Court File and Parties

Court File No.: D56205/12 Date: March 29, 2016

Ontario Court of Justice

Re: F.M. And: H.P.

Before: Justice Roselyn Zisman

Counsel:

• Renata Kirszbaum, for the Applicant
• David Miller, for the Respondent

Heard On: March 10 and 18, 2016

Reasons for Decision

Introduction

[1] The parties agreed to a one day Rule 1 focused trial with respect to the issue of the Respondent's ("mother") access to the child I.M.S. born […], 2009 ("the child" or "I.M.S."). The Applicant ("father") seeks an order terminating the mother's supervised access or in the alternative, reducing her supervised access. The mother seeks an order for unsupervised access to be gradually increased to alternate week-ends and for holiday access.

[2] It was agreed that the parties' evidence in chief would consist of affidavits to be filed and opposing counsel was limited to one hour of cross-examination. It was agreed that Tara Patterson, a social worker from the children's aid society would testify and her examination and cross-examination would be limited to one hour by each counsel. Timelines for filing of affidavits was agreed upon.

[3] The father relies on his affidavits sworn December 15, 2015 and February 26, 2016. The mother relies on her affidavit sworn February 5, 2016. Both parties attached to their affidavits notes of APCO, the supervised access centre where the mother has been exercising access. Access notes from the children's aid society were also filed as exhibits.

[4] In the trial, I permitted counsel some leeway on these timelines as the father required an interpreter and both parties' did not answer questions directly which then took more time than anticipated. The evidence was heard in one day and then submissions by counsel were heard subsequently. My decision was reserved.

Background

[5] The mother is 44 years old. She was born in Cuba and came to Canada about 17 years ago. She has 4 other children. From birth I.M.S. resided with her and the step-father, P.P.. The father exercised access in the mother's home but was called a family friend.

[6] The mother currently resides in a large one bedroom apartment with her 16 year old son, W.. W. also spends time with his father P.P..

[7] The father is 62 years old and in good health. He is in the renovation business and resides in his own home. He is the biological father of the child. His paternity was confirmed by DNA testing in 2012.

[8] The Children's Aid Society of Toronto ("the society") became involved with the mother in 2002 and again in 2004 with respect to the mother's other children, but the case was closed at intake. The children's aid society again became involved in 2014.

[9] The child was apprehended from the care of the mother in May 2014. The mother advised the society that the child's father was P.P.. The mother's evidence is that she never told the society that Mr. P.P. was the child's biological father and only stated that he was "her father" meaning that she considered him to be I.M.S.'s father.

[10] The society only became aware of the father's existence when the father's counsel wrote to the society and provided proof of his paternity. The father began to exercise access that was steadily increased.

[11] The child was formally placed in the care of the father on October 28, 2014 has remained in his care since that time.

[12] The mother initially had supervised access every week for 2 hours but as of October 31, 2014 her access was reduced to I hour because of concerns about her inappropriate behaviour at access visits.

[13] The society withdrew its protection application when the father obtained a temporary custody order on January 19, 2015.

[14] The father commenced an Application for custody and ancillary orders in November 2014.

[15] On January 19, 2015 the parties agreed to a temporary order. The father was granted custody of the child and the mother supervised access at APCO every Saturday for 3 hours or as agreed if the date and times were not available to APCO. The mother was permitted to bring her son W. to access visits but no one else. The mother was also permitted reasonable unsupervised telephone access once she provided her telephone number.

[16] On March 12, 2015 as the mother was continuing to seek custody to the child, a date was set for a focused trial. As of March 2015, the supervised access at APCO had not yet commenced.

[17] On May 27, 2015 the focused trial proceeded on an uncontested basis. The father was granted final custody. The father was permitted to travel with the child and obtain all government documentation without the consent of the mother. The issue of the mother's access was adjourned to the case management judge.

[18] Subsequently, the mother was ordered to pay costs of $2,400 to be repaid at a rate of $50.00 per month but if the mother was more than 30 days late in making payments the entire amount became due and payable.

[19] On November 4, 2015 the parties attended for a further case conference and as the issues were not resolved, a focused trial was ordered on the access issues.

Evidence of Tara Patterson

[20] Tara Patterson, who was the family service worker assigned to the family, testified that in 2014 the society received an anonymous call and a referral from the police with respect to domestic conflict between the mother and Mr. P.P..

[21] The society had commenced a Protection Application with respect to the mother's child W., who was 14 or 15 years old, seeking a supervision order. On February 13, 2014 a temporary order was made placing both W. and I.M.S. in the care of the mother subject to terms and conditions. Over the next several months although the mother was reluctant to co-operate with the society, no concerns were observed about the care of the children and the mother was no longer living with Mr. P.P..

[22] In May 2014, the society received information that a male who had contact with the mother's family had been charged with sexual interference of a child and a society worker then attended at the mother's home to interview I.M.S..

[23] During the interview, the child made disclosures that "F.M.," that is the father, had inappropriately touched her. The child was apprehended and at a joint interview with the society and police the child did not make a further disclosure. The child was also seen and interviewed at SCAN and she made no clear disclosure. But the society was concerned and when the mother was asked who F.M. was, she indicated he was a family friend.

[24] In July 2015, the mother made another allegation of sexual interference by the father which was not verified by the society or the police.

[25] Throughout the society's involvement, there were protection concerns with respect to the adult conflict and domestic violence between the mother and Mr. P.P., inappropriate physical discipline of the child, neglect, substance misuse, lack of co-operation with the society and overall concerns about the mother's parenting skills.

[26] After the apprehension, Ms Patterson personally witnessed conflict between the mother and Mr. P.P. at access visits that she felt were instigated by the mother. As a result of these disputes, the access visits needed to be changed so that the mother and Mr. P.P. visited separately.

[27] Ms Patterson also testified that the mother's conflict and confrontations with the society staff were chronic; there were many inappropriate exchanges in front of the child. Ms Patterson observed that the child would freeze, have a flat affect or other times, she would just return to the access room. Although the mother would at times be affectionate, interact appropriately with the child and visits were pleasant, at other times the mother would speak to the child in abrupt tones, become angry, talk on her phone while ignoring the child and she was unable to refocus.

[28] The mother's behaviour had become so upsetting to the child that the mother's visits were suspended in July 2014 as despite attempts to redirect the mother during the access visits and speaking to her directly about her behaviour, the mother continued to be highly volatile and aggressive towards others in the presence of the child. It was the view of the society that the visits were causing the child emotional harm.

[29] Ms Patterson wrote to mother's counsel and indicated that the society was prepared to reinstate access but only if the mother agreed to sign an access agreement. The primary terms were that the mother not engage in conflict with society workers or express her anger, frustration or dissatisfaction in the presence of the child. Visits were subsequently reinstated as the mother agreed to the terms of access.

[30] However, Ms Patterson observed that by the Fall of 2014, the mother's behaviour had escalated and the quality of the access visits decreased. The child became increasingly resistant to access visits with her mother, less engaged and more reserved at the visits.

[31] The last access visit observed by Ms Patterson was on Nov 28, 2014 which she described as the worst visit she observed and that the visit had to be terminated. The mother kept probing the child for information about the father, examined the child's body, tried to record the discussion on her cell phone and refused to stop despite being warned by Ms Patterson and despite the child clearly not wanting to talk about her father.

[32] Ms Patterson's primary concerns about the mother related to her inability to stop engaging and involving the child in the conflict and that although the mother could meet the child's basic physical needs, she was not able to meet the child's emotional needs. The mother was unable to place the child's needs over her own needs. There were numerous examples of the mother telling the child to say she wanted to come home, telling her that the society worker kidnapped her and telling the child not talk to the worker. There were other examples of the mother insisting the child look at presents she brought or do what the mother wanted in the visit as opposed to focusing on what the child wished to do.

[33] In cross-examination, Ms Patterson acknowledged that society workers were a "trigger" for the mother and that she understood that she, in particular, was a trigger for the mother as she had apprehended I.M.S.. But the society did not agree to change workers as the mother indicated that she would not co-operate with any society workers.

[34] For the mother's access to become unsupervised, Ms Patterson would have expected the mother to undergo individual counselling, undertake a psychiatric assessment to determine if there were any mental health concerns and undertake drug testing as there had been ongoing allegations about substance misuse. The mother had reported to Ms Patterson that she was attending counselling but never provided any proof.

[35] It was the view of Ms Patterson that based on the concerns observed at the mother's supervised access that there would be a risk of emotional harm to the child in unsupervised visits. Ms Patterson acknowledged that she had no current information about the mother's lifestyle or current partners. However, even if there was evidence of recent positive visits, her opinion would not change as there had also been positive supervised visits in the society offices but the mother had been unable to consistently maintain positive visits.

Evidence of Supervised Access Visits

[36] The mother has exercised supervised access at APCO since May 30, 2015. The visits are every second Saturday from 2:30 to 4:30 p.m.

[37] There have now been approximately 19 visits. The mother has attended consistently and generally been on time.

[38] Both counsel had previously agreed that the APCO notes would be admitted. Both parties rely on different aspects of the visits that indicate both positive and negative interactions between the child and the mother.

[39] I make the following findings:

a) None of the visits were terminated as a result of inappropriate conduct by the mother or as a result of the child wishing to terminate a visit;

b) The child knows that the mother is her mother and at times refers to her either as "mom" or calls her "Heidi" and is then corrected by the mother;

c) The mother is affectionate to the child;

d) The child is affectionate with the mother and she hugs and kisses her mother and says she loves her;

e) The mother refers to Mr. P.P. as "Daddy P.P." and tells her that he loves her which could be confusing to the child;

f) The mother at times has difficulty reading the child's cues; she would try to force the child to engage in activities that the mother wanted rather than engage with the child; at other times the mother was unresponsive to the child;

g) The mother acts childishly telling the child to treat her nicely or she won't play with her anymore, insisting the child tell her how beautiful she is, telling the child she is hurting the mother's feelings if she does not hug her;

h) The mother makes promises to the child that she is unable to carry through such as promising to bring her presents or a ring when she was aware the father would not permit this. The mother also asked the child to telephone her although she was aware this was against the APCO policy;

i) The mother has difficulty following the APCO rules. For example, she brought her son without prior notice, she used her cellphone, she spoke in Spanish, several times she ignored a staff's warning when it was time to go and continued to engage the child in play and on one occasion she wanted to leave before waiting the required 15 minutes for the father to leave;

j) The mother has been confrontational and argumentative with staff. For example, when told not to tell the child to telephone her, the mother told staff that she was I.M.S.'s mother and could ask her anything and talk to her and tell her whatever she wanted. The staff noted, the mother continued to mumble turned her back to staff and was heard to say," I'm her mother, no one can tell me what I can say to my daughter, I'm the parent here, not anyone else" and called a staff a "fucking idiot" when she left the room. On another occasion when the staff told the mother she needed to speak English, the mother became agitated, telling the staff she could speak Spanish, they should get an interpreter for her, that she was not being respected and that she did not like the particular staff member. The supervisor needed to intervene and tell the mother to lower her voice and explain again about the policy; and

k) The mother lied to the staff and told them there was a new court order that permitted her to bring items to the visits when there was no such order.

Summary of the Father's Relevant Evidence

[40] The father was insistent that the child did not want to see the mother and that when he tells her she must go on visits the child says that he should "tell the law" [which she thinks is a person] that she does not want to go.

[41] The father testified that the child feared her mother. He testified that the child had nightmares after the visits and did not want to sleep alone. But then he testified that this has not happened for the last few months.

[42] The father refused to acknowledge that according to the APCO notes, the child was generally affectionate to her mother and would spontaneously hug and kiss her, would tell her mother she loved her and blew kisses when leaving the access visits. The father testified that he did not believe that the child loved the mother and the child's hugs and kisses at the end of the visit were signs that she was happy to leave the visits and happy her mother was leaving.

[43] The father testified that he needed to "save" I.M.S. from "ignorance". He felt the child would not be safe with the mother if she was on her own and at least in the supervised access there is someone to monitor the visits. Also in supervised access visits, the child would not be exposed to the mother using drugs. He testified that she had smoked marijuana in his presence and would not stop when he asked her to and that on one occasion when they were together she put a pill in his drink and drugged him.

[44] He also expressed concerns about the mother removing the child from the jurisdiction as when the society was involved she threatened to kill everyone and to take the children to Cuba.

[45] The father testified that I.M.S. was 7 years old and could decide what was best for her including that she did not want to see her mother and that ending the relationship with her mother would be good for her. He did not know what he would say or how he would explain to I.M.S. if there was an order for a termination of visits. He insisted that if I.M.S. wanted to see her mother he would facilitate the access.

[46] The father insisted that he had never told the APCO staff that the mother could not bring gifts for the child despite being shown the notation to the contrary in the APCO notes. He testified that he only told the staff that the mother could not bring food or clothes and perhaps they misunderstood him. He did not want her to bring food or clothes because he was worried the food could be poisoned and he was also concerned about cockroaches due to his observations of the lack of cleanliness at the mother's home. He testified that the mother had brought a jar of cockroaches to his home and he had kept one as he had planned to put one in the mother's coffee but he did not have the opportunity to do it. He testified that the mother had done many things to him over the years and he wanted nothing to do with her.

[47] Although he testified that the child was doing well in his care, he also testified that she was nervous and was having trouble with her school work. He had just arranged an appointment with a paediatrician to determine if she needed a psychiatrist or other treatment.

Summary of Relevant Evidence by the Mother

[48] The mother testified that she was upset with the society as they took her child away and that Ms Patterson never gave her an opportunity to work co-operatively. She became especially upset when the society suspended her access in July 2014 and forced her to sign an agreement before access would be re-instated.

[49] The mother does not dispute she had ongoing difficulties with the society and that the society alleged that she was acting inappropriately but she testified that was only trying to defend herself.

[50] When shown the letter of July 16, 2014 from the society to her counsel that outlined the society's concerns about her behaviour, she denied that she was volatile, aggressive, yelled and upset the child. She repeated that the society did not give her a chance. She denied that she told the child that she would not see her but then admitted that she did say this one time but she was only kidding.

[51] She testified that the society was wrong to give the father the child as he "touched" the child, the child continues to say this and she believes that the father is sexually abusing the child. Recently at an access visit, the child told her she had a secret and it could only be about ongoing sexual abuse and she has concerns about the child living with the father.

[52] The mother agreed that she called the police on July 11, 2015 and reported that the father was sexually abusing the child. Despite the abuse not being verified, the mother remains firm in her belief.

[53] When shown various excerpts from the APCO visits, the mother denied she had any conflicts with the staff in the presence of the child and that she never swore at staff in the presence of staff. The mother felt there were no difficulties with her visits and her interactions with the child.

[54] The mother testified that if she had unsupervised visits she would be able to take the child out to many different places such as Wonderland, the zoo, a park, a mall and enjoy many other activities with her. She was expecting a tax refund and so would have the necessary funds to attend these places.

[55] The mother deposed that she just started going to school for a literacy program, that she was about to start a program call Expanding the Reach: Empowering Women with Disabilities and that since July 2014 she had attended occasional counselling with a psychiatrist, Dr. Albert Allen.

[56] The mother also deposed that she had completed the following programs in the past:

a) Here to Help program at Yorktown Child and Family Centre in 2012;

b) Nobody's Perfect program at Scarborough Early Years Centre in 2011; and

c) Triple P program at Aisling Discoveries Child and Family Centre in 2011.

Applicable Legal Principles

[57] Any decision with respect to custody and access to a child must always be governed by what parenting arrangements are in a child's best interests.

[58] There is a presumption that it is in a child's best interests to have regular access by a non-custodial parent. It is a fundamental right of every child to have visits, know and maintain or form an attachment to a non-custodial parent. It is only in the most unusual and exceptional circumstances that courts would sever such a right and deny access.

[59] In the case of V.S.J. v. L.J.G. Justice Blishen thoroughly reviewed the prevailing case law and at paragraph 135 summarized 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.R. (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.) .

[60] Justice Blishen went on to remark that in her view, supervised access should always be considered as an alternative to a complete termination of the parent/child relationship, and remarked at paragraph 140:

Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits; the child reacts badly after visits; or, where the access parent continually misses visits or is inappropriate during the access then termination must be considered. See Studley v. O'Laughlin, supra; Worthington v. Worthington , (2000), 13 R.F.L. (5th) 220 (Ont.Sup.Ct.) ; Lacaille v. Manger 1994 CarswellOnt 2089 ; Dixon v. Hinsley, supra

[61] I agree with the observations of Justice Blishen at paragraph 136 of the decision that:

None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child.

[62] Most of the factors listed are also relevant to a consideration of supervised access. As the termination of access is the most extreme remedy, the court must seriously consider if the option of supervised access would be sufficient to protect the child from risk of any harm, continue or promote the parent and child relationship and avoid or reduce the conflict between the parents.

[63] Although supervised access is seldom considered an indefinite or long term solution, it must be considered as alternative to a complete termination of the parent and child relationship.

[64] As stated by Justice Blishen, in V.S.J. v. L.J.G.:

Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits; the child reacts badly after visits; or, where the access parent continually misses visits or is inappropriate during the access then termination must be considered. See Studley v. O'Laughlin, supra; Worthington v. Worthington , (2000), 13 R.F.L. (5th) 220 (Ont.Sup.Ct.) ; Lacaille v. Manger 1994 CarswellOnt 2089 ; Dixon v. Hinsley, supra. If the purpose of supervised access is for the access parent to attend treatment or counselling and there is a refusal or unwillingness to follow through, then, to continue supervised access may not be a viable option. See Pavao v. Pavao, supra; Gorgichuk v. Gorgichuk, supra.

Analysis

[65] In this case, I have considered the legal principles as applied to the factual findings I have made.

[66] I find that the mother's access should not be terminated for the following reasons:

a) There appears to be a positive attachment between the child and the mother. The child knows the mother and is affectionate with her;

b) There is no evidence to confirm the father's allegation that the child is afraid of the mother or reluctant to see the mother. The notes of the supervised access visits suggest the opposite;

c) If supervised access is terminated and any future access arrangements left to the father, he will not encourage any type of contact between the child and the mother as his hatred and disrespect for the mother was obvious;

d) There is no serious neglect or abuse of the child during supervised access visits. The mother is generally appropriate for most of the visits;

e) The mother does not seriously denigrate the father;

f) The supervised access visits at APCO have only been in place for about 9 months;

g) The mother has attended the visits on a consistent basis and has therefore shown a commitment to maintaining a relationship with the child;

h) The child is only 7 years old and not mature enough to decide if she wishes to continue to exercise access to her mother; and

i) Ongoing access with the mother permits the child to have contact with and maintain a relationship with other members of the mother's family and her half-siblings.

[67] I find that the mother's access should continue to be supervised for the following reasons:

a) Despite some positive interactions with the child, even under supervision the mother's interaction with the child continues to be problematic and not child focused;

b) The mother continues to have conflict with the access staff as she did with the society staff who supervised her access visits;

c) The mother has difficulty abiding by the rules of the supervised access centre which leads to concerns that she would follow any conditions imposed on unsupervised access;

d) The mother is not supportive or even accepting of the father's custody of the child and given her attitude she cannot be trusted to not denigrate the father if she was permitted unsupervised access;

e) The mother has no insight into how her behaviour either with the society or now with the supervised access staff impact on the child;

f) The quality of mother's interaction with the child has not improved significantly and she appears unable to sustain an entirely appropriate visit over any period of time;

g) The mother continues to believe that the father sexually abused the child and has reported her concerns to the police. It is probable that if left unsupervised there will be more interrogations by the mother of the child and further allegations;

h) There is a risk that if access was unsupervised that the child would be subject to emotional harm by the mother;

i) The children's aid society had concerns about the mother's mental health. Ms Patterson recommended that before there was any consideration of unsupervised access to the mother that she should undergo a mental health assessment by a psychiatrist. Based on the mother's presentation in court I have the same concerns;

j) The mother has not provided any evidence that she has taken further programs to improve her parenting or any counselling to reduce conflict. It is apparent from the mother's behaviour and interactions that she requires such counselling and further parenting assistance before she will be trusted to have any unsupervised access.

[68] I therefore intend to order a continuation of supervised access. There is no compelling evidence presented to reduce the access as it is already quite limited.

[69] However, I see no reason why the mother should not be allowed to bring gifts for the child that may include any new clothing. The mother will have to follow the rules of the supervised access centre otherwise she risks losing her ability to continue to see the child.

Order

[70] I therefore make the following order:

1. The Respondent, H.P., shall continue to exercise access to the child, I.M.S. born […], 2009, at APCO every second Saturday for two hours from 2:30 to 4:30 p.m. or at alternate times if these times are no longer available to the access centre.

2. The Respondent shall be permitted to bring food, gifts and new clothing for the child.

3. The Respondent shall be permitted to bring family members to the visits in accordance with the rules of APCO.

4. The Respondent shall strictly follow the rules and expectations of APCO with respect to her access visits.

5. The Respondent shall attend for a psychiatric assessment and individual counselling and she shall provide to her counsellor with a copy of her psychiatric assessment and this decision.

6. The Respondent shall attend a parenting program or individual counselling to improve her understanding of the child's development and how to better meet those needs as an access parent.

7. The Respondent shall not be permitted to bring any motions to vary this order until she files with a court a Form 14B, without notice to the Applicant, with proof that she has successfully completed the psychiatric assessment and counselling outlined.

[71] As the result is mixed, I assume that neither party is pursuing costs. However, if either counsel is seeking costs, brief cost submissions should be submitted within 14 days and the opposing counsel shall have a further 14 days to file a response.

Justice Roselyn Zisman

Date: March 29, 2016

Footnotes

[1] In accordance with Family Law Rules 1(7.2)

[2] The respondent is the biological father of the child. The Respondent P.P. is the child's stepfather. He was previously noted in default and did not participate in this trial

[3] Despite this cost order not being paid, the father was agreeable to the trial proceeding.

[4] , [2004] O.J. No. 2238 (SCJ) at para 135 .

[5] Supra, at para. 140