Court File and Parties
Court File No.: Toronto D51448/10 Date: 2012-09-26 Ontario Court of Justice
Between:
R.L.C. Applicant
— AND —
J.T. Respondent
Before: Justice E.B. Murray
Heard on: July 25, 2012 and August 13, 2012
Reasons for Judgment released on: September 26, 2012
Counsel:
- Isaac Birenbaum, for the applicant
- Alnaz I. Jiwa, for the respondent
Judgment
MURRAY J.:
[1] The Applicant R.L.C. and the Respondent J.T. are the parents of the child Z., born [...], 2004. The parties separated on September 24, 2007, when the Applicant was hospitalized under the Mental Health Act. Since the separation, Z. has remained in the Respondent's care, and the Applicant's access to the child has been supervised. Initially, supervision was done by the Respondent or her mother; since September 2010, access has taken place weekly for two hours at a supervised access program.
[2] The Applicant has custody of Z. pursuant to a final order made on the consent of the parties. This trial was held to resolve the remaining issues. Father seeks an order allowing him unsupervised access to the child once a week for six hours.
[3] The Respondent submits that the child will be at risk of harm if she has unsupervised contact with the Applicant, and asks for a continued order for supervised access. She says that Z. loves her father, and that she wants the child to be able to have unsupervised access to him, but argues that the Applicant has not yet received the treatment he needs to safely care for Z. alone even for six hours.
[4] The Applicant concedes that supervised access might have been appropriate when he was in crisis in 2007, but submits that the necessity for such supervision is long past, and that the Respondent is vindictive in trying to limit his relationship with Z. He points out that his psychiatrist, Dr. Adam Stein, says that he poses "absolutely no risk whatsoever" to the child.
[5] The Applicant has not been paying child support. The Respondent seeks an order for child support, based on an imputed annual income of $15,000. The Applicant states that his income at present is from social assistance payments at a level below that which would justify a support order. He hopes to obtain at least part-time employment within the year, and is prepared to pay support at the Guideline level at that time.
[6] I heard evidence from the parties, and from Dr. Adam Stein, a psychiatrist who has been treating the Applicant for the past two years.
[7] The Children's Law Reform Act (CLRA) provides that decisions about access are to be made based on the best interests of the child. Section 24 of the Act sets out the factors which a court must consider in determining best interests. The Divorce Act provides that a child should have as much contact with each parent "as is consistent with the best interests of the child." This is often referred to as the "maximum contact" principle. Although the CLRA does not contain this provision, caselaw has held that the maximum contact principle is applicable in cases decided under the CLRA[1].
[8] A court may order supervised access when a child would be placed at risk of harm (physical or psychological) or of abduction. Supervised access, particularly when it must be exercised in an institutional setting, has many limitations. Visits are usually relatively short (1-2 hours), not very frequent (weekly at most), and held in a confined space. Supervised access in the long term is usually not as enjoyable for the child or the parent as an access regime which allows them to go out into the community or to the parent's residence. Courts usually contemplate supervised access as a temporary arrangement, which will terminate when the risk has been eliminated, or can be properly managed in a less restrictive manner[2].
[9] I have regretfully determined that Z.'s access to her father must continue to be supervised in order to insure her safety. I have also concluded that the Applicant has the ability to earn income now, and that he should pay child support. My reasons for this decision follow.
THE FACTS
Background
[10] The Applicant and the Respondent lived together for four years before their separation in 2007.
[11] After Z. was born, the Respondent remained at home to care for her, and the Applicant worked long hours as an independent contractor. Each party testified that there was much conflict in their relationship; each attributed this conflict to substance abuse and untreated mental health difficulties of the other.
[12] A few months before the separation, the Applicant stopped work and the Respondent began working outside the home, bartending in the evening. The Applicant testified that the Applicant was abusing the child, and that he had insisted that she go out to work and that he assume primary parenting responsibility.
[13] The Applicant admits that he made these allegations of abuse for the first time at this trial. He never raised them in his application or in the three affidavits he filed in the two years before the case came to trial. The Respondent vigorously disputes his allegations. She says that the Applicant resented working, and insisted that she get a job so that he could stay home. She did so, but worked in the evenings so that she could continue to care for the child during the day.
[14] It defies credibility that the Applicant would never have raised these serious allegations before trial, and that he would have consented to an order that the Respondent have custody if there was truth to his allegations.
The Applicant's Psychotic Breakdown
[15] It is common ground that in August 2007 the Applicant suffered a psychotic breakdown, and was hospitalized for two weeks at St. Michael's Hospital. The Respondent testified that the breakdown was preceded by several weeks of increasingly bizarre behaviour—e.g., the Applicant reacted to emergency sirens with panic, saying that "they are coming to get me."
[16] Matters came to a crisis one day in August when, according to the Respondent, the Applicant asked her "Am I wrong to think that it's okay to have sex with children?"
[17] The Respondent, greatly alarmed, responded, "What did you do?" She testified that he replied that:
- he had licked Z.'s crotch, allegedly to remove a piece of lint; and
- he had pushed his finger into Z.'s anus, stopping when she squirmed.
[18] When the Respondent queried, "What else?", the Applicant replied, "I don't know… stuff."
[19] The Applicant's evidence on this conversation was inconsistent.
- He testified that he did not remember the conversation.
- He testified that he never raised the question of having sex with children.
- He testified that if he did say what was alleged, that he was "crazy" at the time, but that he was not a pedophile.
- He testified that he did tell the Respondent that he had licked the child's crotch to remove a piece of lint (because he was unable to remove the lint using his hands) and that he did push his finger into the child's anus (to assist her in having a bowel movement), and that these were normal parental actions and should be of no concern[3].
- He testified that the Respondent had asked him these questions when he was in crisis "just to get rid of me."
[20] Given the inconsistency in the Applicant's evidence about this conversation, I prefer the Respondent's evidence about what was said that day.
The Applicant's Hospitalization and Treatment
[21] After this conversation, the Respondent drove the Applicant to St. Michael's Hospital (SMH). The Applicant testified that he realized that he was in crisis that day, and that he consented to remain in hospital. A Form 30 under the Mental Health Act, which is in evidence, indicates that the Applicant was admitted involuntarily on August 23, 2007, because the attending physician was of the opinion that he was "suffering from a mental disorder of a nature or a quality that will likely result in serious bodily harm to another person." The Form 30 indicated that the physician was concerned that the Applicant might cause harm to "another person." The Applicant testified that the physician's concern focussed on the possibility of harm to Z., stemming from his own admission that he had handled Z. "somewhat roughly."
[22] Although the Applicant was vague in his evidence as to whether he had ever been previously treated for mental illness, Dr. Stein testified that, based on information received from the Applicant himself, the Applicant had previously received psychiatric treatment twice, once as a child and once about five years previously.
[23] The Applicant testified that he thought his breakdown might have been triggered by an adverse reaction to previously-prescribed medication. His evidence was that he had five years earlier received a prescription for Depkot, an anti-seizure medication, in order to assist him in "focussing" on his university courses. He said that although he stopped taking the medication in 2003, that he had one pill left, which he ingested in August 2007 after an argument with the Respondent. The Applicant did not explain why he took the medication on this occasion, except to say that it made him "happy."
[24] The Applicant was diagnosed at SMH as suffering from bipolar disorder. He was treated with anti-psychotic medication, and released after a few weeks. His physician at St. Michael's recommended that he follow up with psychiatric treatment, and he prescribed medication. The Applicant declined to do so. He went to one meeting with a doctor at SMH, advising that he did not intend to take the medication prescribed (except for sleeping pills). His evidence is that for the next 2½ years, he attended meetings of the Mood Disorders Association, and that through those meetings he learned that he did not suffer from bipolar disorder.
The Applicant's Visits with Z.
[25] After the Applicant was hospitalized, the Respondent and Z. went to live with her mother. A social worker from Children's Aid Society of York Region contacted the Respondent, warned her that she should allow only supervised visits between Z. and the Applicant, and cautioned that, if she allowed unsupervised contact, the child might be apprehended.
[26] When the Applicant was released he returned to the former family home, and then got an apartment. The Respondent insisted that his access be supervised by her or her mother, and visits for a few hours once or twice a week began. The Applicant in his evidence insisted that the Society had assured him that he "was not a pedophile" and had no concerns about his having unsupervised access; he ascribed the Respondent's insistence on supervised access to vindictiveness on her part. I do not accept the Respondent's contention on this point. A letter from the Society confirming its position that access should be supervised was filed in evidence at trial.
[27] From the time of his release, the Respondent urged the Applicant to obtain psychiatric treatment. She testified that in 2008 they argued about his failure to get treatment, and that the Applicant said that "part of the reason that it happened" was that she had not been willing to have sexual relations with sufficient frequency. He asked her to reconcile. She refused. The Respondent testified that the Applicant "shuddered" and said that "little girls should never be left alone with their fathers." After this conversation, the Respondent stopped allowing visits to take place at her home, and arranged that they occur at a restaurant or other public place.
[28] The Applicant testified that he had no recollection of this conversation.
[29] Visits became less frequent when the Applicant obtained employment in 2008. The Applicant moved to Ottawa in 2009, and there were few visits for the eight months he remained there. The Respondent's evidence is that soon after he returned to Toronto in 2010, she decided that she could not cope with supervising access any longer, and that she must insist that the Applicant get help. She told the Applicant that she would not allow access until he began getting appropriate treatment.
[30] The Applicant began seeing Dr. Stein in late April 2010, and began this action for access in July 2010. On consent, a temporary order was made September 13, 2010, providing that the Applicant have supervised access to Z. once a week for two hours at Access for Parents and Children in Ontario (APCO).
The Applicant's Treatment with Dr. Stein
[31] Dr. Stein testified that he doubts that the Applicant suffers from bipolar disorder. His treatment of the Applicant has consisted of supportive psychotherapy in order to help him deal with issues of anxiety and anger and to "validate" his feelings. Dr. Stein has prescribed no medication. Although he initially saw the Applicant every two weeks, the appointments are now less frequent, and scheduled by agreement of the Applicant and himself.
[32] The Applicant testified that he had "found the right doctor" in Dr. Stein – that he was "willing to listen." He trusts Dr. Stein, and relies upon his support and advice.
[33] Dr. Stein was frank in describing himself as "an advocate" for the Applicant. Between September 23, 2010, and June 18, 2012, Dr. Stein wrote five reports for the Applicant's use in this case in which he opined that:
- the Applicant's psychosis was caused by an unexpected reaction to medication;
- that this medication had been discontinued, and that now the Applicant presents "no risk whatsoever" to Z.;
- that the Applicant is a capable parent; and
- that the Applicant should have unsupervised access to the child.
[34] In his later reports, Dr. Stein alleged that the Respondent had "distorted conversations" between herself and the Applicant in order to portray him as "a pervert" and to deny access. He also expressed the opinion that Z. could develop "serious emotional problems" if deprived of an "appropriate relationship" with the Applicant.
[35] Dr. Stein has never met the Respondent or Z. He testified that his sources of information about the Applicant, the Respondent, and the family situation were what he was told by the Applicant, the records from SMH, and a conversation with a worker from the Society.
[36] At the beginning of his evidence at trial, Dr. Stein testified that he had changed his opinion about the cause of the Applicant's psychosis. He stated that he had recently reviewed the records from SMH and was now of the opinion that the Applicant's psychosis was triggered by heavy use of marijuana, in conjunction with an unanticipated reaction to medication and lack of sleep.
[37] Dr. Stein was unable to identify what medication might have contributed to the psychotic reaction. He testified that he had learned the name of the medication from the SMH records, but was unable to recall it now. He was asked to locate the name in the records, which he had brought to court, but was unable to do so. He thought it was probably the medication which the Applicant had told him he was prescribed some years earlier.
[38] Dr. Stein did not recall the name of the social worker from the Society with whom he discussed the case, and there was nothing in his notes about the discussion.
[39] Dr. Stein's information about the Applicant's current drug use came from the Applicant, who advised that he used marijuana "occasionally."
[40] Dr. Stein's went on to testify as follows:
- He had no "concerns" if the Applicant was alone with Z. for visits.
- The action of the Applicant in licking Z.'s crotch to remove lint was "improper….but not a gross violation."
- In any event, Z. was now of an age that she could report improper behaviour by the Applicant.
- It is "fairly unlikely" that the Applicant will suffer another psychotic breakdown.
- A breakdown could be triggered by marijuana use or lack of sleep.
- He is not aware of the amount of marijuana ingested by the Applicant at the time of his breakdown.
- Depending on the level of use, use of marijuana by the Applicant could constitute a risk to a child in his care.
- He has no expertise that would assist in assessing the effects of marijuana use at particular levels, and how such use might affect risk.
- If there is a risk, supervised access is appropriate.
- Stress could contribute to a breakdown. Lack of money, loneliness, and a lack of more generous access to his daughter are sources of stress for the Applicant.
- He has not referred the Applicant for an assessment for paedophilia.
The Applicant's Visits with Z.
[41] Weekly two-hour visits between the Applicant and Z. at APCO started in September 2010. Records of those visits were entered into evidence. APCO facilities feature playrooms with toys appropriate for different age groups. Usually between 1-4 families are visiting at any one time slot.
[42] The parties agree that Z. has generally enjoyed the visits. The Applicant, however, has grown increasingly restive at what he perceives to be an unnecessary restriction on his contact with Z.
[43] The Applicant demonstrated his dissatisfaction starting in the spring of 2012 in a number of ways.
- He read during a visit, and ignored Z. when she cried, despite staff urging him to pay attention to the child.
- He lay on the floor with his eyes closed for an hour, again not interacting with the child.
- He began cancelling visits on short notice, or arriving late.
[44] The Applicant was warned by APCO staff that continued lateness could lead to a suspension of visits. In July 2012, he argued with a staff person when he insisted in sitting in her chair (a chair provided to her because of a back problem). He received a letter from APCO advising that his visits at that location were suspended. The Applicant has not applied to have visits at another location, and has not seen Z. since July.
The Applicant's Current Circumstances
[45] The Applicant is 33 years of age and single. He lives alone, occupying a rented room. He has been supported by social assistance payments for the past two years.
[46] The Applicant has made no child support payments since the separation. He has some university education. He worked as a general contractor before the separation. Since then he has worked as a telemarketer, but has not worked in the past two years. He recently completed a course which trained him to be a security guard, but is not currently seeking employment because he is planning further training as a private investigator. He says that when he completes this training he will be able to get work and start paying child support.
ANALYSIS
What Access is in Z.'s Best Interests?
[47] I am sympathetic to the Applicant's frustration with the restrictions imposed by APCO. The restrictions are necessary because of safety concerns which arise with some parents in the program, but they do limit interaction between a parent and child. The Applicant's method of demonstrating his frustration with these restrictions – e.g., ignoring Z. from time to time – suggests some limits in his ability to understand what might be emotionally damaging to the child. However, those limitations would not justify supervision of his access. The visit records reveal hours of good interaction between him and Z. If there was not a risk to Z.'s safety in unsupervised visits, then I would order unsupervised visits now. I am satisfied that the Respondent would facilitate unsupervised visits, if they could happen without risk to the child.
[48] In my view, however, the evidence is that there is a risk to Z. of contact with her father that at this point requires supervision. The risk stems from the evidence suggesting that he has a sexual interest in children, including Z. That evidence, noted above, consists of his statements to the Applicant at the time of his 2007 breakdown (some of which were confirmed by him in an email in 2010) and by his statement to her in 2008, a year after the breakdown.
[49] There is also a risk that the Applicant may be subject to a further psychotic breakdown. If that occurred when Z. was in his care, she could inadvertently be placed at risk. This danger was recognized by the physician who committed the Applicant to hospital in 2007.
[50] Both these risks existed in September 2007, when the Applicant tacitly agreed that supervised access was advisable. I have no reliable evidence that those risks have now diminished or vanished or are better controlled.
[51] The Applicant offers the opinion of Dr. Stein as evidence that he presents no risk to Z. if he has unsupervised contact with her. I regret to say that I can place little weight on Dr. Stein's opinion. In my view, Dr. Stein did not, when preparing his reports or giving his evidence, display the independence and objectivity that a court requires in an expert witness.
[52] For over two years Dr. Stein prepared reports for the court expressing an opinion that the Applicant's psychotic breakdown was caused by an inadvertent unexpected reaction to medication, an incident that would not recur. Thus, according to Dr. Stein, Z. would be at no risk if left alone with her father for any amount of time. It was only when the time came for Dr. Stein to give viva voce evidence that he reviewed the hospital records and noted that doctors at SMH had found that the Applicant's use of marijuana was a significant cause of the breakdown.
[53] After Dr. Stein identified that the Applicant's marijuana use was an important factor in his breakdown, he continued in his evidence to express the opinion that Z. would be at no risk unsupervised in her father's care. He expressed this opinion despite admittedly having no knowledge of the amount of marijuana ingested by the Applicant before his breakdown, having no expertise in assessing the effects of marijuana use in varying amounts on different individuals, and having no confirmation of the amount of marijuana currently used by the Applicant, other than his self-reports.
[54] Further, Dr. Stein appeared never to seriously consider the possibility that the Applicant has a sexual interest in children or in particular in Z. He minimized the statements made by the Applicant to the Respondent that caused her concern, tarring her as a vindictive parent with ever having met her. He did not undertake any professional investigation as to whether the Applicant is a pedophile, and did not refer the Applicant to any other professional to conduct this investigation.
[55] Associate Chief Justice Dennis O'Connor recently spoke of the qualities which a court requires in an expert witness[4]:
"Courts have taken a pragmatic approach to the issue of the independence of expert witnesses. They have recognized and accepted that experts are called by one party in an adversarial proceeding and are generally paid by that party to prepare a report and testify. The alignment of interest of an expert with the retaining party is not, in and of itself, a matter that will necessarily encroach upon the independence or objectivity of the expert's evidence.
"That said, courts remain concerned that expert witnesses render opinions that are the product of their expertise and experience and, importantly, their independent analysis and assessment. Courts rely on expert witnesses to approach their tasks with objectivity and integrity. As Farley J. Said in Bank of Montreal v. Citak, (2001), O.J. 1096, "experts must be neutral and objective (and), to the extent they are not, they are not properly qualified to give expert opinions.
"When courts have discussed the need for the independence of expert witnesses, they often have said that experts should not become advocates for the party or the positions of the party by whom they have been retained."
[56] Advocate, unfortunately, is the role assumed by Dr. Stein in this case. I acknowledge that Dr. Stein has been helpful to the Applicant; he listens to the Applicant, and helps him deal with his anger and anxiety. However, Dr. Stein did not employ the objectivity and professional skill necessary to give an opinion that this court can rely upon concerning the risk, if any, that unsupervised contact with the Applicant poses for Z.
[57] If the Applicant wishes to move to the point where unsupervised contact with Z. can be permitted, the starting point is for him to obtain an assessment from a qualified objective professional as to whether there is any risk to Z. of unsupervised contact with him. That assessment should address his mental status, including any tendency on his part to have a sexual interest in children. The assessor should be given this judgment to alert him or her to other sources of information that may be useful. The Applicant may wish to consult the Children's Aid Society of Toronto to obtain names of professionals qualified to perform this type of assessment. The assessment may contain recommendations as to treatment which the Applicant should undergo before having unsupervised access, and the Applicant should seriously consider those recommendations.
[58] At the present time, it is necessary for Z.'s sake that her contact with the Applicant be supervised. It would be preferable if the access could be supervised by a trustworthy friend or family member, but the Applicant had no suggestions as to anyone who was willing and able to fill that role. The only alternative is to order further supervised visits at APCO for two hours a week, and I make that order. I urge the Applicant to contact APCO and request further visits at a new location, and to undertake an assessment of the type which I have indicated would be helpful.
Child Support
[59] The Applicant's income from social assistance payments is below the level at which a child support payment could be ordered based on the Child Support Guidelines. The Respondent submits that the Applicant is intentionally unemployed. She asks that I impute income to him in an amount of $15,000 annually pursuant to section 19(1)(a) of the Guidelines.
[60] The Ontario Court of Appeal in Drygala v. Pauli[5] set out the questions which should be answered by a court in considering a request under s. 19(1)(a):
- Is the party intentionally under-employed or unemployed?
- If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
- If not, what income is appropriately imputed?
[61] I find that the Applicant is intentionally unemployed. The Applicant held employment prior to 2010; he was also self-employed. He did not give evidence that he was unable to continue in his previous employment or resume his work as a contractor on a self-employed basis. He did not give evidence that he has even tried to find employment in the past two years. He did not give evidence that after he completed his training as a security guard that he tried to obtain employment in that field and failed. He testified that he continued training as a private investigator to increase his potential income and job prospects.
[62] I do not find that it is reasonable for the Applicant to remain out of the workforce. I accept that he may earn more if licensed as a private investigator than he would as a security guard, but I have no evidence as to what the income differential might be. I also have no evidence that if licensed as a private investigator that the Applicant would make income greater than that earned in his prior careers.
[63] The Applicant has a child to support, a child whom he has not supported for the past almost five years. It is incumbent upon him to take the steps necessary to begin earning what income he is capable of earning now. The income that the Respondent asks that I impute to the Applicant is very modest— $6,000 less than the annual minimum wage in Ontario. I have no doubt that the Applicant, if motivated, could obtain employment on a part-time basis which paid this amount.
[64] I impute an income of $15,000 annually to the Applicant, and order him to pay child support of $97.00 monthly commencing November 1, 2012. The Applicant shall also make annual income disclosure.
Released: September 26, 2012
Signed: "Justice E.B. Murray"
Footnotes
[2] Merkland v. Merkland; Najjardiajiiv v. Mehrjardi; Miller v. McMaster, 2005 CarswellNS 420 (NS SC)
[3] The Applicant offered this explanation in a 2010 email sent to the Respondent.