Court File and Parties

Court File No.: Brampton 232/08 Date: 2012-05-28 Ontario Court of Justice

Between: Arthur Pollington, Applicant

— And —

Vanessa Rossi, Respondent

Before: Justice P.W. Dunn

Heard on: 25 May 2012

Ruling on Motion released on: 28 May 2012

Counsel:

• Christopher J. Crowe Esq., for the applicant
• Ms. Candice L. Bernard, for the respondent

Decision

P.W. DUNN, J.:

Background and Case Conference

[1] A case conference has been held. On 13 March 2012, this court gave an order for the applicant to have access to both children through the Peel Supervised Access Program in Brampton. Access was to be for the two hour maximum, with sessions on the 2nd, 3rd and 4th Sundays of each month.

[2] Access through that program did not occur. Mr. Crowe presented a document from the Centre called "Activity on the File" that outlined many exchanges between the Centre and the applicant and the respondent over document completion.

[3] Today the parties reached a consent that would allow access to both boys by the applicant on alternate Sundays between 11:00 a.m. and 3:00 p.m. in Peel Region, supervised by the paternal grandmother, Kathleen Davidson.

1. Orders Pursuant to the Minutes of Settlement Dated 25 May 2012

Location of Supervised Access

[4] The lawyers then needed a resolution on several points for which there was oral argument:

1. Should the parties wait until 1 June 2012 to see if the Centre will say if they will supervise the access?

[5] Ms. Bernard argued that the access should still be at the Centre, because that is what this court ordered on 13 March 2012, and the Centre would be the most neutral observer of the applicant's access, and therefore the most trustworthy in its observations.

[6] Mr. Crowe urged that access start on 10 June 2012 pursuant to the Minutes of Settlement. His reasoning was:

1. There could be further delays in access starting at the Centre.
2. There is an agreement for access to be supervised by the paternal grandmother.
3. Access in community settings with the children's grandmother would be a more natural and comfortable setting for the young boys, rather than at a busy access Centre with strangers.
4. The Children's Lawyer's Report stated that the applicant showed some positive parenting skills, "He relates well to the children". The children knew and wanted to see their father, and it is apparent that the applicant can meet their needs.

[7] I agree with Mr. Crowe. The parties now have a certain plan with the aid of Ms. Davidson. There will not be any access at the Centre at this time.

Drug and Alcohol Testing

2. Should the applicant undergo random testing to show the presence of illicit drugs and/or alcohol?

[8] Although the applicant has had difficulties with excessive alcohol use in the past, he claims that at present he does not drink alcohol or use illicit drugs. Both parties agree to random testing.

2. Temporary order for the applicant and the respondent to do testing for alcohol and illicit drug use through urine analysis on two occasions between now and the return date. Subject to the lawyers' and their clients' holiday schedules, Mr. Crowe and Ms. Bernard may notify the other to require his or her respective client to have and pay for such testing through a recognized professional facility on two separate occasions.

[9] There will be no order for access to the applicant to cease if such testing is positive, because there will still be the protection to the children by Ms. Davidson during access. However, on the return date, the applicant (as well as the respondent) would have explaining to do if a test is positive. A positive test may lead to a lack of future expansion in access.

Parenting Course

3. Should the applicant take a parenting course?

[10] I believe such a course would benefit the applicant in his understanding of children's developmental needs.

3. Temporary order for the applicant to use his best efforts to enrol in an appropriate parenting course and to bring with him on the return date a progress report of his attendances and the program's goals, and whether he participated in discussions and whether he completed the course or has more to do before the completion.

I appreciate that there may be delays in locating and gaining acceptance into parenting course(s).

Mental Health Counselling

4. The respondent requested that the applicant attend mental health counselling and follow through with recommended treatments and/or medications.

[11] The applicant submitted with his settlement conference brief for 25 May 2012 a letter dated 20 September 2007 from Dr. O'Doherty at the Grand River Hospital to state "I do not have any concern regarding Mr. Pollington's ability to safely care for his children". This letter has little value because it is outdated and too general. Dr. O'Doherty did not explain what information he had to lead him to have confidence in the applicant's parenting ability.

[12] The applicant professed to the Children's Lawyer that he has no mental health concerns at present; that no treatment is required and no past problems impede his ability to care for the children now.

[13] However, the Children's Lawyer's Report stated:

…from review of collateral information, it was clear that Mr. Pollington has had difficulties with his mental health and the most recent assessment in with Homeward Disability Services in December 2009 indicates that Mr. Pollington suffers from depression and schizophrenia. His previous health records also indicate other diagnosis such as psychosis, anxiety and bipolar disorder. Although Mr. Pollington's diagnosis is unconfirmed, recommendations have consistently stated he is seek ( sic ) counselling and was treated with medications.

The Children's Lawyer recommended that the applicant obtain appropriate and consistent counselling and treatment in order to establish a clear diagnosis and develop an appropriate treatment plan for his mental health.

[14] It is clear that the applicant and professionals in the past had concerns for the applicant's mental health. However, are there concerns now? The applicant should not take treatment or medication if there are no maladies to treat. Mr. Crowe stated that the applicant would revisit Dr. O'Doherty, to "get an opinion regarding the applicant's mental health" (Mr. Crowe's words).

[15] I believe the applicant should offer information about what the problems were in the past and what happened to those problems and why. Did the problems reoccur since? If the applicant is working, what is his employer's opinion of his work ethic? However, from a medical point of view, the applicant should do more than spend an hour in a psychiatrist's office to obtain a letter that says all is well with him. I am not going to do an order, because I am not certain exactly what can be ordered in this regard. I also note that the Children's Lawyer's Report refers to "the most recent assessment" with Homeward which was in December 2009. That information could well be quite out of date.

[16] Ms. Bernard stated that at the 20 December 2011 case conference, the applicant had been ordered to provide evidence to satisfy the respondent's concerns. Those concerns as outlined in the 20 December 2011 endorsement were:

• [The applicant] has medical health issues;
• [The applicant] has alcohol and drug issues.

I then wrote:

It would be helpful to the court if the applicant could provide information about those issues, specifically as to whether those issues should be a bar to the applicant exercising access.

As a reason for the adjournment from 20 December 2011 to 13 March 2012, I wrote:

(4) for the applicant to give further information about the respondent's concerns expressed [in the 20 December 2011 endorsement ].

There was no order on 20 December 2011 for the applicant to provide information to allay the respondent's concerns. I simply said it would be helpful if he did so. Hence the respondent is not in breach of a court order for medical disclosure. Indeed, an order for the applicant to produce medical information about mental health problems and take treatment and medication presupposes a problem at present, and that remains to be determined.

Letter from Mental Health Physician

5. The respondent requested that the applicant provide an up-to-date letter from his mental health physician, Dr. O'Doherty regarding his ability to safely care for the children.

[17] Previously, Dr. O'Doherty gave such a letter, but I question the validity of Dr. O'Doherty's opinion. He can give medical opinion, provided he has a good foundation for his viewpoint. However, I doubt whether Dr. O'Doherty should be heard to opine on the applicant's caregiving abilities without a thorough knowledge of the children, their histories and the effect on the applicant of his past.

[18] There will be no order requiring a letter from Dr. O'Doherty about the applicant's parenting ability. Better information in that regard can be obtained from Ms. Davidson and others who observe the applicant with the children.

Police Checks

6. The respondent sought up-to-date Peel and Waterloo police checks for the applicant.

4. If the applicant has not already done so, temporary order for the applicant to provide up-to-date police checks with Peel and Waterloo police forces.

Children's Aid Society Records

7. The respondent requested records regarding the applicant in the possession of the Huron-Perth Children's Aid Society.

5. Order that copies of all documents in the possession, control or power of the Children's Aid Society of Huron Perth, and as are relevant to the material issues in this action, and, in particular, copies of all statements recorded in writing or by videotape or audiotape, made by the children or either of them or by any other person, be provided to the applicant or respondent or their counsel, except for any documents or portions thereof that are the proper subject of a claim for privilege or that identify non-professional third parties or are prohibited by law to be disclosed pursuant to the Child and Family Services Act or any other legislation. Should copies of any such documents be provided to counsel, same shall be used only for legitimate purposes connected with this litigation and shall be destroyed once the litigation is at an end. The requesting party shall be responsible for the cost of photocopying and shall reimburse the Children's Aid Society of Huron Perth for the same.

6. If the applicant wishes to inspect the records of Peel Children's Aid Society regarding the respondent, the same form of order may be used, but with reference to be made to Peel Children's Aid Society.

Income Tax Return and Notice of Assessment

8. The respondent requested the applicant's 2011 Income Tax Return and Notice of Assessment or Re-assessment.

7. Order for the applicant to serve Ms. Bernard and file in the Continuing Record, a copy of his 2011 income tax return and notice of assessment or reassessment.

[19] I caution both lawyers not to put documents in the case conference briefs that should be filed in the Continuing Record.

2. Children's Attendance at the Applicant's Wedding

[20] Finally, there was the issue of the children attending the applicant's wedding on 20 July 2012 in Waterloo from 2:00 p.m. to 9:30 p.m. The respondent was opposed because:

(1) She believed it would be best if the children's counsellor first advised whether s/he thought the children's emotions could handle the ceremony.

(2) The respondent only learned on 25 May 2012 of the applicant's desire to have the children attend the wedding and for Dylan to be the best man.

(3) It is too early to introduce the children to the applicant's fiancé/wife.

(4) Dylan already has behaviour issues at school, and attendance at this wedding might adversely affect his mental state.

[21] I can find no reason why the children should not attend the applicant's wedding. Children's errant behaviour often has many reasons, some of which are minor and some are important and historical. I doubt whether the children's presence at their father's wedding would have severe lasting effects on the children's psyches.

[22] The access should not be as late as the applicant requested:

8. Order for the applicant to have access to both children on 20 July 2012 in Kitchener-Waterloo, for the purpose of attending the applicant's wedding between the hours of 2:00 p.m. and 8:00 p.m. The paternal grandmother Ms. Davidson will facilitate the transportation from Brampton to Waterloo and return. Access exchanges will be at McDonald's restaurant, Sandalwood and Kennedy Road, Brampton.

9. Peel Regional Police are ordered to enforce paragraph 8 herein if the applicant requests.

[23] With access to be on alternate Sundays beginning 10 June 2012, that would mean there would only be three access sessions before the wedding on 20 July 2012, namely 10 June 2012, 24 June 2012 and 8 July, 2012. I share the respondent's concern that the boys should spend more time with the applicant's fiancé in anticipation of their nuptials. The following order will issue for increased access and to allow for the applicant's fiancé to participate in the access:

10. Temporary order for the applicant to have access to both children, Dylan Pollington, born 30 December 2003, and Aidan Pollington, born 4 June 2007, on 17 June 2012 and 15 July 2012, in addition to having access on 10 June 2012, 24 June 2012 and 8 July 2012. Access will occur at the times and places and with the supervision and access exchange site as specified in the 25 May 2012 Minutes of Settlement. The applicant's fiancé may attend the access on 8 July 2012 and 15 July 2012.

11. Peel Regional Police are ordered to enforce paragraph 10 above.

Adjournment and Reasons

[24] The matter is adjourned to 10:00 a.m. on 14 September 2012, courtroom 210. Allow 60 minutes for a case conference/settlement conference.

[25] Reasons for adjournment:

(1) for obtaining children's aid society records;

(2) for the applicant to do financial disclosure;

(3) to review access; and

(4) for both lawyers to settle the s.7 Guideline issue.

[26] The issue of costs is reserved until the return date. A lawyer seeking costs should attend with a Bill of Costs.

[27] There shall be no motion on the return date without leave of the court (caution: return date is already very busy).

[28] I thank Mr. Crowe and Ms. Bernard for their very careful presentations on behalf of their clients.

Released: 28 May 2012

Justice P.W. Dunn