Court File and Parties

Court File No.: D51884/10 Date: 2014-01-31

Ontario Court of Justice Toronto North Family Court

Between:

M.K. Applicant

-and-

T.R. Respondent

Counsel:

• Kathryn L. Smithen, for the Applicant
• Margarida M. Pacheco, for the Respondent

Heard: January 27-29, 2014

Before: Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The applicant (the father) has not had access to his children, D.M., age 11, and S.M., age 7 (the children), since June 12, 2009. The primary issue in this trial was whether he should have access to the children.

[2] The father sought an order at trial that would grant him a brief period of supervised access to the children (both girls), followed by unsupervised access. He seeks an order that D.M. attend therapeutic counseling and is willing to pay for this.

[3] The mother opposed the father having any access to the children. She seeks a final custody order and the ability to obtain government documentation for the children and to travel outside of Canada with the children without the father's consent. The father did not contest these requests at trial.

[4] The parties resolved the child support issues during the trial and an order will go on the terms of their consent filed.

[5] The parties both testified and chose not to call any other witnesses. On consent, a psychological report about the children prepared by Dr. Daniel Fitzgerald was filed. The parties chose not to cross-examine him.

Part Two – Background Facts

[6] The father is 49 years old. He was born in Sri Lanka and immigrated to Canada in 1986. He has worked as a welder and is working towards obtaining employment in the heating and air-conditioning field. He is presently single and rents a room in a home that is also occupied by another family.

[7] The mother is 36 years old. She was born in Malaysia. She has lived in Canada since 2004. She is single, a stay-at-home mother and lives in an apartment with the two children. She is on social assistance. She hopes to work in early childhood education. In Malaysia, she worked as a kindergarten teacher.

[8] The parties had an arranged marriage. The father first contacted the mother's brother via the internet and arranged to meet the mother in Malaysia. The parties had a civil marriage ceremony in Malaysia on January 12, 2001 and a cultural marriage ceremony in Malaysia on September 8, 2001.

[9] The parties came to Canada together on September 25, 2001. The mother initially came to Canada on a visitor's visa.

[10] When the mother was 4 months pregnant with D.M., she returned to Malaysia, where D.M. was born. The father came to Malaysia for D.M.'s birth and returned to Canada shortly after.

[11] The mother remained in Malaysia with D.M. until she came to Canada with the child on July 26, 2004.

[12] The parties resided together in Toronto until June 12, 2009. On that date, the father was charged with assaulting the mother and threatening death. Those charges were eventually dismissed in 2010 when the mother did not attend on the scheduled court date.

[13] The children have had no contact with the father since June 12, 2009, with the exception of a brief contact between the father and S.M. at the mother's lawyer's office in 2011, when the father was signing a consent permitting the mother to travel with the children to Malaysia.

[14] The father issued his application on August 27, 2010. He sought orders in his application for joint custody and access each weekend.[1]

[15] The mother's answer/claim is dated October 13, 2010. In it she makes an array of claims, including requests for sole custody of the children, child and spousal support, the right to obtain travel documentation for the children and to travel with the children outside of Canada without the father's consent. She also sought an order prohibiting the father from removing the children from Ontario and a restraining order.[2]

[16] On February 18, 2011, Justice Carole Curtis granted temporary custody of the children to the mother. She also made temporary orders for child support and financial disclosure by the father.

[17] On December 8, 2011, Justice Curtis suspended the child support order as the father was not working.

[18] It appears from the court record that the father did not bring a motion at any time for temporary access to the children.

[19] The parties agreed in 2012 for Dr. Fitzgerald to conduct a psychological assessment about the functioning and developmental needs of the children, the nature of the children's attachment to the father and their feelings about having their father in their lives moving forward. Dr. Fitzgerald prepared a report dated November 21, 2012 that was filed in evidence.

[20] On January 15, 2013, Justice Curtis made a referral order, requesting the Office of the Children's Lawyer to become involved in this case. They declined involvement by letter to the court dated March 11, 2013.

[21] The case was originally scheduled for trial before Justice Robert Spence for the week of July 15, 2013. The trial was adjourned on consent of the parties.

[22] The parties were divorced on September 11, 2013.

Part Three – The Father's Position

[23] The father testified that he had a very good marriage with the mother. He said that he was an involved father who had a close and loving relationship with the children. He said that this all changed when the mother had an affair with the children's tutor (the tutor) in 2009. He claims that the tutor put the mother up to separating from him and eliminating him from the children's lives. He claims that he became depressed after the separation and became addicted to alcohol and gambling. He described to the court how he has taken steps to address these addictions. He has taken a parenting course. He believes that the mother has alienated the children from him. He feels that he is a good parent and the children would benefit by having a relationship with him. His position at trial was that the mother is a good parent and he has no intention of interfering with her relationship with the children. All he wants is to have a normal relationship with the children.

Part Four – The Mother's Position

[24] The mother had an entirely different description of her marriage with the father. She testified that the father was an uninvolved parent who left all parenting responsibilities to her. She described the father as deceitful, manipulative and abusive to her and D.M. She claimed that he isolated, intimidated, threatened and controlled her. She is afraid of the father and believes that if given the opportunity, he will harm her and the children. She testified that D.M. is afraid of him and wants no contact with him. She testified that the children are doing very well without the father in their lives. She feels it would be detrimental to the children's best interests to order any access.

Part Five – Credibility

[25] The evidence of the parties was diametrically opposed on the material facts. This made it necessary to assess their credibility to make findings of fact.

[26] The mother was a far more credible witness than the father. She answered most of the questions in a clear and straightforward manner. She readily conceded any inaccuracies in her court documentation.[3] She was able to provide significant detail about many of the incidents she described. Her fear of the father was palpable. She was often emotional recounting the specific events of the marriage. The court was convinced that she experienced the events with the father that she described.

[27] The father, on the other hand, was not a credible witness. He was frequently vague and evasive. Often his answers made little sense. When challenged about some of these inconsistencies he would often give circular answers and become defensive. Some details of his evasiveness and inconsistent evidence will be provided when discussing the evidence below.

[28] The court preferred the mother's evidence where it conflicted with the father's.

Part Six – The Mother's Experience

[29] The mother's position needs to be assessed within the context of her experience with the father.

[30] The evidence supported the mother's contention that the father treated her and D.M. in a derelict, controlling and at times brutal manner. She has good reason to fear for the physical and emotional safety of her and the children.

[31] The mother testified that when the father proposed marriage, he represented to her and her family that he was a mechanical engineer and would be able to support her. When she arrived in Canada, she learned that the father was not a mechanical engineer. He had no residence for her and they stayed with his friends for the first three weeks. The father then found a small one-bedroom basement apartment for them to move into. She described her life as very unhappy. She said that the father would leave early in the morning and come home in the evening, at which time he would go on the computer and chat with his girlfriend. On weekends, he would go out with his friends and leave her alone. She said that he would smoke, drink alcohol and treat her rudely. She did not speak English, stayed in the apartment during the day and was isolated and lonely.

[32] The mother became ill when she was about four months pregnant with D.M. The father had not arranged adequate health insurance for her. She said that she was very sick for about three weeks and the father would not take her to a doctor. He eventually took the mother to a doctor who confirmed her pregnancy. The mother said that the father then insisted that she return to Malaysia. The mother said that she felt too sick to travel and wanted to stay with the father. She said he told her that under Canadian law she was not allowed to care for the baby in their apartment, as it was too cold and had no furniture. She said that the father refused to renew her visitor's visa and she had to leave for Malaysia.

[33] The father testified that he had obtained Blue Cross coverage, but the coverage was limited. It became apparent that he had cancelled the coverage while the mother was still ill in order to pay for a plane ticket to send her back to Malaysia.

[34] The evidence was clear that the father took no steps to regularize the mother's immigration status in Canada at that time. He gave contradictory reasons for his failure to do so. At one point in his evidence, he said that he did not sponsor the mother when she was still in Malaysia since it had to be done internally in Canada. Later, he said she had to return to Malaysia for him to be able to speed up the immigration process.

[35] The mother described a frightening trip back to Malaysia. She was sick and scared. She had to travel from Toronto to Chicago to Japan to Singapore to Kuala Lumpur to Malaysia. She described how in Japan she began bleeding, but was afraid to tell anyone.

[36] The mother described how the father arrived in Malaysia the day before D.M. was born. He stayed for 4 days and then left, visiting friends and family. She testified how she begged him to stay and help her with the child. He didn't come back to visit her before he returned to Canada. She did not see him again for almost two years.

[37] The mother remained in Malaysia with D.M. In weekly phone calls with the father, he assured her that he was working on obtaining her permanent residence status. She wasn't able to return to Canada until July 26, 2004. D.M. did not know her father at that time.

[38] The mother testified that when she returned to Canada the family lived in a small one-bedroom apartment with no bed or furniture. She said that the father eventually obtained a mattress and D.M. slept on it. She said that the father rarely permitted her to go outside. He worked all day and would come home late. She said that he had minimal involvement with D.M. The mother said that the father would spend most of his time at home on the computer and if D.M. tried to get his attention, he would get upset, slap her and yell at her. The child would then come crying to her.

[39] The mother testified that she became pregnant late in 2004. She said that the father insisted that she have an abortion and forced her to see a doctor about this. She cried on the stand as she recounted the stress she felt under at the time. She said that she suffered a miscarriage about one week before the scheduled abortion.

[40] The mother described how she was sick and weak after the miscarriage. She said that the father insisted that she continue to cook, do all of the chores and look after D.M. He did not help at all.

[41] The family moved to a larger apartment in 2006.

[42] The mother described a very lonely life. The father paid little attention to her. She said that the father would frequently invite his friends to the home and they would drink and smoke. She would be expected to cook for them.

[43] The mother testified that the father had a bad temper, particularly when drinking. He would verbally abuse her and D.M. She said that the father would often brandish a knife at her, threatening to kill her and D.M. if she ever told anyone about his behaviour. The abuse, she said, frequently took place in the presence of D.M.

[44] The mother related an incident that took place on Valentine's Day in 2006. D.M. wanted the family to have a Valentine's Day celebration. The father became upset with the mother and kicked her and hit her with a blue-colored lunchbox.[4] She said that the father started calling her stupid. She said that she wanted to call the police, but her husband took a knife, pointed it at her in front of D.M. and said he would kill her if she ever called the police. He then took the knife and stabbed the door. She said that D.M. was frightened and crying.

[45] The mother said that the father again asked her to obtain an abortion when she became pregnant with S.M., but she refused. She said that the father refused to sleep with her when she was pregnant.[5] The father, she testified, placed a lock on his bedroom and the room where the computer was kept so that she and D.M. could not enter these rooms.

[46] The mother testified that the father expressed his disappointment, when she was born, that S.M. was a girl. He attended at the hospital on the day S.M. was born and didn't return. The mother said that she was in pain from her C-section and alone. When she asked the father why he didn't return, he told her that "he forgot".

[47] The mother testified that the father refused to help her with the children when she came home from the hospital, even though she was still recovering from her C-section. He said that looking after the children was her job and insisted that she also continue to cook and clean for him.

[48] The mother testified that the father had minimal involvement with the children. The father, on the other hand, testified that he cared for S.M. and the mother cared for D.M. I found this to be highly unlikely given the long hours he was working.

[49] The father claimed to be very involved with D.M.'s schooling. This notion was quickly dispelled in cross-examination when it became clear he knew little about her schooling and had only attended one parent-teacher meeting.

[50] The mother testified that the father's abusive and controlling behaviour continued after S.M. was born. She described how he hit D.M. and left marks on her back. He would frequently threaten the mother with a knife. He continued to drink to excess and was often mean to her and the children. She described how he once became angry when D.M. was playing with a ball. He swore at her, took a knife and cut up the ball in front of D.M.

[51] The mother was terrified of the father. When asked why she never called the police, the mother answered that she was too scared. She said the father would tell her, "If I go to jail, I will come back and kill you. I will throw acid on you". She also testified about the deep shame she felt by being in such a marriage. She felt that she had brought shame on her family who had arranged the marriage. The mother's failure to report the father's abuse (and the lack of corroborative evidence) needs to be considered within this cultural context.

[52] The mother did call 911 on May 5, 2009 after a domestic violence incident with the father, but didn't identify herself. The police attended at her home but she told them that she and her husband were just having issues. No charges were laid.

[53] The mother recounted an incident that took place on June 9, 2009. The father was home and drunk. He made the mother and children wait outside the apartment for 20 minutes before he would open the door for them. When D.M. told him it was the mother's birthday, the father said it was "mommy's death day". The child kept asking him why he didn't open the door. He told her to shut up or he will murder everybody.

[54] The final incident between the parties took place on June 12, 2009. The mother said that she was on the phone and the father tried to grab the phone from her. He punched her and told her that he was going to kill her. She started screaming for help and was very scared. Both the person she had been speaking to on the phone and a neighbour called the police. The father was charged with assault and threatening death. His bail conditions required him to stay away from the mother.

[55] After hearing the mother's detailed explanation of the abuse suffered in her marriage, it strained credulity to accept the father's story that the couple had a happy marriage and that he had never been violent.[6]

[56] The mother stated that she was not advised when the father's court case came back to court and did not attend.[7]

[57] The mother described how the father had full financial control of the family. She had no idea about the family's finances. She had to ask him for money and it would usually only be given to her to pay for the children's activities. He insisted that he come shopping with her and would often yell at the mother and D.M. in public if they took any item off the shelf without his permission. The mother described how humiliating this was.

[58] The mother learned after the court case started that the father had bought a condominium during the relationship.[8] The father was evasive about how he obtained the funds to make this purchase. He could not show in his bank records where the funds came from.[9]

[59] The father was also very evasive about a $35,000 receipt reflected in his bank account on December 28, 2006. He claimed that this was not his money, but rather he was buying a property for a friend, who the father described as a "real estate person". His answers about why the money for the purchase had to flow through his account made little sense.

[60] The father also gave inconsistent and incomplete evidence about his assets and expenses. His financial statement filed in 2010 didn't mention his business account[10] (that had over $31,000 in it on the day of separation). The assets and debts listed in this financial statement did not correlate with the financial statement he filed with the Trustee in Bankruptcy when he made an assignment in bankruptcy in 2011.

[61] The father also kept changing his story about how much he paid for expenses when living with his sister and about when he was actually living her.[11]

[62] The father blamed the mother for incurring significant credit card debt during the time they were together. This was not credible. He clearly controlled the family's finances. The father admitted that he used up the credit limit on his credit cards and lost the family savings by gambling after the separation.[12] The father's evidence that his gambling and excessive drinking only started after the separation was not credible.

[63] The mother and the children lived in the apartment for two months after the separation. The father then served them with a Notice to Vacate and they had to move.

[64] The mother denied the father's allegation that she broke up the marriage because of an affair with the tutor. She denied ever having an intimate relationship with him. However, it is very clear that he is very close with the mother and involved in the life of her and the children. The mother testified that the tutor is over 60 years old and has adult children with whom her children are very close. The families do not live together, but spend a lot of time together. She said that she views him as a father figure. She said that she has no plans to live with him.[13]

[65] The mother testified that the children are doing well. They enjoy many activities. They are both doing excellently in school. Both children are healthy and very social. She worries that the reintroduction of the father will upset the children's safety, stability and security. The evidence supported that she has been an excellent mother, in very difficult circumstances, for the children.

[66] The mother has kept her whereabouts secret from the father. She continues to worry that he will try to track her down and harm her.

[67] The mother testified that she wanted to return to Malaysia in 2011 to see her father who was ill and through her lawyer sought the father's permission to travel outside of Canada with the children. He refused to provide the consent unless he could see the children. She relented and brought S.M. to her lawyer's office in 2011 where the father signed the travel consent and briefly saw S.M. She said that D.M. was too afraid to come to the lawyer's office.

Part Seven – Dr. Fitzgerald's Report

7.1 Scope of the Report

[68] Dr. Fitzgerald is an experienced clinical psychologist who has prepared many reports for the court. He prepared his report at the request of the parties.

[69] Dr. Fitzgerald reported that the lawyers for the parties requested that the following issues be addressed:

1. The psychological functioning and developmental needs of the children.
2. The need for clinical interventions to address any of the needs of the children.
3. The nature of the children's attachment to their father and their feelings, particularly those of D.M., about having their father in their lives moving forward.

[70] Dr. Fitzgerald conducted one interview of the parents, met with the children twice and conducted psychological testing on the children.

7.2 D.M.

[71] Dr. Fitzgerald described D.M. as bright, academically capable, socially confident and assured.

[72] Psychological testing revealed that D.M. wants to present as accomplished, capable and having a positive attitude. However, she appears to have underlying concerns about loss and abandonment by parental figures. She has underlying stress and anxiety. She appears to have been affected by her exposure to domestic violence. She appears to have sadness about the breakup of her parents and their inability to maintain a stable home together. She appeared to have a strong alliance with her mother and voiced opinions of her father that are consistent with her mother's. D.M. is at the 97th percentile of intellectual functioning. Her excellent marks at school reflect this. The test results showed that she has well-developed social and interpersonal skills and is able to adapt to changes in her environment. She has the capacity to be a leader.

[73] D.M. described incidents of domestic conflict in the home to Dr. Fitzgerald and expressed apprehensiveness about having contact with her father. However, he concluded that she did not present to him as overly apprehensive about the safety of her and her mother. He did not see evidence of long-lasting effects of her having been exposed to domestic violence.[14]

[74] Dr. Fitzgerald felt that D.M. presented with many of the symptoms that are frequently found in children who have become alienated from a parent. She described the father in ways that were parallel to the way the mother described him – as harmful, abusive, angry and insensitive. He concluded that the mother has almost eradicated the father from D.M.'s life.

[75] Dr. Fitzgerald felt that there would be long-term benefits to D.M. to have an ongoing relationship with her father as she matures. However, he recognized that it is possible that access would be unsuccessful since D.M. has a negative impression of her father and she will associate the experience with anxiety and apprehension. He recommended therapeutic intervention for both her and the mother.

7.3 S.M.

[76] Dr. Fitzgerald described S.M. as a well-adjusted child with average intellectual ability. She demonstrated no emotional or behavioural difficulties. Psychological testing revealed that S.M. has effective social and interpersonal skills and that she is capable of adapting to changes in her environment.

[77] Dr. Fitzgerald found that S.M. has no memory of the father and views the tutor as her father and his children as her siblings.

[78] Dr. Fitzgerald recommended starting supervised access with S.M. He said that she did not appear to have any negative associations with her father.

Part Eight – Legal Considerations

[79] Section 24 of the Children's Law Reform Act (the Act) sets out that the court must make custody and access decisions in the best interests of the children. Subsection 24(2) of the Act sets out criteria for the court to consider. Subsection 24(4) of the Act also sets out that in assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against his or her spouse or the child. I have considered these factors in making this decision.

[80] Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[81] It is normally in the interests of children to continue and to encourage their relationships with both parents following the separation of their parents. The ultimate goal is to establish, maintain and promote relationships which are of significance and support for a child. See: Young v. Young, [1993] 4 S.C.R. 3. Children generally benefit from contact with both parents. See: Gordon v. Goertz, at paragraph 24.

[82] A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access should only be ordered in extreme circumstances. See: Worthington v. Worthington, 2000 CarswellOnt 4889 (SCJ).

[83] In V.S.J. v. L.J.G., [2004] O.J. No. 2238 (S.C.) at paragraph 135, Justice Jennifer Blishen provided a useful overview of the factors that have led courts to terminate access:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, [2001] O.J. No. 3707.

2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B.Q.B.); Abdo v. Abdo, (1993), 126 N.S.M. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay, (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct).

4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk, supra.

5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra.

6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.

7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).

[84] The party who seeks to reduce normal access will usually 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 (OCJ).

Part Nine – Analysis

[85] This court does not make no-access orders lightly. However, the particular circumstances of this case dictate that such an order is in the best interests of the children.

[86] The court recognizes that the father has taken steps to address his addiction issues and commends him for these efforts. He has attended for addiction counseling at a Tamil Seniors Wellness Centre. He also attended 5 parenting sessions at this resource. He has seen a psychiatrist to deal with his depression[15] and difficulties sleeping, who has provided him with medication. He signed a direction to be on a self-exclusion list for the Ontario Lottery and Gaming Corporation. However, these steps are too little and too late for the children.

[87] In addressing the best interest factors set out in subsection 24(2) of the Act, I comment as follows:

a) The children are closely attached to the mother. They no longer have a relationship with the father, and in the case of D.M., she fears him.

b) D.M. does not want to see her father. I accept that over the years D.M. may have adopted some of her mother's views and recollections about incidents that happened several years ago. However, it is also very clear from the evidence that D.M. was frequently exposed to a harsh and violent father and it is more likely than not that she independently remembers him as a frightening figure. It is likely that D.M. has been adversely affected by these experiences, and that this is a contributing factor towards her reluctance to visit with her father. Her estrangement from him is understandable. The court did not receive evidence about S.M.'s views and preferences. Given her age and alignment with the mother, her views would be given little weight.

c) The children have lived in a stable home environment since the separation without the father. They are thriving. An order for access runs the real risk of compromising their sense of security and stability.

d) The mother has demonstrated that she is an excellent parent. The father has not demonstrated that he can act positively as a parent. The evidence indicates that he was selfish, abusive, uninvolved and a negative influence in the children's lives when he lived with them. He treated them as possessions. The court saw little evidence of change at trial. The father took no real responsibility for his actions and instead chose the path of denial. This informs the court that he is a poor candidate to change his behaviour towards the children.

e) The mother's plan for the children is preferable to that of the father's. She is the parent who has demonstrated that she can meet the children's needs. The father demonstrated absolutely no insight into the impact of his behaviour on the mother and the children and remains in a state of denial. He did not give the court any confidence that he has anything positive to offer his children, other than to know who their father is.

[88] The court also considered the following factors in coming to its decision to deny access to the father:

a) The mother has extreme anxiety about the prospect of the father seeing the children, even in a supervised setting. She does not trust him. She worries that he will attempt to obtain information from the children about her whereabouts or where the children go to school that would place them at risk of physical harm. Even if the mother's safety concerns are a bit excessive, her understandable anxiety and fear is the reality that the children must deal with. It does not serve the children's best interests to destabilize the mother by re-engaging her in any way with the father. She will undoubtedly suffer significant anxiety if an access order is made. The evidence indicates that the children are attuned to their mother's emotions. They would likely be adversely affected by the mother's anxiety and likely (particularly D.M.), suffer their own anxiety about the visits. The benefit of knowing the father does not justify this risk to the children.

b) The court finds some merit in the mother's concerns about supervised visits (unsupervised visits are out of the question). The father has proven to be deceitful and controlling. The supervised access centre may not be able to fully protect the children from the father obtaining information about their location (by speaking to them in Tamil) or following the mother home from visits.

c) The court considered supervised visits for S.M. alone, but eventually rejected this idea. S.M. functions well within her family. Her relationship with the father can't be easily isolated from her relationship with the rest of her family. Her relationship with the father would cause great anxiety for the mother and D.M. – anxiety that would likely distress and confuse S.M.

d) The children have no relationship with the father and S.M. has no memory of him. They have moved on with their lives in a positive way. The children have not seen the father in close to five years. No explanation was provided as to why he never brought a temporary motion for access. The lapse of time is very significant where children are well-settled. See: H.P. v. P.L.C., [2013] O.J. No. 3377 (Ont.C.J.), citing Grube and Grube v. Binks and Grube-Binks, [2003] O.J. No. 1530 (Ont. C.J.). Any effort at reintegration would have made more sense years ago.

[89] The court seriously considered Dr. Fitzgerald's recommendations. It also considered the limits of his assessment. He was not assessing the parents, only the children. The parents were only interviewed to obtain the family history and their individual viewpoints. He wrote on page 11 of his report:

This assessment makes no determination about the veracity of either parent's account of the situation.

[90] Dr. Fitzgerald encouraged access, in part, because he found that the father spoke lovingly about his daughters, positively about the mother and did not seem to have any intention to disrupt their relationship.

[91] This court had the advantage of a fuller evidentiary presentation. It finds that the father was an abusive parent and husband. It does not view his current intentions as benignly as Dr. Fitzgerald. It finds that he shows no remorse or acknowledgement of his behaviour and the impact it had on his family. The court finds that he remains a physical and emotional danger to the children and the mother if he re-engages in their lives. The mother and the children were treated as possessions by the father. This wasn't love and the court does not accept the reassurances about his love for his children and his good intentions that he expressed to it and to Dr. Fitzgerald. The court finds that the children have done much better without the father in their lives and it is in their best interests that this remains the case.

[92] The mother's position is fully understandable given her experience with the father. While it is likely that she has passed on her fears of the father to the children (and many of the details of her experience have become D.M.'s), her fears are justifiable. She was ashamed that she couldn't protect her children from the father when they lived together. Her determination to protect them now is admirable. She has become a stronger person since the separation.

[93] In the final analysis, the children are doing well. The court finds that their need for safety, stability and security (which run the risk of being compromised by an access order), outweighs the benefit of having contact with the father.

[94] The court finds that it is in the children's best interests to grant the no-access order requested by the mother. It also finds it to be in the best interests of the children to grant the mother's requests to obtain government documentation for the children and to travel with them without his consent. The father previously obstructed the mother's reasonable travel plans and used the children as a bargaining chip to obtain contact with S.M. This is not acceptable.

Part Ten – Conclusion

[95] A final order shall go on the following terms:

Not on consent:

a) The mother shall have final custody of the children.

b) The father shall have no access to the children.

c) The mother may obtain or renew all government documentation for the children, including passports, without the father's consent.

d) The mother may travel with the children outside of Canada without the father's consent.

On consent:

e) The father shall pay child support to the mother for the children, starting on August 1, 2013, and on the first day of each month thereafter, in the amount of $345 per month, based on an income of $22,880 per annum (being the child support guideline amount for two children).

f) Arrears of child support as of July 31, 2013 are fixed at $0.00.

g) A support deduction order shall issue.

h) If there is a credit held on behalf of the father by the Director of the Family Responsibility Office, that credit shall be applied to the father's child support obligations beginning on August 1, 2013. If there are arrears of child support owing to the mother, that credit shall be applied towards the arrears first and the father shall be responsible for paying the balance of any arrears and ongoing child support thereafter to the mother. If there are no arrears of child support owing, the credit shall be applied as payment towards the father's prospective child support obligations to the mother and he shall begin paying child support once that credit is used to fulfill future payment obligations.

i) For as long as child support is to be paid, the father shall provide updated income disclosure to the mother each year. He shall provide the mother with a copy of his entire income tax return, which shall include all schedules, receipts and any documents submitted to the Canada Revenue Agency on May 1st of each subsequent year. He shall also provide her with a copy of his Notice of Assessment in the same way within five days of its receipt in accordance with section 24.1 of the Child Support Guidelines.

j) The father shall make this disclosure via counsel for the mother. The father shall have no other communication with the mother whatsoever.

[96] If the mother wishes to seek costs, she is to serve and file written submissions by February 14, 2014. The father will then have until February 28, 2014 to serve and file a written response. The submissions are not to exceed three pages, not including any offer to settle or bill of costs. They are to be delivered to the trial coordinator's office on the second floor of the courthouse.

[97] Lastly, I thank counsel for their very professional presentation of this case.

Justice S.B. Sherr

Released: January 31, 2014

Footnotes

[1] The father did not pursue the joint custody claim or seek immediate unsupervised access at trial.

[2] The mother did not pursue the claims for spousal support or a restraining order at trial.

[3] For instance, the mother in her answer/claim pleaded that the father had abused her after the separation. She testified that this was definitely wrong as she had no contact with him after the separation. The mother was also under the impression that the father had a criminal record and pleaded it. She accepted that this wasn't the case when the father produced a clean criminal record check.

[4] This is an example of how precise the mother's memory of these incidents was.

[5] The mother testified that she and the father did not sleep with each other again.

[6] The father testified that there was never any need for argument, that he didn't raise a voice. He just did what the mother wanted and he was never negative to his wife or children.

[7] The mother had moved and might not have advised Victim Services of her new address.

[8] The father testified that he purchased the condominium in February or March of 2009 for $90,000.

[9] The father rented out this property.

[10] The father was the sole proprietor of a welding business and had personal and business bank accounts.

[11] The father told Dr. Fitzgerald in 2012 that he was living with his sister. At trial, he said that he had been living on his own since 2011. When challenged on this contradiction, he tried to justify it on the basis that he used his sister's address as a mailing address.

[12] The father testified that he lost $78,000 gambling at this time.

[13] The children described the tutor as their father and his children as their siblings to Dr. Fitzgerald. They expressed an expectation that the families would eventually live together.

[14] Dr. Fitzgerald did not testify. Accordingly, the court did not receive an explanation as to how Dr. Fitzgerald reconciled this conclusion with the psychological test results set out in paragraph 72, where he finds that D.M. has been affected by her exposure to domestic violence and that she has underlying stress and anxiety.

[15] This was the father's evidence. No clinical diagnosis was provided to the court.