Court File and Parties
Court File No.: 152/07 Date: 2016-05-10 Ontario Court of Justice
Between:
(a) K. S. Applicant
(b) — AND —
(c) L. M. W. Respondent
Before: Justice Barry M. Tobin
Heard on: April 4th and 5th, 2016
Reasons for Judgment released on: May 10, 2016
K. S. ……………………………………………………………in person
Dawn Melville ………………………………….Counsel for the Respondent
REASONS FOR JUDGMENT
1: The Motion to Change
[1] The Applicant brought a motion to change a final order requesting that access to his child be expanded and unsupervised.
[2] The Respondent also sought a change to the existing access provisions but a much less expansive one than requested by the Applicant. She also sought a change in the Applicant's child support obligations.
[3] On February 17, 2016, Justice Ross directed that this case be tried.[1]
2: The Parties and Original Court Order
[4] The Applicant, K. S., ("father") and the Respondent, L. M. W., ("mother") cohabited from December 1, 1999 until December 7, 2004.
[5] Their child, O. J. W., ("child") was born …, 2006 ("child").
[6] The Order currently in force dealing with custody of and access to the child was made by Justice Fuerth on January 30, 2009 ("the Order"). The Order gave effect to Minutes of Settlement entered into by the parties.
[7] When the Order was made the child was 27 months old. He is now 9 years old.
[8] The Order provides that the mother have custody of the child.
[9] With respect to access, the Order provides that the father's access is to be supervised at a supervised access facility "pending further order of the court (a minimum of 1 visit per week)." The father was ordered to complete a parenting program as well as an anger management program at an accredited facility.
[10] Under the Order, the father's child support obligation is $85.00 per month based upon an annual income of $13,500.00. He is also to pay his proportionate share of childcare expenses being $50.00 per month.
3: Issues
[11] The issues to be decided in this case are:
Has there been a material change in circumstances such that access should be changed?
If there has been a material change in circumstances,
- a) what access should the Applicant have with the child?
- b) should access continue to be supervised?
- c) if access is to be supervised, to what extent should it be?
What are the Applicant's ongoing child support obligations?
What is the amount of child support arrears and how should it be repaid?
4: Facts
4.1 The Father
[12] The father is 44 years of age. He is employed on a full-time basis in a factory and on a part-time basis in food services.
[13] The father lives with his mother and another male person in a townhome. Neither his mother nor the other person, to the father's knowledge, has a criminal record or past involvement at a Children's Aid Society. He is part of a large family including many nieces and nephews ranging in age from 4 to 32. He is close with all of them.
[14] The Applicant's living quarters are in the basement of the townhome.
[15] He is involved in sport and leisure activities in his community.
[16] Shortly after the case was started, the father took an anger management program chosen by the mother. There was no evidence presented that the father participated in a parenting program after the Order was granted.
[17] Under the terms of the Order, the father began exercising access at a supervised access facility and did so until May 2012. Access at that facility stopped when it closed.
[18] The father was not able to begin exercising access again for approximately a year after the facility closed because the parties were not able to find a suitable alternate supervisor. Eventually, access did begin again in 2013. It was supervised by two persons who offered this service on a private basis. This supervision continues to the present and takes place primarily at the father's home. On occasion the supervised access takes place in the community. The father is solely responsible for the $40.00 per hour fee for supervision charged by the supervisors. At present, this amounts to $160.00 per month.
[19] When access started in 2013 it took place every second Friday from 5:00 p.m. until 7:00 p.m. This was the case until February 2016.
[20] For the last two months, access has started at 4:30 p.m. every other Friday with the first half hour being unsupervised. At the time of the trial, there had been 8 such visits scheduled. The child did not attend the first two but attended the last six.
[21] When access resumed in 2013, the mother purchased a cell phone for the child. The current arrangement with respect to the use of the phone is that the father texts the child on Monday or Tuesday of the week of access with a proposed access activity. The child responds later in the week indicating whether he wishes to participate in that activity. The phone is also available to the child during access so that he may call the mother if he wishes.
[22] In late March 2016, an access visit took place on a Saturday morning instead of Friday evening so as to accommodate an activity the father proposed and the child agreed to attend.
[23] The father acknowledges that the child is not always comfortable with him during access. The father understands that some of this discomfort is because he is loud. The father says he is loud because he must be heard by the supervisor. For the most part, however, the father sees the child as having a positive time when they are together.
[24] The child sees Dr. Phillip Ricciardi, whose evidence will be dealt with further on in these Reasons, for counselling related to access issues. The father has not contacted Dr. Ricciardi recently because it is cost prohibitive for him. The hourly rate is $175.00 and his evidence is that he cannot afford this fee. The father is aware that the child has been given strategies by Dr. Ricciardi to deal with any discomfort he may feel during access. One of the strategies is that the child will say 'stop' if he is not comfortable. The father described the child as being "taught to use words. Dad is to obey."
[25] One example of the child's discomfort at access was when the child arrived for access, the father was on his cell phone, yelling. The father told the child and access supervisor that he would step outside. The telephone call the father was on was with a bill collector from his cell phone provider. The father was very angry with the bill collector. It did not dawn on the father to end the call when the child arrived. According to the father, "that is what people do in regular life."
[26] The father sees the child as an active boy who likes sports, "is articulate with his words" and has a "fast memory." The child has shared details of his life with the father including things about his pet, extra-curricular activities and best friend. Many of the activities that they engage in during access are sports-related or have a physical component.
[27] The father acknowledged having made mistakes - mistakes in general, but not with respect to the child.
[28] The father is also aware that the child is not comfortable meeting with his family members. However, the father sees this as very important. He wants the child to meet his extended paternal family.
4.2 The Mother
[29] The mother lives in Essex County and does all of the driving to and from the father's residence in Windsor so that access can take place. The driving time from the mother's home to the father's home is approximately 50 minutes. While access takes place she waits for the child in her car.
[30] She describes the child as doing well in school both academically and socially.
[31] He is involved in a variety of activities.
[32] One activity is swimming, the season for which starts in September and ends in early July. The child practices or attends meets after school on Monday, Wednesday, Friday and Saturday each week. If the meet is out of town, he will participate on Saturdays and Sundays.
[33] The Friday access visits result in the child missing that evening's practice. That is the arrangement the mother said she made with the child.
[34] On Tuesdays the child takes piano lessons.
[35] When the swimming season ends at the beginning of July, the child plays baseball. There is some overlap between those two seasons. Baseball was the child's choice. Games and practices take place on Tuesdays, Thursdays and weekends.
[36] The child also continues with swimming on his own twice a week during the summer.
[37] Every other Tuesday (or sometimes on Thursday) the child meets with Dr. Ricciardi.
[38] The child has something going on almost every day of the week.
[39] When access stopped in 2012 due to the closing of the supervised access centre then used, the mother looked for an alternate provider. A new supervised access centre opened in Windsor in July 2012. The mother did not find this centre to be acceptable because it did not have a waiting area for her to stay while the child had access. Also, the centre staff did not want her waiting nearby in her car. The mother was not prepared to take the child to a place where she could not wait.
[40] In May 2013, she did find the two supervisors who now provide access supervision.
[41] The mother believes she is supportive of the father having access. She encourages the child to go on access by having him respond to the father's texts about weekend activities, even though this causes dissention in their household. She purchased the phone to allow the child to take on access so he could call his mother if he wanted to. The child sees Dr. Ricciardi at her expense every second week. This has been the case since the child was approximately three years old. She suggests activities that the child would want to partake in in an effort to facilitate and support access.
[42] The mother is becoming concerned about some of the child's behaviours. He shows anger and frustration. At times he appears agitated. He wakes up with nightmares. Though not stated directly, I understand the mother to suggest that the behaviour described was due to the child's reaction to access. Context and details of these concerns were not provided. The Court cannot find that they all pertain to or arise from the current access arrangements.[2]
[43] If the father were to have some responsibility for transportation, third parties would be necessary as the father does not have his driver's licence. When asked if third parties could do some of the access exchange drives, the mother said no because the child doesn't know them.
[44] In cross-examination, the mother was asked if she would be willing to attend family counselling. After some hesitation she said she "would need to speak with [the child]. But I would say no."[3]
[45] Despite both parents wanting access to be successful, the two do not communicate directly with one another.
4.3 Dr. Ricciardi
[46] Dr. Ricciardi was qualified following a voir dire, as a psychologist able to give opinion evidence on issues related to psychological and emotional concerns arising in children experiencing family separation. His evidence in-chief was comprised of three reports dated July 31, 2014, April 7, 2015 and March 28, 2016 respectively. The evidence contained in these reports was supplemented by his oral evidence.
[47] Dr. Ricciardi has been providing counselling services to the child since at least December 2009. Originally, he was engaged by counsel for the parties[4] to provide assistance.
The July 31, 2014 Report
[48] The July 31, 2014 report directed to Ms. Melville makes reference to a letter of July 2013 in which Dr. Ricciardi outlined his opinion and made specific recommendations related to the child's access with the father. The psychologist also noted that he had not directly observed the child's interactions with the father. His opinions and recommendations were based solely on his sessions with the child, information relayed by the mother and a review of access notes compiled by the supervisor. The report discusses in detail the access visit where the father was on his cell phone with the bill collector.
[49] This report discloses that:
"[o]ver the sessions I have assisted [the child] in developing strategies and ideas to address any particular concerns he might have with respect to visits. For example, [the child] expressed some discomfort with the smell of cigarette smoke in the home and he was provided with ideas on how to handle this. He does not feel comfortable in identifying this as a concern with his father as he is uncertain as to the nature of [the father's] response (e.g. make fun of him, ignore him or get upset)…
Apart from how to respond to specific incidents and concerns raised by [the child] time has been spent with him on how to enhance the interactions between father and son. It is my understanding that [the father] has made some efforts to engage his son during visits… It is my impression, however, that [the child] feels some obligation to bring various games and activities with which he can engage his father. [The child] has described going outside of the house on occasion to a nearby park, but it does not seem that access activities have evolved very much since the start of visits… I would anticipate or expect that [the father] would be taking a more active lead in planning activities and outings for [the child] during access visits, such as, going to see a movie or some other activity."
[50] It was Dr. Ricciardi's impression at that time and now that the child wants supervision as he feels that the father does not always listen to him.
The April 7, 2015 Report
[51] The April 7, 2015 report was prepared in response to the endorsement of Justice Ross, dated February 10, 2015 requesting that he prepare a report for the Court on the needs of the child and the parents.
[52] This report reveals that the psychologist directly observed interactions between father and child in 2011 with a goal of providing the parties with information and recommendations concerning changes to supervised access. The recommendation at the time was that supervised access be gradually reduced. Other factors to consider at the time (2011) were the duration of the visit, attendance of other parties, the mechanism for exchange and how timely communication between the parents might take place.
[53] From that time (2011), Dr. Ricciardi saw the child on a fairly regular basis and provided the mother's lawyer with updates and information relating to the child's perception of visits, as well as recommendations relating to access based upon his clinical observations and ongoing evaluation of the child.
[54] Also in this report, Dr. Ricciardi noted that he was particularly mindful of balancing the need to protect the child's privacy during sessions in order to maintain the therapeutic rapport he had established, and assist him in attending access with the need to provide all parties with information that would be of assistance in determining next steps.
[55] It was Dr. Ricciardi's professional opinion that the child is quite anxious that he may experience some form of recrimination from the father if the child's views and preferences were made known to him in their entirety. Dr. Ricciardi observed that the child's perceptions of access visits had not evolved as hoped for, given the length of time that had transpired and the change of location to the father's home. Dr. Ricciardi was of the view that the mother had supported the occurrence of access by taking steps to facilitate and promote it. The child continued to experience discomfort and some apprehension in his interactions with the father. He was able to identify for the psychologist a number of situations in which he felt uncomfortable about what was communicated to him by the father, as well as the nature of interactions he has had with him. The child was uncomfortable discussing his concerns directly with the father.
[56] Between July 2014 and April 2015, Dr. Ricciardi's impression was that the child's reluctance to attend access visits had increased. Dr. Ricciardi invited the father to discuss the visits with him and to see whether he could make any suggestions that might promote and facilitate access. The father declined this visit because the father saw Dr. Ricciardi as being an impediment to access progressing.
[57] This report concludes as follows:
"It is my professional opinion that to date, [the child] has yet to acquire a level of security and/or comfort during access visits that might enable the format and/or aspect of the visits to change. It is also my opinion that to initiate changes to access at this point in time would only increase or exacerbate [the child's] reticence. It is even possible that he might become actively resistant to attending access visits in the future under such circumstances. It is apparent that when scheduled access adversely impacts or interferes with a preferred activity or event, [the child] experiences even greater reluctance. Such situations are only likely to increase in frequency over time as [the child] matures and his interest in activities naturally grows over time. Despite his relatively young age, [the child] is capable of appreciating the consequences and impact that would come of making his views and preferences known with respect to his current access and any potential changes that might be contemplated... [emphases added]."
[58] Appended to the April 7, 2015 report was Dr. Ricciardi's email to Ms. Melville of July 3, 2013. It was he who suggested that the visits occur between 5:00 p.m. and 7:00 p.m. on alternate Fridays and they involve only the father. It was also Dr. Ricciardi who recommended that the mother remain close by in the event she is required to pick the child up early.
The March 28, 2016 Report
[59] The last report dated March 28, 2016 was prepared to provide the Court with an up-to-date report of Dr. Ricciardi's therapeutic involvement with the child for the purposes of the upcoming trial. Ms. Melville also asked the psychologist to address the question "of the benefits and repercussions of changing the current access schedule…"
[60] Between April 7, 2015 and March 28, 2016, Dr. Ricciardi met with the child approximately 21 times. These meetings started with the psychologist meeting the mother on her own for the first 15 to 20 minutes separately from his meeting with the child. The purpose of this meeting is to receive an update as to the child's week, including her perceptions of the child's access with the father. He then provides the mother with an update as to the previous therapy and the goals or focus of the upcoming session.
[61] It remains Dr. Ricciardi's opinion that the child's perceptions of access with the father have not evolved to the degree that he [the psychologist] would have hoped for "…given the length of time that has transpired and despite the changes that have been implemented..." It is also the psychologist's opinion that the "slow progress noted is not attributable to factors such as setting, context, frequency, duration and/or supervision, but rather the nature of [the child's] feelings and perceptions towards [the father] which are independent of these factors."
[62] According to the psychologist, the child continues to characterize his perceptions of the father as something less than positive and "these perceptions are due in large part to how [the child] experiences certain actions and behaviours of [the father] during access. This is not the constant perception. The child has identified situations where he has enjoyed access."
[63] It is Dr. Ricciardi's opinion that "despite his relative young age (nine years, four months) [the child] is capable of appreciating the consequences and impact that would come of making his views and preferences known with respect to his current access and any potential changes that might be contemplated." He believes his mother is supportive of access. The child continues to struggle with feeling secure or comfortable during access visits. This concern, according to Dr. Ricciardi, arises at least in part because the child is concerned that the father's behaviours during access will not change.
[64] I find that Dr. Ricciardi fairly gave evidence as to his observations and impressions of the child. However, it is clear to me that he is aligned with and supportive of the mother and protective of the child. This is understandable. He has worked with the mother and child for approximately six years. He also has a well-established therapeutic relationship with the child.
[65] Dr. Ricciardi's evidence is that his opinions and recommendations "…are from the perspective of what I believe [the child] requires based on my understanding of [the child's] feelings, thoughts and perceptions and preferences with respect to access."[5]
[66] I also find that Dr. Ricciardi's evidence is helpful in understanding those factors which have tended to limit the warmth and trust one would hope for in the child's relationship with the father.
4.4 The Access Supervisor
[67] Neither party called the access supervisor, nor were supervision notes tendered in evidence.
5: Legal Considerations
[68] The legislative authority to change the access provisions contained in the Order are found in Children's Law Reform Act section 29 which provides as follows:
- A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.
[69] The first step required by this section is to determine if there has been a material change in circumstances. A material change is one that:
has occurred since the Order was made;
has substantially affected the child's needs or the parent's ability to meet those needs; and
was not reasonably contemplated or anticipated when the Order was made.
[70] In other words, the moving party must show that the circumstances have changed since the last order was made to such an extent that the current arrangement is no longer appropriate.
[71] If a material change is found to have taken place, the Court must then determine what is now in the child's best interests.
[72] The determination of best interests is based upon a consideration of all the child's needs and circumstances, including those set out at Children's Law Reform Act subsection 24(2) which provides as follows:
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10.
[73] The Court must ascertain a child's best interests from the perspective of the child, rather than that of the parents: Gordon v. Goertz, [1996] 2 S.C.R. 27.
[74] No one factor in the statutory definition of a child's best interests is to be given statutory pre-eminence. Wilson v. Wilson, 2015 ONSC 479.
[75] "Best interests" is an imprecise, vague and difficult legal criteria to define and apply,[6] particularly in the context of access in this case.
[76] In Young v. Young, a decision of the Supreme Court of Canada, the majority decision considered the issue of best interests one of balancing harmful conduct against the benefits of promoting parental contact. McLachlin C.J.C. stated at para 210:
"The risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered. This is particularly so where the issue is the quality of access – what the access parent may say or do with the child. In such cases, it will generally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a free and open relationship which permits the child to know the access parent as he or she is. It goes without saying that, as for any other legal test, the judge, in determining what is in the best interests of the child, must act not on his or her personal views, but on the evidence."
[77] In Macedonio v. Peers, 2016 ONCJ 174 at paragraph 58 Justice Zisman held that:
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.
[78] If necessary the Court may give directions it considers appropriate for the supervision of access: Children's Law Reform Act s.34(1).
[79] One purpose for the Court-ordered supervised access is to allow a child to develop or maintain a relationship with a non-custodial parent. Another purpose of supervised access is to protect a child in circumstances where unrestricted access would pose a risk to the child. This would include a risk caused by a child's negative emotional reaction to access.
6: Application of Legal Considerations
6.1 Has There Been a Material Change in Circumstances?[8]
[80] The parties consent to a finding that there has been a material change in circumstances. I agree. When the Order was made the child was a toddler. Now, he is nine years of age. His developmental needs have changed significantly. The purpose of supervised access when first ordered allowed for the introduction of the child to the father in a safe manner. This purpose is no longer required. The child knows who his father is. It is that knowledge which now causes the child some trepidation which supervision is supposed to address.
[81] The supervised access originally ordered and the access regime subsequently carried on by the parties has not worked as expected. After almost six years of supervised access, the child does not yet have a free and open relationship with the father.
6.2 Best Interests
[82] The issue now to be determined is what access would be in the child's best interests.
6.2.1 Father's Position
[83] The father wants unsupervised access four to six hours every weekend. He also requests the opportunity to allow his family to meet the child and spend time with him. The father wants to be able to attend and watch the child at his extra-curricular activities and have unrestricted contact with the child by telephone. He also asks that he be able to discuss matters of concern with the mother.
[84] The father recognizes that the child enjoys extra-curricular activities and is willing to accommodate them when scheduling access.
[85] In sum, the father wants access on a regular schedule that will expand to overnights on the weekend and on special occasions.
6.2.2 Mother's Position
[86] The mother requests access take place on alternating Fridays, unsupervised for one half hour between 4:30 p.m. and 5:00 p.m., and supervised from 5:00 p.m. until 7:00 p.m. The periods of unsupervised access are to be subject to certain conditions. The father is to notify the child by text on Monday or Tuesday before the access visit of the proposed activity. The child will have the choice of participating or not. If not, there will be no unsupervised access. Unsupervised access can increase to 60 minutes per visit. Another condition is that the mother may be able to attend the unsupervised access if the child asks.
[87] The mother also proposes that the father be able to text the child daily between 5:00 p.m. and 7:00 p.m.
6.3 Problems with the Current Access Regime
[88] The existing access schedule and mode of access has not brought about the intended relationship between the child and father.
[89] Why has this been the case? A number of reasons seem to suggest themselves.
The Father's Behaviour at Access
[90] The father's behaviour at access is an important factor. Though I was not provided with firsthand evidence from the access supervisor, the father does acknowledge that some of his behaviours may not be helpful during access.
[91] I have also admitted and considered the child's hearsay evidence as provided through Dr. Ricciardi on the basis of necessity and reliability. There are times when the father and child do get along and access is positive. Both the child, through Dr. Ricciardi's testimony, and the father agree that this is the case.
[92] When the father is loud it is upsetting to the child.
[93] The father is competitive and boastful in a manner that is overbearing. This is upsetting to the child.
[94] The father can be gruff, and at times, not respectful of the child.
[95] He teases him.
[96] In acting as described, the father does not seem to understand the child's sensitivities or sensibilities. It is as if the child comes over to the father's home for a playdate. The father in the current supervised access arrangement acts as the child's friend, not his parent. It is not clear how the father has or if he can set expectations as a parent and to determine what will happen if they are not met.
The Mother's Behaviour Regarding Access
[97] The mother professes her desire that the child have a positive relationship with the father. This is to her credit. Some of her actions though do not appear consistent with this desire.
[98] The child is engaged in extra-curricular activities almost every day of each week throughout the year. Whether it be swimming, baseball, piano lessons or a meeting with Dr. Ricciardi, access is an interruption. This should not be the case. Access should be the priority, not the afterthought or interruption. As Dr. Ricciardi noted in his April 7, 2015 report:
"It is apparent that when scheduled access adversely impacts or interferes with a preferred activity or event [the child] experiences even greater reluctance. Such situations are only likely to increase in frequency over time..."
[99] The evidence did not disclose that the mother did anything since the release of that report in April 2015 to address this factor. It was recognized as a problem but access continues to interfere with extra-curricular activities.
[100] The cell phone was given to the child when he was approximately six years of age so he could stay in contact with the mother during access.
[101] The mother would not leave the child at an access centre where she could not wait.
[102] The mother waits nearby so that she is readily available to get the child if something goes wrong during access.
[103] The mother, at the request of the child, has to remain within the child's eyesight during the unsupervised portion of access.
[104] The mother undertook these steps a number of years ago at the suggestion of Dr. Ricciardi.
[105] After so many years of undertaking this practice, it seems to reinforce for the child that access might be a risky or unpleasant proposition.
6.4 Best Interest Considerations
[106] The first of the subsection 24(2) factors requires a consideration of the love, affection and emotional ties between the child and the father. The evidence in this case is clear that those ties are weak. This is so after many years of supervised access in the circumstances described in these Reasons. As it remains the desire of the child's parents that he have a positive relationship with the father, any access arrangement must attempt to foster those ties.
[107] The father and child should have the opportunity to engage in different activities. It does not always need to be about sports or competition. The opportunity for different and shared experiences in a safe environment will present that possibility. Activities like sharing a meal, going to a movie, taking a walk, and other non-competitive activities may be of help. In short, access should occur in such a manner as to allow the child to develop a relationship with the father as a parent and not just a playmate or friend.
[108] Any access arrangement must also take into account that at this time, the child's views and preferences for access range from negative to ambivalent to enjoyment.
[109] It remains the responsibility of the mother and the father to change the existing access arrangement to allow the father to demonstrate that he has the ability to act as a parent.
[110] Some supervision of access continues to be needed to take into account the child's past experiences and current need for a sense of security. This sense of security is supposed to be met by an adult being present during access to help the father moderate those of his behaviours that upset the child. What is not clear from the evidence tendered on this trial is why this has not been effective so far.
[111] Subsection 24(4) requires the Court to consider whether a person has at any time committed violence or abuse in a domestic context when assessing that person's ability to act as a parent. At the time the original Order was made, the Applicant agreed to participate in an anger management program. He has done so. There is no evidence that the Respondent has been a party to domestic violence or abuse since the making of the Order.
[112] There are a number of family members on the father's side that the child does not know. The reason expressed through Dr. Ricciardi for the child not seeing his paternal grandmother is that she may be like the father. I am satisfied that any access regime should allow the child to gradually and safely be exposed to his paternal grandmother, and at some point, his paternal relatives so that he might have the possibility of a relationship with that side of his family.
[113] The access proposed by the father is not in the child's best interests at this time because it does not provide the child with the comfort, which on the evidence he needs now. A reduction in the amount of supervision and an increase in access time should take place over a brief period.
[114] The father and mother need to demonstrate – through their actions – that access will be positive and that the father is and should remain an important person in the child's life.
[115] The access proposed by the mother is not in the child's best interests because it perpetuates the arrangement that has not seen the father and child relationships develop as expected.
[116] The current plan is not working.
[117] I find that it is in the child's best interests that access take place:
a) with less supervision and that it move to no supervision;
b) without interfering with extra-curricular activities;
c) without the mother signalling, even if unintentionally, that there is risk to attending access by waiting nearby, just in case, and asking the child if that is what he wants. Both parents must parent this child;
d) with the father having more time to engage in activities with the child beyond sports and be a parent;
e) recognizing that the child will require some time to adjust to changes in access; and
f) so as to allow for the introduction of the extended paternal family.
[118] The father shall have access as follows:
a) Gradually increasing the length of access visits
For the months of May and June 2016, every second Sunday beginning May 15, 2016, from 4:00 p.m. until 6:00 p.m.[9]
Beginning in July 2016, every second Sunday from 3:00 p.m. until 6:00 p.m.
If the mother is to be away from her residence on vacation during the months of July and August 2016 when access is scheduled to take place, the access that would have otherwise taken place shall be made up on the next following Sunday after her return from vacation.
Beginning in September 2016, access will take place every second Sunday from 3:00 p.m. until 7:00 p.m.
The mother shall not schedule any extra-curricular activities for the child during periods of access.
Beginning July 2016 the father shall have telephone access one time per week for up to 15 minutes at a time arranged by the father and the mother which does not interfere with the child's extra-curricular activities.
The father may text the child daily between the hours of 5:00 p.m. and 7:00 p.m. This is as proposed by the mother.
The child shall be entitled to call, text or communicate by electronic means with the father whenever he wishes to do so.
b) Decreasing the amount of supervision
The access shall be supervised as follows:
a) during the months of May and June 2016 from 4:00 p.m. until 5:30 p.m.;
b) during the months of July and August 2016 from 3:00 p.m. until 4:30 p.m.;
c) during the months of September and October 2016 from 3:00 p.m. until 3:45 p.m.; and
d) beginning November 2016 access shall be unsupervised.
The purpose or function of this supervision is to have it overseen to ensure the father's behaviours which the child now finds objectionable will be moderated.[10]
The mother shall not attend at supervised or unsupervised access visits.
The supervision shall be by Reid and McKinnon with the cost paid by the father.
If Reid and McKinnon are unable to provide supervision at the times provided for herein, the parties may return before me to address alternate times for access or supervision arrangements.
c) Introduction of family members
- The father may allow the paternal grandmother to attend access beginning September 2016. Beginning November 2016, the father may allow other paternal family members to attend for part of access visits. It is expected that the visits will always be primarily about the father and the child.
d) Transportation
- The mother shall transport the child to and from access visits. Beginning September 2016 the father may transport the child to and from access if he has arranged to do so with the mother. He must be present while the transportation is underway. That is, he is not to send a third party alone to transport the child.
e) Flexibility and co-operation
Access times may be changed, along with transportation arrangements, if mutually agreeable to the mother and the father.
The father shall be entitled to receive information regarding the child's schooling, health and extracurricular activities. He may attend extracurricular activities if arranged in advance with the mother.
The parents are to promote and facilitate the arrangements in the court Order and they are to encourage a good relationship with the other parent and the other parent's family.
It is expected that the parents will communicate about the child's circumstances. It may help the child appreciate and foster a better relationship with the father if he sees that the parents can communicate in a positive manner.
[119] The purpose of this access schedule is to break away from the arrangement that has caused the child stress at times and allow for beneficial access at other times in a moderate and measured manner. The Court's expectation is that the child's stress or discomfort will be eliminated so that he can enjoy security and comfort during these periods when he is with his father. That is what both the mother and the father say they want.
7: Child Support
[120] The Order provides that the father is to pay the table amount of child support of $85.00 per month based on annual income of $13,500.00, together with $50.00 per month on account of childcare expenses.
[121] From January 2011 until November 2015, the father paid this sum of $135.00 each month.
[122] During this period, the father's income was greater than $13,500.00 per year. Consequently, the Respondent did not pay the table amount of support that was otherwise required of him.
[123] The parties agree that the arrears of child support to be paid by the father to the mother for the period January 1, 2011 to and including April 30, 2016 is $10,000.00.
[124] The parties also agree that commencing May 1, 2016 the father shall pay to the mother for the support of the child $307.00 per month, based upon the father's annual income of $35,324.00 and clause 3(1)(a) of the Child Support Guidelines.
[125] Further, the parties agree that (i) as of May 1, 2016, there are no special or extraordinary expenses to be contributed to by the father to the mother; and (ii) a section 7 claim in respect of the monies paid by the mother for psychological services with Dr. Ricciardi may be made by her upon the father no longer paying for supervised access services.
[126] Entitlement to this as a special expense may also be addressed at that time.
[127] The arrears of child support shall be paid at the rate of $150.00 per month commencing the first day of the month, next following the month the father is no longer paying for access supervision services, and monthly thereafter until the sum is paid, without interest.
8: Order
[128] For these reasons, an order shall issue changing the Order of the Honourable S. Fuerth, dated January 30th, 2009, by deleting paragraphs 3, 4, 5, 6 and 11 and replacing them with the following:
Access:
The Respondent shall have access as follows:
For the months of May and June 2016, every second Sunday beginning May 15, 2016, from 4:00 p.m. until 6:00 p.m.
For the months of July and August 2016, every second Sunday from 3:00 p.m. until 6:00 p.m.
If the mother is to be away from her residence on vacation during the months of July and August 2016 when access is scheduled to take place, the access that would have otherwise took place shall be made up on the next following Sunday after her return from vacation.
Beginning in the month of September 2016, access will take place every second Sunday from 3:00 p.m. until 7:00 p.m.
The mother shall not schedule any extra-curricular activities for the child during periods of access.
Beginning July 2016 the father shall have telephone access one time per week for up to 15 minutes at a time arranged by the father and the mother which does not interfere with the child's extra-curricular activities.
The father may text the child daily between the hours of 5:00 p.m. and 7:00 p.m.
The child shall be entitled to call, text or communicate by other electronic means with the father whenever he wishes to do so.
The access shall be supervised as follows:
a) during the months of May and June 2016 from 4:00 p.m. until 5:30 p.m.;
b) during the months of July and August 2016 from 3:00 p.m. until 4:30 p.m.;
c) during the months of September and October 2016 from 3:00 p.m. until 3:45 p.m.; and
d) beginning November 2016 access shall be unsupervised.
The mother shall not attend at supervised or unsupervised access visits.
The supervision shall be by Reid and McKinnon with the cost paid by the father.
If Reid and McKinnon are unable to provide supervision at the times provided for herein, the parties may return before me to address alternate times for access or supervision arrangements.
The father may allow the paternal grandmother to attend access beginning September 2016. Beginning November 2016, the father may allow other paternal family members to attend for part of access visits.
The mother shall transport the child to and from access visits. Beginning September 2016 the father may transport the child to and from access if he has arranged to do so with the mother. He must be present while the transportation is underway. That is, he is not to send a third party alone to transport the child.
Access times may be changed, along with transportation arrangements, if mutually agreeable to the mother and the father.
The father shall be entitled to receive information regarding the child's schooling, health and extracurricular activities. He may attend extracurricular activities if arranged in advance with the mother.
The parents are to promote and facilitate the arrangements in the Court Order and they are to encourage a good relationship with the other parent and the other parent's family.
Child Support:
Commencing May 1, 2016 and on the first day of each month thereafter, the father shall pay to the mother for the support of the child $307.00 per month based upon the father's annual income of $35,324.00 and clause 3(1)(a) of the Child Support Guidelines.
As of May 1, 2016, there are no special or extraordinary expenses to be contributed to by the father to the mother. A section 7 claim in respect of the monies paid by the mother for psychological services with Dr. Ricciardi may be made by her upon the father no longer paying for supervised access services.
The arrears of child support to be paid by the father to the mother as of April 30, 2016 are fixed at $10,000.
The arrears of child support shall be paid at the rate of $150.00 per month commencing the first day of the month next following the month the father is no longer paying for access supervision services and monthly thereafter until the sum is paid, without interest.
[129] Should either party wish to make a claim for costs, brief written submissions of no more than 3 pages double-spaced, together with any offers to settle including the dates served, and draft bill of costs are to be filed within 10 days of the date of the release of these Reasons, and any response within 5 days thereafter.
[130] The Court appreciates the sensitive and respectful manner in which this case was presented.
Released: May 10, 2016 Original signed and released
Justice Barry M. Tobin
CORRIGENDUM
Re: Court File No. 152/07
K. S. v. L. M. W.
Reasons released: May 10, 2016
Please note that paragraph 128 has been corrected by adding the following:
[128] For these reasons, an order shall issue changing the Order of the Honourable S. Fuerth, dated January 30th, 2009, by deleting paragraphs 3, 4, 5, 6 and 11 and replacing them with the following:
Access:
The Respondent shall have access as follows:
- For the months of May and June 2016, every second Sunday beginning May 15, 2016, from 4:00 p.m. until 6:00 p.m.
Footnotes
[1] See Family Law Rules sub-rule 15(26)
[2] Dr. Ricciardi suggests in his report of March 28, 2016 that this behaviour "may" be as a result of access.
[3] In his testimony, Dr. Ricciardi stated that family counselling would not be recommended by him in this case.
[4] At that time the father was represented by counsel.
[5] Proceedings at trial (day 2) page 45, lines 16 to 23.
[6] Jenning v. Garrett, 2004 CarswellOnt 2159 at 122 (Ont SCJ)
[7] Young v. Young (1993), 49 R.F.L. (3d) 117 (S.C.C.)
[8] Even though the Order provides that supervision was to continue "pending further order of the court" neither party suggested that the Order be treated as a review order. This may be the case because both agree that there has been a material change in circumstances such that the Court has jurisdiction to consider what access is now in the child's best interests.
[9] From the evidence this is the only weekend time that the child is likely not to have an activity scheduled.
[10] In S. (L.E.) v. S. (M.J.) 2014 NSSC 34 at 87 to 90, the Court described supervision modes as follows:
87 There are various levels of supervision. An overseer ensures that there is no inappropriate behavior. The overseer protects the children from harm or abuse during the visit and ends the visits if this occurs.
88 A recorder takes note of what occurs between the parent and child. The recorder can act as a witness of a factual observation, but not offer opinion evidence…
89 An expert observes the interaction between the parent and child and can offer expert opinion evidence about the nature of their relationship, dynamic and behaviours.
90 Lastly, a therapist or counselor works with a parent during access to develop parenting skills, an appreciation of child development or behavior modification.