Court File and Parties
Court File No.: Toronto DFO 05 10744 B1 Date: 2015-07-27 Ontario Court of Justice
Between:
Carla Pires Applicant
— And —
Mark Jagg Dedvukay Respondent
Before: Justice E. B. Murray
Heard on: July 7, 2015
Reasons for Judgment released on: July 27, 2015
Counsel:
- Martin E. Bufton, for the Applicant
- Mark Jagg Dedvukay, on his own behalf
Reasons for Judgment
MURRAY, E. B. J.:
Background
[1] On August 26, 2010, after trial, Justice Heather Katarynych issued a final order terminating access between the Respondent, Mark Dedvukay ("Mark"), and his daughter Victoria, born July 31, 2004. She ordered that if Mark sought to bring a motion to change this order in the future, that his motion had to be accompanied by a "clinical assessment" of himself.
[2] Mark did not appeal that order.
[3] On November 13, 2013 Mark brought a Rule 15 motion to change that order, asking for unsupervised access to Victoria and for reduction in child support ordered in a prior order. He did not provide a psychological assessment.
[4] Mark's motions were opposed by Victoria's mother, Carla Pires ("Carla"). After some conferencing, Mark withdrew his motion to change child support. Disclosure orders were made requiring Mark to provide copies of the orders or agreements regarding his contact with his children from other relationships and information with respect to any criminal proceedings involving himself and mothers of his other children. Mark did not comply with those orders. Conference dates occurred that were of little use, because Mark had not prepared briefs or otherwise came unprepared; those dates were adjourned and costs sometimes ordered. Mark resisted getting an assessment, but in January 2015 he finally obtained a psychological assessment from Dr. Rex Collins, which was disclosed to Carla and to the court on February 18, 2015.
[5] Carla now brings a motion asking for relief on several counts, set out below:
Strike Mark's pleadings because they do not demonstrate any material change in circumstances;
In the alternative, strike Mark's pleadings for failure to comply with disclosure orders made;
In the further alternative, stay Mark's action because it is oppressive and an abuse of process;
In the further alternative, order Mark to provide security for costs in the amount of $15,000.
Threshold Issue on Motion to Change
[6] I deal first with Carla's request that Mark's pleadings be struck because there has been no material change in circumstances since the August 26, 2010 order. In argument, Carla's lawyer said that this motion was more properly seen as a motion for summary judgment under Rule 16.
[7] At the hearing I explained to the parties that I was not of the view that the issue of whether Mark had established a material change was best dealt with under Rule 16. The onus should properly be on Mark to establish that he has met the initial threshold he must satisfy if he is to be able to proceed with a motion to change—a demonstration of material change. Under Rule 16, the onus would be on Carla to establish that there is no genuine issue for trial in Mark's claim.
[8] I advised the parties that I would conduct the motion as a hearing as to whether Mark had met the threshold by demonstrating a material change. My reasons for that ruling are set out below.
Legal Framework
Mark seeks to change an order regarding access. Section 29 of the Children's Law Reform Act provides that a court shall not make an order that varies an order in respect of custody or access "unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child".
In a case involving custody of or access to a child, a material change in circumstances is a change to the condition, means, needs or circumstances of the child or the ability of a parent to meet the needs of the child. The change must not have been foreseen at the time of the original order.[1]
The onus is on the moving party to establish the material change.[2]
A motion to change an order of custody or access involves two stages. First, the court must determine if there has been a material change. If, and only if, the answer is yes, the court will embark on an inquiry into what is in the child's best interests.[3] If there is no material change, then the court has no jurisdiction to proceed further.
Under Rule 15 of the Family Law Rules, a motion to change a final order is to be dealt with on the basis of documentary evidence—affidavits, with exhibits attached. A viva voce hearing takes place only if the court orders. No one moving to change a final order has "a right" to a viva voce hearing.[4]
[9] There are some circumstances in which a viva voce hearing is required to establish whether a material change has occurred. Where there are material facts in dispute such that the court must observe the cross-examination of the parties in order to reach a just decision, a viva voce hearing is required.[5] In my view, a viva voce hearing is not required in this case.
[10] Mark filed two affidavits, sworn November 19, 2013 and July 6, 2015 in this case. In the initial affidavit he addresses what he says have been material changes—Victoria is older than when the judgement was issued, that he now has two other children, and an uncle (not named) has told him that Victoria would like to see him. The change in Victoria's age or to the existence of his two younger children was not disputed. Carla disputes the claim that Victoria wants contact with him. However, Mark's evidence as to the child's alleged wish is, on the evidence before me, not credible for reasons set out further below. No viva voce hearing is required to determine the issue.
Circumstances at Time of August 2010 Order
[11] In order to gauge whether there has been a material change, the circumstances which were the basis for the August 26, 2010 order must be reviewed. The order resulted from a lengthy trial conducted by Justice Katarynych.
[12] Carla and Mark cohabited from 1999 until June 2005. They separated when Mark assaulted Carla in a car, with Victoria present. He was charged and later found guilty of this assault.
[13] Restrictions on Mark's contact with Carla and Victoria resulted from his bail terms. Carla was cooperative in agreeing for Mark to have regular visits with Victoria. Initially those visits were during the day, and later they expanded to overnight stays.
[14] Victoria appeared to enjoy the visits. Then, during one visit in April 2007, the child called her mother, upset, saying that Mark had hurt her "bum-bum".
[15] Victoria said more to Carla and to the maternal grandmother when she returned from the visit. Victoria was so upset that Carla took her to the emergency department of the Hospital for Sick Children (HSC) that night; the examining nurse noted no trauma, but notified police and Catholic Children's Aid Society (CCAS). The next day Carla took Victoria to her pediatrician, Dr. Colangelo, who noticed concerning marks and a discharge in the child's genital area. Dr. Colangelo referred the case to the SCAN (Suspected Child Abuse and Neglect) clinic at HSC.
[16] CCAS advised Carla not to allow overnight access pending its investigation. The court ordered supervised access at Access for Parents and Children in Ontario (APCO), and allowed phone contact between Mark and Victoria to continue.
[17] SCAN's report was inconclusive as to whether there were physical indicators of sexual abuse. The SCAN team noted that this result was not unusual in the cases they dealt with.
[18] The police determined that there was insufficient basis to lay a criminal charge against Mark.
[19] CCAS determined that there was no need to proceed with a protection application, given that in its view Carla was acting appropriately in taking steps to obtain a court order for supervised access. However, Carla continued to work voluntarily with the agency because of concerns about sexualized behaviour and language and acting-out behaviour which Victoria had begun to exhibit.
[20] Mark visited with Victoria at APCO from the fall of 2007 until April 2008.
[21] While at APCO, Mark demonstrated behaviours that disturbed Justice Katarynych. He persisted in having repeated effusive physical contact with the child, kissing her all over her body.[6] When the child protested, he ignored her protests. Sometimes the child responded by licking him on various parts of his body. APCO staff cautioned Mark that his behaviour was inappropriate; he was insulted.
[22] In Mark's phone calls with Victoria, she attempted to tell him that he had hurt her; he became angry with her. After a while, Victoria began to refuse to come to the phone. When Carla insisted, the child picked up the phone but stayed silent.
[23] In April 2008 Mark advised the centre that he would not be attending for visits any longer. He testified that he cancelled access because the staff at APCO objected to his "overly affectionate" behaviour with Victoria and because he felt that he and the child were being "punished" by being required to exercise access there.
[24] In 2009, at the request of CCAS, Victoria was assessed by the SAFE-T (Sexual Abuse Family Education and Treatment) program for "issues related to sexualized behaviour". The assessors found that the child was exhibiting serious symptoms of trauma; they did not identify the source of those symptoms. They recommended that she receive intensive treatment, and that Mark have no access at least until this treatment was completed. They recommended further that if, after Victoria completed treatment, Mark "was unable to provide evidence of the development of strategies and skills necessary for the provision of a safe non-sexualized environment for Victoria" that any access be supervised.
[25] Mark's position in the trial before Justice Katarynych was that Carla had fabricated allegations of sexual misconduct against him out of pure vindictiveness and had coached the child. He was insulted by the allegations. He explained his behaviour with Victoria during visits at APCO as that of a devoted father of "European background", who was perhaps more physically affectionate to his child than fathers of other backgrounds. He said that he must have access and that it must be unsupervised.
Decision of August 26, 2010
[26] Justice Katarynych gave several reasons for her decision that Mark should have no access to Victoria.
Finding 1: Inappropriate Physical Contact and Lack of Understanding
Justice Katarynych made no finding that Mark sexually abused Victoria, but did find:
that Victoria herself believed that her father had "hurt" her by touching her genital area;
that there had been opportunities for Mark to have caused this "hurt";[7] and
that Mark showed no understanding of his daughter's trauma as regards touching or talk about "private parts" (or sometimes, any touching of her body). Mark in fact engaged in aggressive and frequent touching of the child on various parts of her body during visits.
[27] Below are some quotes from the judgement:
"Whatever the objective truth about this sexual abuse allegation - and it may never be known - this young child believes that her Dada has interfered with her genital area and in so doing has "hurt" her. It is her "truth", and a belief that cannot be cast aside as nonsense….
Since the ending of the sleepover access, this child has exhibited an array of both verbal and physical play with her father at the supervised access centre that is tinged with sexual connotation, although she appears to wholly unaware of it.
Her father has exhibited a keen interest in repeatedly caressing this child in various parts of her body while voicing the depths of his love for her in those same visits….
There is legitimate concern that at some point in their interaction alone, the boundaries of touch were cast aside to serve the father's needs….
This father sees no problem with the nature and extent of his physical interaction with this child, nor does he see anything untoward in his verbal overload of this young child….He considers himself entitled to express his love in the fashion to which he is accustomed, asserting numerous times in his evidence and submissions that his interaction typifies the manner in which European families express love to their children….In this court's experience, if this particular interaction is within the effusive expressions of affection that is part and parcel of the father's culture, then it is an aspect of the child's culture that cannot be supported by this court. In any consideration of a child's best interests, the child's physical and emotional safety comes first. She has neither safety in an access with her father until he is able to alter his conduct and curb the exuberance of his desires for this child."
Finding 2: Extreme Hatred of the Mother
Justice Katarynych found that Mark has an intense hatred of Carla that manifests itself during telephone calls and visits with Victoria. Justice Katarynych was concerned that Mark's contact with Victoria would undermine the otherwise healthy stable relationship which the child had with her mother.
[28] Below are some quotes from the judgement:
"Mr. D. has a powerful hatred of this mother and maternal grandmother and displays no motivation to put it to rest….
The telephone calls between Victoria and her father have become opportunity for him to try to inject invective about the mother into this young child's psyche, and to seed in her the idea that her mother is coaching her to say bad things about her father….
The concern of this court is that a man so eaten alive by his hatred is bound to direct that energy to driving a wedge between this child and her mother and maternal grandmother. It is not in this child's best interests to have her father undermine her mother's parenting of her."
[29] Justice Katarynych found that there was no justifiable reason for Mark's hatred of Carla. She rejected his claims that Carla was attempting to block his access, noting the objective evidence that Carla had been more than reasonable in attempting to facilitate access. Justice Katarynych also noted that Mark had brought defamation suits against Carla, as well as maternal grandmother and Dr. Colangelo. (Those claims were ultimately dismissed.)
Finding 3: Self-Absorption and Inability to Prioritize Child's Interests
Justice Katarynych found that Mark was unable to distinguish Victoria's interests from his own, and that he preferred his interests to those of Victoria. She noted that when Mark cancelled his access to Victoria, he focussed on his own displeasure in being required to have supervised access rather than on Victoria's need at the time to maintain a relationship with him.
[30] Below are some quotes from the judgement:
"For example, in one of his telephone calls some weeks before the start of the trial, he told the child some weeks before the start of trial that soon he would be going to court and speaking to the judge so that he can see her again. When Victoria asked him why he doesn't see her any more at the old "daycare" (the mother's term with Victoria for the supervised access centre), his response to the child was essentially reiteration of his stance that he will not see her in that setting, and that if he is "forced" to see her at the daycare, "you will never see Dada".
This father is quite crippled in his self-absorption. I got no sense that he appreciates that reality."
Has There Been a Material Change in Circumstances?
[31] Most of Mark's affidavit in support of his motion reiterated his position in the trial before Justice Katarynych.
"There was never any sexual abuse".
Perhaps Victoria displayed sexualized behaviour because "she realized that sexual comments and actions had a 'shock value': they put her in control of adults".
Carla was and is vindictive, hysterical, and controlling.
Carla's family is "negative, jealous and mean-spirited".
[32] Mark did in his affidavit allege that there were three material changes since the August 26, 2010 decision:
Victoria is older than she was in 2010. "Now that she is older, there should be less concern; she is vocal and has people she can look to".
He has fathered other children since separating from Carla. "Victoria now has a brother and a sister she should have the opportunity of knowing".
"I am informed and believe that Victoria would like to have access not just to me, but to her extended family". In a later affidavit he said that he was told of this wish by an "uncle" whom he did not identify. No affidavit was presented from this individual.
[33] In argument before me, Mark also alleged that his actions in obtaining a psychological assessment constitute a material change.
The Psychological Assessment
[34] Dr. Collins made it clear that his report was an assessment of Mark's "psychological functioning", and not an assessment addressing the issue of whether access should commence. In his report of January 19, 2015, Dr. Collins noted the following:
Mark expressed "a great deal of bitterness" to Carla.
Mark told him that he has two children younger than Victoria, and "is on good terms" with the two mothers of those children. Mark said that one child lived in Europe, and he did not see her much, but that he visits his son Luke, who lives in Ontario, "frequently" and that he had "liberal access to the child.
Mark's life "may reflect an alternation between emotional over-control and relatively intense emotional reactions….he is at risk of intemperate outbursts when he feels overwhelmed with stress". Mark is "currently experiencing considerable situationally related stress".
"There is no compelling evidence in the testing to indicate any unusual sexual preoccupations and his reality testing….is not significantly compromised."
[35] Dr. Collins said that if access was ordered, "traditional supervised access" was not recommended because Mark would feel "humiliated and ashamed". Rather, a mental health professional should be involved who would assist in managing any "difficult feelings" Mark might experience in re-connecting with Victoria. Dr. Collins pointed out that he had no information as to Victoria's readiness to have contact with Mark.
Carla's Position on Material Change
[36] Carla's lawyer says that there has been no material change since the 2010 decision. His client denies that Victoria has expressed any interest in having contact with Mark, and deposes (without contradiction from Mark) that the child sees her paternal uncle "Ernie" and his wife regularly, as well as other paternal family members.
[37] Counsel points out that Justice Katarynych made no finding that sexual abuse had occurred; rather, the decision turned on the corrosive potential effects of Mark's extreme hatred of Carla and on Mark's inability to perceive and act in Victoria's interest. He says that Justice Katarynych's direction that Mark obtain a psychological assessment before initiating any motion to change established a precondition to embarking upon the motion, but that neither the production of the report nor the report's findings constitute a material change.
Mark's Non-Compliance with Disclosure Orders
[38] Carla's lawyer also submits that I should take into account Mark's failure to comply with disclosure orders in assessing the evidence which Mark has produced. The disclosure orders required Mark to produce evidence (e.g., order or written agreement) of his access rights to his other children, and evidence with respect to any criminal charges (e.g., bail terms, decisions, disposition orders) related to the mothers of his other children.
[39] Mark produced nothing with respect to his access to his other children; he said the information was "irrelevant". He added that he has "had access to my son Luke but I prefer to exercise that access with other family members present". Mark produced nothing about any other criminal charges until the day of this hearing.
[40] Carla's lawyer discovered and produced the decision of Justice Nancy Backhouse of the Superior Court which dealt with, among other issues, the custody of and access to the child Luke Benoit, Mark's son with Diane Benoit. Luke is now 2 ½ years old. Mark was claiming custody of the child in that proceeding.
[41] In her decision, dated May 29, 2014, Justice Backhouse found that Mark had "very little involvement" with the child since birth, that he had made no motion for access, that there was an assault charge pending against Mark with respect to Ms. Benoit, and that the parties did not get along. She found that Mark was not a credible witness. She ordered custody to Ms. Benoit and supervised access to Mark at a supervised access centre once a week for two hours. I have no reliable evidence as to whether Mark has actually exercised this access.
[42] On the day of the motion hearing, Mark produced partial pages of a transcript of the decision at his trial on three charges of assaulting Ms. Benoit, which indicated that two charges were dismissed and one withdrawn. Mark advised that he was suing Ms. Benoit in a civil matter, and that he had a further criminal charge pending on what appeared to be a charge of failure to comply with a recognizance.
Conclusion
[43] In my view, Mark has not demonstrated a change in circumstances since the decision of August 26, 2010 that is relevant to the issue of access to Victoria.
The fact that Victoria is older in itself is no reason to re-open the issue of access.
There is no reliable evidence that Victoria herself wishes contact with Mark. If someone did advise Mark that the child wished to see him, I would expect to have seen a corroborating affidavit from that individual. If there had been credible evidence supporting Mark's assertion that Victoria wishes to have contact with him, then I would have considered requesting the assistance of the Children's Lawyer.
There is no reliable evidence that Mark has contact with his two younger children, and thus no reason to believe that access by Mark with Victoria would lead to the development of a relationship between her and those children. With respect to Luke, the child who does live in Ontario, the decision of Justice Backhouse establishes that Mark seriously misrepresented the extent of his relationship with that child. Mark has said how "humiliating" he finds it to be required to attend supervised access of the type that was ordered with Luke. It is not clear whether Mark sees Luke at all.
[44] Other evidence before me demonstrates that there has been no change in the circumstances which were the basis for Justice Katarynych's decision.
Mark shows no acceptance of the fact that Victoria showed serious symptoms of trauma, manifested in sexualized and disregulated behaviour. He shows no understanding as to why his aggressive physical touching of the child would be distressing to her and concerning to the court.
Mark continues to display extreme hatred of Carla. [8] The evidence with respect to his high-conflict relationship with Luke's mother, Ms. Benoit, appears to suggest a similar pattern to that of his relationship with Carla.
Nothing in the evidence suggests that Mark is now less focussed on his own interests and more able to identify and to act in accordance with Victoria's interests than he was at the time of the August 2010 decision. For example, even though Mark says that it is important for Victoria to see him, he will not consider attending supervised access if it is ordered.
[45] I do not consider the fact that Mark obtained a psychological assessment constitutes a material change in circumstances. I agree with Carla's lawyer, that the requirement for him to do so merely set a pre-condition for him to bring a motion to change. There is nothing in Justice Katarynych's decision that suggest that Mark was relieved of the obligation to demonstrate a material change if he obtained this assessment.
[46] Neither do I consider that the findings of Dr. Collins as to Mark's psychological functioning establish a material change in circumstances. As Dr. Collins said, he did not attempt to opine as to whether access should occur. Nothing in his observations or test results indicate that Mark is less obsessed with his negative feelings about Carla or less focussed on his own self-interest as opposed to those of Victoria than he was in August 2010.
[47] Mark's motion to change the order of August 26, 2010 is dismissed. The return date of September 16, 2015 is vacated.
Other Relief Sought
[48] This decision effectively disposes of the case. For the sake of completeness, I will say that if Mark had established a material change in circumstances, then I would not have granted the other relief sought.
[49] Although Mark did not substantially comply with the disclosure orders made, I would not have ordered his pleadings struck. The Court of Appeal has cautioned many times that this relief should only be rarely granted for such non-compliance where a child's interests are at stake.[9] In this case, it was preferable to draw a negative inference from the fact of Mark's non-compliance rather than to strike.
[50] I would also have dismissed Carla's motion to stay Mark's action. The court's power under section 106 of the Courts of Justice Act to order a stay should be reserved "for the clearest of cases".[10] When a stay is granted, the order made usually sets out the terms which the litigant must comply with to have the stay lifted. Carla's lawyer was requesting what in effect would have been a permanent stay, the equivalent of a dismissal.
[51] As for the claim for security for costs, I would not have granted the order because Carla did not establish that there were grounds for such order as required by Rule 23(14).
Costs
[52] If Carla wishes to advance a claim for costs, written submissions of no more than 10 pages shall be served and filed within 20 days. Mark shall have a further 20 days to serve and file responding submissions of no more than 10 pages.
Released: July 27, 2015
Signed: Justice E. B. Murray
Footnotes
[1] Gordon v. Goertz, [1996] 2 S.C.R. 27
[2] Wiggers v. Gray, 2008 SKCA 7, 2008 CarswellSask 10 (C.A.)
[3] Persaud v. Garcia-Persaud, 2009 ONCA 782, O.J. 5940 (O.C.A.)
[5] E.g., Ierullo v. Ierullo, O.J. 3912 (C.A.); Preston v. Markle, 2011 ONCJ 641
[6] "cheeks, face, hands, back, arms, neck, shoulders, hair, stomach, lower back and at one point in the visit of February 23, 2008, where he picked her up and she put her legs around his neck, he kissed her bare belly and crotch area"
[7] Access had been unsupervised, and the child had slept in Mark's bed with him
[8] Late in the hearing before me—after Mark heard Carla's lawyer make this submission—Mark argued that he was no longer concerned with Carla's past mistreatment of him, and that it was time for everyone to "move forward". I prefer Mark's statements in his affidavit and to Dr. Collins as a better indicator of the strength of his negative feelings towards Carla.
[9] King v. Mongrain, 2009 ONCA 486, O.J. 2466