Court File and Parties

Location: Sault Ste. Marie Court File No.: 66/12 Date: 2012-06-29 Ontario Court of Justice

Between:

Lisa Mitchell Lynn Tegosh, for Lisa Mitchell (mother)

— And —

Jason Mitchell Murdoch Carter, for Jason Mitchell (father)

Heard: June 26, 2012

Before: Kukurin J.

Decision

[1] This case is a classic high conflict custody-access contest between two parents living separate and apart, fighting over custody of their three children: Dakota (16), Nathan (15) and Madison (9). A case conference has not yet been held. Despite this, two motions have been brought. The mother's motion (at Tab 3) was brought without notice to the father. It resulted in an interim without prejudice order dated May 7, 2012 intended to maintain the status quo, as described in the mother's evidence filed in support of her motion. It was also intended to provide some judicially imposed direction for continued paternal contact with the child Madison.

[2] The father was served with the mother's application, her motion, and a copy of this order. He has responded by filing his Answer, and bringing his own motion (at Tab 7). He has filed evidence which paints a considerably different portrait of what has happened in this family than did the evidence first filed by the mother.

[3] The boys are not adults and are certainly affected by the marital separation and the present conflict between their parents. However, they appear to be handling the situation relatively well. It seems to be acknowledged that they are of an age at which they will more or less decide what they will do. In fact, the mother's motion requests an order that any paternal access order with respect to the two boys is to be subject to their wishes. The father does not take issue with this. The evidence supports an inference that these boys reside with whatever parent they wish to reside with, and that they visit with whatever parent they wish to visit with.

[4] Having regard to these circumstances, I am inclined to terminate the order for maternal interim custody with respect to Dakota and Nathan, and to order that their residence with either parent shall be subject to their wishes from time to time.

[5] The real issue at this point is with respect to paternal contact with the nine year old daughter Madison. The mother currently has interim custody of Madison pursuant to the interim order obtained ex parte on May 7, 2012. This child resides, in fact, with her mother at the present time. The current order provides for paternal interim access to be supervised, and to be arranged by the mother with one of four access supervisors named in the order. All four are members of the paternal extended family and are not only known to, but related to Madison. The order provides that any of these access supervisors must consent to act as supervisor of the father's access.

[6] Unfortunately, according to the mother, the paternal access or contact with the child did not go well following the making of the ex parte order. Her evidence, the source of which is the child Madison, indicates that paternal access supervision was deficient. The father was allowed to be alone with Madison on a couple of occasions. He was persistent in questioning her to the point of badgering her. Ultimately, according to the mother, Madison, although she loves her father, found the prospect of access visits so upsetting that she no longer wishes to go. As a result, the mother has been withholding access from the father.

[7] The father is asking for a court order, not for access to Madison, but for custody. He seeks a "parenting schedule" from the court which will split Madison's time between himself and the mother fairly equally, in alternating four day blocks, for example.

[8] The mother wishes the current paternal access order to end and to be replaced with an order that paternal access take place at the supervised access facility and that it be arranged through that agency.

[9] The parties are at an impasse and want the court to solve their problem. Unfortunately, the evidence of the parties is very contradictory in many respects. The main problem from the mother's point of view is the father's highly emotional behaviour related to their separation, his involving the children in adult issues including matters arising out of this court case, and his incessant questioning of the children about things they do not wish to be brought up, much less to discuss with him.

[10] The father denies that he has ever involved the children in adult issues, and he claims that he tries to deflect any conversations heading in that direction. He denies questioning the children about the mother. He maintains that the boys reside primarily with him and see their mother on weekends. He recounts in his evidence that all three children have told him that Madison misses him and wants to come home. He denies that his behaviour is affecting the children negatively, or that it is inappropriate.

[11] These contradictions in the evidence are much farther ranging. The parties are at least two months apart in their evidence as to when they actually separated. The evidence presents a not atypical "he said – she said" scenario often found in custody disputes.

[12] It would be of considerable benefit to have independent, more objective evidence. I am making an order requesting the Office of the Children's Lawyer (OCL) to provide its services in this case. Unfortunately, it takes some time for OCL involvement to get underway (if it materializes at all). The parties wish an interim resolution now, and they are quite polarized in terms of what that should be.

[13] The court does have some independent evidence in the form of a letter from Ms. Iris Bertrand, a registered social worker holding a Masters of Social Work degree. She met the children and the mother on three occasions on a referral from a victims group. Her account of the father's behaviour and its effects on the children in her letter accords with the allegations of the mother. In fact, this social worker made a report of abuse to the Children's Aid Society of Algoma as a result of her belief that the father's behaviour was harming the children emotionally.

[14] The father's attempt to discredit Ms. Bertrand, alleging her to be a friend of the mother is rejected by this court. However, there are other reasons to discount her evidence. Firstly, it is not under oath. Secondly, any factual contact is totally hearsay in nature. Thirdly, Ms. Bertrand did not speak with the father to get his version of events. Fourthly, the mother may have been present when Ms. Bertrand was speaking with the children.

[15] Subsequent evidence discloses that the Children's Aid Society has chosen not to become actively involved, which suggests that it does not see any, or at least sufficient, child protection concerns to warrant such involvement.

[16] It is obvious that the children are aware of some of what is going on in this court proceeding. The father has clearly discussed with Madison her encounters with Ms. Bertrand. He says in his own affidavit (at Tab 8, paragraph 14) that the children have stated to him that:

"... they disagree with what Ms. Bertrand has said about our relationship".

If this is true, the children must obviously have had access to whatever it was that Ms. Bertrand may have said. Moreover, they clearly had some discussions about this with the father. According to the mother, the children no longer wish to attend counselling with Ms. Bertrand because they have no confidence that what they discuss will remain confidential and will not be divulged to the father.

[17] The father is also facing domestic violence related charges (against the mother as complainant) and is on a bail release with several conditions. While he has not been found guilty of these charges, the fact of his being subject to these charges suggests that a decision has been made by police authorities that there is sufficient information to justify charging the father criminally. The mother's latest evidence, unfortunately served at the eleventh hour, indicates that the father is engaging in harassing behaviour that may well be a breach of his bail conditions. In fact, one of the current charges he is facing is a breach of bail conditions.

[18] It would be preferable by far if the father's contact with Madison could be unsupervised. However, there is too much evidence that I consider to be credible which militates against unsupervised access. Supervision by extended family members would, in most cases, be more desirable from the child's perspective, than supervision by a community agency, albeit one in the access supervision business. However, access supervised by family members has taken place and, based on the evidence that the court does have, the access supervision was not up to judicial expectations. The father was with Madison unsupervised during portions of the access visits. Whether what took place upset Madison or not, the father should have known that he was not to be with her unsupervised.

[19] At this early stage in the proceeding, I prefer to err on the side of caution if I err at all. I propose to make an order that terminates subparagraphs (a), (b) and (c) of paragraph (2) of the order dated May 7, 2012 and substitutes in place thereof the following:

2(a) at the Supervised Access Facility, the times, frequency and duration to be arranged with that facility;

(b) each party shall forthwith contact the Supervised Access Facility and comply promptly with any intake requirements;

(c) the applicant mother shall be responsible for all transportation of the child Madison, to and from the Supervised Access Facility for all access visits.

Otherwise, paragraph (1) and paragraph 2(d) shall continue in their present form. The words "on a without prejudice basis" will be deleted from this order. In addition, with the consent of both Madison and the father, Dakota or Nathan, or both may accompany her on any such paternal access visits.

[20] It is the intent of this court in making this interim order to have access visits supervised for a time by professional access supervisors who are theoretically neutral, and can provide an objective report of what transpires between father and daughter at these visits.

[21] The choice of the paternal access supervisors in the order dated May 7, 2012 was made by the court on invitation of the mother in her ex parte motion at Tab 3. A logical assumption is that the mother canvassed these persons, obtained their consents, and explained what was expected of them as access supervisors. However, that assumption may not have had a solid foundation.

[22] The order I make this day is not fixed in stone. On being satisfied that one or more of these individuals is still prepared to act as access supervisor, and can assure this court (preferably in the form of affidavit evidence) that he or she understands the role of an access supervisor, and undertakes to fulfill that role, I would be inclined to revisit the issue of interim paternal access. By that time, it is my expectation that the Office of the Children's Lawyer would be actively involved in this case and would be able to assist the court further in clarifying the position, not only of Madison, but of all three children.

Released: June 29, 2012

Justice John Kukurin, Ontario Court of Justice