Court File and Parties

Ontario Court of Justice

Date: 2015-02-19

Court File No.: Halton 306/14

Between:

Jason Clifford James Grindley Applicant father

— And —

Julie Copithorne Respondent mother

Before: Justice Sheilagh O'Connell

Heard on: January 30, 2015

Reasons and Decision released on: February 19, 2015

Counsel:

• Susan Berry, counsel for the applicant father
• Brian Burke, counsel for the respondent mother

O'CONNELL J.:

1. Introduction

[1] The applicant, Jason Clifford James Grindley, ("the father") has brought a motion for unsupervised access to the child Tianna Amy Elizabeth Copithorne Grindley, ("Tianna"), born June 3, 2006. Tianna is now 8 years old.

[2] The respondent, Julie Copithorne, ("the mother") vigorously opposes this motion and believes that the temporary order for supervised access should remain in place at least pending the completion of a custody and access assessment that is proceeding in this case.

[3] The father currently exercises supervised access to Tianna every Wednesday from 4:30 to 7:30 p.m. and every Saturdays from 10:00 a.m. to 7:00 p.m. This order was made on a temporary, without prejudice basis, on consent of both parties on November 22, 2014. The access is supervised by Braedon Supervision Services Inc. The cost of the supervision is paid for by the father.

[4] At the same time the parties entered into the November 22, 2014 order, they also agreed to appoint Dr. Irwin Butkowsky to conduct as assessment of the issues of custody and access, pursuant to section 30 of the Children's Law Reform Act.

[5] The father requests that the access he is currently exercising be unsupervised. At this time, he is not seeking any further expansion of access pending the completion of the assessment by Dr. Butkowsky. This assessment is currently underway and expected to be completed in another four to five months, according to counsel.

2. Background Facts

[6] The father is 44 years old. The mother is 49 years old. The parties were involved in a relationship between 2005 and November of 2013. The parties were never married. The child's principle residence has always remained with the mother in Oakville, Ontario and the father would live with the mother and child from time to time at the mother's home throughout the approximately eight years of their relationship. The father always maintained his own home, and when the parties separated, he returned to his own home permanently.

[7] The parties dispute how much time the father would spend at the mother's home with the mother and Tianna and the mother's son from a previous relationship (now age 17). The father says that he was primarily living at the mother's home. The mother disagrees, although she states that between September of 2011, when Tianna was 5 years old and November of 2013, when Tianna was 7.5 years old, the father slept most nights in her home and then returned to his own residence in the mornings to shower and dress.

[8] The parties do not dispute that Tianna has always been in the primary care of her mother, and that since the parties separated, the child has been in the de facto custody of the mother, a period of more than one year. It is also not disputed that the father ended the relationship, not the mother.

[9] The parties dispute the nature of the father's involvement with Tianna's care during the parties' relationship and they dispute the efforts that the father made to maintain his relationship with Tianna after the separation. The father describes his relationship with the mother as "high conflict". The mother acknowledges the conflict in the parties' relationship, but attributes this conflict almost entirely to the father.

[10] Immediately after the separation in November of 2013, the father exercised access to Tianna in the mother's home and the mother invited him to the home for meals and visits with Tianna. It is not disputed that after approximately three months, these visits in the mother's home did not continue.

[11] There was a critical incident between the parties that occurred shortly after the separation. This occurred on January 27, 2014.

[12] It is not disputed that the mother came to the father's home on that evening. Tianna was not present. The parties engaged in an argument. The father states that he wanted the mother to leave and that he asked her several times to leave his home, but she refused. The mother deposes that the father threatened to push her down the stairs of his home, and that he forcibly brought her down the stairs of his home towards the exit, and then punched the wall close to her head in violent anger. The father admits that he was angry when the mother refused to leave and that he punched a door, but that it was not next to the mother's head. He denied threatening to push her down the stairs and states that he held her arm while taking her to his front door because she requested assistance.

[13] After this incident, the mother states that the father's requests for visits were sporadic and that the visits themselves were short. The father states that he made numerous attempts to establish regular access to Tianna which the mother resisted or refused. He states that he stopped visiting Tianna in the mother's home because he did not want Tianna to be exposed to the parties' conflict regarding their relationship and that he felt uncomfortable. The father had weekly visits with Tianna in the community, usually always in the presence of the mother, and no more than a few hours each.

[14] The father introduced into evidence a number of emails that he sent to the mother which suggest that he did make several attempts to establish regular access to Tianna between February 2014 and June of 2014 after the critical incident in January of 2014.

[15] On July 18, 2014, the father commenced his application for joint custody of Tianna, with a shared or equal parenting schedule. The father states that he commenced this application after the mother refused repeated requests for a regular access schedule. He states that after he commenced his application for joint custody and shared parenting, he had very little contact with Tianna.

[16] On November 24, 2014, the first case conference in this matter was held. At this case conference, the parties agreed that the father would have supervised access to Tianna every Wednesday from 4:30 to 7:30 p.m. and every Saturday from 10:00 a.m. to 7:00 p.m., which was incorporated into a temporary, without prejudice basis order. The access is supervised by Braedon Supervision Services Inc. The cost of the supervision is paid for by the father. The parties also agreed to the "section 30" custody and access assessment to be conducted by Dr. Irwin Butkowsky. The case conference was then adjourned to December 19, 2014 to monitor and review the access.

[17] In his affidavit in support of his motion for unsupervised access, the father deposes that he agreed to a temporary supervised access order "in an attempt to establish that his access need not be so restricted…such that the court would have the perspective of a neutral third party as to [his] interaction with Tianna."

[18] On December 19, 2014, the matter returned for a continuing case conference. At that time, the father's access to Tianna was reviewed and the parties were unable to agree upon any changes to the access schedule. The father indicated that he wished to bring a motion to expand his access and to seek unsupervised access. The motion was scheduled before me on January 29, 2015.

3. The Mother's Position

[19] The mother believes that the father's access to Tianna should remain supervised, at least until the completion of the custody and access assessment and Dr. Butkowsky's recommendations, for the following reasons:

(a) The father has a history of violence towards both Tianna and the mother;

(b) The mother does not believe that the father is able or willing to make appropriate parenting decisions;

(c) The father has a history of substance abuse issues.

4. The Father's Position

[20] The father believes that the mother wants to restrict his access because she does not want him to have joint custody or shared parenting with Tianna. The father describes the parties' relationship as high conflict and dysfunctional. However, he denies that there was a history or pattern of violent behaviour by him, towards the mother or Tianna. He acknowledges the incident of violence that occurred on January 27, 2014, shortly after the separation, when he punched the door in his home in the mother's presence, however he states that this was an isolated incident. He further denies that he has an alcohol or substance abuse problem, or that he is unable or unwilling to make appropriate parenting decisions.

5. Summary of the Evidence

A. The Mother's Evidence

[21] In the affidavit evidence filed, the mother describes a relationship that was an unpredictable cycle of violence and mistreatment by the father. She deposes that the father was often volatile, regularly becoming irrationally angry, swearing, being physically violent and "walking out on the mother and Tianna". She states that the father had a history of disengaging from their lives and disappearing for days and weeks at a time. Although the father's anger primarily manifested itself in verbally abusive behavior, there had been more severe incidents which she describes as follows in her affidavit:

1. During an argument when the mother was pregnant with Tianna, the father was verbally abusive to her and told her that, "If you ever try to keep this baby from me I will take care of you." She also deposed that the father had told her that he had connections to a criminal organization on the East coast and that he would have her, "taken care of".

2. The father has hit and "flicked" Tianna on the head. When Tianna was an infant the father attempted to grab the gearshift in the car and throw it into reverse while the car was moving forward in an extreme fit of sudden anger. She deposed that he grabbed the steering wheel while she was driving, exposing them all to a serious risk of accident while he attempted to get out of the car.

3. When Tianna was approximately three years old, the father violently grabbed and carried Tianna upstairs with such force and anger that Tianna's head struck a doorframe as he brought her to the bathroom.

4. The father had threatened to hit Tianna when he is frustrated with her behavior and that he speaks to her in a demeaning manner.

5. The father has repeatedly disappeared from Tianna's life and that he withholds affection from her.

6. Tianna has exhibited symptoms of anxiety prior to and following the parties' separation and prior to and following visits with the father.

[22] After the incident on January 27, 2014, where the mother stated that the father threatened to push her down the stairs and punched the wall near her head, she contacted the police. The police declined to press charges, and according to the mother's evidence, she was advised that there was no "criminally actionable threat" and that the threat was "conditional". The police did not interview or contact the father.

[23] A copy of the police occurrence report for that incident was filed. It does not appear that the mother alleged any criminal offence by the father, such as threats or assaults. It is not disputed that this was the first time that the police were involved with the parties. There have been no other police occurrences or charges.

[24] The mother filed an affidavit of her former nanny sworn January 26, 2015 in which Tianna apparently told her former nanny a number of years ago that she was scared of the father. The mother also filed an affidavit of her father, Tianna's maternal grandfather, sworn January 26, 2015, in which he states that he closely observed Tianna while in the presence of her father during visits a number of years ago when the grandfather had visited them. The grandfather deposes that he "sensed her anxiety in his presence". He further deposed that in 2009, when Tianna was three years old, he witnessed the father hit Tianna across her head and that he has seen the father drink heavily.

[25] The mother also has significant concerns about the father's familial history and the effect that it has had on his own emotional well-being, mental health and his ability to make decisions regarding Tianna. The mother included an affidavit of the father's sister's ex-husband indicating issues with the father's sister. It is not disputed that the father's sister and her former spouse are in high conflict custody litigation at this time. The father's sister has custody of the child of their marriage. The mother claimed that the father's sister was sexually abused by their father (now deceased) when she was approximately 12 years old and that their family, and in particular the father's mother, are extremely dysfunctional.

[26] The mother deposes that the father's ability to behave sufficiently well on the eight supervised visits that have occurred since the temporary order does not dispel the need for further supervision. She further deposes that the father has little to no experience in caring for Tianna.

B. The Father's Evidence

[27] The father denies that he has been physically violent towards the mother or Tianna, or that there is any history of violence, that he has any substance abuse issues, or that he is not capable of making appropriate parenting decisions regarding Tianna.

[28] The father describes the relationship between the parties as a high-conflict one. He acknowledges that the verbal conflict occurred sometimes within Tianna's earshot however he deposes that both he and the mother were at least equally responsible for the conflict in their relationship. The father described the mother as "tirelessly" addressing whatever she felt were the issues between them and "constantly criticizing" him in the presence of Tianna and her son from a prior relationship.

[29] The father describes a pattern in which he would leave in order to stop escalating the conflict between them and retreat to his own condominium where he would stay for a few days at a time. The mother would then pursue him and convince him to try again to repair the relationship and return to her home and then the cycle of escalating conflict would begin again. This was a pattern of behaviour that he and the mother were trying to address in counselling with their marriage counsellor.

[30] The father acknowledges that he did become angry during these arguments with the mother as the mother would refuse to let the issues drop and repeatedly insisted on having discussions about sensitive topics in the presence of Tianna. He would withdraw from his relationship with the mother and that there were times when he was absent from Tianna's life. However, he states that he never missed a holiday or special day with Tianna and that he attempted to contact her by telephone daily.

[31] When he became aware that the mother was alleging that he had substance abuse issues, the father voluntarily obtained drug and alcohol testing through Accu-Metrics Laboratory. The father obtained a hair shaft drug screen report dated September 11, 2014. According to the drug screen report attached as an exhibit to his affidavit, the period covered prior to the hair sample tested was approximately 90 days. The hair sample was tested for amphetamines, cocaine and metabolites, opiates, phencyclidine, marihuana and alcohol. The report provided indicated a negative result for all drugs and alcohol tested.

[32] Further, when the father became aware through the mother's answer to his application that she alleged that he had anger management issues, the father attended an anger management program with James Harkins, a counsellor with Courage to Change Counselling. The court recognises that the report is of limited value, given that the father had only started to attend sessions with Mr. Harkins at the time the report was prepared. Mr. Harkins writes that the father "has low anger issues as I feel this is due to situational issues regarding his children and visitation rights. He made excellent progress in all areas of the program; he kept all scheduled appointments and continues to make good choices." The Court notes that the report is dated September 15, 2014 and Mr. Harkins, when writing the report, had only begun seeing the father in September of 2014, according to the date on the report.

[33] The father denies that he has ever physically or verbally abused, struck or hit Tianna or that he ever threatened Tianna with violence. The father acknowledges that Tianna did hit her head on a door frame when he was holding her when she was approximately four years old. However, the father describes the incident as an accident. When Tianna was approximately four years old, she was having a temper tantrum at bedtime about brushing her teeth. The father describes being frustrated with her behaviour, so he picked her up and carried her to the bathroom. On the way, Tianna threw her head back and hit her head on the door frame. The father states that he did not attempt to harm Tianna nor was he violent or physically aggressive with Tianna.

[34] The father states that at the time this occurred, the mother acknowledged that it was an accident and that it could have happened to anyone. Further, during her counselling sessions with her counsellor, the mother described this incident as an accident, not as a deliberate or uncontrollably angry action by the father to harm Tianna.

[35] The father deposes that he has never spanked Tianna, nor has he ever hit her in anger. The father's evidence is that he and the mother agreed that they would not use corporal punishment on Tianna and that when Tianna misbehaves they would use 'time-outs' for discipline. According to the father, he asks Tianna to go to her room when she misbehaves.

[36] The father does acknowledge "tapping" Tianna on her forehead, not flicking her forehead as the mother described. When Tianna is doing something improper the father will tap her on the forehead and say, "Think about that, you're a smart girl, use your head."

[37] The father denies that he has ever threatened to kill or harm the mother and, in particular, denies the mother's evidence that he threatened to take Tianna away from her and to kill her when she was pregnant with Tianna. The father denies that he has connections to a criminal organization on the east coast or to the criminal underworld and that he has ever threatened the mother with any potential links to a criminal underworld.

[38] When the father was in his late teens, having just moved to Halifax with his family, he got into trouble with other youth and was charged and convicted with breaking and entering wherein he received an 18-month probationary sentence. The father states that he has never been in trouble with the law since that time and is in the process of obtaining a pardon. However, he did advise the mother that one of the people he knew from Halifax but who he had not been in contact with for many years had allegedly been killed by the Hell's Angels. This was the extent of the conversation.

[39] The father takes responsibility for his part in the conflict between the parties, and the negative impact this conflict has had on his relationship with Tianna. According to the father, he ended the relationship with the mother because the counselling was unsuccessful in addressing the negative and dysfunctional patterns in the parties' relationship.

[40] The father obtained, with the consent of the mother, the counselling records of their marriage counsellor, as well as the mother's counselling with the relationship counsellor, Janet Goodhoofd. These counselling records were filed as an exhibit in the motion before me, on consent of both parties.

C. The Counselling Records

[41] The counselling records filed cover a period of approximately 1.5 years in the parties' relationship ending approximately in the summer of 2010. The notes describe a pattern in the parties' relationship in which a conflict would emerge, and then the father would get angry and leave. The relationship pattern described by the counsellor in the notes is one of "pursuer/distancer." The counsellor notes that both parties reported a lot of fighting and eventually the father would reach a flashpoint and experience an angry outburst and then leave the home.

[42] There is no report of any physical violence in these notes, either towards the mother or towards the child. The counsellor's notes also indicate that during arguments the mother did not want the father to leave, so she would take his keys and jacket to prevent him from so doing. The notes also indicate that the mother would attend at the father's home and would refuse to leave his home, or call him repeatedly, sometimes fifteen times consecutively.

[43] There is nothing in the notes that indicate the mother is afraid of the father or that the father is verbally abusive to the child. However, there is a note that the Tianna notices the father being rude to the mother. There is nothing in the notes that indicate the mother is fearful of the father. Most significantly, in the last counselling session in which the mother attended on her own, the only fear that the mother reported is that the father would get "50 per cent custody" if the parties separated.

[44] The counselling notes also refer to the incident in which the mother described in her affidavit materials of the father being so angry with Tianna that he hit her head on the door frame causing Tianna physical harm. During a counselling session in which the mother was alone with the counsellor, the mother reported to the counsellor that "by accident [the father] bumped Tianna's head", then she "threatened him court case" and "he apologized." These notes support the father's evidence that the incident was an accident and not as a result of the father physical aggression towards Tianna.

D. The Supervised Access Reports from Braeden Supervised Access Inc.

[45] The father has had eight supervised visits at the time the motion was argued. The visits were supervised by Braeden Supervised Access Services, an independent but private agency that provides supervised access services in custody and access disputes. The father paid for the supervised access services, at a cost of $55.00 per hour, plus $25.00 for access reports. On holidays, the fees are $82.50 per hour.

[46] The supervised access reports were filed as exhibits in these proceedings. The father's access was supervised in his home and in the community on Wednesdays from 4:30 to 7:30 p.m. and on Saturdays from 10:00 a.m. to 7:00 p.m. The supervisor met the father, the mother and child at the Tim Horton's, the agreed upon pick-up and drop-off for access. The father, Tianna and the supervisor would then spend the Wednesdays and Saturday visits in the community and in the father's home where he would prepare dinners and lunches for Tianna during the visits.

[47] The reports describe that although Tianna was a bit quiet initially when she first started the visits with her father, Tianna and her father have a warm, loving and affectionate relationship. The father was well planned and organized, having activities and games for Tianna and he to do together, and he would prepare healthy lunches and dinners for her. Tianna is described as "happy", "laughing", "giggling" and comfortable in her father's care. Tianna and her father are described as holding hands together in the community while shopping for Christmas gifts or looking for a Christmas tree. Tianna appeared excited as she wraps Christmas presents or decorates the tree at her father's home. She is observed to hug and kiss her father spontaneously and affectionately. The supervisor does not observe any anxiety on Tianna's part when she is with her father and both exchange "I love you" comfortably.

[48] None of the reports provided, which are quite detailed, raised any concerns about the relationship between Tianna and her father, or Tianna's interaction with her father.

[49] What follows is a typical example from one of the visits that took place at the father's home while the father was preparing lunch for Tianna:

Lunch was bacon and scrambled eggs. Tianna worked on the tree and would take a break, do another activity or check something with dad. Both parent and child were involved in baking cookies for the afternoon. At the previous visit dad had purchased candy canes, so Tianna asked if she could try them. Dad let her know that she could choose a couple, but she could not try all of the flavours. Tianna made her choice. At this point Tianna and dad made hot chocolate, which Tianna informed the writer was their specialty. She enjoyed having the candy cane with the hot chocolate.

Tianna asked if she could put Christmas presents around the tree which were there. She was given permission to do this and took great delight in placing them around the tree. One of the activities planned was to decorate the outside balcony with a lighted garland. While dad did the tying, the writer and Tianna helped with holding the garland in place.

There were mini short breaks where dad and Tianna would just cuddle on the couch and watch a movie that was on. Late afternoon, a snack of fruit was offered to Tianna.

Dad was cognisant of time and started preparing dinner at about 5:30 p.m. They had ravioli for dinner. Tianna enjoyed this and requested only to have cheese and not sauce. Dad prepared this for her and there were no issues with her eating the dinner.

[50] At the end of each visit there are goodbyes, hugs and usually "I love you's" between Tianna and her father. Overall, the supervised access reports describe a loving and affectionate relationship between Tianna and her father.

7. The Law and Governing Principles

[51] Section 24 of the Children's Law Reform Act ("the Act") sets out that the court must make custody and access orders in the best interests of the children. This applies to both temporary and final orders. The court considered the relevant best interests criteria set out in 24 (2) of the Act.

[52] It is well established that a child should have maximum contact with both parents if it is consistent with the child's best interests. See Gordon v. Goert, [1996] 2 S.C.R. 27 (S.C.C.). There is a presumption that regular access by a non-custodial parent is in the best interests of children. It has been held that the best interests of the child are met by the child having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. See Pastway v. Pastway, (1999) 49 RFL (4th) 375 (S.C.J.).

[53] Therefore, 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 (O.C.J.), per Justice Robert Spence.

[54] In Miller v. McMaster, 2005 CarswellNS 420 (N.S. S.C.), the court held that "supervised access is not a long-term solution to access problems which usually arise in high conflict custody and access cases where distrust and negative parental allegations abound." At paragraph 11 of that decision, the court held that supervised access is appropriate in specific situations, some of which include the following:

a) Where the child requires protection from physical, sexual or emotional abuse;

b) Where the child is being introduced or reintroduced into the life of a parent after a significant absence;

c) Where there are substance abuse issues; or

d) Where there are clinical issues involving the access parent.

8. Analysis

[55] The court recognizes that the affidavits filed on the motion for unsupervised access are conflicting and the parties have very different views of the relationship except to say that there was conflict, the relationship was volatile, and that the father chose to end the relationship. The father also acknowledges that the mother has been Tianna's primary caregiver and has had de facto custody of Tianna since the parties separated over one year ago.

[56] Nevertheless, I note the following:

1. There is no evidence of any reports to the children's aid society by any professionals involved with the family, such as the mother's counsellors, the family doctor, and the parties' marriage counsellor, nor is there any evidence that the mother reported any child protection concerns about the father to her counsellors or other professionals;

2. It is not disputed that the police have never been involved with the family but for the one incident post-separation described above on January 24, 2014, when the mother attended at the father's home and then later called the police after she left. The police declined to press charges and the occurrence report filed does not indicate any criminal or threatening behaviour by the father.

3. The counselling records of the mother do not disclose any reports of violence and abuse by the father towards the mother or towards Tianna, nor is there any history or pattern of domestic violence reported by the mother to her counsellor in these records. Indeed, according to the counsellor's notes filed, the mother described the incident in which Tianna's head hit the doorframe while the father was holding her when she was approximately three years old as "an accident". The father was not present during this counselling session; the mother was alone with her counsellor. This contradicts the mother's affidavit evidence filed in this proceeding in which she does not describe the incident as an "accident" but rather directly caused by the father's anger. The only fear that the mother expressed to her counsellor during that session was that the father was seeking joint custody and shared parenting.

4. Notwithstanding the mother's position that the father is verbally and physical abusive towards her and Tianna, the mother's affidavit does not contain specific examples or details of a pattern of physical violence towards her and Tianna, with the exception of the above incident that occurred on January 27, 2014 when the father punched the wall and the incident when Tianna was three years old when the Tianna hit her head on the door frame while her father was holding her.

5. It is not disputed that there have been no incidents of violence between the parties since the incident that occurred on January 27, 2014, after the separation, when the father punched the wall or door during an argument with the mother at his home after the mother came to his home. Tianna was not present when this occurred. This occurred more than one year ago. In my view, it appeared to be an isolated and situational act of violence, closely following the parties' separation when emotions and tensions between the parties were at their height. There was simply insufficient evidence to demonstrate that this incident was part of a long standing pattern and history of domestic violence between the parties, perpetrated by the father. The evidence filed did not support this.

6. It is not disputed that there have been no incidents of violence, stalking or abusive behaviour reported by the mother to friends or family during the relationship, nor are there any reports of harassment, or stalking behaviour, either during the parties' relationship or since the separation over one year ago. There was no evidence of this in any of the mother's material. Indeed, it is not disputed that it was the father who ended the relationship, not the mother, and it was the mother who attended the father's home post-separation and refused to leave.

[57] Notwithstanding the maternal grandfather's evidence that he sensed Tianna's anxiety in the father's presence several years ago, and the affidavit of the mother's nanny in which she states that Tianna told her that she was scared of her father also a number of years ago, the reports filed from the supervised access agency paint a very different story. These reports were prepared by independent supervisors between November 2014 and January of 2015, and are the most recent independent evidence of Tianna's demeanour and disposition around her father.

[58] There is no evidence in these reports that Tianna expresses any anxiety in her father's care. I recognise that parents in supervised access settings are usually on their best behaviour and that the environment can be artificial and strained. However, Tianna and her father were observed in the father's home and the community over a period of several hours. The reports demonstrated a close, loving and affectionate relationship between Tianna and her father. The father was appropriate throughout and well able to prepare meals and organise activities for Tianna.

[59] Further, Tianna is now 8.5 years old. She will be 9 years old in June. She appears to be a bright and articulate girl. I did not hear any evidence of special needs. Although she is still a child, she is able to express herself and verbalize her feelings, unlike an infant, a toddler or a very small child.

[60] It appears that Tianna has a very close relationship with her mother and that by all accounts, the mother has provided excellent care for Tianna. The court is concerned that Tianna may be sensing her mother's fear and anxiety as a result of these court proceedings, or perhaps feels that her father has abandoned mother and her, thus impacting on her relationship with her father. It is hoped that the parties will be able to resolve the outstanding issues with the assistance of Dr. Butkowsky as soon as possible.

9. Conclusion and Order

[61] Having carefully reviewed all of the evidence filed and in applying the legislation and the legal principles set out above, I conclude that supervised access is no longer necessary nor is it in Tianna's best interests. I am not prepared to expand the father's access further at this time (to include overnight access) but I order that the current access to continue on an unsupervised basis. I will also impose a number of conditions on the father's access as additional precautions.

[62] I therefore make the following temporary order:

1. Commencing Saturday, February 21, 2015, the father shall exercise access to the child, Tianna Amy Elizabeth Copithorne Grindley, born June 3, 2006, every Wednesday from 4:30 to 7:30 p.m. and every Saturday from 10:00 a.m. to 7:00 p.m., subject to the following conditions:

a) The father shall not consume any alcohol during the visits or for at least twelve hours before the visits commenced.

b) The father shall not use any physical discipline.

c) The pick-up and drop off of the child shall be at a mutually agreeable location. If the parties are unable to agree upon the location, then it shall continue to be at the Tim Horton's location used for the pick-up and drop off of the child during the supervised access.

[63] I have included the conditions out of an abundance of caution, not because I have found sufficient evidence to verify these concerns. The father has also agreed to those terms. I also impress upon both parties that it is in Tianna's best interests that the access be stable and consistent so that she can be assured that her father continues to have a meaningful role in her life. The parties should make every effort to avoid cancellations.

[64] If either party wishes to address the issue of costs, then the party seeking costs shall serve and file written submissions no later than ten days from this Order. Any response to be served and filed within seven days after receipt of submissions. The costs submissions should be limited to three pages, not including the bill of costs and any offers to settle attached.

[65] I thank counsel for their very helpful submissions and the case law provided, which was of great assistance.

Released: February 19, 2015

Signed: "Justice Sheilagh O'Connell"