DATE: 20020121
DOCKET: C36733

COURT OF APPEAL FOR ONTARIO

RE:

WILLIAM L. C. SCOTT (Appellant) -and- KAROLINE McKINLEY (NORTHRUP/SCOTT) (Respondent)

BEFORE:

LABROSSE, DOHERTY, LASKIN JJ.A.

COUNSEL:

William L. C. Scott, the appellant in person

H. Hunter Phillips, for the respondent

HEARD:

January 16, 2002

RELEASED ORALLY:

January 16, 2002

On appeal from the order of Justice Maria T. Linhares de Sousa dated June 29, 2001.

E N D O R S E M E N T

[1] William Scott appeals from the order made by Linhares de Sousa J. ("the application judge") on June 29, 2001, granting him limited access to his three-year-old son. That order amended the access order made by Métivier J. on June 13, 2000. Before the application judge, the appellant was seeking a substantial increase in access, including extensive and unsupervised access during the spring holiday, the summer, and every alternate Easter and Christmas. He was also seeking an increase in telephone contact with the child.

[2] The history of this dispute includes a conviction of the father for assaulting the mother, allegations of failing to comply with a probation order forbidding the father from contacting the mother, and allegations that he was harassing her.

[3] The application judge (Linhares de Sousa J.) considered numerous relevant factors. The father had not visited the child in the United States as he had been entitled to do pursuant to the order of Métivier J. Only a few short access visits, both supervised and unsupervised, had taken place when the mother and child were visiting Ottawa. Injuries to the child had been discovered after an unsupervised visit. (The father denies that the child was injured while with him.) At the time of the application to Linhares de Sousa J., the father had not seen the child for some eight months and there had been very few access visits in the two years before that.

[4] In these circumstances, it was entirely proper for the application judge to grant the father limited access in order to permit the establishment of a relationship between the child and the father before considering more liberal access. For the security and comfort of the child, she ordered that the visits be supervised.

[5] We essentially agree with the approach of Linhares de Sousa J. However, we are of the view that the one visit per year by the father is too restrictive to give effect to the intention of paragraph 1 of the order, namely that “[b]oth parties shall make an effort to promote contact and a relationship between the child … and his father …”. Counsel for the wife agrees that if the father is prepared to go the location of the child’s domicile more than once per year, the father should be allowed, on proper notice, to exercise access in the nature of the access provided in paragraph 3 of the order of Linhares de Sousa J.

[6] Accordingly, paragraph 3 of the order is varied as follows: “one (1) time per year” is varied to “three (3) times per year”, “for a three day period” is varied to “a seven (7) day period”, “During that three day period” is varied to “During that seven day period” and “for each of the three days” is varied to “for each of the seven days”.

[7] In all other respects, the appeal is dismissed. We make no order as to costs.

SIGNED BY: "J.-M. Labrosse J.A."

"D. H. Doherty J.A."

"John Laskin J.A."