Court File and Parties

Ontario Court of Justice

Date: 2016-10-31

Court File No.: Orangeville 143-13

Between:

Danielle Agnes Holyer Applicant

— And —

Robert Williams Burrows Respondent

Before: Justice Philip J. Clay

Heard on: September 22, 2016

Reasons for Judgment released on: October 31, 2016

Counsel:

• Ms. S. K. Singh — counsel for the applicant
• Ms. E. Julien-Wilson — counsel for the respondent

Judgment

CLAY J.:

TRIAL

[1] The applicant brought this application seeking many grounds of relief. The respondent filed an answer. By May 4, 2016 all issues were resolved on a final basis with the exception of the issue of access by the children to the respondent. The matter was scheduled for trial on the issue of access by the children to the respondent. Prior to the opening of the trial I was advised that the applicant sought to make the restraining order that was made on December 16, 2013 a final order of the court. The respondent argued that the restraining order, initially issued on a without notice basis, should be dismissed.

ISSUES

(1) Should there be a final order restraining the respondent from having any contact with the applicant and preventing him from coming within 200 metres of her?

(2) Is it in the best interests of the two children Stanley George Kent Burrows born June 10, 2011 and Quinn Patrick Burrows born July 12, 2013 to have access to the respondent and if so;

(a) Should that access be unsupervised?

(b) Should that access be in the discretion of the applicant as to date, time, location, duration and supervision?

THE LAW

[2] The applicant asked for a final restraining order. There are provisions for restraining orders in both the Family Law Act and the Children's Law Reform Act. In this matter the temporary order that was made only applied to the applicant and not to the child so it was made under the Family Law Act and the relevant section reads as follows:

Restraining order

46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35.

[3] The legislation applicable to the access issue is s. 24 of the Children's Law Reform Act which reads as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(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.

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child. 2006, c. 1, s. 3 (1).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

EVIDENCE

[4] Both parties filed document briefs as evidence. The applicant was successful in obtaining an order that the respondent be required to disclose police incident reports. Those reports are found in the applicant's document brief. The respondent's document brief contained his motion affidavits and the reports of the Dufferin Child and Family Services (DCFAS) with respect to his supervised access at the Headwaters Visitation Centre. The affidavits were removed from the document brief before it was marked as an exhibit.

[5] Both parties provided oral evidence and were cross-examined.

THE APPLICANT'S EVIDENCE

[6] The applicant stated that the parties had a relationship that began in 2008. From the very beginning of the relationship the respondent made negative comments about women. Later on his demeaning comments became more directed to the applicant. He said that her work was not worth anything. He was jealous whenever she went out and wanted to know where she was and who she was with. When a male friend left their house the respondent asked the applicant if she wanted to have sex with him. When she spoke to her sister by phone the respondent said that it was unnatural to want to talk to family as much as she did.

[7] The applicant stated that she left the respondent quite a few times. From December 2009 to March 2010 she moved out. Again, from May to August 2010 she left and went to sisters in Burlington. She spoke with the respondent and he apologized. He said that he was insecure and he would obtain counselling. In early September 2010 she found out that she was pregnant and the respondent was happy about it. They moved back in together in October.

[8] The applicant said that in the beginning period of their resumption of cohabitation their relationship was much better than it had been. The respondent soon returned to his demeaning comments and he became violent. On one occasion he broke a lamp in the course of an argument.

[9] The applicant described an incident that occurred on July 29, 2012. The parties and their infant child Stanley, were driving to Dundalk to visit the respondent's sister. The respondent made a demeaning comment about the female driver in front of them. He then made a negative comment to the applicant. She reminded him that he had promised to change and as he had not, she was going to leave him at his sister's to find his own way home as their relationship was finished. She then changed her mind about abandoning him without a vehicle and went back to pick him up. On the way home when she confirmed that the relationship was over he became very upset and started belittling her and swearing at her. He said "if you shack up with my buddies I will kill you." When they arrived home the applicant called her father. From what he overheard in the background to the conversation her father became concerned and phoned the police. The applicant left the party's home and drove to her father's. The police attended at the home and spoke to the respondent. The police noted that they had been called previously when the respondent had made threatening statements to the applicant. The applicant also told them about an incident when the respondent had grabbed her hair and shoved a phone into her face to look at the time it displayed when she returned home later than he wanted. The respondent was arrested for assault and for uttering threats.

[10] When the respondent was arrested at their home in Grand Valley the applicant was at her father's home. The respondent's bail terms included a no contact order. DCAFS became involved. The applicant and the child Stanley moved from her father's home to a family transition place in Orangeville. The respondent called her despite the no contact order. He apologized so she agreed to meet him. They met twice at a park and he was able to see Stanley. The respondent entered a guilty plea to the threatening charge on September 2012 and on the next day she and the child moved back into their home in Grand Valley with the respondent.

[11] The applicant testified that their relationship did not get better. The respondent was drinking heavily and they had financial problems. In the midst of all of this she found out that she was pregnant with Quinn.

[12] In March 2013 she had a female friend over to her home to visit. The friend's boyfriend played with Stanley while they talked. When the respondent found out he became very jealous and angry and he told her to "go marry the gook." The applicant then asked the respondent to leave their home and he said that she could not ask him to leave. She reminded him that was only allowed to be with her due to the letter of consent that she had signed but that she could revoke that consent. The respondent then called her names and said would take the children from her (at this time she was about five months pregnant with Quinn). On March 24 the respondent came back to the home, they met briefly and she said it was over and he left. The next day when she was out the respondent came into the house. She called the police and changed the locks. The respondent was charged with breach of probation. DCAFS were called again and they kept an open file for 2 months. The DCFAS worker expressed her concern about the child protection issues that might arise if she returned to living with the respondent.

[13] The applicant said that the respondent had visits at the house after Quinn was born in July 2013. She took both children to his home in Brampton. In the period March to December 2013 there were some visits at her house. She stated that the respondent would not settle on a schedule of access. Furthermore, when there were visits he would focus on kids for a little while and then try and work on reconciliation. There was also access at the respondent's sister's home in Dundalk and sometimes his sister would come and have visits with the children in her home.

[14] The Applicant stated that the respondent had made comments about committing suicide on December 10, 2013. He called her obscene names in front of kids. He said he would kill himself and that she was pushing him to do so. She asked him to leave the home and revoked the letter of consent that permitted him to reside with her notwithstanding his probation order. On December 11 he came back but she told him he could not take the kids with him. On Dec. 12 and 14 he called again and the applicant offered to drive the children to Brampton to see him. On December 15 he banged on her window and door repeatedly when she did not let him in. The applicant went to court the next day, issued her application, and obtained a without notice restraining order and an order that the respondent's access was to be supervised at a place to be arranged. Two days later, on December 18 the applicant contacted the police to report that the respondent was still harassing her. The police spoke with him and reviewed the conditions of his probation. When he contacted her again on January 15, 2014 he was charged.

[15] The orders made without notice were served upon the respondent the next day. They were to be reviewed in court on January 8, 2014. The endorsement made that day states that the order was to be reviewed on January 29 at the first appearance. There were then a series of adjournments. There never was any change made to the restraining order of December 16, 2013 which continued in place until this trial at which time the applicant asked that the order be made final.

[16] The applicant stated that prior to bringing the matter to court that she had offered the respondent visits to the children with other family members present but he did not accept them. In February 2014, supervised visits were arranged at the Headwaters visitation centre. The notes of the visits were provided in the applicant's document brief. A review of the notes indicates that there were fully supervised visits for two hours twice a week that occurred between February 2 and April 13, 2014.

[17] The applicant stated that the exchanges for the supervised visits went well at the very beginning. However, in late February 2014 she had a friend drive her to the centre and she saw the respondent coming down the road close to her house. She felt that he was stalking her because he was within the 200 metres of her home which was prohibited by his restraining order and he was driving in the opposite direction from the visitation centre. She said that when she knew it was the respondent she became "tense, nervous and fearful."

[18] The other issue that arose in the first period of supervised access at DCFAS was that the respondent, who was not then paying child support, attempted to deliver groceries and gifts to her at the access centre. She knew by that time that she had been in an abusive relationship and the respondent was not able to let her move on. She said that she knew that when the respondent gave gifts to the children they were really to make a point with her. During visits she informed the centre he could keep the gifts and use them at his visits. He told the staff that he wanted to give gifts and groceries because he knew that she was struggling.

[19] The visitation center was not open for the Easter weekend and access then left the centre and was arranged through the respondent's friends. Discussion through counsel in April led to the respondent's friend Chris Scott supervising exchanges for visits. Once again things began reasonably well. The applicant said though that over time the respondent got closer and closer to the exchange point and did not respect the 15 minute interval that was supposed to separate the kids being dropped off by the applicant and picked up by the respondent. Eventually Chris Scott declined to assist further. Another friend Bill Hughes became the intermediary and he was to exchange at a gas station. On a few occasions she had to wait and Bill Hughes and the respondent arrived at the same time. Other times she drove to Brampton for an exchange and the respondent stood right next to Bill Hughes. The applicant said that the respondent often came down to the intersection that was within 200 metres of her home. She said she did not call police every time but she called at least a dozen times. Her family also called the police.

[20] As the exchanges were not working on August 7, 2014 the applicant requested supervised exchanges back at the Headwaters visitation centre. By September the respondent often did not attend for a scheduled visit. To ensure that the children were not unnecessarily driven to the centre, the centre advised the applicant that she could call in to ensure the respondent was coming. The centre did not get confirmation that the respondent was coming for the visit so she did not bring the children. When the respondent then attended he became irate with the staff at the centre if his children were not there. On October 5, 2014 after an exchange the applicant found notes written to her by the respondent in the children's backpacks. She contacted the police. They investigated but no charges were laid for this incident as Crown thought the contact regarding the children would not likely result in a criminal conviction.

[21] On November 1, 2014 the applicant testified that she had just left the visit centre after dropping off the children. Her boyfriend drove them to a nearby gas station. She said that the respondent's car pulled in behind their car. The respondent had the children in his car. He tried to talk to her but she said "R.O." (restraining order). She called the police and went to her father's home. From there she called the visit centre who told her that the applicant arranged to pick up the kids early as he said he had car trouble. Once the children were returned to her, the respondent was arrested.

[22] The matter was in court on November 26, 2014. Ms. Tina Hinsberger the visitation supervisor was at the court and she spoke to the respondent. He became very upset and "got into her face." A lawyer who witnessed his behaviour intervened. Ms. Hinsberger then suspended the respondent from the program as she was concerned about the safety of her staff members.

[23] The applicant stated that she did not plan activities for the children on weekends that she kept designated in her mind as the respondent's weekends. The respondent did not attempt to arrange any visits, and therefore, did not see the children over the 2014 Christmas holidays. Finally, on January 11, 2015, a friend of the respondent's named Stewart facilitated a visit on the respondent's birthday. The respondent has not seen the children since then.

[24] The applicant filed Ms. Hinsberger's letter of April 10, 2015. It set out the history of their involvement with access and set out some of the angry comments directed at staff members by the respondent. Ms. Hinsberger noted that on January 21 the respondent called to request that visits be reinstated. A meeting was held on February 13, 2015. On March 25 the respondent was told that due to his increasing volatility with staff and his refusal to follow the rules of the program that he could not return. Ms. Hinsberger provided the respondent with alternatives for supervised visits or exchanges.

[25] On April 6, 2016 the parties with the assistance of counsel signed a consent for supervised access at the Peel supervised centre. The applicant said that she agreed to this because she wanted the respondent to have a relationship with his children but she wanted her children to be both physical and emotionally safe. She felt that the only way for them to be safe emotionally was to have the access through a supervised centre. As the parties could not use the Orangeville site she was prepared to go to Brampton where the respondent lived at the time.

[26] The applicant stated that she completed the intake form for Brampton and had an interview date set. She was then told that the respondent would not set a date for his interview and she then received an e-mail from centre to state that they were closing their file because the respondent did not want supervised access.

[27] The applicant stated that after the restraining order was put in place the only time that she met with the respondent was when she was living in the shelter. She provided information to the respondent when he requested it but he rarely asked for anything. The applicant stated that she had always agreed to access when it was proposed through counsel and her only condition was that it would safe for the children. He was very angry with her and he was not able to control himself in front of the children. When they were together Stanley would get very upset when they argued and their voices were raised. The applicant said that it was emotionally damaging for the children to see that.

[28] The applicant stated that she has been in a very loving and consistent relationship with her boyfriend since 2014. Stanley does talk of the respondent as "his other Dad" but Quinn does not. Stanley does not ask about the respondent.

[29] The applicant said that she had not told the children much about the respondent after the access ended in January 2015. She said that she will not speak to the children in a negative way about the respondent. If Stanley wants to talk about his paternal family she listens. The respondent's mother saw the children occasionally. His father declined to have a relationship with the children.

[30] The applicant said that her idea of the best plan for access was for the respondent to have access visits with a counsellor present. That counsellor could then determine when and if, it was safe to have unsupervised visits. She said that the abusive way that the respondent behaves towards her is not independent of how he behaves in front of the children.

THE RESPONDENT'S EVIDENCE

[31] The respondent said he did not ever consider himself as being separated from the applicant until March 2013. He maintained that prior to that there were just the normal peaks and valleys in the relationship that most couples experience. He admitted that there were occasions when he had said "inappropriate things" to the applicant.

[32] The respondent admitted that he was angry at what had occurred over the past three plus years. He stated that he had repeatedly been the subject of false accusations that had caused him to be "incarcerated, demoralized and dehumanized." He said that "my house" where the parties had lived together had been "violated" by the applicant living there with her boyfriend. He felt forced out of his home and then forced out of Grand Valley the community he had lived in for nearly 7 years.

[33] The respondent blamed a lot of the police involvement in his life on the applicant's family. He said it was a common occurrence for her family to call police when they not getting their way.

[34] The respondent stated that he did not want visits at a supervised access centre because the visits were not long enough. He said that they were not necessary as over the years he had had unsupervised access when he took the children out to stores and parks and even to Wasaga beach. He said that his friends Chris Scott, Bill Hughes and Stewart assisted with exchanges for visits. On occasion they came with him and the children. The respondent maintained that he did nothing wrong in communicating with the applicant by way of notes in the kids backpacks as she sent him notes too. The respondent felt that there was no harm in providing the respondent with food by dropping it off for her at the visitation centre. He said that most of the time between October 2008 and March 2013 when the parties were living together he was employed. He said that he "paid for her to live and survive and let her use a vehicle."

[35] The respondent said that his probation is over but he knew he was still subject to the restraining order. He said that despite the order he had met with the applicant on countless occasions at designated areas. The respondent maintained that he and the applicant had sexual relations on most of those meetings. He even said that they had sex in his car on the same day that the applicant gave birth to Quinn. He was then present at Quinn's birth. He said that they were both aware that their meetings were a breach of his restraining order.

[36] The respondent said that he did not begin the intake process for the Peel supervised access program in Brampton because he did not want access with his sons where he would be confined in a room and scrutinized. The respondent said that he wanted "the same rights as anyone else. They have been infringed upon." The respondent had recently been laid off from his employment in Brampton. He had moved into the home of a friend, Phil Hughes, in Innisfil. He said that he lives in a three bedroom home and that it was a suitable place for him to have access with his sons. He said it was now had a one hour drive to have access to his sons and he had no interest in doing so for supervised access.

[37] The respondent alleged that he had been "alienated" from his children. He said that despite the long gap in access he was confident that his boys would be comfortable with him. He noted that he had never had an opportunity to bond with Quinn. He said he was "phased out" of his son's lives by the applicant who had "ulterior motives." He said it felt like the applicant had "abducted" the children. The respondent said that he expected that false allegations would be made. He said that outside interference has been a factor here. He stated that the applicant has "Daddy issues." He maintained that the applicant's father is her "puppet master and he makes her decisions."

[38] The respondent conceded that he did make some mistakes. He said that he took the PARS course after he was criminally charged. He has not taken parenting courses and he did not think that any were required. He did not think that the children would require any re-integration counselling as he was totally confident that they will be fine with him once re-introduced.

[39] The respondent thought that he had had successful access when it was supervised but he admitted that he became discouraged that he could not leave the premises. He said that Stanley would cling on to him at the end of a visit.

[40] When asked by his counsel why he wanted unsupervised access the respondent stated that he loved his children and missed holding them. He wanted to teach them honour. More than anything he wanted to be an integral part of his children's lives and to try to mould them into responsible adults.

[41] In cross-examination the respondent admitted that he was unwilling to provide police occurrence reports to the applicant and only did so after a court order was made. He said that his past had no bearing on anything. With respect to his assault conviction he said he had "never been physical" with the applicant and with a raised voice he maintained that that he pled guilty under duress. He said he felt forced into it in order to get out of jail and resume his job and get back to his house. He admitted that he had been verbally abusive but he later restated that what the applicant saw as abusive was just a strong disagreement. The respondent said that he regretted some things that he had said, but he insisted that he had never raised a hand to the applicant.

[42] The respondent was asked about the breaches of his probation. He testified that he "inadvertently bumped into" the applicant at the gas station on November 1, 2014. He then just wanted to talk to her. With respect to the missed visits between early September and late November 2014 the respondent alleged that he only missed one visit and that the applicant failed to show up for all the other ones that did not occur. The respondent stated that it was the applicant who was not in compliance with the court ordered supervised exchanges.

[43] With respect to the November 26, 2014 meeting with Ms. Hinsberger at the courthouse the respondent said that "he was speaking at a proper decibel." He then said that the lawyer who intervened may have thought he was talking too loud. He conceded that he had a lot of emotion over the access issue so so perhaps he was a little loud. Nevertheless, he still thought that Ms. Hinsberger was making "a mountain out of a mole hill" over the confrontation. When asked about the separation, the respondent became quite emotional. He said he was forced out of his home and had to go to the city to find work. He stated that he "was being violated."

[44] The respondent's access proposal was that the parties meet at a public place. He thought he could exchange the children directly with the applicant but he was prepared to use an agreed upon third party. The respondent said that he only agreed to supervised access in the consent signed on April 6, 2016 because he felt that he had no choice. The respondent said that he could pick up his children early on a Saturday morning and he would then have them with him for the rest of the weekend. He thought that could start immediately.

[45] With respect to whether the restraining order should be made final the respondent stated that he did not understand the applicant's "fear theatrics." He said that the applicant had made repeated false accusations that he drove by her home. As for the assault with a phone offence for which he was convicted, the respondent said that he merely placed his hand on the applicant's shoulder blade and explained that he was running late.

[46] Regarding the applicant's relationship with her boyfriend, the respondent said that he was:

…very discouraged that she is with someone else. Quinn was not even one and she was having relations with a guy in a trailer park It was disgusting and in poor taste-not very ladylike. It seems awfully sudden now there's a new fella in her bed-traumatizing for the little boy. Having relations in my home I allowed her to come live with me.

SUBMISSIONS

[47] Ms. Singh addressed the need for a final restraining order by stating that based upon all of the background that the applicant had a legitimate fear that if the respondent finds out where she is now living that he will harass her. She acknowledged that the locations in the December 16, 2013 order could be removed and she only sought an order that the respondent not contact the applicant or come within 200 metres of her.

[48] With respect to access Ms. Singh said that the respondent's emotions dictate his decisions. He had been unable to restrain himself in the supervised access centre and in the courthouse. Ms. Singh said that the respondent had been inconsistent with his access in the past. After a gap of over a year he consented to supervised access. He then took no steps to implement that access and then just before the trial he abruptly decided not to do supervised access.

[49] Ms. Singh said that it would be best to have counselling with any resumption of access. She noted that the respondent had no insight into why counselling might be necessary. She said that the applicant had shown that she was prepared to arrange access if it could be done in an emotionally safe way. She could not agree to unsupervised access so the only alternative was to leave access in her discretion.

[50] Ms. Julien-Wilson stated that the court should not make a permanent restraining order. She said that after the order was made on December 16, 2013 both parties were involved in breaching it. The parties got together in the late summer of 2014. There has been no contact or harassment for quite some time.

[51] Ms. Julien-Wilson conceded that the respondent had some very outdated ideas about the role of women in society. She admitted that he did show some anger in giving his evidence but she said that anger comes from his perception as to how he has been treated by the applicant and the justice system in this matter.

[52] With respect to access Ms. Julien-Wilson stated that there was no evidence that the respondent cannot interact well with his children. After three months of totally supervised access the applicant was prepared to not use the visitation centre at all and to have the respondent's friends involved in the access. Ms. Julien-Wilson said that the applicant made all of the access decisions. She was the one who made up the rules regarding access and communicated them to the respondent's friends. If there was any lack of clarity about whether both the visits and the exchanges were to be supervised, then the responsibility for that fell on the applicant.

[53] Ms. Julien-Wilson said that the respondent had been denied an opportunity to bond with the younger child Quinn but that he had a good relationship with Stanley when he was visiting with him. She sought an order for unsupervised access on alternate weekends. As the respondent now resided in Innisfil near Barrie and the applicant resided in Dufferin County it made sense to have a neutral exchange point somewhere in between, such as in Bolton.

ANALYSIS

[54] There were two separate issues to be decided. The evidence was somewhat intermingled but the legal issues are distinct so I will address them separately.

Restraining Order

[55] There was very strong evidence in favour of a restraining order before the court on December 16, 2013. The respondent chose not to challenge that evidence when the motion review was before the court on January 8, 2014. The motion review was adjourned to the first appearance on January 29 and once again there was no challenge to the restraining order. Although the effect of the order on January 29 should have been to make the restraining order temporary as opposed to a without notice order a temporary order was never issued.

[56] In addition to the restraining order, the criminal courts put restrictions on the respondent's contact with the applicant. On July 29, 2012 the respondent was arrested and charged with assaulting the applicant and with uttering threats against her. He was placed on bail that restricted his contact with her. He entered a guilty plea to the assault charge on September 4, 2012 and was placed on probation. The terms of that probation were that he could not contact the applicant unless she provided a written but revocable consent. The applicant provided that consent in September 2012 and the parties reconciled and lived together until March 25, 2013 when the applicant asked the respondent to leave and revoked her consent. The respondent was charged with breach probation when he returned to the house.

[57] The parties did not resume cohabitation after March 2013. The applicant delivered the second child Quinn on July 12, 2013. In the period March to July 2013 the applicant did allow the respondent to come to the house to visit with Stanley. The respondent was present at Quinn's birth and in the period July to December 2013 the respondent came to the house to see both boys on a somewhat sporadic basis. I accept the applicant's evidence that she believed that her sons should have some contact with their father and that is why she let him come to the home despite the probation and restraining orders. The respondent's position was that the applicant had no concern about him being around or she would not have allowed this open access. The applicant's position was that she only agreed to the respondent coming to the home when he contacted her about access and it was only for a limited time. I accept her evidence that the respondent spent some time playing with the kids but that most of the time he wanted to talk to the applicant as he wanted the two of them to reconcile. By December 2013 she thought that she needed to make it very clear to the respondent that she did not want to reconcile. When she did so, the respondent became very distraught. He threatened suicide and he came to her home and was demanding to be let in. The applicant then knew that she had to take firm steps so she issued this application and obtained a restraining order on December 16, 2013. This meant that there was both a probation order and a restraining order that prevented the respondent from contacting the applicant.

[58] The respondent breached both orders shortly after the restraining order was put in place. He was warned on December 18, 2013 but after further contact he was charged with breach probation on January 15, 2014. All access was then to be supervised so that the applicant and the respondent would have no contact. I find that the respondent still wanted to have contact with the applicant and that he convinced her to leave the supervision centre and move to access facilitated by his friends. It appears from the evidence that the friend Chris Scott took this responsibility seriously but the respondent pushed the boundaries so much that Mr. Scott gave up. The respondent then found friends, Hughes and Stewart, who were much less vigilant about ensuring that the respondent did not contact the applicant and ultimately they took no steps at all.

[59] The respondent states that the both parties were equally complicit in breaching the orders. That is not how I view the evidence. I accept all of the applicant's evidence. She gave her evidence in and clear and forthright manner and she did not attempt to portray herself in a better light than the facts might otherwise show. She admitted that she had made mistakes by thinking that she could change the nature of the dysfunctional and abusive relationship that she had with the respondent. In hindsight, she did make a mistake in permitting the respondent to move back into the home in September 2012. At the time though she had one year old Stanley with her and that Fall she became pregnant with Quinn. She had no work and no source of income. She was living in a little community and she felt that did not have many options.

[60] By way of contrast, I find that respondent did not show any insight into how his actions and behaviour had impacted upon the applicant and the children. He was unable to mask his anger at what he perceived had been done to him. He saw himself as a victim of false accusations and a malicious manipulation of his life. He spoke in terms of his "rights." He did not show any true remorse. He even said that he did not assault the applicant but only entered a plea because he felt pressured to do so. There was no evidence that the applicant contacted the respondent directly to get together with the exception of the respondent's general statement that they both breached the order. There is no doubt that the applicant was involved in breaches of the bail terms. Notwithstanding the history of the relationship, the applicant allowed the respondent to move back into the home in September 2012. I find though that the fact that the applicant chose to sign a consent allowing the respondent to live with her despite his conviction and probation terms, did not meant that she did not have legitimate concerns about his behaviour. I accept her evidence that there was a period of time shortly before and just after the resumption of cohabitation when the parties got along quite well. She described a turbulent relationship with some good days and some very bad days. The respondent conceded at trial that he said some things he should not have said but overall he was satisfied with a relationship that worked for him until the applicant found the strength to tell him it was over.

[61] After December 10, 2013 there was a great deal of evidence that the respondent simply did not accept that the relationship was over. He became distraught and desperate. While on probation and subject to a restraining order he continued to harass the applicant until he was charged with a breach of his probation in January 2014. He did not accept that there was a need for supervised access or supervised exchanges and seemed to feel entitled to ignore the orders to try to contact the applicant. I do not accept his explanation that he did not intend to follow the applicant in November 2014. With the children in his car he deliberately left the visitation center to confront the applicant at a gas station.

[62] I find the respondent has still not accepted that the applicant ended their relationship. The applicant told the respondent very clearly on December 10, 2013 that it was over. In September 2016, he testified that it was very upsetting that the applicant had a boyfriend who was sleeping with her in "his" house. The applicant moved from that home in January 2015 and she has not given the respondent her new address. The respondent's argument that there is no recent harassment upon which to found a restraining order is not helpful. Since January 2015 he has not had access and he has not known where the applicant resides. It was clear from his evidence that if he did have the ability to get in touch with her that he would want to contact the applicant.

[63] I find that the restraining order should be made final. As the addresses listed are no longer relevant the only terms will be not to contact the applicant and not to come within 200 metres of her. These terms will have an exception that will allow the respondent to respond to any access arrangements proposed by the applicant.

Access

[64] The access issue is really about whether there should be unsupervised access by the children to their father. The applicant stated that she had always felt that the children should have a relationship with the respondent and as will be set out below I find that at all times she had acted consistently with that position. Both parties signed a consent to an order in April 2016 that should have resulted in supervised access beginning in Brampton, provided of course that the Peel program accepted the parties notwithstanding the fact that the Orangeville program was no longer prepared to work with the respondent.

[65] The respondent made it absolutely clear at the outset of the trial that he was not interested in having supervised access. In his evidence he stated that he did not think he should have to be observed while in a room with his sons. He essentially said that he was entitled to a normal access relationship with his boys as everyone else gets. He believed that he was being unfairly treated as a result of the manipulations of the applicant and her family which denied him access. In his view, there was no reason why this court could not simply set out that he was to have his sons with him every alternate weekend. He grudgingly conceded that he could accept a neutral place to exchange the children but he thought he could do so directly with the applicant. The respondent saw no need for the children to have any re-integration counselling. He thought that now 4 year old Stanley would be quite comfortable with spending weekends with him even though he has had no contact with him for nearly two years. He conceded that 3 year old Quinn did not know him at all. He implied that as it was not his fault that he was denied an opportunity to bond with Quinn that there was no need for either Quinn or himself to have professional assistance with gradually introducing access. The respondent did not propose any well thought out gradual phasing in of an access relationship. The focus of his evidence on the access issue was to prove that he had been unfairly pushed out of his children's lives.

[66] The applicant strongly denied wanting to exclude the respondent from his son's lives and a review of the evidence shows that she was committed to trying to forge a father-son relationship even in very difficult circumstances.

[67] There had been earlier separations as the applicant noted in her evidence but the incident that resulted in the criminal charges on July 29, 2012 represented the first major separation after Stanley's birth. Notwithstanding that there was a no contact order in place, the applicant made arrangements for the respondent to see Stanley in the period July to September 2012. At that time she still had a desire to reconcile and that occurred in September 2012. The evidence was that the applicant was home with Stanley while the respondent worked in the period September 2012 to March 2013. The applicant's only stated concern with the respondent's ability to parent when the parties were together was that he yelled at her and demeaned her in front of the child. She said she knew witnessing this abusive behaviour would have a negative emotional impact upon their son. The applicant admitted that Stanley loved his father and enjoyed spending time with him.

[68] The parties separated for the final time on March 25, 2013 when the respondent was charged with a breach of probation. The applicant once again had a no contact order in place. Neither party had received any legal advice. There was no court action. The applicant was pregnant with the second child Quinn. The applicant felt that it was important that Stanley see his father and she permitted the respondent to come to the home to do so. She stated though that the respondent seemed more interested in spending time with her than he did in spending time with his son. She did agree to the respondent being present for Quinn's birth in July 2013. The respondent said that in this period the parties continued a romantic and sexual relationship and he could see Stanley and Quinn whenever he wanted. The applicant was not asked about the exact nature of the relationship between the parties in the period from March to December 2013. I can make no factual finding on the nature of the time spent.

[69] I accept the applicant's evidence though that she relied upon the respondent to contact her if he wanted to see his sons. If he did so she facilitated the contact. Sometimes that involved her driving her sons from Grand Valley where she lived to Brampton where the respondent was then residing. This showed a commitment to maintaining a relationship between the respondent and his sons. It is clear that over time the applicant had no interest in continuing any relationship with the respondent other than that of parent. It is also clear that the respondent was unwilling to let the hope of a relationship go. I find that the respondent became obsessed with the applicant. The events of the period December 10 to January 15, 2014 make that clear. The respondent continued to harass the applicant even after he received a stern warning from the police that he would be charged if he did so again. He contacted her almost immediately afterwards and he was charged.

[70] When the matter went to court in January 2014 the applicant did not use the respondent's erratic and violent behaviour as a reason to deny access. If she in fact wanted to remove the respondent from the children's lives she could have taken a no access position. Instead, she acted responsibly in agreeing to supervised access and complying with that access through to April 2014. In April the supervised access centre could not accommodate an Easter weekend visit. This appeared to be the catalyst for the applicant to agree to the respondent's request that access occur outside the centre with the respondent's friends as facilitators. It was not clear from the evidence if the applicant expected the facilitators to be supervisors in the sense that they were to be with the respondent at all times when he was with the children or whether she just wanted them to ensure safe exchanges that would keep the respondent at least 200 metres away from her as required by his probation order. The very fact that the applicant agreed to the respondent's friend's involvement is consistent with her position that despite the fact that she wanted no contact with the respondent she thought it was important that he see his children on a regular basis. This ad hoc arrangement only ended when the respondent insisted on being present when the applicant dropped off the children. Had the respondent been content to use a neutral third party exchange that form of unsupervised or semi-supervised access could have continued indefinitely. It was the respondent, not the applicant, who created the conditions that required the return of access to the visitation centre.

[71] A gap in access occurred between April 16, and August 7, 2014. I find that this occurred because the respondent did not want to use the visitation centre and hoped that the applicant would exchange the children directly with him. He finally agreed to supervised exchanges. At this point it was absolutely critical to the continuation and expansion of access that the respondent exercise all of the access that he had and comply with the rules of the visitation centre. He did neither. He missed visits and he attended without car seats for his young children. Due to missed visits, the visitation centre insisted that the respondent confirm his attendance so that if he did not do so the children did not have to be brought unnecessarily. On at least one occasion he failed to confirm but attended anyway. The children were not there and he became very angry with centre staff.

[72] The respondent still seemed obsessed with the applicant. On November 1, 2014, with the children in the car, he followed her to a gas station. On November 26, 2014 his behaviour at the court house caused his visits to be suspended. This resulted in another long gap in access. The respondent did nothing about it throughout the Christmas holiday of 2014. Finally after a court attendance his lawyer wrote to the centre asking to use their services again. Based upon the history they declined in a letter of March 25, 2015. The matter came back to court on April 6 and the consent to supervised access in Peel was signed. The respondent took no steps to follow through and just prior to the trial he repudiated his consent to supervised access and took the position that his access should not be supervised.

[73] The respondent's position is not in the children's best interests. I have reviewed s. 24 (2) and the considered all the children's needs and circumstances. I will refer to the subsections of that section. The applicant does not dispute that the respondent loves his children and that he has demonstrated affection towards them during access - see (2) (a). The fact is though that the children have lived in a stable home environment with the applicant and the inconsistent and conflicted access that has occurred has meant that their contact with the respondent has been unstable- see (2) (b). The respondent has used the children as pawns in seeking access. Early on he came to the applicant's home to primarily spend time with her, not the children, and he tried to manipulate the applicant into reconciling. He has not been focused on providing the children with guidance and education-see (2) (d). If seeing the children were his primary goal he would have complied with the terms of his restraining order and not attended at access exchanges. If he really wanted to act as a parent to his children he would not have allowed the long gaps in access to occur and he would have put the children's need for consistent contact above his own need to use access as a way to maintain contact with the applicant.- see (2) (g). The respondent did not come to court with an access plan that considered the children's needs as required - see (2) (e). He insisted upon unsupervised contact to a 4 year old child with whom he has had very inconsistent contact and a 3 year old child who does not really know him at all. His plan showed no insight into how the children might respond to weekend access with a person who, because of his own actions, had become a stranger to them.

[74] The respondent's proposal for unsupervised access is not in the children's best interests. The applicant has shown an ability to put the children's needs above her needs. Despite the ongoing harassment of the respondent, the applicant has been open and receptive to his having access to the children provided that such contact can be physically and emotionally safe. I find that she showed good faith in agreeing to supervised access in Peel notwithstanding all of the respondent's failures to abide by the terms of supervised access and then supervised exchanges in Orangeville. She understands that it would be helpful for the children to have some reintegration counselling with the respondent and she would co-operate with such an order if the respondent would agree. She is not trying to prevent access. She simply wants to make sure the children are not hurt by the way it occurs. She is prepared to accept the responsibility of having an order for access to be in her discretion even though it necessarily means that she will have to communicate in some way with the respondent to facilitate such contact. I find that the applicant should have a custody order and an order that access to the respondent be in her discretion.

FINAL ORDER

(1) The Applicant, Danielle Agnes Holyer, shall have custody of the children Stanley George Kent Burrows, born June 10, 2011 and Quinn Patrick Burrows born July 12, 2013.

(2) The Applicant shall be able to obtain and renew a passport for the said children and to travel with, or authorize travel of, the children without notice to, or consent of, the respondent.

(3) The Respondent Robert Williams Burrows shall have access to the said children in the discretion of the Applicant as to time, duration, location and supervision.

(4) The Respondent shall be restrained from communicating directly or indirectly with the Applicant and from coming within 200 metres of her. Provided only that the Respondent may respond in writing to any proposal for his access to his children Stanley George Kent Burrows born June 10, 2011 and Quinn Patrick Burrows born July 12, 2013 made by the Applicant. (mandated R.O. form to be completed)

(5) The Respondent shall pay to the Applicant for the support of the said children the sum of $277.00 per month based upon his income of $18,000.00 per year. Support deduction order to issue.

(6) All temporary orders made are vacated.

(7) All other claims made are dismissed.

Released: October 31, 2016

Justice P.J. Clay