Court File and Parties
Date: 2013-05-17
Court File No.: Kitchener 05-3253-01
Ontario Court of Justice
Between:
H.P. Applicant
— And —
P.L.C. (also known as F.C.) Respondent
Before: Justice Paddy A. Hardman
Heard on: 1 May 2013
Reasons for Judgment released on: 17 May 2013
Counsel
Stephen B. Good — counsel for the applicant
A. Douglas Chan — counsel for the respondent
Henry R.G. Shields — counsel for the Office of the Children's Lawyer, legal representative for the children
Reasons for Judgment
Introduction
[1] JUSTICE P.A. HARDMAN: — The matter before the court is a motion by the respondent parent seeking to change (MTC) a final order made October 14, 2005. In that order the mother was given final custody of two children, H. born […] 2002 and D. born […]2003, and certain restraining orders were made. While the respondent is not seeking to vary custody (paragraph 1) or the restraining order prohibiting contact with maternal family members (paragraph 3), the respondent wishes to set aside the order restraining her from contact with the mother and the children in order that the respondent can have access with the children.
[2] The OCL has submitted to the court that the children's best interests are best served by dismissing the MTC. The mother opposes any change to the order.
[3] The paragraph that the respondent parent wishes to change is as follows:
Restraining order against the Respondent, [P.L.C.] as follows: prohibiting the Respondent from coming within 100 meters of the Applicant or children, or within 200 meters of the Applicant's place of residence or her family, also prohibiting the Respondent from contacting the Applicant or any of her friends regarding their marriage/relationship/divorce proceedings.
1: Background
[4] The parties are the biological parents of the two children. They started dating in 1998 and cohabited shortly thereafter. In April 2001, they married and had two children. The mother provided a very detailed statement about the difficulties in their relationship, most of which have not been denied by the father. She noted a great deal of conflict including yelling by both of them. Further she stated that she was sexually assaulted at least eight times by the father starting in New Year's Eve 2000 up to and including May 2005. She said that he would always say that he was sorry. In a sexual assault when she was five months pregnant, he held her against her will for three hours, hit her and then pushed her down on the bed and began to sexually assault her. The mother stated that she had been terrified.
[5] The mother said that the father often called her names and picked fights regarding their sexual relationship.
[6] The mother said that the children were present or in the next room for all but one of the incidents.
[7] The mother has also given evidence that the father was not focussed on the well-being of the family, often leaving too much of the child care, including the work with his son G. from a previous relationship who was in his custody, up to her. She detailed the greater role that she played in the children's lives and the father's failure to adequately assist in providing care for the children as well as financial support. She noted that he worked seven different jobs during their relationship and often quit his employment without consideration of the family's financial needs. She said that the family had lived in ten different homes in six and a half years, often leaving under the threat of eviction. The mother indicated that one time when he left his job, she had to go to work for the balance of the maternity leave because he could not collect unemployment as he had quit.
[8] While the mother and the father agree that, during this time, the father helped look after the children while she was at work, the mother recalled the time as not more than thirty weeks while the father thought it was longer. Further, the mother has stated that he often left the care of the children up to others during this time. She said that he helped with child care only when it was absolutely necessary. The respondent feels that he was more involved than the mother has outlined.
[9] In May 2005, the mother became concerned about the father's escalating violence and told him that she was unhappy and wanted to move out. She described how the father began to cry, asking her to stay. After he had calmed down, the father left the home for the evening. However, when he returned, he started to sexually attack the mother while she was sleeping. She said that he was in a rage and he began to rape her and spit on her, despite her crying and begging him to stop. All three children were home at the time of this attack.
[10] Although he once again expressed remorse, the mother discovered that he had stolen her bankcard and emptied the joint and her personal account. She said that she had to search the house for gas money to leave safely with the children and go to her parents' home. There were a number of concerning incidents leading up to the making of the order:
When the mother attended the home within the week of separation to get some items, the father was menacing and the police were called to assist the mother to leave with the children.
The father attended H's third birthday party about May 22, 2005 at the maternal grandparents' home and was told to leave or the police would be called as he was screaming at the mother in front of her parents, the children and friends.
In late May/early June 2005, the father was making harassing phone calls and threats to the mother and her parents and the maternal grandmother threatened to call the police.
The father threatened to kill himself and was admitted to Stratford General Hospital. While he was in care, his attending physician contacted the mother and told her to stay away and get an order of custody for the children.
[11] The mother sought custody and a restraining order from the court and obtained an interim order July 20, 2005. Despite being present on the return date and twice being given the opportunity to file responding material, the father failed to file.
[12] As a result of the father's continuing harassing phone calls, the mother finally met with a police officer on August 13, 2005 to "press charges". The father was arrested and charged for four of the sexual assaults being the clearest in detail to the mother at the time. Another assault which occurred in the USA could not be considered. Apparently the father was released with his mother as surety although she withdrew in October 2005.
[13] As a result of his failure to attend court or file material in the family application, the father was noted in default and the final order was made on 5 October 2005.
[14] The mother noted that the father did not care for the children after May 2005 and that the father never sought any variation of the order or contact with the children until the MTC before this court. She said the father has had no unsupervised contact with the children since May 2005.
[15] The father pleaded guilty to one count of sexual assault in March 2006 and was ultimately sentenced to two years less a day. He was transferred to the Ontario Correction Institute (OCI) due to its speciality in treating sex offenders and was released April 3, 2007 after sixteen months.
[16] During his time at OCI, the father was advised that he might have an untreated gender identity problem. After his release, the father looked into the issue further and was diagnosed with Gender Identity Disorder. He began attending "a medically supervised gender transition", which he feels was a tremendous psychological benefit to him. The respondent filed this motion to change in his now her new identity as a "trans-gender" known as "F.C.".
[17] Although F.C. confirmed her arrest on four counts of sexual assault on August 16, 2005, the wording she used in the Change Information Form seems to minimize the violence in the behaviour: "incidents pertaining to issues of consent for sex with the Applicant". Upon release from OCI, F.C. was on probation which required the permission of the probation officer to have him resume any access with the children. However, it is the mother's evidence that she was not approached by either the probation officer or F.C. regarding access through the probation order during the three years that he was on probation. By way of explanation, F.C. indicated that she did not know that that was an option. F.C. indicated that the probation order terminated April 3, 2010.
2: The Position of the Respondent Father
[18] The respondent F.C. wants to restart access with H. and D. F.C. states that there has been a material change in circumstances affecting the best interests of the children, presumably because she is now making herself available for access and has dealt with her charges.
[19] F.C. says that it is in the best interest of the children to see their father and have a relationship with her and those people in her life. She states that it is important that the children resume their relationship with G. and they can do so while at access with her.
[20] F.C. has taken the position that she properly dealt with the offending behaviour against the mother in the past and that, as a result of the OCI intervention, there is no risk of any similar assaultive behaviour again. She noted that she had had phallometric testing in OCI and had not shown a preference for children or coercive sex, the latter a strange conclusion given the reason that she was in OCI.
[21] Further she states that she is involved in a healthy relationship with R.W. and, as a consequence, has had the opportunity to be a parent when R.W.'s children are in her partner's care.
[22] F.C. also points to the fact that, once out of custody, she resumed a parenting role with her son G. and enjoys the support of G.'s mother, C.W., regarding her at times extensive involvement with G.
3: The Position of the Applicant Mother
[23] The mother however, disagrees. She has expressed concern about the respondent's proposal given her background, ongoing behaviour and the gap in contact. She also notes that resumption of access could prove very difficult for the older child, H., given her special needs. She said that her husband has been a part of the children's lives since 2007 and that they have a safe and happy home. She said that the children refer to him as "Daddy", something confirmed by the OCL report.
4: The Concerns
4.1: The Problematic History Regarding Sexual and Anger Issues
[24] The concern about the father's numerous rapes of the mother during the course of the parents' relationship has been noted. However, unfortunately there are a number of other problems. For example, there appeared to be a concern about the father having sexual encounters with both men and women during the marriage. There were also sexual issues stemming from his youth.
[25] In the journal entry that the father disclosed to the mother in July 2005, the father recalled an incident when, as a child, he was called names. To retaliate, he went home and grabbed a chain and got "at least one of the three" of them in the head with it. His father beat him with a belt when the police brought him home. He expressed anger about his mother for leaving and his father for having sex more with his stepmother than with him. He spoke about sexually assaulting a girl in the coatroom and he himself being sexually assaulted by an adult repeatedly. He acknowledged sexually assaulting his step-sister at night when he only 8 years of age. He remembered masturbating at the age of 11 and fantasizing about sex with his sister. He said that he wanted to talk to her about it but it would mean confronting his father. He noted that he was not scared of him but was "scared the violence" he felt towards him might "erupt".
[26] The entry went on to describe how in his anger he broke into his parents' home and "cleaned them out" and how he stood in the backyard and "laughed at their misery". He identified that he felt good about their grief because the thoughts that he had were "so black". The journal also set out how the father at the age of twelve sexually assaulted a friend of his sister's.
[27] The mother noted that the father had also described how he was waiting to kill his first girlfriend's father and expressed anger toward a number of people in his life. She said that he went on in the book to describe the incidents of her rape as well.
[28] In response to this history, F.C. has outlined the counselling that she has undertaken. During the sixteen months at OCI, the father attended a treatment group twice weekly starting December 5, 2006 to March 29, 2007, just prior to his release date. The treatment was twice a week for somewhat less than four months.
[29] The report filed sets out how the father took responsibility for his actions, listened carefully to others, and demonstrated empathy for victims. It also notes that that the father scored zero on the risk assessment used to assist in the prediction of sexual and violent recidivism for sexual offenders. It is explained in the report that individuals with these characteristics on average sexually reoffend at 5% over five years and at 11% over ten years. Violent recidivism (including sexual) was estimated at 6% in five years and 12% over ten years.
[30] There are of course a number of problems with relying on that risk assessment:
It is clear from the recommendations in the report that the focus of the treatment for the father at OCI was the criminal sexual assault of his partner and not the more extensive offending behaviour identified before the court. The report states that it is not recommending that the father take additional treatment for men who have committed sexual offences because his offence "occurred in the context of an intimate relationship with prior domestic aggression". Therefore it does not appear that the group therapy dealt with the longstanding history of sexual offending identified by the father in his journal.
The assessment concludes that he is a low risk as compared to other adult male sexual offenders. However, the overall risk of the group compared to the general population is not really clear.
The report notes that the risk could be higher (or lower) than the probabilities estimated "depending on other risk factors". Given what appear to be untreated areas of sex offending and family of origin anger management issues, one might be concerned about the risk being significantly greater.
Even after the treatment, there was enough concern about the father's entering into another intimate relationship so as to warrant the recommendation of monitoring and coaching during any relationship while on probation. There is no evidence whether that occurred.
[31] Perhaps the biggest concern about the report's conclusion that the father made "significant gains" during treatment is the gap between the life plan proposed by the father in the report and F.C.'s current life style.
[32] In the report, the father acknowledged frequently using sex as a coping strategy in the past which led to high-risk behaviour. However, now he is said to have developed "adaptive coping strategies" including a "significant focus on his spiritual beliefs and community, exercise, counselling and time-outs". The writer of the report suggests that his social supports "appear largely centred around his spiritual community". Despite this, there is no mention in the evidence of any significant involvement in any supportive faith or spiritual community although F.C. has identified herself as "Wiccan" on Facebook. Instead the sexual focus identified as a risk appears to continue.
[33] Further, while F.C. participated in the gender identity counselling, F.C. has not detailed any involvement in the identified therapeutic activity of Sexaholics Anonymous as recommended in the report.
[34] In the report, the father was said to demonstrate an "appropriate understanding of normative sexual behaviour". It was noted that he was able to identify "pre-offense factors" and develop a list of warning signs to avoid, which included "intense sexual urges and/or sexual coping (including a return to impersonal sexual interactions)". Surely the participation of F.C. as an escort-prostitute is exactly the impersonal sex risk factor that he planned to avoid.
[35] Despite F.C.'s attempt in her materials to suggest that her participation in prostitution was historical, it is clear that it has continued throughout these proceedings. The advertisements filed invite paying customers to contact her by the cell phone number used by F.C. Further there is the offer of "incall" times at her home and "outcall" times elsewhere in the community. It appears that F.C. even offers her services weekends.
[36] While F.C. has denied that she entertains clients in her home, the phrasing of the advertisements is of concern. One advertisement on the internet sets out where she is prepared to engage in sex: "my place, his place, outdoors, restroom, bathhouse, theatre, truck stop or gym".
[37] In reply, F.C. complains that it is difficult to get a job as a transgender. She said that she lost one job as a result of her refusing to work with a person that she felt was acting abusively in the community. Be that as it may, F.C. has not provided any information to suggest that she has made much effort. Indeed she identifies herself as a "domestic engineer" in her Facebook profile. Despite expressing the intention of completing her remaining credit to complete school as a goal in her Change of Information Form in March 2011, there is no evidence that that has happened.
[38] There is no evidence that F.C. has started to focus on the children's needs in terms of obtaining regular employment and offering to pay any child support.
[39] Also significant is F.C.'s participation in "I Love Sex Parties" with multiple partners that she does not know, although it appears that sometime her current partner, R.W., is also involved. These activities would certainly not qualify as the "leisure activities" that the father generated in a list to "assist in managing these warning signs" as it is the exact behaviour that was identified as a risk to reoffending.
[40] F.C. also appears to like posting explicit pictures and writing about sex in the public domain of Facebook, describing various acts and attributes in great detail. One has to wonder if this behaviour, perhaps out of the "normative" range for a parent, is another sign of the risk F.C. herself identified during her treatment and according to the report set out to change. If one identifies some of the images and acts described as "obscene" or "licentious", then one has what is defined by Black's Law Dictionary as pornography. Pornography is described in the Concise Oxford Dictionary as "explicit description or exhibition of sexual activity in literature films etc intended to stimulate erotic not aesthetic feelings". Thus, even the postings might be seen to be a manifestation of the intense sexual urges that the father identified as a warning sign during his therapy.
[41] Given F.C.'s current lifestyle both for money and leisure, it would seem that any conclusions about risk from the report must be considered unreliable. F.C. herself states on some of the advertisements that she is "drug and disease free", identifying risks that are part of her lifestyle.
4.2: Lack of Boundaries
[42] Although the court has focussed on the concerns about relying on the report as an accurate gauge of F.C.'s successful treatment and risk of reoffending, the mother has expressed other concerns about F.C.'s lifestyle choices including the nature of her work and play in the context of good parenting.
[43] The mother identifies her worry about F.C.'s lack of boundaries and the potential impact on the children. Despite being a parent and being aware of the number of youth accessing the internet, F.C. appears to exercise little restraint in terms of what she posts in the public sphere of Facebook. She clearly has not thought of the potential consequences of such revealing exposure of herself and lifestyle to her own children and family. What F.C. does on the net, for work and recreation, is all about her and her focus on her own needs and not about any care taken about potential repercussions on her children.
[44] The mother is concerned about F.C. posting pictures of her children, both minors, in the publicly available Facebook without her consent. She also does not agree that F.C. should be posting pictures of herself and her son at political rallies, thereby potentially exposing him to ridicule.
[45] While taking a photograph for a child may help commemorate an event for him or her in the future, the posting of a child's photo on line cannot generally be said to be for the benefit of the child or children. In the case of G., the posting of the pictures is clearly to advance a cause that F.C. wishes to support. Even the postings regarding the children before this court have a purpose for the father as it reads by the pictures: "I am fighting hard to get the two girls back". When the mother had the pictures removed, F.C. put them back.
[46] The mother has concerns about there being information and pictures about her children publically exposed on Facebook; as a parent responsible for the welfare and protection of her children, it is an issue that she must monitor. It is standard that anyone seeking to release information about a child to the media must get permission of the custodial parent.
[47] F.C. does not appear to share any of her reservations around exposing information about children to the general public.
4.3: The Father's New Relationship with R.W.
[48] It appears from the evidence that, following his release from jail in 2007, F.C. moved around from city to city prior to "settling down" with R.W. F.C. submits that this is a stable relationship although it is not clear exactly when it started. R.W. has stable employment in Canada Trust and they share a four-bedroom home.
[49] Also R.W. appears to have the support of her family and enjoys a week about co-parenting arrangement for their three daughters with her ex-partner. Despite the security supposedly associated with that evidence, one does have to wonder how R.W. initially decided to expose her three daughters to someone recently released from jail for rape. One would think that it would not be the usual reaction of a parent. Of course I am not aware about what F.C. told R.W. about the circumstances leading up to the incarceration and whether the information about the other sexual behaviour was shared.
[50] The other concern is once again the boundary issues. R.W. obviously does not share the mother's concern about the information that is being shared in the public sphere of Facebook and the potential exposure of her own and other children to the same. Given the differences in approach, it is understandable that the mother might not feel too reassured by the introduction into her children's lives of F.C.'s new partner.
4.4: Parenting Evidence
[51] F.C. has said that she assists her partner with the parenting when her partner's children are in their care pursuant to her joint custody arrangement. She also noted that she has joint custody and access with her son G. from a previous relationship and at one time had him living with her week about care for a period of time while his mother was moving. She also filed letters of support.
[52] While the letters filed were not under oath or affirmation as they ought to have been and obviously untested by cross-examination, it is important that the evidence presented be considered. Certainly the information is relevant; the issue for the court may be the weight to be given to the opinions expressed.
[53] First, there is the letter from his partner's father. He says that he has personally observed F.C. with his grandchildren and is comfortable knowing his grandchildren and his daughter have F.C. in their lives. While the court does not know the specific nature of the contact (how long or how frequently), clearly the grandfather has seen nothing but positives. However, whether he is aware of the background of F.C. or the lifestyle chosen by F.C. and her partner is unknown.
[54] The next correspondence filed is from C.W., the biological mother of half-brother G. In that correspondence, C.W. immediately launches into attempting to discredit the mother of H. and D. by stating that she caused her son G. "serious mental and emotional harm". She complains about the mother's hostile behaviour towards her and her calling the children's aid society (CAS) to report her care of G. She also alleges that the mother was abusive towards F.C., attempting to minimize the mother's position as a victim in the relationship. She accuses the mother of making a "false diagnosis of G.'s medical issues being caused by autism, milk allergies" neither of which C.W. said that he had. C.W. stated in her communication to the court that he has been assessed and G. was found not to be autistic. She indicates that she is supportive of her son's participating in political activism events with F.C. She notes that G. misses D. and H.
[55] Frankly this letter is extraordinary. First of all, her son was in the custody of his father, now F.C., and, if there were things happening, surely he was responsible at least in part. Second, the mother is the only one who has been there for H. and D. since 2005 and C.W. rather conveniently ignores that point. Further, F.C. has not identified the issues that C.W. has raised as concerns. It appears that a doctor and a paediatrician, both named in the mother's evidence, were the ones who diagnosed G.'s being on the autism spectrum and advised the dietary changes. Further, it appears that the mother contacted the CAS at the direction of the father who was concerned about C.W.'s parenting.
[56] Perhaps most perplexing is C.W.'s lack of compassion for the mother's situation, especially given her own complaints about the father in the past. According to the information filed, C.W. left the father before the birth of G. because she said that he was a violent abuser, unstable and unsafe. She left the country with the child for almost three years, deliberately preventing any contact between the G. and his father.
[57] There can be no reliance on this letter, given the vindictive approach taken by the writer toward the mother. However, it does make it clear that it is not the mother before this court that has interfered with the relationship of G. with his half siblings but rather C.W. herself. Given her state of mind, it would appear that attempting to resume any contact between G. and H. and D. would probably not work.
[58] The letter from the paramedic appears to suggest that the writer has seen F.C. with the children although how often and in what circumstances are not set out. He seems to think that F.C. is a "force for betterment" in the community as a result of their activity.
[59] There is a letter from April 2011 from teachers who must have dealt with F.C. while her son G. was living in London between his parents' two homes. It is positive about F.C.'s interaction with them in addressing G.'s issues. It does not set out how long or how many times this involvement was. The specifics of the issues are not set out. The letter does note that G. is a child with special needs.
[60] In summary, the only evidence about F.C.'s interaction as a parent with G. and the children of his partner appears positive although, due to the limited particulars provided and the unsworn nature of the evidence, the court must be cautious about the weight to be given to the opinions provided. Further, clearly the children who are the subject of this proceeding are in very different situation.
[61] F.C. has told the court that she currently sees G. who has moved to Barrie with his mother about once a month and it appears that sometimes F.C. travels to Barrie for the access.
[62] Despite the evidence that F.C. and C.W. jointly parented for a period of about two years, the information filed about whether G. is autistic or not is contradictory. In her section 35.1 affidavit sworn on 3 March 2011, F.C. stated that G. had access to programmes through Autism Ontario and suggested that D. and H. could attend with him. At the point that she swore the affidavit, F.C. was not aware of H.'s special needs so the program mentioned had to be for G. Yet later, F.C. filed G.'s mother's letter which categorically denies that G. is autistic. Despite this assertion by G.'s mother, F.C. again asserts in his last affidavit sworn on 29 April 2013 that G. is an autistic child.
[63] It is inexplicable to the court how two parents alleged to be co-operating and supportive of each other could disagree about such an important finding about the child that they co-parent. The evidence suggests that F.C. is not as involved as she purports to be with the decisions made around G.
4.5: The Relationship between the Mother and F.C.
[64] The mother does not wish to have any contact with F.C. as a result of their violent history and her current lifestyle. Although she admits to attending on two occasions at OCI to see the father, she noted that one time was an attempt to have closure in the presence of an armed guard and a counsellor and the other was a five-minute visit to deliver photos. She denied ever telling the father that his picture was displayed for the children on the mantel as suggested by F.C., indicating that she did not even have a mantel. She does not want any contact whatsoever with F.C.
[65] F.C. clearly considers that "bygones should be bygones". F.C. points to the mother's pre-trial consideration of options regarding F.C.'s having contact with H. and D. and states that the mother had agreed but changed her mind.
[66] There is no question that the mother at different times has struggled with what was the right course to take for the sake of H. and D. She allowed contact between F.C. and her and the children on two occasions against the court order in order to allow access between the girls and their half-brother G. The mother was clearly trying to see if there were options that might be in the best interests of the children and was aware that the girls wanted to see G.
[67] However, as the evidence developed, the mother came to the conclusion that she did not want the children to have access and did not want any contact herself. She has told the court that she decided that it was not in the best interests of her children based on all the information she had and that the confirmation that F.C. continued to prostitute made her realize that it had been the right decision.
[68] The mother has provided evidence of his short temper in her material and of course points to his somewhat extensive history of sexual issues. Given the concerns, the mother will not participate in any contact with F.C.
[69] Given the evidence, it is not open to the court to complain about the mother's decision not to have anything to do with F.C. She has been the sole caregiver for these children for eight years. She has had to ensure that they were sheltered, fed and looked after all that time. She was their sole financial and emotional support. She has noted how she holds the father accountable for the loss of the relationship and the difficulties she suffered as a result.
4.6: The Gap in Contact between the Father and the Children
[70] Despite his ability to do so, the father chose not to participate in the original proceeding. Then when he was released from custody, he made no effort to find out how he could get to see his children on a regular basis and be a part of their lives. F.C. did not try to find out how she could help out financially. There was not an application to the court during the divorce proceeding in 2010 to allow access.
[71] It was not until March 2011 that F.C. brought this MTC in to try to deal with the order and see the children. The mother has noted that, after his release in 2007, the father moved to three different cities and was focussed on himself and his own life.
5: The Children H. and D.
[72] When the father last was involved as a parent with the children, H. was not yet three and D. was eighteen months. The mother has remarried and the children call that person "Dad". The family appears to be happy, stable and safe. The children appear to be secure and happy.
[73] When the parties sought to have the Office of the Children's Lawyer (OCL) involved, initially the OCL refused unless they could observe the children with each parent. The mother properly resisted this contact between the children and F.C. prior to the court ruling on the MTC. Ultimately they agreed to be involved and counsel was appointed. The OCL had the assistance of a report from a clinical investigator who assisted the OCL with the interviews of the children and family members. The focus of the affidavit provided to the court was to provide evidence to the court with respect to the children's wishes and preferences.
[74] It is clear from the report that neither child has any recollection of the father "P." as their father. They do not even remember him being at the visit they had with G. in 2010. The last paragraph of the affidavit indicates that neither child appeared to have any significant memory of any past relationship with their biological father.
[75] Their wishes and preferences are characterized by the clinical investigator as "neutral", presumably because they did not refuse to see their father. However, it should be noted that, in H.'s first interview, the investigator stated that H. "did not want any changes in her family and did not want contact with her biological father". In the second interview, H. said that she would like to have contact with G. "but things were fine the way they were". In her interviews, D. also expressed a desire to see G. and when asked if there was anyone else she wanted to see, D. said "no". When asked if she wanted to talk about "P.", she said no.
[76] It should be noted that H. has been diagnosed as being autistic and does not do well with change. Her schedule must be carefully monitored and maintained. Any change in her school day or her routine tends to have detrimental consequences for her mental health. She is resistant to and upset by simple changes in her life. She attends with a therapist to try to monitor and control her anxieties. With her psychologist, H. tries to work through her fears. The mother explained that a steady and stable routine is instrumental in trying to overcome this social disorder and the issues H. faces.
[77] The mother noted in her material that one of the reasons that she is resisting any change to this order is the concern of one of H.'s therapists about the impact on H. of any change to the security of H.'s routine.
[78] The children have had no meaningful contact with their father for eight years. During that time, the mother has had to deal with the issues of the children on her own and with the help of her husband. She has made all the arrangements to address their needs including the extensive ones presented by H. She and her husband have paid out of their pocket to ensure that H. had occupational therapy and any other services that she required.
[79] In the beginning, the children had been aware of the conflict between the parents to some extent. The mother noted that H. was aware that "Daddy hurt Mummy" and it was explained that he had to go away to get help. Now the children seem happy and appear to have forgotten what may have been unsettled and distressing times.
6: The Law
[80] This is a MTC pursuant to rule 15 of the Family Law Rules, O. Reg. 114/99, as amended. No order was made under subrule 15(26) directing the matter to be heard by trial and so the MTC proceeded by way of affidavit evidence. Obviously, there are limitations to the ability of the court to make findings of credibility when the evidence is not cross-examined. However, in this particular case, that was not a concern.
[81] Section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended (the "CLRA"), requires that a court must be satisfied that there has been "a material change in circumstances that affects or is likely to affect the best interests of the child." As noted by the Ontario Family Court in Bubis v. Jones, 6 R.F.L. (5th) 83, the last order is presumed to be correct. There must be a material change of circumstances which requires the existing order to be changed. See Crawford v. Dixon, 14 R.F.L. (5th) 267.
[82] In Forrester v. Saliba, 10 R.F.L. (5th) 34, Justice Theo Wolder dealt with the issue of material change and noted that the onus on the moving party was an onerous one requiring the moving party to demonstrate that there has been a material change such that the past order cannot continue. While in that case a party sought to change joint custody, the burden to meet is the same.
[83] It has been my experience that courts tend to be reluctant to enforce a strict threshold of evidence of change in cases dealing with children and their contact with their parents. Perhaps part of that reluctance stems from the recognition of the general importance of parents to their children and the desire to keep giving the parents a number of chances to become or remain a part of their children's lives.
[84] However, in Gordon v. Goertz, [1996] 2 S.C.R. 27, the court noted at paragraph [31] that, to be successful on a MTC, the party must prove on a balance of probabilities that there has been a material change in circumstances warranting a change in the order prior to the court dealing with the merits.
[85] In this matter, in order to determine whether any of the "changes in circumstances" put forward by the respondent father are material in that they affect the best interests of these children, the court must examine the evidence as completely as for a determination on the merits. First as already noted, there is a presumption that it is important for a child to have contact with parents and family. Section 20 of the CLRA sets out the entitlement to custody and access enjoyed by a parent. However, section 19 establishes that the court must ensure that any determination of custody or access is made in the best interests of the child. Such an approach is emphasized again in section 24.
[86] In section 24, the court is directed to consider the child's needs and circumstances and sets out some factors which must be reviewed:
(2) Best interests of child. — The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the care and upbringing of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[87] Once again, there is an emphasis on family and biological connection but it is also coupled with importance of examining what the parent is "bringing to the table" that will address the child's best interests.
[88] The court is directed to look at the "plan" that the parent proposes and the ability of the parent to act as a parent, even in a consideration of access.
[89] While often the court is faced with the model that a child should have the maximum contact possible with both parents, it is clear that, in some circumstances, the maximum amount of contact between a child and a parent that is consistent with the child's best interests may be no contact. C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225.
[90] Further, as noted in Worthington v. Worthington, 13 R.F.L. (5th) 220, at paragraph [56], "a non-custodial parent does not have an absolute right to access. Access is only to be ordered in circumstances where there will be a benefit to the child." That court went on to say that the test is not to show proof that the access will not cause any harm as that would be "too low a threshold".
[91] In his decision in Grube and Grube v. Binks and Grube-Binks, 121 A.C.W.S. (3d) 487, Justice Peter R.W. Isaacs of the Ontario Court of Justice dismissed a motion seeking to change an order denying access that would allow the father to be re-integrated into the lives of his children who had been residing with an aunt and uncle for two years. As in this case, he had not opposed the order when it was made. Further, the children were doing well and fully integrated into their relatives' home. In that case, the court found that it was not in the best interests of the children because it would result in the children's being distinguished from the other children in the home. At paragraph [15], the judge noted the following:
[15] . . . What changes have occurred relates [sic] solely to the respondent himself. However, the lives of the children have gone on since the original time of the placement in this family and the subsequent court order placing them in the custodial care of the applicants. . . .
[92] That court further described the situation of the children:
[15] . . . They are firmly entrenched in a loving, secure family relationship and the potential detrimental effect of allowing access, with the apparent sole benefit to know their biological father, is not warranted.
[93] In the case before this court, the children are in a parent's care and the father has not seen them for eight years, a much more compelling case. Further there remain outstanding concerns about the father's ability to parent successfully.
7: Decision
In looking at the evidence, the court must dismiss the MTC brought by the respondent F.C. The court finds no material change warranting a change to the order. Further, even a consideration of the matter on the merits does not support an order of access by F.C. to the children.
[94] An examination of the evidence makes it clear that this is not a case where one parent is simply attempting to eliminate the other from the children's lives without cause. Indeed, the mother stayed with the father in the marriage despite the conflict, transience and economic instability. She stayed despite the father's infidelity and his very abusive sexual assaults. She even attended at OCI to try to resolve her feelings around her victimization. Despite the father's showing no interest initially, after his release she allowed some limited contact between F.C. and G. and the children.
[95] It is also clear that the mother is not seeking to deny access because the father has chosen to have a "gender transition". F.C.'s untreated historical issues, her recreational pursuits, her risky employment and her without-boundary behaviour on the internet would raise alarms about the suitability of any person to parent. Further her failure to seek access to the children earlier makes it clear that they have not been her focus in the past.
[96] The court accepts that the mother in changing her efforts from considering reintegration to not supporting a change in the order is a reflection of what she believes to be in the best interests of the children.
[97] In this case, it appears from the evidence that now as in the past F.C.'s focus is on her own interests.
[98] In the past, the father appears not to have focussed on ensuring a stable, emotionally safe home for the children. He was focused on his own needs. When one examines what he has been doing since his release, one finds little of it connected to a plan to address the needs of his children.
One way he adversely affected the children in the past was to sexually assault the mother, their primary caregiver. To suggest that this behaviour on his part especially while the children were in the home is not relevant to the consideration of his ability to parent or care for the children now is not realistic. It was detrimental to the children and the security of their home and well-being then and is a factor that remains for the court's consideration at this time. As a result of that behaviour, the children became completely dependent on the mother. Her ability to be there for them now is of the utmost importance to their wellbeing. The mother's personal history as a victim of the father's assaultive behaviour adds a layer of vulnerability and uncertainty to any proposed contact.
The potential risk in F.C.'s life style choices remains as it appears that the plan to change his life and focus was not implemented. Further, there may be unaddressed issues regarding the father's other sexual experiences both as an offender and a victim together with unresolved anger issues stemming from his difficulties in his family of origin.
F.C.'s inaction after release from custody underlines her lack of focus on these children. Had she been thinking about them, she could have made an effort to work towards a relationship with them in 2007 and not waited until 2011. She could have chosen a life style that would allow her to contribute to both the emotional and financial stability of these children.
[99] F.C. proposes to have the children visit her and become part of her life. However, she has not identified any benefit to these children from so doing other than contact with their father. There is no evidence that the children's best interests will be served by a re-introduction of their father into their lives. There is no evidence that the children remember the person who was their father and they express no interest in pursuing the issue.
[100] Instead we have a situation fraught with risk. One of these two children, the one with the best chance of a memory of her father, is autistic and it is doubtful that any amount of care taken in reintegration could prevent an attempt at access from being disastrous. The other child was eighteen months when he left.
[101] The mother and her husband have worked diligently and daily to maintain the kind of routine that can help quiet the anxieties H. feels about the world around her. To experiment with a reintroduction of the father cannot be said in any way to be in her best interests.
[102] There are many layers of challenge that would be part of any reintroduction of the children into the father's life:
The children have not had any significant contact with him for eight years.
F.C.'s plan seeks not only for the children to be introduced to him as a stranger but also to his new partner, her children and family, also all strangers.
There is no expert evidence to support the claim by F.C. that she is a mentally stable individual who no longer suffers from criminal inclinations.
[103] In examining F.C.'s situation, it is clear that in a number of different ways her life style is not one that the mother wants her children exposed to. The mother is concerned about the risk and the lack of change to the father's focus.
[104] The mother is the custodial parent. Generally, issues such as education, medical care, religious upbringing and extra-curricular activities are the responsibility of the parent who has custody. That parent has the ability to change the child's name. Indeed CLRA subsection 20(2) sets out that the custodial parent has the "rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child".
[105] The mother is really asking the court to allow her to make the decision regarding what is in the best interests of these children. She clearly has the responsibility of choosing the best path for her children and exercising "the incidents" of custody in the best interests of the children. Surely if a parent has the right and obligation to make decisions regarding school and faith, inherent in that is the obligation to consider what values to instil in the children. The evidence supports her concern about F.C.'s lengthy history of illegal and dangerous behaviour. The mother does not want the choices that F.C. has made to be part of her children's lives given their differences in values. In the circumstances, her concerns are not unreasonable.
[106] Perhaps the most important consideration is the fact that the children are happy, stable and secure in the home where they are. The mother and her husband work diligently to ensure that the girls have everything that they need. In considering best interest, the court must consider that family unit and ensure that no decision will adversely affect the stability of that home.
[107] An order for access must not be an experiment. The evidence must support that it is clearly in the children's best interests to change the order in the first place and to have access start.
[108] The court cannot find that there is any merit to the request to change the order or order access.
8: Order
[109] There shall be an order to go as follows:
The motion to change is dismissed.
The respondent father shall not post or allow to be posted any photographs of the children H. and D. on the internet on any site that is available to members of the public.
Any party seeking costs shall serve and file their submissions including details of the costs being sought on or before June 28, 2013. Any response shall be served and filed by July 19, 2013. Reply submissions are to be served and filed by August 2, 2013.
Released: May 17, 2013
Signed: "Justice Paddy A. Hardman"