Court File and Parties
Court File No.: Goderich 09 31 Date: 2014-04-02 Ontario Court of Justice
Between: Margaret Chickwanda, Applicant
— AND —
Dan Bell, Respondent
Before: Justice Brophy
Heard on: 25 March 2014
Motion with Respect to Termination of Supervised Access
Reasons for Ruling released on: 2 April 2014
Counsel:
- Sara Wisking, counsel for the Applicant(s)
- Matthew Dupre, counsel for the Respondent(s)
BROPHY J.:
INTRODUCTION
[1] On August 16, 2013 Justice Caspers of this court made an Order circumscribing the access of the Respondent herein and providing that it would terminate on February 16, 2014, subject to a court review to determine whether it should continue.
[2] This is that review.
PROCEDURAL BACKGROUND
[3] The August 16, 2013 Order was made at an uncontested trial. The pleadings of the Respondent were struck on July 16, 2013 and a settlement conference otherwise scheduled for August 16, 2013 was canceled and the matter proceeded on an uncontested basis.
[4] The Order provided that the Applicant was to have sole custody of the children Summer Nyasha Bell, born October 15, 2006 and Matthew Daniel Bell, born November 20, 2007.
[5] The Respondent was to have supervised access to the children for 2 hours on alternate Sundays at times to be arranged with the parties and the staff at the Merrymount Supervised Access Facility with the Respondent being responsible for any costs associated therewith. That access was to terminate on February 16, 2014, subject to court review.
[6] It should be noted that the costs of the proceedings were ordered against the Respondent.
[7] It should be further noted that on that same date Justice Caspers also made a separate permanent restraining order related to the Respondent's contact with the Applicant and the children, subject to further order of the court.
[8] The Respondent brought this motion originally returnable on February 4, 2014 seeking a continuation of his access. The Respondent's position is that he is content with Order of August 16, 2013 and seeks only a continuation of the access provided for in that order.
[9] The Applicant has responded and taken the position that the access should terminate.
[10] The Applicant also brought a form 14B motion seeking to strike portions of the Respondent's material filed in support of his motion to avoid termination of access. After argument on this particular issue the Respondent agreed not to rely upon the reference letters appearing at Tab 12 in his Documents Brief. The Applicant was satisfied with that remedy and the substantive motion proceeded.
FACTS
[11] This case started in March 2009. One of the first Orders made on March 17, 2009 provided that the Respondent was to have supervised access and that he was initially restrained from molesting, annoying, harassing of communicating with the Applicant.
[12] Supervision of access, in one form or another, has continued throughout the proceedings. Initially it was through the Huron Perth Supervised Access Program, with some involvement of the Huron Perth Children's Aid Society, then for the period from January 4, 2011 to June 7, 2011 by Lida and Harold DeVries, and after that the Merrymount Children's Center in London.
[13] The actual exercise of access has been interrupted on at least 4 occasions for substantial periods of time.
[14] The parents separated in December 2008 and no access took place from that date to August 2009. There was an Order made on March 9, 2009 that allowed for access, but it did not in fact commence until August of that year.
[15] From August 2009 to October 2009 supervised access took place at the Supervised Access Centre in the town of Exeter. That access stopped in October because of criminal charges brought against the Respondent following which the program would no longer accept him as a client.
[16] From October 2009 through to May 2010 there was no access. In May 2010 the Respondent brought a motion seeking access and in July 2010 that request was denied. There was then no access through to December 2010 when it was agreed that Mr. and Mrs. DeVries could supervised access. These people were friends of the Respondent.
[17] The access supervised by the DeVries stopped in February 2011, lasting only for 3 months.
[18] In July 2011 supervised access recommenced at the Merrymount centre in London. That access continued on an inconsistent basis through to May 2013. At that point for reasons that are unclear the Respondent stopped exercising access.
[19] What is known is that at the end of May in 2013 the Office of the Children's Lawyer filed a further report recommending that access continue on a supervised basis. It may be that the Respondent then threw up his hands and decided to walk away from the process.
[20] The Respondent also stopped attending court. He did not have counsel at the time and no one appeared on his behalf.
[21] On June 18, 2013 this court made an endorsement that the matter was adjourned to July 16, 2013 to confirm the settlement conference date of August 16, 2013 and to have the Respondent advise as to what his plans were in the action. It was noted that in the event he did not attend on July 16, 2013 the court would consider striking his pleadings.
[22] The Applicant brought a motion on July 16, 2013 to have the Respondent noted in default. No one appeared on behalf of the Respondent on that date and an Order was made noting him in default and the matter was then adjourned to August 16, 2013 for an uncontested trial instead of a settlement conference.
[23] Mr. Dupre was not retained in the litigation at that point. However he was advised by counsel for the Applicant what the risks were for the Respondent if he did not appear. Notwithstanding that notification no one spoke to the matter on the Respondent's behalf on July 16, 2013. Nor did anyone on the Respondent's behalf attempt to reinsert him in the action on August 16, 2013.
[24] Subsequent to the order being made on August 16, 2013, counsel for the Applicant's served a copy of the order on Mr. Bell on October 7, 2013.
[25] It was not until November 26, 2013 that the Respondent contacted the Merrymount Children's Centre to inquire about restarting supervised access. Because of scheduling issues Merrymount did not call the Applicant until January 15, 2014 about setting up new visits. At that late date the Applicant, after receiving legal advice, and after having obtained work that prevented her from effecting access on weekends, and with the termination date coming up soon on February 16, 2014, decided not to participate in access visits.
[26] Since 2008 there have been four gaps in access. The first was from December 2008 to August 2009 for 9 months. Then there was no access from October 2009 to December 2010, being approximately 14 months. Next there was a five-month gap from February 2011 to July 2011. Lastly there has been the period from May of 2013 to the present.
[27] It should be noted that in that last period of time from May through to November the Respondent simply abandoned or walked away from the access.
[28] The total number of months from December 2008 to the end of March 2014 is 63. The cumulative number of months where access has not been exercised his 38. That means that in that five and a quarter years the children have seen their father only 25 out of a possible 63 months, or approximately 40% of the time.
[29] What is most unfortunate is that the children in their very young lives have suffered losses and rejection by their father. He will say that this was not always his fault. However from the children's perspective it matters not. What they see and experience is him being in their life and then not.
DISCUSSION
[30] Is this experience to continue?
[31] There are a number of factors that suggest it will.
[32] The first is the criminal record of the Respondent. It includes numerous breaches of recognizance and probation orders and several incidents of domestic violence. There are 10 convictions in all. They includes a conviction for criminal harassment in June 2002 related to a previous domestic partner along with a conviction for a breach of probation October 18, 2004 and convictions for 2 breaches of recognizance on March 31, 2005. There was then a conviction on November 6, 2009 for a breach of recognizance related to the Applicant as complainant. Subsequently on November 23, 2009 there was a conviction for assault, uttering threats and breach of recognizance, again related to the Applicant. Lastly there was a breach of probation on April 2, 2010 followed by a further breach of probation in April 2012, with these latter charges also related to the Applicant.
[33] It should be noted that Respondent claims that he was invited by the Applicant to meet with her contrary to the terms of his probation order. Notwithstanding that explanation it remains that he was in violation of the court order made against him.
[34] Next there is the inability of the Respondent to recognize that he is at fault.
[35] Added to this lack of awareness is his propensity to blame and vilify others.
[36] Finally, there is his rejectionist tendency. This is best illustrated by his walking away from access in the spring of 2013.
[37] It is also demonstrated by his comments made to the clinical investigator working for the Office of the Children's Lawyer Mr. Martin Van Luven. On page 10 of the May 30, 2013 report he states:
There has been a notable increase in Mr. Bell's level of anxiety since the previous section 112 report was completed. He has expressed frustration about his access not being unsupervised, that Ms. Chickwanda's lawyer is unethical and dishonest and further noted concern about the litigation process. Mr. Bell expressed that he felt this investigator was biased and he repeatedly said he wanted to withdraw from participating in the investigation. On several occasions he made comments that he was going to kick this investigator out of his apartment, and said if his access did not become unsupervised he planned to discontinue visits. When Mr. Bell was asked by the investigator, if he had been assessed by his physician, he said the investigator wanted him to begin to use medication so that he could use that against him. Mr. Bell often described services and the court process as being involved in a conspiracy to defeat him. Mr. Bell's current functioning resulted in him being reactionary and impulsive during his two interviews. Until his functioning is further access and treated, is likely to continue to be reactive.
[38] At page 12 of the report Mr. Van Luven says:
Mr. Bell often made remarks to this investigator during interviews that he will terminate access if it is not unsupervised and blamed others including Ms. Chickwanda, her counsel and the court system for the barriers to unsupervised access. There was no indication that Mr. Bell recognized he played any role in the events which have resulted in his access being supervised or it not evolving to unsupervised.
[39] It should be noted that Mr. Van Luven comments that the Applicant has been less than cooperative with reference to promoting the access of Mr. Bell. For example she has refused to allow the children to have photos of the Respondent and has rejected some minor gifts he gave the children.
[40] The court has also noticed that in the reports from the supervised access program there are a number of occasions when the Applicant canceled access visits for no apparent cause.
[41] So it is clear that the Applicant is not blameless.
[42] Nevertheless the Respondent has through a series of actions made it very difficult for access to be anything other than supervised. He has exhibited violent behavior in the past, has trashed talked the mother of the children, has made promises to the children that he has not kept and has been inconsistent in following through with access.
[43] His threats to terminate access if he does not get his way are extremely problematic. In the words of Mr. Van Leuven at page 13 of his most recent report:
Should Mr. Bell terminate access, the value of the relationship to the children needs to be assessed and an order made in accordance with the potential greater damage which would be caused by Mr. Bell repeatedly rejecting the children by leaving and re-entering their lives repeatedly. It has been explained to Mr. Bell that abandoning his children will not have positive results for himself or his children. Mr. Bell unfortunately believes that when the children are grown they will realize how much he tried and that other people destroyed their relationship . . . .
[44] This prescient statement has unfortunately been played out by the actions of Mr. Bell in walking away from the children and his access to them and this litigation for the 6 months from May to November 2013.
[45] In the May 30, 2013 report from the Office of the Children's Lawyer it was recommended that the Respondent have supervised access at a supervised access program until such time that he successfully completes domestic violence counselling, participates in the Mom's House / Dad's House program, and that he participate in Therapeutic Access counselling. It was also recommended that his current domestic partner participate in that programming with him. Lastly it was recommended that he participate in the mandatory information program (MIP) provided by the court.
[46] As of the date of the hearing of this motion the Respondent had only participated in the MIP and was on a waiting list to participate in the Therapeutic Access counselling. He approached that program only recently and was placed on a waiting list. This when he could have put his name in immediately after being advised of the contents of the May 30 report.
[47] The Respondent did advise the court that he completed the Caring Dads program in September 2012 and the Changing Ways program in June 2012. However these predated the May 30, 2013 clinical investigation report.
[48] The Respondent did participate in some counselling with the Family Service Thames Valley agency between December 2013 and February 2014. That is the only current programming in which Mr. Bell was involved. The report was positive, but it is unclear what level of disclosure was provided to the therapist who worked with Mr. Bell.
[49] It is generally accepted that children benefit from contact with a parent and that access is advantageous to the development and well-being of children.
[50] However children are harmed by constant interruption and disappointment related to commitments made by parents, including access parents.
[51] Supervised access is not ordinarily a viable long-term plan. It is generally intended to be a bridge to unsupervised access. It should not continue ad infinitum. Where there is no reasonable prospect of improvement there has to be a good reason for continuing with supervised access.
[52] In this case it is clear that Justice Caspers recognized the long acrimonious history of this litigation and decided access could not continue to be on offer. There had to be a termination date, subject to a court review. After review if the court does not make an order then the access is terminated. There is then an evidentiary burden on the Respondent to establish why access should continue.
[53] Justice Blishen in V.S.J. v. L.J.G., [2004] O.J. 2238 (Ont. S.C.J.) in paragraphs 128 to 140 set out the legal principles related to access and whether it should be terminated. Those principles include that:
Access is presumed to be in the best interests of children and should only be forfeited in the most unusual circumstances. To deny access to a parent is a remedy of last resort.
The test however remains what is in the children's best interests.
Supervised access is seldom viewed as a long-term solution, although it is sometimes considered as an alternative to complete termination of a parent child relationship. However circumstances may be such that it is harmful to continue with the program that constantly disappoints children.
Finally, in deciding whether access should be terminated there are no standard criteria within the best interest test.
[54] Some of the factors in this case that are relevant to the question of whether to terminate the supervised access are:
(a) The history of domestic violence on the part of the Respondent;
(b) Evidence of the Respondent's controlling behavior;
(c) The Respondent's denigration of the other parent;
(d) The Respondent's anger directed towards the Applicant, her lawyer and the court system;
(e) A lack of insight on the part of the Respondent concerning the role his behavior has played;
(f) Inconsistency in the exercising of access; and
(g) The Respondent's failure to understand the harm caused to the children by his rejection of them by his walking away from access.
[55] The cumulative impact of these factors satisfies the court on the balance of probabilities that there is a great risk that even if supervised access is reinstated there will be a future crisis point and the Respondent will once again become angry, frustrated and upset and he will, as he has in the past, walk away from access, relying upon time to prove him right. This would be severely damaging to the psyches of the children.
[56] In the normal case access is of benefit to children. This is not an axiom but rather an acceptance that in an ordinary case positive contact with a parent can be of benefit to the child.
[57] However where the access is harmful then a careful consideration has to be given to whether the harm is of such a nature and extent that it overrides the benefits that might come from contact with an access parent.
[58] It is acknowledged that access should not be terminated except in the most serious of cases because generally there is some good that comes from access, even in difficult circumstances. But there does reach a point where the harm can outweigh the good.
[59] In my view this is one of those cases. The children have now had no contact with their father for almost a full year. Their mother, who is not without fault in this tragedy, is meeting their basic needs. The children seem to be doing reasonably well in school and the relationship between the children and their mother would appear to be warm, nurturing and happy. To reintroduce Mr. Bell into their lives after this lengthy absence would inevitably cause upset in the household. That coupled with the strong probability that there will be a future breakdown in access continuity, with the attendant rejection of the children, satisfies the court that the stability and balance that is currently in their lives will be put at risk. Moreover the children will be once again grieving the loss of an important figure in their lives.
[60] It is a mystery as to why the Respondent was not able to put the needs of the children first. If he understood what the nature of the problem was he would have recognized that only by being constant in his participation in the supervised access would he ultimately be successful. Perhaps he did not see it that way. However the action he did take by walking away from the access was putting his own frustration first and not acting in the best interests of the children. The court fears that this pattern will continue and it is neither healthy nor conducive to the well-being of the children. Simply put it is not in their best interest.
[61] There is a sacrifice that is being made in that the children will not have contact with their father. But the harm caused by the repeated losses suffered by the children cannot be permitted to continue.
CONCLUSION
[62] For these reasons the motion brought by the Respondent to reinstate his access is dismissed and the access provided for in the order of Justice Caspers dated August 16, 2013 is terminated.
[63] If the parties wish to speak to costs they can contact the clerk to arrange a hearing date at which time the court will provide directions for written submissions with respect to same.
Released: April 2, 2014
Signed: "Justice Brophy"