Court File and Parties
Toronto Registry No.: DFO-13-10773 IDVC Date: 2015-07-20 Ontario Court of Justice
Between: K.P., Applicant
— And —
J.H., Respondent
Before: Justice Joseph W. Bovard
Heard on: 15 April 2015
Reasons for Judgment released on: 20 July 2015
Counsel:
- Mini Bhatia, counsel for the applicant mother
- Respondent father, J.H., on his own behalf
Reasons for Judgment
[1] JUSTICE J.W. BOVARD:— These are the court's reasons for its ruling on the parties' motions regarding access argued on 15 April 2015 in Toronto's Integrated Domestic Violence Court. The court apologizes to the parties that it took longer than it originally planned to finish the ruling.
1: Ms. K.P.'s Motion
[2] Ms. K.P. asks for the following orders:
That Mr. J.H. not contact the child's dentist, Dr. Matt Grinstein, or take the child, T.P.T.P., born on […]2002 to the dentist without her consent.
That Mr. J.H. not attend the child's school, St. Thomas Aquinas, except for parent-teacher interviews, which are scheduled at a different time and day as those of Ms. K.P..
2: Mr. J.H.'s Motion
[3] Mr. J.H. asks for the following orders:
Custody
Access (for details see Schedule A to these reasons)
Appointment of the Office of the Children's Lawyer ("OCL")
Non-removal order "preventing the child from being removed from the child's current location, school, province and country, without permission from both parents".
Add Mr. J.H. to the parties' child's birth certificate as her father.
Materials Read for the Motions
All contained in vol. 1 of the continuing record
Ms. K.P.
- Motion at tab 21
- Affidavits at tabs 22, 27
Mr. J.H.
- Amended motion at tab 26
- Affidavits at tabs 5, 15, 16, 18, 23, 24, 26
- Exhibits at tab 25
3: Ms. K.P.'s Motion
[4] I will deal first with Ms. K.P.'s motion.
Regarding Contact with the Child's Dentist
That Mr. J.H. not contact the child's dentist, Dr. Matt Grinstein, or take the child, T.P.T.P., born […], 2002 to the dentist without her consent.
[5] Ms. K.P.'s evidence in this regard is that, on 19 December 2015 (sic – it should be 2014), the parties consented to allow both of them to take T.P. to the dentist, Dr. Grinstein, on written notice to the other.
[6] On 17 March 2015, she took T.P. to see Dr. Grinstein. He repaired a chipped tooth and performed a general checkup. He gave her a letter stating that she is up to date with her regularly scheduled cleanings and that there are no outstanding treatments. The letter is exhibit "A" to her affidavit. T.P. is very comfortable with Dr. Grinstein.
[7] I find that this recent information displaces the letters that Mr. J.H. provided from Dr. Glusica, dated 4 June 2014 and 14 December 2014 that indicated that T.P. was in need of dental work.
[8] Mr. J.H. has gone to Dr. Grinstein's office to book appointments for which he does not have insurance coverage. Dr. Grinstein's secretary told Ms. K.P. that "the situation with Mr. J.H. was getting to be too much for the dental office to handle as it was not their job to deal with court issues . . ." Mr. J.H. got upset with her on the telephone because an appointment was scheduled during his access time on March break. In addition, Mr. J.H. asked for T.P.'s dental records. This is causing stress and embarrassment for Ms. K.P..
[9] Mr. J.H. booked an appointment for T.P. without consulting with Ms. K.P.. He did not advise her that T.P. would have to miss school in order to keep the appointment. Ms. K.P. rescheduled the appointment for 16 March 2015 during March break. She told Mr. J.H.'s sister that he could take her to the dentist then. Mr. J.H.'s sister told Ms. K.P. that it was not appropriate that he have to take T.P. to the dentist during his access time.
[10] Mr. J.H.'s evidence in this regard is that he wishes to find a dentist for T.P. that is at a "closer location" agreeable to the parties. In this way, T.P. would not have to miss school or other activities to go to the dentist. Dr. Grinstein's office is in Toronto. Mr. J.H. relies on public transit to take her to the dentist. Both parties live in Oshawa.
[11] In his affidavit at tab 23, he asks for an order for disclosure of T.P.'s dental, medical and educational records. However, this is not in his motion. In his affidavit, he also asks for an order that Ms. K.P. not interfere with his access, also not in his motion.
Regarding Attendance at the Child's School
That Mr. J.H. not attend the child's school, St. Thomas Aquinas, except for parent teacher interviews, which are scheduled at a different time and day as those of Ms. K.P..
[12] Ms. K.P. states that Mr. J.H. is on a peace bond that prohibits him from being within 100 meters of her or from having any contact with her. The bond is exhibit "B". It terminates on 19 September 2015.
[13] Ms. K.P. is afraid of Mr. J.H. and does not want to unexpectedly run into him at T.P.'s school. The school secretary told her on 8 January 2015 that Mr. J.H. called and asked to be put on the list of persons that can pick up T.P. from school.
[14] Ms. K.P. is also concerned for her son L.P. who goes to the same school. L.P. made allegations of abuse against Mr. J.H.. L.P. is afraid that Mr. J.H. will come to the school and that he will run into him. Until L.P. finishes school in July 2015, she is opposed to Mr. J.H.' attending the school for any other reason than parent-teacher meetings regarding T.P..
[15] Mr. J.H. denies Ms. K.P.'s allegations of abuse against L.P.. He says that the children are bussed to the school so it is unlikely that he would run into Ms. K.P.. He wants to attend school functions with T.P. and to pick her up without the need of a third party, who is currently his sister, M.H..
4: DISPOSITION OF Ms. K.P.'S MOTION
Regarding Contact with the Child's Dentist
That Mr. J.H. not contact the child's dentist, Dr. Matt Grinstein, or take the child, T.P.T.P., born […]2002 to the dentist without her consent.
[16] The current temporary order made on consent on 19 December 2104 states that either of the parties may take T.P. to Dr. Grinstein with 7 days written or verbal notice. It appears from Ms. K.P.'s evidence, not contradicted by Mr. J.H., that both parties failed to follow the order by making appointments with Dr. Grinstein without giving the other notice. The problem that arose could probably have been avoided had they followed the order to which they consented.
[17] This tug of war over the child's dental care is difficult to understand. It seems to be more about power over each other than about T.P.'s dental care. Each party wants to control her dental care. The court has tried to resolve this by allowing the parties the freedom to make decisions about T.P.'s dental care as long as they notified the other party. This has not worked because as stated above they did not follow the court's order on this point even though the court made the order on their consent.
[18] It is not clear to the court why it is in T.P.'s best interest that both parties be allowed to make dental appointments for her. Ms. K.P. is now adequately taking charge of T.P.'s dental care. Dr. Grinstein reports that T.P.'s dental health is fine. This attests to the ability of Ms. K.P. to take care of T.P.'s dental needs. I also take into consideration that T.P. currently lives with Ms. K.P. and that, on consent, she has temporary custody of T.P. pursuant to my order of 21 February 2014.
[19] I understand that Mr. J.H. cares about T.P.'s dental health and that is a good thing. He states that, when he started having access to her, he discovered that she was in poor dental health and he took care of it for her. The poor state of her teeth is borne out by the letters that Mr. J.H. submitted as exhibits to his affidavit from Dr. Glucia, dated 4 June 2014 and 14 December 2014.
[20] However, the evidence shows that now T.P.'s dental health is good and the court is concerned that the parties' continued fighting over this issue is harmful to T.P.. Ms. K.P.'s evidence is that Mr. J.H. is causing problems at the dental office by calling and making demands and getting upset. It would have been better to have evidence of this from someone in Dr. Grinstein's office, but this was not disputed by Mr. J.H. in his evidence. Therefore, I accept that he caused some type of problem with Dr. Grinstein's office.
[21] I find that it is in T.P.'s best interests that this dental conflict cease. In the circumstances before the court, the way to accomplish this is to make one party responsible for her dental care. This is done in T.P.'s best interests, which is the most important consideration, not which party will control her dental care. Therefore, I vary my order of 19 December 2014 and all other orders regarding T.P.'s dental care and make the following temporary order:
The applicant, K.P. shall be the only person that can make dental appointments for the parties' child T.P.T.P., born […].2006, or take her to any dentist. However, she is required to inform the respondent, J.H., via e-mail 7 days in advance of every dental appointment that she makes. She shall also provide updating information via email regarding T.P.'s dental care to the respondent in writing within 5 days of each appointment. This information shall be specific regarding the dental treatment received, her current dental health, and what dental procedures are being contemplated for the future.
The respondent, J.H., shall not contact any of T.P.'s dentists or their offices or anyone that works in their offices without the consent of the applicant, K.P., given in writing via e-mail.
Regarding Attendance at the Child's School
That Mr. J.H. not attend the child's school, St. Thomas Aquinas, except for parent teacher interviews, which are scheduled at a different time and day as those of Ms. K.P..
[22] Ms. K.P.' evidence is that she is afraid of Mr. J.H. and does not want to unexpectedly run into him at T.P.'s school. The school secretary told her on 8 January 2015 that Mr. J.H. called and asked to be put on the list of persons that can pick up T.P. from school.
[23] Mr. J.H. is on a peace bond due to the court finding that Ms. K.P. has a reasonable fear of him. The evidence is that there is considerable strife between the parties. This undoubtedly affects T.P. in a negative manner.
[24] As stated above, it is a positive thing that Mr. J.H. wants to be involved in T.P.'s life, part of which is her education. It will be good for T.P. for him to be an active participant in her school life as long as it can be achieved without there being encounters between Ms. K.P. and Mr. J.H. at the school.
[25] Therefore, the court orders that:
Mr. J.H. not attend T.P.'s school, St. Thomas Aquinas, except for parent-teacher interviews, which are scheduled at a different time and day as those of Ms. K.P., or for any other reason ordered by the court
[26] In submissions, counsel for Ms. K.P. stated that Ms. K.P. agreed to Mr. J.H.'s suggestion that the parties alternate attendance at T.P.'s special school events and activities.
5: DISPOSITION OF Mr. J.H.'s MOTION
[27] Mr. J.H. asked for several heads of relief. I will deal with them separately.
Custody
[28] Mr. J.H. provided an affidavit at tab 26, volume 1, of the continuing record regarding information that he says is contained in children's aid society and police records regarding Ms. K.P.. He states that, "Upon reviewing disclosure, it was discovered that the applicant has an extensive history with the CAS and has been investigated for neglect on more than one occasion". He says that she is "apparently on an Abuser Registry", and she has been hospitalized for mental health issues.
[29] All that the court has is Mr. J.H.'s account of what these records state. The court requires the records themselves before concluding what they say and what importance it has for this case. Consequently, the court cannot place any weight on Mr. J.H.'s interpretation of the records.
[30] Mr. J.H. states in his evidence that, on one occasion in February 2014, T.P. was outside of Ms. K.P.'s home at 4 a.m. crying. In addition, the children's aid society removed Ms. K.P.'s daughter, J., from her home in 2014.
[31] He also states that Ms. K.P. has been involved with the children's aid society during this case, but did not disclose it. He stated in his evidence that there have been occasions in June 2013 and 2014 and August and September 2014 where Ms. K.P. did not care properly for T.P. and her other children. This information is dated. Some of it includes hearsay that is not confirmed through affidavits from the sources. I consider it to be unreliable.
[32] Mr. J.H. believes that the "CAS has failed to protect our daughter and asks your honour to rule in favor of custody to the respondent".
[33] Mr. J.H. did not divulge the disclosure to which he refers because he says he would need Ms. K.P.'s consent.
[34] Ms. K.P. filed a letter, dated 16 April 2015, from Ms. Helen Murphy, Legal Services Manager for Durham Children's Aid Society. She states that, with regard to this disclosure, Mr. J.H. received a vetted file. Ms. Murphy states that the disclosure "has been provided to [Mr. J.H.] on the basis that Mr. J.H. is entitled to information in the society's file pertaining to himself, and . . . T.P.; but not to information pertaining to K.P. or her other children". This calls into question Mr. J.H.'s evidence that the disclosure reveals negative information about Ms. K.P..
[35] The letter states further that Durham Children's Aid Society "currently has no concerns regarding T.P.'s safety in her mother's care". The society's involvement with Ms. K.P. is with regard to another of her children. Ms. K.P. has "been responsive to services being provided and has been motivated to work with the society".
[36] Ms. Murphy says that the society's primary focus is in "providing support to Ms. K.P. in dealing with issues relating to T.P.'s older half-sister and in assisting Ms. K.P. with personal counseling needs with past abuse her former partner, J.H.".
[37] Mr. J.H. claims that T.P.'s improved performance in school came about since his access to her increased.
[38] Mr. J.H. points out that he took the first steps to address T.P.'s poor dental health. He also states that he has improved her life in other ways as well. For example, helping her to overcome her fear of needles, heights, snakes, and performing on stage.
[39] The evidence is that T.P.'s dental health has improved as has her performance in school. It is plausible that Mr. J.H.'s increased involvement in her life has been a causative factor in these improvements.
[40] However, Mr. J.H. provided very little evidence with regard to how a change in custody would benefit T.P.. For example, he did not explain in a specific way what his plan for her care is. He did not provide any evidence from his family members that he says will assist him in caring for T.P. on a full-time basis.
[41] I find that, at this point, whatever the benefits his involvement will bring to T.P.'s life can be achieved by increased access.
[42] There is not sufficient evidence to prove that it would be in T.P.'s best interest to change custody. This request is denied.
Appointment of the OCL
[43] Mr. J.H. wants the court to request the involvement of the OCL "to investigate the new information" that he refers to above that he read in the disclosed children's aid society and police records.
[44] Given my comments above about the "new information" to which Mr. J.H. refers, and to Ms. Murhphy's comments about the nature of the information, I do not think that it is appropriate to request the OCL to conduct such an investigation.
Access
[45] This forms the bulk of Mr. J.H.'s requests. The court has made many access orders. For the sake of clarity, the court will reproduce the parts of the current access orders that are relevant for the purpose of Mr. J.H.'s motion. They are in descending chronological order — the earliest first.
21 February 2014, pursuant to the parties' written consent . . .
(a) On a temporary basis: Mr. J.H. shall have access commencing on 28 February 2014 as follows:
(i) Alternate weekends, semi-supervised at the home of T.P.'s aunt, M.H. from Friday at 6:00 p.m. to Sunday at 6:00 p.m.
(ii) Mr. J.H. shall arrive at Ms. H…'s home one hour after T.P. is dropped off and leave one hour prior to Ms. K.P. coming to pick up T.P..
(iii) T.P. shall sleep at Ms. H…'s home during the access period. Mr. J.H. is allowed to take T.P. out by himself into the community during the access weekend.
(iv) Such other access as agreed to by the parties in writing.
11 April 2014 . . .
(a) On a temporary basis: the court varied its order of 21 February 2014 to allow T.P. to spend Saturday nights at Mr. J.H.'s home. Nothing else in the order of 21 February 2014 was varied.
13 June 2014, pursuant to the parties' written consent . . .
(a) On a temporary basis: Mr. J.H. shall have access every second weekend from Friday at 3:30 p.m. to Sunday at 6:00 p.m. He shall pick up the child from his sister's home one hour after drop off and shall "leave her home" one hour prior to Ms. K.P.'s picking up the child.
(i) Mr. J.H. shall not take the child from […]Avenue during the access.
(b) On a temporary basis: Mr. J.H. is entitled to one week of access in August from Friday August 1st to Friday August 8th according to the regular pick-up and drop-off schedule.
(i) Any such other access as agreed between the parties in writing or as arranged through the paternal aunt, M.H..
5 December 2014, pursuant to minutes . . .
(a) On a temporary basis, telephone access as follows: once a week on Tuesday from 6:00 p.m. to 6:30 p.m. Ms. K.P. shall have T.P. call Mr. J.H..
(b) On a temporary basis, on long weekends Mr. J.H.'s access shall be extended by one day.
(c) On a final basis: Christmas Eve and Christmas day: Without limiting any other access that may take place during the Christmas break, Mr. J.H. shall have access on alternating even years commencing 2014 from December 24th at 7:00 p.m. to December 25th at 7:00 p.m. On odd years, the mother shall have the Christmas Eve and day access regardless of the father's access schedule.
[46] Mr. J.H.'s evidence shows several important things about his commitment and ability as a parent and about T.P.'s progress. The salient factors are the following:
There are many pictures of Mr. J.H. and T.P. enjoying a wide variety of recreational and educational activities together;
Mr. J.H. completed two parenting courses in 2014. His reference letters indicate that he performed well in the courses;
Several letters from friends who have known Mr. J.H. for long periods of time attest to his parenting skills and to his care and love for T.P.;
A letter from the Boys & Girls Club of Durham attests to his leadership and good work with children as a volunteer;
T.P.'s performance in school has improved between 27 June 2013 and 9 February 2015.
[47] Ms. K.P. opposes Mr. J.H.'s request for increased access because T.P. "needs structure and routine and needs to spend time with her siblings as well as her parents". She states that it would be disruptive for T.P. to have to change her schedule.
[48] Ms. K.P. agrees to an increase in access to allow for a visit on Wednesdays from 3:00 p.m. to 8:00 p.m. She says that it is important that, during the week, T.P. spend her nights at home because it "gives her stability". Ms. K.P. agrees that, starting in September 2015, Mr. J.H. could pick up T.P. at her school.
[49] The court is not persuaded that one overnight access during the week that Mr. J.H. does not have T.P. for the weekend will disrupt her stability in any significant manner.
[50] Ms. K.P.'s counsel advised in her submissions that Ms. K.P. also agrees to Mr. J.H.' having access to T.P. for two weeks in August and two weeks in July, but not for one month consecutive.
[51] Ms. K.P. fears that Mr. J.H. is "seeking to increase the conflict that T.P. is exposed to as part of his litigation". One night in January 2015, T.P. had a nightmare that Ms. K.P. was going to jail. T.P. said that Mr. J.H. and his sister said that Ms. K.P. was going to jail. Ms. K.P. states that T.P. told her that Mr. J.H. and his sister speak negatively about her within earshot of T.P..
[52] Ms. K.P. agrees that neither party should be allowed to remove T.P. from Ontario without the other's consent. She does not agree that she not be allowed to move T.P. from her current address. She does not plan to change T.P.'s school, but she wants to be able to move. She is afraid of Mr. J.H. and feels that this is a way that she can protect herself. As it is, he moved from Toronto to Ajax where they live.
[53] After considering the parties' evidence and their submissions, the court makes the following temporary orders regarding access between Mr. J.H., and the parties' child. All existing orders with regard to access are varied as required to give effect to the following orders.
Between the date of this order and the commencement of school in September 2015, J.H. shall have access to the parties' child T.P.T.P., born on […]2002, on alternate weekends as is currently the case, except that his access shall begin on Fridays at 3:00 p.m. and end on Mondays at 9:00 a.m. This access shall commence on Mr. J.H.'s next access weekend after the date of this order and according to the schedule now in place. The pickup and drop offs remain as they are now according to the court's last order.
(a) When T.P. returns to school in September 2015, Mr. J.H. shall have access to her according to the same alternating weekend schedule except that his access shall commence on Fridays after school and extend to Mondays. Mr. J.H. shall pickup T.P. at school on Fridays and return her to school on Monday mornings.
(b) If Friday is a holiday, Mr. J.H.'s access shall commence at 10 a.m. on Friday. He shall drop off T.P. at school on the following Monday morning.
(c) If Monday is a holiday, Mr. J.H. shall keep T.P. until Tuesday morning when he shall drop her off at school.
Until school begins in September 2015, on the weeks that Mr. J.H. does not have weekend access to T.P., he shall have access to her on Wednesday from 3:00 p.m. until Thursday mornings at 9:00 a.m. [1]
(a) After school starts in September 2015, on the weeks that Mr. J.H. does not have weekend access to T.P., he shall have access to her on Wednesday by picking her up after school to Thursday morning when he shall drop her off at school. This shall commence on the first week in September on which he does not have weekend access.
Summer holidays 2015
(a) Mr. J.H. shall have access to T.P. for two continuous weeks in August and July 2015. If he has not yet had access in July, he shall take it during the remaining days of July. In August he may make up for the days short of two weeks that he had in July. However, he shall not have access for more than three consecutive weeks in August. He shall immediately upon receiving this order notify Ms. K.P. by e-mail of which weeks he wants access.
(b) For each day of his summer access, Mr. J.H. shall inform Ms. K.P. by e-mail before 9 a.m. regarding the activities in which T.P. will be involved on that day.
(c) Ms. K.P. shall have telephone or other electronic access to T.P. once a day during Mr. J.H.'s summer access. Ms. K.P.'s access shall not interfere with Mr. J.H.'s access.
Telephone and other electronic access
(a) At all times the parent that is not with T.P. shall have telephone or other electronic access to her once a day. This access shall not interfere with the other parent's time with T.P..
School activities and events
(a) According to the parties' consent, the court orders that they shall attend T.P.'s school activities and special events on an alternating basis.
(b) Ms. K.P. shall attend the first event and thereafter, the parties shall commence alternating.
Other access orders
(a) The court declines to make orders regarding other holiday access, professional development days in T.P.'s school or sibling birthday access because the parties did not provide sufficient evidence for the court to be able to make these orders. The parties should consult each other through counsel for the purpose of agreeing to an access schedule, which can be presented to the court on their next appearance.
Non-removal
(a) Neither party shall remove T.P. from her school, residence, or the Greater Toronto Area unless the other party consents in writing or the court orders it.
Adding Mr. J.H. as the T.P.'s father on the birth certificate
(a) This is a matter for the government's department of vital statistics.
Next Steps
This matter will return to the Integrated Domestic Violence Court on 7 August 2015 for a case conference on access and child support. Both parties shall serve and file case conference briefs and 14C confirmations. The case conference briefs shall be limited to 5 pages, including attachments. If this date is not convenient to the parties, they may request a new date by way of a 14B addressed to the Honourable Justice Steven R. Clark.
Released: 20 July 2015
Justice Joseph W. Bovard
[1] These hours may seem odd, but this is what Mr. J.H. requested. I assume that he did so because according to his schedule this worked the best.