Court File and Parties

Ontario Court of Justice

Date: 2018-03-08

Court File No.: Belleville 91/13

Between:

J.B. Applicant

— And —

R.H. Respondent

Before: Justice Malcolm

Heard on: February 21 and 26, 2018

Reasons for Judgment released on: March 8, 2018

Counsel:

• Shannon Crawford, counsel for the applicant mother
• R.H. (respondent father), on his own behalf

Judgment

Malcolm J.:

Relief Sought

[1] This is a motion by respondent father, pursuant to section 29 of the Children's Law Reform Act (CLRA), to change the order of Justice Deluzio, granted on September 3, 2013. Justice Deluzio's order provided that the applicant mother shall have custody of the child J.H., born on […], 2011. Although the order was silent as to the father's access, the transcript of the reasons indicated "no access at this time". A Restraining Order under section 35 of the CLRA and section 46 of the Family Law Act was also made.

[2] Because the written order was silent as to his access, the father brought this proceeding by way of a new application. I find that it is a motion to change the order of September 3, 2013 because he is asking for access which was not granted in the prior application. As such, the Court must decide that there has been a material change in circumstances affecting the best interests of the child.

[3] The mother's position is there has been no material change in circumstances.

Brief Background of the Facts

[4] The mother is 37 years of age. She is First Nations and a band member of the Mohawks of the Bay of Quinte (MBQ).

[5] The father is 30 years of age. He resides in Ottawa.

[6] The child is six years of age and has not seen his father since he stopped attending his scheduled access visits at the Supervised Access Centre in August 2013.

[7] The parties lived together for about five years before they separated in September 2011. The father moved into the mother's home for a short time after separation in April 2012, when he was sentenced to six months house arrest on an assault against another woman. He had no other residence in which to reside. In December 2012, the mother moved to the territory of the MBQ.

[8] The father moved to Ottawa from Kingston in 2013, prior to the final order being made.

[9] The respondent father did not bring his application to change the September 3, 2013 order until December 2015.

Legal Test

[10] Justice Sherr in his decision of F.D.M. v K.O.W., 2015 ONCJ 47, comprehensibly summarizes the legal considerations for the court in a motion to change:

4.1 Legal Considerations

23. Section 29 of the Children's Law Reform Act sets out the test to change a custody or access order. It reads as follows:

Order varying an order

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

24. The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct:

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

25. In Gordon (Paragraphs 10-16), the court discusses what evidence is required for the moving party to meet the threshold condition of establishing a material change in circumstances. The court says that the question is whether the previous order might have been different had the circumstances that now existed prevailed earlier. On an application to vary a custody order, the judge must be satisfied:

a) Of a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;

b) Which materially affects the child; and

c) Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

26. The onus of establishing the material change is on the person seeking the change. If the material change cannot be established, the motion is to be dismissed. The change must have altered the child's needs or the ability of the parent to meet those needs. The last order is presumed to be correct. See: Wiegers v. Gray, 2008 SKCA 7.

27. Gordon states that the requirement of a material change in the situation of a child means that an application to vary custody cannot serve as an indirect route of an appeal from the original custody order (par. 11).

28. There is a strong presumption that findings of fact made at the hearing of an original application, even if made on a default basis, will not be disturbed on a motion to change. This was discussed in Trang v. Trang, 2013 ONSC 1980, where on a motion to change, a payor was trying to change income imputed to him at the original hearing. The court comments in paragraphs 59 and 60:

59. If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

60. But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.

29. It is normally in the interests of children to continue and to encourage their relationships with both parents following the separation of their parents. The ultimate goal is to establish, maintain and promote relationships which are of significance and support for a child. See: Young v. Young, [1993] 4 S.C.R. 3. Children generally benefit from contact with both parents. See: Gordon v. Goertz, at paragraph 24.

30. 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.

Evidence at the Original Hearing

[11] The original application before the Court was commenced in March, 2013. The child was one and a half year old.

[12] The father filed no materials at the original application. The only evidence before the Court was that of the mother. The father was served with the proceedings and was exercising access. He also attended Court and was assisted by Duty Counsel on June 5, 2013 and July 15, 2013.

[13] The material on the original application consisted of the mother's application and her Form 35.1 Affidavit in support of her claim for custody or access.

[14] In support of a motion for temporary custody and a return of the child to her care, she filed a Form 14A Affidavit, sworn March 19, 2013. The applicant mother alleged that the respondent father was refusing to return the infant child to her care after an access visit. A temporary order for a return of the child to her care and custody was made on March 19, 2013.

[15] The evidence of the mother was that after the separation in September 2011, she encouraged access between the father and his child. As the father didn't have a formal residence, the access was sporadic. The mother resided in the Belleville area and the father resided in Kingston.

[16] She stated that the father refused to return the child to her or tell her where the child was. He told the mother she would not see the child again until it was ordered by the Court. He also told the mother that he had reported that the child's Birth Certificate was stolen and that he would be receiving the new one. The mother brought an emergency motion and the child was returned to her care. She was particularly frightened because she feared the father would use a new passport to take the child to Jamaica, where the father has relatives, and not return to Canada.

[17] The police found the father in Hamilton and a few days later, the child was returned to her care subject to the temporary order.

[18] After the child was returned to her care the mother brought another urgent motion after she was attacked by three women during an access exchange. In her affidavit in support of the motion, the mother outlined considerable controlling and abusive behaviour of the father towards her. She described an incident where she was hit while holding the child when the child was a baby and a number of threatening text messages.

[19] The threats made by the father were not disclosed in her affidavit in support of her motion heard on March 19, 2013. She said she was afraid of what the father would do if she reported them. The particulars of the threats and the attack are outlined in her affidavit of April 29, 2013 in support of her motion for a restraining order and in her Form 23 affidavit in support of the uncontested hearing.

[20] The mother said she did not call the police about these threats from February to April, 2023 as the respondent father said he would do something "so bad" to her before the police arrived, it would not matter. He also said that if he went to jail, he would do something even worse to her when he was released.

[21] The details of some of the disturbing, frightening threatening text message threats sent in 2013 are as follows:

Feb 4:

"Ya because I swear to god if u don't take that nigger off ur list by the time u bring my son today I'm gonna kick ur Fuckin teeth in do u underttand that keep thinkin I'm fuckin askin u J. let that nigga still be on ur list when you see me and see just how Fuckin serious I am"

Feb 4:

"Ur a stupid bitch what don't u understand about allowance, ur not doin all these things because u can or whatever u think ur doing it because I ALLOW YOU TOO what u don't believe me ill Fuckin show you"

Feb 4:

"Nigga u wont have a Fuckin phone or fingers to pick one up if u keep play this hang up and not answering my phone calls shit and on top of that ur not gunna like it when u can't get a hold of me and I have j."

"…Answer the god dam fucking phone or I swear to god on my son u will catch the back on my hand repeatedly until u get it thru ur fuckin head if u cant answer the phone to me then u won't answer the phone to anyone I will break ur fuckin phone first on ur face and then I will take a fuckin hammer and break ur Fuckin hands, u wont have fuckin hair to dye when I light that shit up u stupid fuck the only time ppl are gonna wanna look in ur face is when the lights are off"

Feb 13:

"…U haven' seen me snap really and i mean to the point where I don't give a fuck! I'm not making any threats but I am tellin you if ur mother takes my dog to a pound to just drops him off where ever and something happens to him I swear to god on j.'s life I will beat her like a Fuckin dog understand that and then I'n gonna kick ur fuckin teeth in for puttin us all in this position I'm not Fuckin playin at all to pls play wit me!!!"

Feb 13:

"…U think sit in the face is something ill straight up punch that bitchs Fuckin teeth right out and that's not a threat I I Fuckin promise u"

Feb 13:

"…I am goin beat ur Fucking face off, and then u can get ur restraining order and do whatever I don't really care the only thing stoppin me would be in Im actually locked up cause as long as I'm out on the street I will find u beat ur face off and take my son, and I don't need court to do that"

Feb 13:

"…and its not gonna matter when ur 6 feet underground keep fuckin playin wit me say something to me about court on more fuckin time to do it"

Feb 13:

"…THE ONLY THING THAT'S GONNA STOP ME, is watchin u take ur last breath, U don't know fear yet cause if u did u wouldn't ne runnin off ur mouth everyday the way u do?"

February 25, 2013:

"I don't think I've hated anybody in my life as must as I hate u, and all I keep getting in there weired feelings in the pit of my stomach when I think about doing really fucked up shit to you., It's like a feeling of satisfaction or the kind of pleasure u get from having sex its fucked up I can't even really explain it,…."

March 12, 2013:

"I'm done now, I'm done with this life, I'm gonna enjoy beating you to death with my bare fuckin hands, u don't even know! Ur life is over!! Theirs is nowhere and nothing u can do when I finally decide to come for you!! Seek arbitration, lol I'm out, and ur not gunna see that boy for a while, in that time u better live life to the fullest cause when they do find me coming back for u and anybody that wants to get in my fuckin way!!"

Apr 8, 2013:

"I swear to god I will show up there randomly and if I ever walk in our us mother even playin with him I will punch her dentures straight out of her Fuckin head and so help me god that's not a threat that is a promise,."

Apr 8:

"…I can make it so u can physically never answer a phone again keep Fuckin with me"

Apr 8:

"I'm so serious peachs I don't care what u wanna do or what the outcome is if I ever catch ur mother with me son in any sort of way I will beat her like a stray dog and go do jail I really Don't give a fuck… I was actually considering stabbing u in ur face at the police station when u wanted to meet me there just to prove a point,. U can't control me in any way and nethier can the system in u haven't already noticed,. The ONLY thing keepin me half sane is the thought of j. and that's the only think keepin me in order,…will be a day when ur begging me to spare ur Fuckin life and its all gonna hit u at once like I should have just responded to his msgs and answer his call this all could have been prevented!"

Apr 8:

"…and I can come there and beat the fuck out of u until u make it my business its up to you really,"

Apr 8:

"I swear to god on jesiah peachs if u don't start responding to these msgs I'm just gunna come fuck u up with no questions asked ur choice"

Apr 8:

"U tellin me I can't come to ur house makes me want to come fuck ur whole house up along with anybody in it,…gunna answer my call when u feel, u make me want to come smash ur phone over ur face, just to prove a point,"

Apr 8:

"U tellin I can't see pictures of where my son lives and runs around everyday u make me want to just show up to ur house punch u in ur Fuckin throat and take my god damn some just to prove a point, do u understand that I'm getting at peachs there's no order when it come to me ! And I will do things just to prove my point until u get it in ur think head I will fuckin bury you peachs and just to prove my point to ur mother and she should have just stayed out of my life personally maybe then shed still have a daughter are u following me"

[22] On April 21, 2013, the mother was attacked by three young women when she was in the middle of picking up her child from an access visit with his father. Initially, the father was trying to question her about where she was and with whom the night before. When she refused to participate in the interrogation, he threatened her and, they argued. She then drove away; she said, to de-escalate the situation.

[23] The father took the child and went back into his apartment building. While the mother and grandmother were trying to figure out what to do, the father phoned and told her to come back and get the child. They returned to the apartment building to get the child.

[24] The father came out of the building, followed shortly by three young women. The women attacked the mother and the police were called. She reports being held down on the ground, receiving fists, knees and kicks to her head, face and torso. One of them pulled her hair. The mother said she was terrified, given she had broken her neck in the past. The mother believed that the father was involved in this assault as he stood there with the child and did not intervene. Although investigated, the perpetrators were not found and no charges were laid. The father denies involvement or even knowledge of the event.

[25] As a result of this assault, the mother brought the motion for a restraining order and supervised access for the father. The orders were granted on April 30, 2013.

[26] An additional example of the father's attitude at the original proceeding is the difficulty the mother's lawyer had in sending documents to him. The legal assistant asked for his address in Ottawa. The letter to him read "I am writing in regards to your family court matter. I'm in receipt of some court documents. May I please have your current mailing address so I may mail your copies to you? Thanks."

[27] His response to this polite inquiry was "do not ever send someone to my place of work again, do not continue to call around other people looking for me, and do not continue to email me for whatever reason for whatever matter I will have you hit with harassment so fast if this continues someone will be in contact with you on my behalf after this".

[28] At a case conference, scheduled for September 16, 2013, the respondent did not appear. The Court endorsement indicates that he had not attended his last two access visits and had not filed his answer or affidavit. He was noted in default. His access was suspended. The matter was adjourned to October 3, 2013 for an uncontested hearing.

[29] The mother filed a Form 23C and affidavit for the uncontested hearing. Justice Deluzio made an order that the mother have custody of the child with the following particulars:

1. The applicant J.B. shall have sole custody of the child.

2. The applicant J.B. may apply for passports for the child without the consent of the respondent, R.H.

3. The applicant J.B. may travel outside of Canada with the child without the consent of the respondent, R.H.

4. The respondent is restrained from molesting, harassing or knowing the applicant or the child and her lawful care.

5. The Ontario Provincial Police, the Québec Provincial Police, the Royal Canadian Mounted Police and any city or regional police force where the child may be located, be directed to immediately enforce this order, assist and attempt to secure the safe return of the children to the applicant's care on request of the applicant.

6. The police are authorized to enter and search any place at any time of day or night to enforce this order.

[30] Although at this motion to change, it is not this Court's function to comment on the previous court order, it is clear that given the level of conflict, domestic violence between the parents, the father's withdrawal from access, the father's refusal to file court documents and allow counsel to send him documents by mail, and his absence from the court hearing despite being served, the order was appropriate.

Evidence at the Motion to Change

[31] The father did not appeal the decision of Justice Deluzio, and only in December 2015, started an application to request access. His request for access was that he have access on alternate weekends from Friday at three until Sunday at six, equal sharing of all holiday parenting time and that access be expanded and increased in a manner best meeting the needs of the child.

[32] The father did not indicate any material change in circumstances but instead relied on his application as a fresh one in which the decision would be on the best interests of the child. He said that he presented no risk to the child or to the mother. At the hearing, it was clear that he believes that he is owed contact with his child as of right. Further, he and his witnesses commented on how he has been 'wronged".

[33] There have been a number of court attendances in this matter after the first appearance in February 2016. Originally, the matter was scheduled to a summary judgment motion for February 1, 2017 and a focused hearing on February 23, 2017. The case managing judge made orders for disclosure of police records.

[34] At the trial management conference, the mother asked for accommodation as she did not wish to be present in the courtroom with the father. I ordered the applicant to serve and file notice under the Business Records Act if she wished to rely upon police records at the hearing. I also ordered that the respondent father serve and file a Form 35.1 Affidavit with his current criminal record status indicated.

[35] I set directions for a focused hearing under rule 1 and 2 of the Family Law Rules for February 23, 2017. The hearing was to be on whether there had been a material change in circumstances affecting the best interests of the child that was not foreseen at the time the original order was made.

[36] The matter did not proceed on February 23, 2017 as the risk assessment report was not completed.

[37] I adjourned the matter to May 2017 for a further trial management conference. At that time, counsel for the father indicated the assessment was complete but would not be released until the father had completed payment.

[38] The matter was set to July 10, 2017 for another focused hearing. On July 7, 2017, there was a contested request for an adjournment as the father had still not paid for his psychiatric or psychological assessment. Later, I discovered that a psychologist or psychiatrist had not completed the assessment.

[39] The hearing was vacated and the matter adjourned to further trial management. Subsequently, there was a motion for costs and on July 28, 2017, I ordered costs for the following events:

1. a focused hearing date adjourned because of the respondent;

2. the respondent father's failure to file a financial statement;

3. a second focused hearing date for did not proceed because of the respondent; and

4. no materials filed by the respondent by the date ordered.

[40] I ordered costs in the amount of $1,200 inclusive of tax and disbursements.

[41] On August 16, 2017, the matter was again before me for trial management as the risk assessment had not been filed nor had the costs been paid. The matter was adjourned to a further settlement conference before Justice Deluzio and it was indicated that trial management and further trial dates might be set.

[42] A settlement conference was held in September and a second in October 2017. The issue of the validity of the assessment was raised as the assessment report stated that the father was a low risk to the mother and her child. Further, the mother submitted that this does not trigger a material change in circumstances.

[43] There were a number of incident reports obtained by counsel for the mother as a result of the orders for disclosure and subsequent ones from Gatineau that were in French. The settlement conference Judge ordered counsel to have the reports translated. Under section 126(6) of the Courts of Justice Act at the next trial management conference, I ordered the Court to provide a translation. Because that order was made so close to the scheduled trial dates of January 11 and 12, 2018, it was indicated that the trial days may be vacated.

[44] On December 8, 2017, the father represented himself and indicated that he wished to call further witnesses at the hearing that he had indicated at his trial management conference. He was ordered to file an updated trial management brief with a list of his witnesses and their evidence. The matter was then adjourned for a further trial management conference to January 2018 and a focused hearing on the issue of whether there has been a material change on February 21, 2018. The father's trial management conference indicated that his witnesses would be himself, Mr. Paul Robichaud, the assessor, who he asked to be found as an expert, E.S., a dula and holistic wellness person who would speak as to his relationship with children and T.S., a community safety officer who would talk about his growth maturity in the past five years. Ms. E.S. was actually the father's girlfriend and Mr. T.S., his best friend.

[45] At the hearing, the father testified. It was clear that he believed he should see his child as of right. He said that he was raised by a single mother and his father was not in his life. He has five brothers and sisters. Their fathers were not in their lives either.

[46] He testified at court to prove why he should be in his son's life. He wanted to point out that the decision made on September 13, 2013 was made based on uncontested evidence. He said he didn't do anything to deserve to have his 'basic rights' taken from him.

[47] He indicated at the time the order was made, he had not worked to any extent and that he had said some things to Ms. B. that he regretted and that they were inappropriate. He said he was 'transitioning" at the time of the order, his dog has just died (that he had left with the maternal grandmother) and there were a number of factors contributing to him not having good 'head space'. He said he needed to get out of that environment and better himself.

[48] He begrudgingly admitted that he had "consciously" walked away from the access and the court proceeding because he felt that it was too hard on his child because during the last visit, the child clung to him when it was time to go. He said he thought it was best for his son. He said now he is "jumping through hoops" just to be back in his life.

[49] He testified that in 2013, he was sleeping on his brother's couch. He admitted he said "bad things" to the applicant mother and also about the judge to the mother. He said he wrote "very bad messages".

[50] He said that things are different for him now. He says he is "well grounded", grateful to have a "good career path" and is just focused on getting his son back in his life. He testified that he had another child and he was very active in the care of that child. He was employed as a cook and was a good employee. He also said that his "aura' has changed and he is not the person he was five years ago but he can't explain in words what has changed.

[51] The father said that after the order was made, the maternal grandmother sent him photographs from time to time of the child. It was after she stopped sending the photographs that he started trying to contact the applicant around February 2015 to see if he could have access. He acknowledged his contact was in breach of the restraining order but he said he just wanted to have contact or know how his child was doing. The messages are not threatening, but they are in breach of the restraining order.

[52] He said that he should have the "basic right" of knowing whether his child was okay. He wants his infant daughter to meet his son.

[53] He said the delay from when he first contacted the mother to bringing the application was because he took quite some time to get legal aid and then to get a lawyer to represent him.

[54] Although the applicant mother did not testify, she filed an affidavit with numerous police occurrence reports which are not properly before the Court by way of exhibits to an affidavit. Counsel indicated that he had served notice under the Evidence Act to file these voluminous police occurrence reports but he did not have a copy for the Court and, further, he did not itemize or organize those reports by date, but rather simply indicated generally "police occurrence reports". However, on cross examination the respondent father confirmed that he did receive these documents and had some knowledge of some of the occurrences. Many of the occurrences involve conflict with previous partners after Ms. B. Some involve a partner calling the police to express concerns about the father. A future partner had called the police, but the father testified he was never contacted about the complaint.

[55] The father also filed a "risk" assessment by Mr. Robichaud. Mr. Robichaud, however, did not testify.

[56] The Police Occurrence Reports from 2006 to 2016 filed with the court from Kingston, Barrie, and Ottawa Police involving the respondent father and reviewed by Mr. Robichaud were as follows:

1. General Occurrence Report, Kingston Police January 12, 2006: no charges

2. General Occurrence Report, Kingston Police, January 17, 2006: forcible entry - arrested

3. General Occurrence Report, Kingston Police, March 18, 2006: assault/breach - arrested

4. General Occurrence Report, Kingston Police, September 14, 2006: warrant – arrested

5. General Occurrence Report, Kingston Police, November 20, 2007: domestic disturbance – no charges

6. General Occurrence Report, Kingston Police August 4, 2008: assault – mischief – no charges

7. General Occurrence Report, Kingston Police November 14, 2008: public intoxication – arrested

8. Occurrence Summary, Barrie Police Service August 16, 2009: assault causing bodily harm – arrested

9. General Occurrence Report, Barrie Police Service August 16, 2009

10. Supplementary Occurrence Report, Barrie Police Service August 31, 2009

11. Supplementary Occurrence Report, Barrie Police Service November 3, 2009

12. Arrest Report, Barrie Police Service March 2, 2010

13. Occurrence Summary, Barrie Police Service March 2, 2010

14. Supplementary Occurrence Report, Barrie Police Service March 8, 2010

15. General Occurrence Report, Kingston Police October 27, 2010: no charges

16. General Occurrence Report, Kingston Police April 21, 2013: assault – no charges

17. General Occurrence Report, Ottawa Police, November 26, 2014: dispute partner - no charges

18. General Occurrence Report, Ottawa Police December 27, 2014: harassing – no charges

19. General Occurrence Report, Ottawa Police March 9, 2016: dispute partner – no charges

20. Disclosure of Personal Information, Ottawa Police Service October 7, 2016

[57] In addition to reviewing the affidavits filed in this proceeding, including the threats made to the mother by the father, Mr. Robichaud also reviewed Mr. H.'s criminal record, which is as follows:

1. Resist Arrest: convicted December 12, 2006

2. Fail to Comply with Recognizance: convicted December 12, 2006

3. Escape Lawful Custody: convicted December 12, 2006

4. Fail to Comply with Recognizance: convicted December 12, 2006

5. Fail to Comply with Recognizance: convicted December 12, 2006

6. Forcible Entry: convicted December 12, 2006

7. Impaired Driving, April 22, 2010

8. Assault Causing Bodily Harm: convicted April 2, 2012

[58] In addition to the reports reviewed by Mr Robichaud, there were 12 additional reports from 2015 to 2017 involving the father from Gatineau, Quebec:

1. September 9, 2017: Common Assault Level 1

2. January 29, 2017: Family Dispute

3. December 7, 2016: Family Dispute

4. November 5, 2016: Family Dispute

5. August 13, 2016: Common Assault Level 1

6. August 13, 2016: Common Assault Level 1

7. August 9, 2016: Family Dispute

8. July 9, 2016: Common Assault Level 1

9. October 6, 2015: Family Dispute

10. September 10, 2015: Animal Related Call

11. July 26, 2015: Family Dispute

12. May 24, 2015: Municipal Regulations Peace & Public Order

[59] In 2016 and 2017, the father was in conflict with the mother of his other child, Ms. T. There are 11 incident reports involving this woman, in which the police came to their home in Gatineau. The father says that there are so many occurrence reports because of the colour of his skin and that the police profile him. However, the occurrence reports seem to come from neighbors hearing the arguments or yelling of the respondent and his partner, or the respondent or his partner calling the police. There are a few reports unrelated to Ms. T, including conflict with another person, or in one case, a pitbull that was killed by the respondent because it was threatening the occupants of the home.

[60] Some of the Gatineau incidents ranged from the father throwing Ms. T's things on the lawn and Ms. T. making complaints about it; two reports of physical altercation in which both parties were the aggressors at times; Ms. T. took a hammer to the father's television; the respondent locked Ms. T. out of the home once and he refused to open the door, saying she should use her key to which she responded by breaking a window to get into the home and in the process injuring herself on the broken glass.

[61] The father and his witnesses stressed that these occurrences were not proof of any wrongdoing as no convictions were made and only one incident involving an alleged assault on his partner, resulting in a swollen and bloody lip by Ms. T, which led to criminal charges against the father and were later withdrawn by the Crown. The father denied being responsible for the injury.

[62] The respondent father also indicated that he pleaded guilty to his previous criminal convictions but that he was not guilty. He said for one, his guilty plea was because he was being held in jail as a result of a breach of his release conditions. In the other, he pled guilty because it was taking so long.

[63] The father is quick to blame others and minimize his responsibility for the difficulties he is facing.

[64] However, I consider that the father made threats to cause bodily harm, and to kill the mother he and breached his restraining order. These threats and breaches did not result in criminal charges or convictions but they could have.

[65] The incident reports confirm that the father continued to have conflict in his life with two other girlfriends.

[66] Ms. T. did not testify on behalf of the father and he says this has caused some conflict with his girlfriend who did testify. His girlfriend has never met Ms. T. although she has seen his daughter in the community. She testified that next month, they would be allowed to bring the child to their home.

[67] Although the father indicates that he is a good father, he exercises access in the community, the mother's home or at his grandmother's home. He said that he would not take the child away from the mother while the child was being breastfed. It would appear that the access is at the direction of the child's mother.

[68] The father, on cross examination, was shown a music video he made around 2014 uploaded to YouTube and social media in 2015 wherein he "raps" about the original court case and his feelings towards Ms. B. The video is titled "bout to blow."

[69] There is a gentleman in the background of the video who is the witness that the father indicated was the community safety partner that was going to testify on his behalf. The applicant mother is shown in the video with the child, J.H.

[70] The relevant lyrics of the video are:

I said I'm tired of all you fucking people; this ain't a joke. I was only trying to keep it real but they provoke demons in my head, that inner evil. This ain't a joke. No, my time can be so detrimental, I'm about to blow.

What the fuck is up, my baby mother? Real shit. Make a nigga want to kill a woman, besides my mother. She's the only woman, ain't another, that I could trust. I was un lust, slept in the dust, almost gave up but to fight is a must.

Okay, they trying to lock me up when I'm just trying to see my son. Ain't no deadbeats around here, just some cold nigga's gone number. Fuck, is you dumb? What don't you get? Just ask my son, so don't you forget. You wanted them gone, I never forget, making decisions you'll live to regret.

Court cases and lawyers, girl, I'm tired of all that stress. Niggas showing up to my work, serving papers like it's a test. Yo, my skrill [?] want me to blow as if the system really knows best. I used to say you had my heart until you ripped it out of my chest.

[71] I understand that art is not necessarily reality, but when a person publishes: "make a n. wanna kill a woman" and shows the mother's photo, given the history of domestic violence and threats of violence between the parties, I understand why the applicant mother is so afraid of the father. This video needs to be immediately taken down from YouTube, although I am concerned that the damage may already be done.

[72] The father asked me to consider his current music, which is much more positive and focused on the child. He commented that usually a person making these kinds of threats would escalate in violence and he did not. He has no insight into the effect of his verbal threats on the applicant mother. After questioned so strongly about the video on one day of the hearing, he had not removed it on the next day.

[73] The father testified that there are many things that he could say about the mother's past that are not complimentary, but he declined to do so.

[74] The father's best friend, Mr. T.S. testified. He minimized the threats made by the respondent and the music video. He said that threats normally escalate and in the respondent's case, they didn't. He does not recognize the long lasting impact of domestic violence including verbal threats on the applicant, who I find is still very afraid of the respondent.

[75] The father's girlfriend testified. She was not familiar with the father's case but said he was "wronged". She said that they met when he was working at a brew pub, as a cook, and she was one of the wait staff. She is now a doula and nutritionist and now works in a wellness center.

[76] She brought photographs of the home they have moved into a few months ago to show me a room that has been made ready for the child. She has three children. Her former partner and she have an amicable parenting relationship. I accept that that she and the father now have a good relationship and he is good with her children. However, the test for the Court to apply is if there has been a material change in circumstances, affecting the best interests of the child.

Analysis

[77] I find that the father has had changes in his life since September 2013. He has obtained full time employment as a cook at a brew pub. He has not made any threats of violence to the mother in the last few years although he has breached the restraining order by contacting her. He is not currently charged with any criminal offences and has not been convicted of any crimes since 2012.

[78] He has been in a committed relationship with a woman who has two children since December 2017.

[79] He says his aura is positive and he is a changed person. He has a daughter that he sees frequently and he loves.

[80] I find that the father has made positive strides to change his life. When he lived in Kingston, he was unemployed and sleeping on his brother's couch. He is financially in a much better position.

[81] However, I question how this is material to the best interests of the child and not foreseen or reasonably contemplated by the judge who made the original order? The father was young and had been in other relationships at the time of the order. It could be foreseen that he would father other children. He is an intelligent man and it could have been foreseen that he would find employment and do well.

[82] The father walked away from the child stating he thought it was best to do so. Now, he wants to have contact with his child. He is not focusing on the bests interests of the child. At the time of the application for access, the father had not seen the child for almost two and a half years. The child was four years of age. Just the passage of time would cause concern about reinstating access.

[83] In the case of Chickwanda v. Bell, 2014 ONCJ 174 at para 53 and 54, Justice Brophy considers the following in the context of whether to terminate access:

53. Justice Blishen in V.S.J. v. L.J.G., [2004] O.J. 2238 (Ont. S.C.J.) in paragraphs 128 to 140 set out the legal principles related to access and whether it should be terminated. Those principles include that:

• Access is presumed to be to be in the best interests of children and should only be forfeited in the most unusual circumstances. To deny access to a parent is a remedy of last resort.

• The test however remains what is in the children's best interests.

• Supervised access is seldom viewed as a long-term solution, although it is sometimes considered as an alternative to complete termination of a parent child relationship. However, circumstances may be such that it is harmful to continue with the program that constantly disappoints children.

• Finally, in deciding whether access should be terminated there are no standard criteria within the best interest test.

54. Some of the factors in this case that are relevant to the question of whether to terminate the supervised access are:

(a) The history of domestic violence on the part of the Respondent;

(b) Evidence of the Respondent's controlling behavior;

(c) The Respondent's denigration of the other parent;

(d) The Respondent's anger directed towards the Applicant, her lawyer and the court system;

(e) A lack of insight on the part of the Respondent concerning the role his behaviour has played;

(f) Inconsistency in the exercising of access; and

(g) The Respondent's failure to understand the harm caused to the children by his rejection of them by his walking away from access

The facts in this case are similar in many ways.

[84] The father filed an assessment that he and his lawyer obtained. If the assessor had testified, I expect he would have been asked about his special expertise in risk assessment. As the resume states, the assessor had a diploma from Loyalist College in Law and Security and then a Masters in Art in Conflict Analysis and Management. He became a certified user of the Ontario Domestic Assault and Risk Assessment in January 2017. Without proper qualification, I cannot find that he is an expert in risk assessment. I do not know if he conducted a structured clinical interview or simply asked questions about the respondent's criminal record, threats made to the applicant mother, and police occurrences. Further, the father did not disclose the conflict in his relationship with the mother of his daughter or the numerous police attendances at his home in Gatineau even though the police were called to their home the day before his meeting with Mr. Robichaud.

[85] No expert's duty, pursuant to rule 20.1 of the Family Law Rules Acknowledgment, was filed which would have indicated:

Duty of Expert

20.1 (1) It is the duty of every expert who provides evidence in relation to a case under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert's area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 383/11, s. 6.

Duty Prevails

(2) In the case of an expert engaged by or on behalf of a party, the duty in subrule (1) prevails over any obligation owed by the expert to that party. O. Reg. 383/11, s. 6.

[86] I find that the report will not be considered as an expert's report but instead of a report of discussions held with the respondent.

[87] If the Court was to consider an order of access for the respondent father, it would recommend counselling to explore and develop coping strategies to better deal with his anger and to accept his failed relationships. The father said that he didn't feel that he needed counselling and that it was expensive and if the Court was not going to order access, why would he go to the expense of obtaining it?

[88] The father and the assessor discussed the circumstances around the police occurrences involving failed relationships. There was a discussion of how the respondent father used harassment and threats in an attempt to maintain a failing relationship and in an attempt to obtain access with his son in 2013.

[89] Despite these discussions, it would appear the father did not view the numerous police occurrences in the same light. In his affidavit of August 8, 2017, the father stated that "I completely agree" with the report and its findings. I am willing to do anything to get regular access started with our son". He also says that he is willing to participate in therapeutic counselling and that if it is not in his son's best interests he "would be willing to go away until such time as it is good for J. to have a relationship with me."

[90] This speaks to the motivation of the father to change. He has had an opportunity since he received the report in March 2017 to obtain counselling, but has not. He believes he has a "right" as a father to see his son. He says it would be too expensive to get counselling yet the cost of therapeutic counselling and access may be expensive, too. The mother's evidence is that in 2013, the father told her he didn't like being supervised. I question what would be different this time? In addition, the father did not have his assessor testify because of the cost.

[91] The father in his affidavit of August 2017, talks about regretting the threats and how they were inappropriate. They were much more than that and he doesn't recognize this. He also states that "I object to giving evidence and cannot comment unless compelled to do so under section 9(2) of the Evidence Act. "

[92] The evidence of the mother is that the child is thriving and has no special educational, mental health or developmental delays. The mother asks that no access be ordered as it would be an experiment at best given that the father did not follow through with supervised access in the past. In this proceeding, there have been many delays because of the father, including an adjournment of hearing dates on February 23, 2017 and May 10, 2017 as the father did not have his 'risk assessment', the affidavit in support or his financial statement filed. The father did not disclose to the assessor that he had approximately 12 incidents involving the police when he resided in Gatineau. Most of these incidents involved the mother of his daughter.

[93] I find that there has been no material change in circumstances that affect the best interests of the child. In fact, the father has continued to experience conflict within his relationships. Without therapeutic intervention, the Court would be concerned that the father would be introduced to the child, only to remove himself again when he does not agree with the recommended course for the access. If the father had come with evidence that he had engaged in psychological treatment and counselling for his anger management and poor impulse control and had developed insight as to how his behaviour and words have adversely impacted on his relationships with partners and his child; that may be considered a material change in circumstances affecting the best interests of the child. However, I would want to know how the child is functioning and whether the introduction of his father in his life is in his best interests.

[94] The respondent father indicated that he felt it was his right to know if his child was alive and doing well. I will not order the applicant mother to provide this information but if it is provided, the respondent father is not to reply as this would be considered a breach of his restraining order that continues in effect.

Order

[95] The application of the respondent father for access to his son is dismissed.

[96] The parties may file short submissions on costs by March 29th, 2018 and I will release a short decision.

Released: March 8, 2018

Signed: "Justice W. Malcolm"