and the Maternal Grandfather

5.1 The Mother

[70] The mother and the maternal grandfather both ask that the father's access take place on alternate weeks for four hours, fully supervised by Brayden. They ask that the father pay for these services. They are agreeable that the paternal grandparents attend these visits.

[71] The mother and the maternal grandfather deposed that they had no knowledge of any sex offences by the father until he was charged in February, 2015. Even then, they did not learn the full extent of this history until the father produced his police records in January, 2017.

[72] The mother said that she would ask the father why he wasn't seeing his older two daughters, but he would never give her a straight answer.

[73] The mother testified that she has had mental health challenges related to anxiety and depression since being sexually assaulted at age 13 by a 30-year-old man. She has received ongoing therapy since then and continues to regularly see her psychiatrist.

[74] The mother testified that she was devastated when at the end of January, 2017, she received the police disclosure and learned that she had been involved with a man with such a troubling sex offence history. She said that she was distraught that she had been leaving the child alone with him.

[75] The mother has worked very hard to stabilize her mental health. She has worked closely with her psychiatrist and the society. She has a very close relationship with her father, who has been an excellent support for her.

[76] The mother presented very well at court. She demonstrated good insight into her own challenges. She also had a strong understanding of the child's needs and was able to clearly express her concerns about leaving the father alone with the child.

[77] The mother described the father as aggressive and controlling. She felt pressured to agree to extensive access when the child was only a month old. She did not have a lawyer at that time.

[78] The mother acknowledged that she had no knowledge of any problems when the father had unsupervised access with the child. The child was happy to see the father and the paternal grandparents.

5.2 The Maternal Grandfather

[79] The maternal grandfather described the child with considerable affection. He said that he was a wonderful kid, loving, caring and funny.

[80] The maternal grandfather provided his evidence in a balanced, fair and thoughtful manner. He said that he can see a good relationship between the child, the father and the paternal grandmother. He said that "I really like the paternal grandmother quite a lot. She always seemed clear and kind". However, he no longer trusts her to fully supervise the father's access.

[81] The maternal grandfather described the paternal grandfather as "more difficult". He said that he is often critical of the mother.

[82] The maternal grandfather has a close relationship with the mother. He has been and likely will continue to be a major support for her. The plan is for the child to spend alternate weekends with him and his partner. He has proved that he will step forward at any time to assist the mother if she is struggling with her mental health and she has demonstrated that she is willing to accept his help.

5.3 The Private Investigator

[83] The private investigator was retained by the maternal grandfather, who suspected that the father and the paternal grandparents were breaching the court order requiring full supervision of access.

[84] The private investigator testified that the father was alone with the child for over three hours on August 25, 2017. He also testified that at times, the father was not adequately supervising the child when they walked together to the walk-in clinic. While on the sidewalk next to a major street and in a busy parking lot, the father was observed several times preoccupied on his cellphone, with the child trailing several feet behind him. [13]

[85] The private investigator also gave evidence that the father and the child were unsupervised while walking dogs on August 29, 2017.

[86] The father did not dispute the private investigator's evidence at trial.

Part Six – Legal Considerations

[87] The father's claim for unsupervised access is made within the original domestic application started by the mother. The test for determining whether his access should be supervised is what order is in the best interests of the child.

[88] The mother's request to change the access terms of the final March 15, 2016 is brought pursuant to her motion to change.

[89] Section 29 of the Act requires that there must be a material change in circumstances affecting or that is likely to affect the best interests of the child before a final order can be changed.

[90] There is no issue that the breach of the supervision terms of the March 15, 2016 access order by the father and the paternal grandparents constitutes a material change in circumstances affecting the best interests of the child – it goes to the core issue of whether such an order is still adequate to protect the child from harm. This expands the original inquiry from whether the father's access should be supervised to an entire examination of what access order is in the child's best interests.

[91] Once a material change in circumstances is established, both parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing access arrangements. See: Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

[92] In making this determination, the court considered the "best interest" factors set out in subsection 24(2) of the Act, as well as all other relevant considerations.

[93] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[94] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946.

[95] A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access should only be ordered in extreme circumstances. See: Worthington v. Worthington, 2000 CarswellOnt 4889.

[96] Supervised access is usually a temporary arrangement. However, when the court does not expect the risks addressed by supervision to diminish, it is appropriate to order long-term supervision of access. See: Tuttle v. Tuttle, 2014 ONSC 5011.

Part Seven – Should the Father's Access Be Supervised?

[97] The court considered the following positive factors in favour of the father's claim for unsupervised access:

a) He has a close and comfortable relationship with the child.

b) The child shows no fear of the father.

c) The father is able to appropriately feed and clean the child.

d) The court accepts that the father loves the child.

e) There is no evidence that the father has ever harmed the child – even when he had extensive unsupervised access with him.

[98] Notwithstanding these positive factors, the evidence supports a finding that it is in the child's best interests that the father's access with him remains fully supervised.

[99] The father was convicted of serious sex offences, including offences against children. He was convicted of possession of child pornography. In Tuttle, supra, at paragraph 8, Justice Cheryl Robertson, writes:

Child pornography is not entertainment or art. It is violence against children. Cyber-sexual abuse is still violence. It is not a private matter because it is watched at home on the internet.

[100] One of the sex convictions related to the father's daughter. This increases the risk of sexual harm to the child.

[101] The father demonstrated no insight into the risk concerns at trial. He described his possession of child pornography in 2005 as a bad decision. The court expected that the father would lead some evidence that the sexual risk concern has diminished. It expected some form of acknowledgement from him that the sex offences were serious and that he had taken meaningful steps to change his behaviour. The court received no such evidence.

[102] Except for providing the transcript of his acquittal of the 2015 criminal charges and stating that his conviction for possession of child pornography was the result of a "bad decision", the father provided no evidence about his extensive involvement with the criminal and child protections systems.

[103] The father has taken no treatment program to address these issues since his release from prison. He had indicated that he was going to obtain a sexual risk assessment from CAMH [14] in Toronto, but this never happened.

[104] While no charges were laid with respect to the sex abuse investigation by Durham Children's Aid Society in 2008 and the father was acquitted of the sexual assault charges this year involving the child's babysitter, it is of concern to the court that a pattern continues where the father is being accused of sex offences against minors.

[105] There is no evidence that the risk of the father sexually reoffending has diminished.

[106] There is a real risk of sexual harm for the child if his contact with the father is unsupervised.

[107] The father has access again to a computer. There is also a real risk that the child will be exposed to child pornography by the father if they are left unsupervised.

[108] The father gave the court little reason to trust him alone with the child for the following reasons:

a) The father was secretive by not revealing any of his sex offence history to the mother and the maternal grandfather.

b) The father flagrantly breached the court order requiring full supervision of his access – at least on two occasions.

c) The father minimized the first breach of the court order, claiming he had no choice but to take the child to the doctor on his own. This was not his only option. The paternal grandfather could have taken the child to the doctor. This showed both poor judgment by the father and a casual disregard for court orders.

d) The father initially denied the breaches of the court order, claiming the mother manufactured the evidence. He only admitted the breaches once confronted with the private investigator's evidence. The court does not accept the father's evidence that these were the only two times he breached the court order. His breaches were too matter of fact. These were just the two times he was caught.

e) The father also delayed in providing complete disclosure of his criminal records, the timeline being as follows:

i) At the court appearance on March 15, 2016, the father undertook to provide complete disclosure of his criminal records, a vulnerable sector check and whether he was on the Ontario Sex Offender Registry.

ii) The father did not produce these records and on consent, the court ordered him to provide the parties with all police records from Peel Region by June 7, 2017.

iii) On consent, the court made a more extensive production order for police and society records on June 27, 2016.

iv) The case was adjourned twice more as the father had not obtained his police records.

v) Finally, in January, 2017, the father gave the mother the Toronto police records and proof that he was on the Ontario Sex Offender Registry, even though the police records had been produced to his former lawyer in October, 2016. He did not provide the Peel police records. The case was adjourned again.

vi) The father produced the Peel police records in June, 2017, even though a letter from the Peel police indicated that it had been sent to his former lawyer in February, 2017.

[109] The court is also concerned about the poor level of supervision and attention the father provided the child on August 25, 2017. The child could have easily darted out into the traffic and the father would not have known, as he was preoccupied with his cellphone and the child was often well behind him.

[110] The father and the paternal grandparents did not advise the mother or the maternal grandmother that the child had been ill and taken to the doctor. This was irresponsible of them.

[111] In Tuttle, supra, Justice Robertson wrote at paragraph 8:

The supervision order is not a punishment but is the safest course for the child to pursue a healthy relationship with his father. When the father can prove he has permanently changed his thought process, it could be a material change in circumstance.

[112] Justice Robertson's comments apply here. Long-term supervision of the father is required to ensure that the child has a safe relationship with him.

Part Eight – Who Should Supervise the Father's Access with the Child?

[113] If his access has to be supervised, the father would like it to be supervised by one of the paternal grandparents.

[114] The mother and the maternal grandfather no longer trust the paternal grandparents to supervise the access and ask that access be supervised by Brayden.

[115] The court does not trust the paternal grandmother to consistently comply with a court order to fully supervise the father for the following reasons:

a) She breached the previous court order that she fully supervise the father.

b) The court finds it is more probable than not that she has breached the supervision condition on many occasions. The court does not believe her evidence that it only happened one time. The paternal grandmother initially denied leaving the father unsupervised on August 25, 2017, and only admitted this when confronted with irrefutable evidence. The evidence that the father was also left with the child unattended on August 29, 2017 was not disputed.

c) Even after admitting the breach that took place when the father was left alone with the child for over 3 hours on August 25, 2017, the paternal grandmother provided the same rationalization for the breach as the father. She could not explain why the child couldn't have gone to the doctor that day with the paternal grandfather. Her rationalization revealed a lack of insight into why the father's access needs to be supervised.

d) The paternal grandmother showed little insight into the seriousness of the father's sex offences and why his access has been supervised. She characterized the father's convictions for sexual assault and possession of child pornography as a "mistake". She was forceful in her opinion that the father was wrongfully convicted of sexually assaulting his daughter. [15] She strongly feels that the father's access does not need to be supervised – that the father would never hurt the child. This lack of insight increases the risk that she would breach a supervision order again - she does not understand the need for it.

e) The paternal grandmother never disclosed to the mother or the maternal grandfather the father's sex offence history. This was important information for them to know. It demonstrates that she is prepared to place the father's needs ahead of the child's needs. The paternal grandmother presented as defensive and protective of her son. The court finds that there is an unacceptable risk to the child that the paternal grandmother would not report any future safety risk in order to protect the father.

f) The paternal grandmother's mindset was that the mother is alienating the child from the father and his family. There was absolutely no evidence to support this belief. The problem with this belief is that the paternal grandmother believes that a court order for supervision arises out of the mother's alienating behavior and not any risk concern about the father. This increases the risk of her non-compliance with a supervision order.

[116] The court also does not trust the paternal grandfather to consistently comply with an order to fully supervise the father's access for the following reasons:

a) The court finds that he breached its order on both August 25 and 29, 2017. The breach on August 25, 2017 lasted for over 3 hours. The casual nature of these breaches informs the court that it is more likely than not that the paternal grandfather has breached the supervision term on many occasions.

b) The paternal grandfather's failure to attend at court and testify is also concerning. He had filed an affidavit as his direct evidence. The court was advised by the father at the outset of the trial that the paternal grandfather would not be attending. The mother asked to strike his affidavit. The court deferred this request to give the paternal grandfather the opportunity to come to court. In the afternoon, the father said that the paternal grandfather would not be coming to court and his affidavit was struck.

It was important for the court to hear from and observe the paternal grandfather to assess whether he would be an appropriate supervisor for the father. He would have needed to show the court that he had insight into the risk concerns, acknowledged the seriousness of his failure to comply with the court's order and satisfy the court that he would comply with any future supervision order.

In Sabanegh v. Habaybeh, 2010 ONSC 6572, the court drew an adverse inference due to the failure of a party to call his father, an important witness at trial. The court cited Sopinka, Lederman & Bryant, The Law of Evidence in Civil Cases (3rd ed., LexisNexis Canada Inc., 2009), at p. 377, as follows:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that that the evidence of the absent witness would be contrary to the party's case, or at least would not support it.

As in Sabanegh, the father provided no reason why the paternal grandfather did not attend at court to testify. The court draws an adverse inference against the father due to the failure of the paternal grandfather to testify.

[117] Even if the court had trusted the paternal grandmother to fully supervise access when she was available, the father's request for one of the paternal grandparents to supervise his access would still not be in the child's best interests, due to the court's lack of confidence in the paternal grandfather. The maternal grandmother works long hours, including on Saturdays, leaving much of the responsibility for supervision to the paternal grandfather. The paternal grandmother cannot control the paternal grandfather's compliance with the court order.

[118] The child's safety requires that his access with the father be fully supervised by an independent third party.

[119] Ordinarily, a case for supervised access would be referred to the Toronto Supervised Access Centre (TSAC). However, the parties advised the court that the TSAC will not accept supervision of a parent who is a registered sex offender.

[120] The father did not propose any other person who could supervise access.

[121] The court finds that the proposal made by the mother and the maternal grandfather to use Brayden is in the child's best interests.

[122] Brayden provides fully supervised access in minimum three-hour blocks. It is well-known and has provided supervision services for many families before the court.

[123] Brayden provides visitation services in the parent's home or in the community. It will arrange to pick up and drop off the child. It will provide observation reports on request.

[124] The court is aware that a private visitation service is expensive and may adversely impact on how much time the child can spend with the father. However, the child's safety is more important than any cost concern.

[125] The court recognizes that the father is presently unemployed. No explanation was given by him about how he can afford to live on his own. He has not paid any child support. It is incumbent on him to find the funds to see his son.

[126] It is likely that the paternal grandparents will fund the access costs. They can afford this service, although perhaps not as frequently as they would like to see the child.

[127] The mother and maternal grandfather proposed that the father's access take place on alternating Sundays from noon to 4 p.m. The court finds that those hours are unduly restrictive. The child is used to spending more time with the father and paternal grandparents and enjoys his time with them. The court will order that the father will have the opportunity to exercise access with the child on alternate Sundays for up to 7 hours. This will allow the child to go on outings with the paternal family, without having to rush the visit.

[128] The costs of the supervised access are to be paid for by the father.

[129] The paternal grandparents can attend at all or part of these visits.

[130] The court will order other terms to facilitate the access.

Part Nine – Conclusion

[131] A final order shall go on the following terms:

a) Paragraph 8 of the court's order dated May 29, 2017 shall be varied to provide that the primary residence of the child shall be with the mother.

b) Paragraph 11 of the court's order dated May 29, 2017 shall be varied to provide that access between the maternal grandfather and the child shall be as agreed upon between them.

c) Paragraphs 2-15 and 18 of the court's order dated March 15, 2016 are terminated.

d) Paragraphs 1, 16-17 and 19-20 of the court's order dated March 15, 2016 shall remain in full force and effect.

e) The court's order dated March 15, 2016 is changed by the terms and conditions set out below.

f) The father shall have access with the child on alternate Sundays, starting on November 19, 2017, for up to 7 hours, from 10:00 a.m. to 5 p.m. This access shall be fully supervised at all times, including pick up and drop off of the child, by an access supervisor employed by Brayden.

g) The father may have one additional visit for up to 7 hours on any day between December 26 and 30 each year, between 10:00 a.m. and 5 p.m., to be supervised by Brayden. The date is to be agreed upon by the parties.

h) The father may have access on Father's Day, if it is not otherwise his regular Sunday access time.

i) The father will not have access on Mother's Day, if it falls on his regular Sunday access time, and his access shall resume the following Sunday.

j) The father shall notify Brayden and the mother by email, no later than the Tuesday before each visit:

a. If he will be exercising access that Sunday.

b. How many hours he will be exercising access for on that visit.

c. The times for the pick up and drop off of the child.

k) If the father fails to comply with this notice provision, that week's visit will not take place.

l) The father shall have the child picked up and dropped off from either the residence of the mother or the maternal grandfather. The mother shall advise the father by email by the Wednesday before each visit where the exchange of the child shall take place.

m) The access times are subject to the availability of Brayden to supervise the visits. If they cannot facilitate a 7 hour visit for any reason, the visit will last for as long and at such hours as they can facilitate it.

n) The costs for using Brayden shall be fully paid for by the father.

o) The paternal grandparents may attend at the visits.

p) The supervised visits may take place at the Brayden facility, in the community, in the father's home, or in the paternal grandparents' home, provided the access is fully supervised.

q) The mother may draft an order incorporating the terms of this order and the surviving terms of this court's orders dated March 15, 2016 and May 29, 2017.

[132] If the mother wishes to seek costs, she shall serve and file her costs submissions by November 20, 2017. The father will have until November 30, 2017 to serve and file any responding submissions. The submissions should not exceed three pages, not including any offers to settle or bill of costs.

Released: November 7, 2017

Justice S.B. Sherr

Footnotes

[1] The parties also agreed to other incidents of custody and access.

[2] To expedite matters and not lose the scheduled trial date, the court asked the mother to serve the father with a draft order by October 2, 2017, setting out the access terms she was now seeking, which would be treated as her motion to change. The father was given until October 16, 2017 to serve the mother with any specific access order he was seeking, which would be treated as his response to motion to change. The mother served her draft order within the timeline set out. The father did not and the start of the trial was delayed in order for the father to deliver his draft order to the mother.

[3] The father's request for unsupervised access is part of the original action and is not a motion to change.

[4] The mother filed a very positive medical report from her psychiatrist.

[5] The evidence set out in this paragraph and the paragraph below was obtained from police occurrence reports produced by the father. He did not dispute the content of these records.

[6] It was unclear whether the father was convicted of the charges with respect to these minors.

[7] The court is not making a finding that these allegations are true.

[8] The father acknowledged that he has not received counseling or treatment since he was released from prison in 2008.

[9] The court has not relied on this allegation for the truth of the statement. However, as will be explained below, the court has come to the same conclusion as the society.

[10] The mother has subsequently demonstrated an ability to protect the child from the father.

[11] See paragraphs 8 and 23 of his trial affidavit sworn September 17, 2017.

[12] See paragraph 21 of his trial affidavit.

[13] The father did not object to the introduction of surveillance video. Even if he had, the probative value of the evidence, which went to a core issue – the safety of the child – outweighed any public policy reason for excluding the evidence.

[14] This is the Canadian Association of Mental Health.

[15] The father never denied this.