Court File and Parties

Court File No.: 482/10 Date: 2012-03-21 Ontario Court of Justice

Re: Z.B. – Applicant And: J.T. – Respondent

Before: Justice Roselyn Zisman

Counsel: Ann Stoner for the Applicant Sofia Dunkley for the Respondent

Heard On: January 26, 2012

Endorsement

Background and Facts

[1] This is a motion by the applicant ("father") to expand his access to the child, L.A.T., born […], 2010 to include overnight and full weekend access based on the recommendations of the Office of the Children's Lawyer. The outstanding order dated August 21, 2011 provides that the father has access every Saturday from 9:00 a.m. to 6:00 p.m. The respondent ("mother") opposes any expansion of the current order pending trial.

[2] The applicant, Z.B., is the biological father of the child.

[3] The respondent is the biological mother. The respondent was married to A.T. and they divorced in September 2008. But they remained friends and currently reside together.

[4] In June 2008, A.T. was charged with domestic assault against the mother. He subsequently pleaded guilty to the charge and received a suspended sentence and eighteen months probation and community service. He was required to attend PARS which he successfully completed.

[5] Between April 2008 and December 2009, the mother and father had a relationship and lived together for some of this time. In November 2009, the mother discovered she was pregnant. There is a dispute as to whether or not the father demanded that the mother obtain an abortion. The mother alleges the relationship ended as a result and the father alleges the relationship ended because he could not provide the mother with the financial security she wished. The father also alleged that the mother had an affair while she was living with him.

[6] The mother then moved back into the home of A.T. and has resided with him since that time. The father was not in touch with the mother during the pregnancy except for the first month.

[7] Within two weeks of the child's birth the mother contacted the father and visits were arranged. Between August and October, the mother arranged access visits with the father. These visits were supervised by her and usually took place in a public place.

[8] In October 2010, the father commenced a court application seeking joint custody and primary residence to him. He alleged that A.T. has assaulted the mother and received a jail sentence for this offence. As a result of the mother residing with Mr. A.T. it was his position that the child should not be in her primary care. In some of the father's court documents he claimed the mother denied him access totally and in other documents he stated that she would only agree to supervised access to him.

[9] The father also joined A.T. as a responding party seeking a restraining order against him. He alleged that Mr. A.T. had a history of violence, he is volatile and an alcoholic and that he feared for his safety when in his presence. It was not until August 31, 2011 that the father consented to Mr. A.T. being removed as a party to this proceeding.

History of Litigation

[10] At the outset, it is important to note that this proceeding has been case managed by myself and that all of the temporary motions have been heard by me.

[11] On January 17, 2010 a case conference was held. The father agreed that access should be supervised and as he had no one to supervise he agreed that access should take place at a supervised access centre. The father exercised access every Sunday for two hours at the supervised access centre. Counsel agreed to obtain copies of the observation reports of the supervised access centre. The parties consented to the release of the records of the children's aid society with respect to its investigation of the mother and A.T.

[12] On July 11, 2011 on consent the Office of the Children's Lawyer was appointed. The parties also agreed to the release of the father's hospital records and that A.T.'s police record be produced.

[13] On July 11, 2011 the father's motion for expanded access was heard. An order was made expanding the father's access and eliminating the need for supervision. The father was granted unsupervised access every Tuesday and Thursday from 6:00 p.m. to 8:00 p.m. to be exercised in Oakville and access on alternate Saturdays or Sundays for four hours. Pick and drop off was to be at the supervised access centre if possible and if not in a public place. The mother was permitted to have a third party present, not being A.T. If the parties could not agree on a public place for the pick up and drop off, then counsel could make further submissions by means of a telephone conference call.

[14] Unfortunately the parties, despite the assistance of their respective counsel, could not agree on a mutually agreeable pick up and drop location. After hearing submissions, an order was made that the pick up and drop off be primarily at the supervised access centre if available and otherwise at the Hopedale Mall in Oakville and the times of access on Saturday or Sunday were specified to be from 9:30 a.m. to 1:30 p.m.

[15] On August 31, 2011 both parties filed further affidavits. The father sought an order for access to be further expanded and to include overnight access. The mother raised concerns about the father and the child's reaction to the unsupervised access and wished access to again be supervised. Further, the father was not exercising the mid-week Tuesday and Thursday access that had been granted to him because it was "inconvenient" for him to do so. I held that it was too early to introduce overnight access based on the child being only one year old and the father having only had the child in his care for no longer than four hours at a time. It was ordered that pending a decision by the Office of the Children's Lawyer if they would accept the referral, would be involved, the father's access was expanded to be on each Saturday from 9:00 a.m. to 6:00 p.m. Pick up and drop off to continue to be at the supervised access centre if available and otherwise at the Hopedale Mall. This order was made without prejudice to the father renewing his motion for overnight access and holiday access if the Office of the Children's Lawyer did not agree to accept the referral.

[16] Subsequently, the parties were advised that the Office of the Children's Lawyer would be involved and Mahesh Prajapat was appointed as the clinical investigator. A disclosure meeting was held and the report released on December 16, 2011.

[17] At the court attendance on December 19, 2011, the parties were able to agree to the father having day time Christmas and holiday access. The father was granted permission to renew his motion for expanded and overnight access in view of the recommendations of the Office of the Children's Lawyer. The mother advised she did not agree with the recommendations and would be filing a dispute to the report.

[18] The motion was heard on January 26, 2012 and my decision was reserved. There were also consent orders for further disclosure. A trial management conference date was set for May 2, 2012 before Justice O'Connell who will be the trial judge.

Position of the Parties

[19] The father seeks to begin to implement the recommendations of Mr. Prajapat prior to trial.

[20] Mr. Prajapat recommended a gradual move to an equal time sharing arrangement such that for the first 4 week access period the child would be with the father every weekend from Saturday morning at 9:00 a.m. to Sunday evening at 6:00 p.m., then for the following 4 weeks from Friday evening at 6:00 p.m. to Monday morning at 9:00 a.m., after which time the schedule would become an alternate week schedule with a midweek access to the non-custodial parent for 4 hours.

[21] The father conceded that he was prepared to accept a more gradual move in order to make the transition easier for the child and the mother, and therefore was not seeking at this motion the week about arrangements. The father seeks an order that for the first 8 weeks following this motion access be expanded to every Saturday from 9:00 a.m. to Sunday at 2:00 p.m.; after the first 8 weeks from Saturday at 9:00 a.m. to Sunday at 6:00 p.m. and every Wednesday from 5:00 p.m. to 8:00 p.m. and after the first 16 weeks pending the trial every weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. and every Wednesday from 5:00 p.m. to 8:00 p.m.

[22] It is the father's position that he has struggled to become a part of the child's life and had to commence this litigation because the mother denied him access until forced by the court to do so. As a result of the gradual increase in his access he has developed a close bond with L.A.T. who is comfortable and familiar with his home and who is ready for overnight access.

[23] The mother seeks no change in the current order. The mother disputes much of the information and facts contained in the report and notes many deficiencies in the report. She has filed a formal dispute of 11 pages.

[24] The mother submits that it is not appropriate to rely on the Office of the Children's Lawyer report and its recommendations given that Mr. Prajapat has made her credibility an issue and based on the many deficiencies in his report as outlines in the dispute she filed. It is her position that the issue of expanding the father's access is an issue that should be determined at trial and not on an interim motion that will impact on the court's final determination.

Report of the Office of the Children's Lawyer

[25] In his report, at pages 13 and 14, Mr. Prajapat states as follows:

There are serious concerns about Ms. J.T.'s current situation and behavior that must be identified and addressed. The primary concern is that she is caught in an emotionally and physically abusive relationship in which she is not permitted to make independent custody and access decisions. It is clear that decisions relating to Mr. Z.B.'s time and access to L.A.T. were driven by Mr. A.T. who has made it clear to this writer as well as other professionals that he believes that Mr. Z.B. is a man of poor character who should not be afforded any parenting rights to L.A.T. Ms. J.T. has chosen to align herself with Mr. A.T. and engage in a process of discrediting Mr. Z.B. as a father in order to limit his relationship with L.A.T.

Of concern is that Ms. J.T. has minimal insight into how her behavior will eventually negatively impact L.A.T. and permanently sever a relationship with Mr. Z.B. This is likely to cause L.A.T. emotional harm and a missed opportunity to have a relationship with a father who presents as loving, caring and well intentioned. Instead she believes that the role of father can and should be filled by Mr. A.T., an individual who has a documented history of abuse and violence and who continues to exert his influence to control Ms. J.T.

Mr. Z.B. presents with integrity throughout the assessment process. He identifies his concerns factually without discrediting Ms. J.T. as a mother. His biggest challenge is one of experience. He has not had the opportunity to spend significant time as a parent and he has no previous children. It will be important to allow Mr. Z.B. the opportunity to build his parenting skills through a graduated schedule of increased access and opportunities to learn through resources and support. Given concerns related to Ms. J.T.'s struggles to support the father-son relationship and the fact that Mr. Z.B. presents as a strong parent, access should increase until there is an equal sharing of time.

Within an environment void of domestic violence, adult conflict and emotional and financial stressors, Ms. J.T. displays the capacity to attend to L.A.T.'s needs. However, evidence suggests that the above identified stressors and the negative influence of Mr. A.T., negatively impacts her ability to attend to L.A.T.'s longer term emotional needs. Mr. A.T. appears unable to recognize L.A.T.'s needs to have a healthy relationship with Mr. Z.B.

It is important to stress the concern for L.A.T.'s emotional health and wellbeing should the current situation and dynamics between Mr. and Ms. J.T. and Mr. Z.B. continue. L.A.T. currently has a very strong bond with Ms. J.T. and it will be important to allow L.A.T. to continue to experience the benefits of safety and security from this bond. Ms. J.T. should be acknowledged for the efforts she has placed on L.A.T.'s growth and development. However, Ms. J.T. must make the necessary changes to avoid projecting her negative attributes of Mr. Z.B. onto L.A.T. and allow L.A.T. to enjoy a relationship with Mr. Z.B. If she is unable, it will be important to hold her accountable and consider a change in custody to protect L.A.T. from unnecessary harm.

[26] Mr. Prajapat also described his home observations and concluded that the child's presentation in both homes was equally positive and that the child was comfortable with all three of his caregivers that is, the mother, father and Mr. A.T.

[27] The father fully accepts the recommendations of the Office of the Children's Lawyer and accepts Mr. Prajapat's concerns about the mother and Mr. A.T.'s relationship and the mother's attempts to alienate him from the child's life.

Analysis

[28] In this case, I accept the principle that there is no onus on the father to prove any material change in circumstances as it was contemplated that the father could renew his motion for overnight access upon completion of the report of the Office of the Children's Lawyer.

[29] However, there are two preliminary issues that need to be considered. Firstly, generally the status quo will be maintained on an interim custody or access motion unless there is a compelling reason indicating a need for a change to meet a child's best interests. See Grant v. Turgeon, [2000] O.J. No. 970 (S.C.J.) paragraph 15 and cases cited therein.

[30] Secondly, it is generally accepted that courts should not rely on assessments for interim motions, but only after a trial where they can be tested. In Grant v. Turgeon, supra, Justice McKinnon quotes with approval this principle as articulated by Justice Granger in Genovesi v. Genovesi (1992), 41 R.F.L.(3d) 27 (Ont. Gen. Div.) at p. 32:

An assessment report is usually ordered for use at a trial as opposed to being used at an interim proceeding. In rare cases the information obtained by the assessor might require immediate scrutiny by a judge to determine if there should be some variation of the existing custody arrangement.

[31] Justice Granger goes on to say at p. 33 that the general rule that the assessor's recommendation ought not to be acted upon without a full trial should be followed except in exceptional circumstances where immediate action is mandated by the assessor's report.

[32] In several cases, courts have drawn a distinction between those cases dealing with custody and those dealing with access and have relied on recommendations of the assessor on interim motions for access. See for example, Abrego v. Moniz, 2006 ONCJ 500, [2006] O.J. No. 5167 (O.C.J.); Verma v. Chander, 2009 ONCJ 136, [2009] O.J. No. 1445 (O.C.J.).

[33] With respect to those judges that have drawn this distinction, in my view the relevant consideration is not whether there are recommendations regarding custody or access but what issue will be determined at trial and whether or not a court should make an order relying on the untested observations and recommendations of an assessor. In this case, the trial will determine whether or not overnight access to the father is in the child's best interests and if so when it should commence and whether or not the father's access should be increased to the extent that it becomes a shared parenting arrangement.

[34] The cases where a court has relied on an assessment at an interim motion also draw a distinction between relying on the observations and evidence of the assessor as opposed to the conclusions of the assessor. However, in this case, the observations themselves are being questioned due to the deficiencies in the investigation.

[35] At trial a further issue may be raised as to what weight a court will place on the recommendations of a clinical investigator from the Office of the Children's Lawyer as opposed to an expert conducting an assessment pursuant to section 30 of the Children's Law Reform Act. At this stage of the proceeding, I have no specific knowledge about Mr. Prajapat's educational background, his training, experience and his knowledge about child development or his ability to conclude that the mother is attempting to alienate the child from the father.

[36] Credibility will be an important issue in the trial. Mr. Prajapat concluded that the mother misled him and misrepresented important facts. He concluded that the father is a man of integrity. As Mr. Prajapat's evidence will be seriously weighed by the trial judge, it is not appropriate for me to outline in detail concerns raised with his investigation except to the extent that it explains my decision in this motion.

[37] Mr. Prajapat has accepted almost verbatim every allegation made by the father against both the mother and Mr. A.T. He has ignored credible documentation and third party information that contradicts the father's allegations.

[38] For example, the father states that the mother denied him access and yet there is correspondence that substantiates that the mother did not deny him access but merely that she would not agree to his terms namely, that despite not having any relationship with the child who was only 3 months old at the time the father wanted to exercise unsupervised access 4 times a week for at least 4 hours and on every weekend from Saturday morning until Sunday night.

[39] Mr. Prajapat repeats and seems to accept all of the allegations made by the father to the police and the children's aid society against the mother and Mr. A.T. He does not refer to the fact that the children's aid society investigated the father's allegations and found they were not verified and the police did not lay any charges based on the father's allegations against Mr. A.T.

[40] Mr. Prajapat accuses the mother of interfering with the father's access. He states that the mother "cancelled" 11 visits at the supervised access centre. But he acknowledges that the centre was closed for 5 of those visits. He accuses the mother of not showing up for a visit on November 19th and alleging the child was ill. But Mr. Prajapat had interviewed the child's doctor who told him that she had seen the child on November 18th and he had pneumonia. Mr. Prajapat does not refer to the fact that the mother has complied with all court orders for access even if she did not necessarily agree with them. Mr. Prajapat refers to Mr. A.T. being controlling and not allowing the mother to make independent decisions about custody and access but there is no evidence that Mr. A.T. has ever interfered with the court process or any court ordered access. There have not been any incidents where the mother stated she needed to consult Mr. A.T. about any decisions nor any evidence presented to the court that she ever did so.

[41] Mr. Prajapat dismisses the mother's concerns about the child's reactions on transitions and accuses the mother's friends of exaggerating and speculating about the father. But he has totally ignored and not referenced the sworn evidence of a security guard at the Hopedale Mall who witnessed access exchanges during which the father's actions were very concerning. Nor did he question the public health nurses that have attended at the mother's home about any observations they may have made about the child after access visits with the father.

[42] Mr. Prajapat states that the supervised access centre reported that there were "no concerns relating to his [the father's] parenting skills and knowledge". This assertion is not reproduced in the actual access centre's report dated January 17, 2012. The report also contains the proviso that the observations are in a structured and protected group environment and should not be used to predict how visits or exchanges may occur in a less protected and unsupervised environment. Further, the observation reports indicate that the child has shown signs of distress and has cried on some exchanges.

[43] Mr. Prajapat concludes that the mother is "caught in an emotionally and physically abusive relationship" and that the mother's decisions about the father's access are controlled and driven by Mr. A.T. He discounts or ignores the fact that there was only one incident of domestic violence by Mr. A.T. in 2008. The mother initiated counseling and Mr. A.T. completed PARS counseling. Mr. Prajapat did not refer to the fact that the father's Application to the court states that Mr. A.T. was sent to jail for his assault of the mother which was untrue.

[44] Mr. Prajapat did not disclose in his report any information he obtained from the father's physician. The issue of the father's mental health was raised by the mother and there was a report filed from Halton Healthcare Services from 2004 in which the father was diagnosed with an adjustment disorder mixed depression and anxiety that increased to a diagnosis of full depression. A referral was made for psychiatric outpatient services and medication was prescribed. Mr. Prajapat's report does not indicate he followed this up.

[45] There are many other factual disputes and deficiencies raised by the mother regarding the investigation by Mr. Prajapat. Until these factual disputes are determined and all of the evidence is weighed by the court, the conclusions and recommendations of Mr. Prajapat cannot be relied upon at this interim step in the case.

[46] Further, Mr. Prajapat's observations of the father's positive interactions with the child do not necessarily support the conclusion that overnight access should be commenced at this time. This is the very issue that the trial judge will have to determine.

Scholarly Articles on Overnight Access for Young Children

[47] I wish to briefly comment on the reliance by both counsel on scholarly articles with respect to the issue of overnight access for young children.

[48] The mother's counsel provided and relied upon an article by Marsha Kline Pruett in the 2005 publication of "Essays from the Family Law Review An Interdisciplinary Journal" entitled "Applications of Attachment theory and Child Development Research to Young Children's Overnights in Separated and Divorced Families." Dr. Kline Pruett canvasses the articles that are included in this publication and describes what she calls "the important points where the authors agree" and "the philosophical differences among the authors [which] mirror the controversy that continues to be played out in the family courts".

[49] The father's counsel provided and relied upon the articles by Joan Kelly and Michael Lamb that generally advocate and support overnight access for young children on the basis of the importance and need to preserve and maintain the role of the father in a child's development. These are same articles and theories that Dr. Kline Pruett questions in her article.

[50] When the court pointed out during submissions that counsel cannot rely on such scholarly articles, the father's counsel submitted that clients do not have the financial means to provide expert evidence to the court and that there is case law that has approved of and adopted the theories of Kelly and Lamb.

[51] Counsel for the father provided the court with several cases[1] which quoted and approved of the article by Joan Kelly and Michael Lamb, in "Using Child Development research to Make Appropriate Custody and Access Decisions for Young Children", Family and Conciliation Courts Review, Vol. 38, No. 3 July 2000. In that article the authors conclude that prior opinions suggesting that overnight access for infants six to eighteen months is less than desirable and may not be appropriate until three years of age were unnecessarily restrictive and not based on child development research and reflected an outdated view of parent-child relationships.

[52] Firstly, just because several cases have adopted this view of overnight access based on the Kelly and Lamb philosophy does not elevate that theory to an accepted principle. I note that in none of the cases was any expert evidence called but the court simply accepted the theory of overnight access as being appropriate for young children. Therefore there was no opportunity for any cross-examination of the authors on their theory or the opportunity to explore the application of the theory to the particular facts of the case.

[53] Secondly, as I pointed out to counsel in the July 2011 publication of the Family and Conciliation Court Review there are several articles by well respected researchers and psychologists that do not agree with the theories espoused by Kelly and Lamb that overnight access for young children is consistent with child development.

[54] By attempting to rely on the Kelly and Lamb theory that overnight access is appropriate for young children, counsel for the father is in effect requesting the court take judicial notice of this theory.

[55] The concept of judicial notice facilitates the acceptance by a court of the truth of a particular fact or state of affairs, without the requirement of proof, where the fact is so well known that it is not the subject of dispute among reasonable people, or, is capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. (See Sopinka, Lederman and Bryant, 2d., the Law of Evidence in Canada (Toronto: Butterworth, 1999) at 1055.)[2]

[56] What is clear is that there are different theories with respect to the issue of when it is appropriate for young children to commence overnight access. The theory of overnight access being appropriate for young children does not fit into the category of facts that a court can or should take judicial notice of.

Conclusion

[57] There is no immediate concern about this child's best interests that would necessitate implementing any change to the current access order. The father has generous time with the child and continues to develop a bond with him. There is considerable evidence that will have to fully explored during a trial to determine if overnight access should be commenced and to determine what parenting arrangements are in the child's best interests and consistent with his development. There is further evidence regarding the steps the mother has taken since the investigation of Mr. Prajapat including arranging counselling for the child that may impact on the parenting arrangements.

[58] For these reasons I conclude that this case does not fall into the rare or exceptional category of cases where the assessor's recommendations should be acted upon immediately and before there is a full and thorough investigation provided by a trial. Therefore the temporary order for access of August 31, 2011 shall continue. The father's motion for expanded access is dismissed.

[59] As the mother has been successful on this motion, she is presumed to be entitled to costs. If counsel for the mother wishes to pursue costs, short written submissions as to costs, with a Bill of Costs attached, may be made within 30 days of the release of these reasons with a right of reply by father's counsel within two weeks. In reviewing this file, I note that costs were reserved on several prior court attendances, if either counsel seeks costs for these prior attendances those costs should also be addressed.

Zisman J.

Date: March 21, 2012

Footnotes

[1] Cooper v. Cooper, 2002 CarswellSask 223 (Q.B., McIntyre, J.); Baird v. Webb, 2002 CarswellSask 798 (Q.B.; Dickson, J.); Lygouriatis v. Gohm, 2006 CarswellSask 601 (Q.B.; Wilson, J); S.(C.M.) v. S.(M.R.J.), 2009 CarswellYukon 39 (S.C.J.; Gower, J.). All of the cases refer to the fact that the Kelly and Lamb article was cited with approval in other cases and in particular by Justice McIntyre in Cooper v. Cooper.

[2] This concept of judicial notice is also discussed and approved of by the Supreme Court of Canada, by Justice Binnie in R. v. Spence, 2005 SCC 71, 202 C.C.C. (3d) at paragraphs 60 to 61.