Court File and Parties

North Bay Registry No.: FO291-09 Date: 2012-10-12 Ontario Court of Justice

Between: Bradley Joseph Breen Applicant,

— AND —

Tammy Lynn Larocque Respondent.

Before: Justice Lawrence J. Klein

Heard on: 27 September 2012

Reasons for Decision released on: 12 October 2012

Counsel: Joseph Sinicrope, for the applicant Edward Rae, for the respondent

Reasons for Decision

[1] JUSTICE L.J. KLEIN:— A consent final order was granted by Justice L. Duchesneau-McLachlan of this court on July 14, 2011 wherein the Respondent Mother Tammy Larocque was to have custody of and provide the primary residence for the two children of her relationship with the Applicant Father, Bradley Breen, namely: Jersey Rosalie Linda Rachelle Breen, born […], 2007 and Cheyenne Erin Breen, born […], 2010. The Applicant Father was permitted extensive and fixed access to the children.

[2] The relationship of the parties has been strained, to say the least, and both have made complaints to the authorities. Criminal charges have been laid at various times against both and there have been Children's Aid Society investigations on at least two occasions.

[3] In that atmosphere the Respondent Mother brought an ex parte motion for a temporary order which was refused by Justice Rodgers of this court on April 12, 2012. She later obtained a temporary order in the absence of the Applicant Father on April 26, 2012 suspending the Applicant Father's access to the children as had been included in the consent final order on July 14, 2011.

[4] Upon his attendance with counsel on May 31, 2012 and with his insistence that he had not been served with the Notice of Motion returnable April 26, the Temporary Order suspending his access was lifted and the order of July 14, 2011 was reinstated effective June 1, 2012 with the addition of a police assistance clause. An order requesting the assistance of the Office of the Children's Lawyer was also made on that date and matters were adjourned to July 5, 2012.

[5] By letter dated June 22, 2012, the Office of the Children's Lawyer indicated that they would become involved and that a clinical investigator would be appointed in due course. On the strength of that the parties adjourned matters to August 30, 2012 to await the Office of the Children's Lawyer's appointment which was confirmed by letter dated August 24, 2012.

[6] On August 24, 2012 the Respondent Mother served and filed a Notice of Motion and Affidavit dated August 24, 2012 returnable August 30, 2012 claiming the children were at risk and asked this court to again suspend the Father's access to the children pending determination of criminal charges filed against him. This motion followed complaints made to the Ontario Provincial Police in Mattawa in July 2012 and also followed the receipt of the Applicant Father's response to Motion to Change wherein he asked that the custody of the children be changed to have them reside with him.

[7] At the suggestion of the Children's Aid Society and perhaps others, the Respondent Mother denied the Applicant Father access to the children. The Applicant Father was released from custody on August 7, 2012 on a Recognizance of Bail with the clause that "Abstain from communicating ... with ... Jersey Breen, Cheyenne Breen ... except in accordance with a valid Family Law Order." As a result of that bail order access has not occurred at least since that date.

[8] The Applicant Father has denied the substance of the charges and is contesting the same in the criminal courts with his first appearance having occurred on September 19th last.

[9] On the return date of the original Motion to Change on August 30, 2012, the matter was adjourned to September 27 to permit the Applicant Father to prepare and file responding documentation in answer to the material served August 27, 2012 by the Respondent Mother. On September 21, 2012 the Applicant Father filed his reply material disputing the Respondent Mother's now second attempt to have his access suspended or, alternatively, reduced substantially. He alleged a conspiracy on the part of the Respondent Mother (and others) to end or severely damage his relationship with his two daughters.

[10] I granted leave for the Respondent Mother to file in court her affidavit sworn the 27th day of September. In that affidavit, she denied any conspiracy and any direct involvement in the bringing forward of allegations of physical assaults and threats involving her children.

[11] In the end result, on September 27, 2012, I was left with two very different versions of events relating to the custody and access of two young children, Jersey (5) and Cheyenne (2), in a situation that can only be described as one of "high conflict" between the parents and members of their extended families. All of which I am asked to decide based solely on affidavits containing, in part, inadmissible written material without the benefit of viva voce evidence properly tested through cross-examination and with the clinical investigator from the Office of the Children's Lawyer barely one month into her mandate.

[12] It has long been settled law that the party who seeks to reduce or limit access should be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946. A parent does not have an absolute right of access, however, refusing access should only be ordered in extreme circumstances. A court may limit or cancel access to minimize risk to a child from a parent's conduct or lifestyle. See: J.M. v. M.M., [2000] O.J. No. 142. There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. See: Montgomery v. Montgomery (1992), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299. Given the inconclusive and conflicting nature of the material before the court, I cannot conclude that suspending access would be in the best interests of Jersey or Cheyenne.

[13] Should I consider restricting or limiting access? Should the Applicant Father exercise his access in a supervised setting? Supervised access is beneficial for children who require gradual reintroduction to a parent or whose safety requires it until such time as the parent is sufficiently rehabilitated and the child is no longer in danger. Such a course of action should require cogent evidence that the children are in danger of physical or emotional harm. Suspicion of risk concerns, without evidence, is not a proper basis for ordering supervised access. In the case before me, at least at this point, those concerns are not made out in the evidence presented. On that basis, I cannot conclude that the access need be restricted or limited in any way. The final order of Justice L. Duchesneau-McLachlan of July 14, 2011 with the addition of the police assistance clause from Her Honour's order of May 31, 2012 should be re-instated immediately upon release of my endorsement.

[14] The Applicant Father's Motion to Change custody of the children to his care fails to convince me in the face of the principle that a temporary or interim variation of custody should not be granted where there is conflicting evidence and no imminent threat or harm. In other words, the custodial status quo should not be changed on an interim motion in the absence of compelling reasons indicating the necessity of a change to meet the children's best interests. See Stuyt v. Stuyt, [2006] O.J. No. 4890. No such compelling reasons to change the children's custodial status have been made out in the material before me.

[15] The obvious discord between the parents and their eagerness to bring the misdeeds of each other before the court apparently knows no bounds. I have no doubt that they believe in the rightness of their positions but the constant resorting to the courts to resolve their differences could amount to an abuse of the very process which will, by necessity, ultimately determine their fate and that of their children. The status quo has long been established here and was with consent of these parties. The constant battling must stop. Both parties will not be permitted to bring any further motions to this court without first obtaining leave from the court.

[16] I have endorsed the record as follows:

Order

(a) Motion by Respondent Mother for temporary order to change Final Order of July 14, 2011 to cancel or restrict access to the children by the Applicant Father is dismissed.

(b) Motion by Applicant Father for temporary order to change the Final Order of July 14, 2011 to grant him custody of the children is dismissed.

(c) For greater clarity, the consent Final Order of July 14, 2011 is re-instated as amended by the May 31, 2012 order of Justice L. Duchesneau-McLachlan wherein a police assistance clause was added. Such orders are to be followed in their entirety.

(d) Neither party shall be at liberty to bring further motions in these proceedings without first obtaining leave of the court.

(e) This matter shall be adjourned to October 18, 2012 at 9 a.m. to await input from Office of the Children's Lawyer.

(f) No order as to costs.

Released: October 12, 2012

Signed: Justice Lawrence J. Klein