Court File and Parties

Court: Ontario Court of Justice

Date: October 16, 2017

Court File No.: Toronto DFO 14 12000

Between:

A.B. Applicant

— AND —

M.B. Respondent

Before: Justice E.B. Murray

Heard on: September 19 and October 12, 2017

Reasons for Judgment released on: October 16, 2017

Counsel:

• Ms. Sharon Worthman – counsel for the applicant
• Mr. Isaac Birenbaum – counsel for the respondent

Reasons for Judgment

MURRAY, E. B. J.:

Background

[1] A.B. and M.B. are the parents of a daughter, "Jarzan"[1], born […], 2010.

[2] M. was charged with sexual assault of a child a few months before Jarzan's birth; the assault occurred in July 2009.

[3] M. pled guilty and was convicted of the sexual assault on July 6, 2010.

[4] On February 16, 2011, M. was sentenced to 14 days in jail, followed by three years' probation. One term of his probation was that he was to have no unsupervised contact with persons under 16 years.

[5] A prohibition order was made pursuant to S. 161 of the Criminal Code prohibiting M. from the following activities:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) using a computer within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years.

[6] A. and M. separated on December 28, 2012. The separation was triggered by the concerns of the Children's Aid Society of Toronto about the risk that M. posed to Jarzan and about A.'s ability to protect the child while she and M. cohabited. A protection proceeding commenced in which a temporary order was made placing Jarzan in A.'s care pursuant to Society supervision, with M. having access supervised by the Society at its offices. There was a parallel proceeding under the Children's Law Reform Act (CLRA).

[7] On October 3, 2014, the court made a final order under the CLRA, on consent, with the following terms:

• A. to have sole custody of the child;
• M. to have no access to the child "at his request";
• M. is to pay no support at present;
• A. may obtain a passport for the child and travel outside Canada with the child without Father's consent.

[8] When this order was made, the Society withdrew its application as it was satisfied that Jarzan was safe in A.'s care. Both parties were represented by counsel in the protection and the domestic proceedings.

[9] In September 2015 M. commenced a motion to change, asking for unsupervised access. A. opposed the request, questioning whether there had been a material change relevant to the issue since the date of the order. The matter was adjourned from time to time while M. obtained private counsel and obtained a further risk assessment.

[10] At trial M. asked for asking for supervised access, saying that he did not propose unsupervised access "in the immediate future". His lawyer advised that, if the court ordered access, he would apply to the criminal court to have his prohibition order modified. S. 161(3) of the Code provides that the court which made the prohibition order may vary it if "the variation is desirable because of changed circumstances after the conditions were prescribed".

[11] M.'s initial plan is to exercise access supervised by a paid supervisor from a private agency, such as Brayden. He proposes starting access for two hours each week. The cost of such supervision would be approximately $150 per visit.

[12] A focused hearing was held before me in which A., M., M.'s brother M. N. B., and psychiatrist Dr. Mark Pearce gave evidence. Counsel made submissions. This is my decision.

Evidence

Dr. Pearce

[13] Dr. Mark Pearce is a forensic psychiatrist who assessed M. at the request of his criminal lawyer on June 23, 2010. Dr. Pearce's opinion was as follows:

• M. likely suffers from pedophilia, a deviant sexual attraction to children.
• He is at moderate risk to re-offend.
• He should not have unsupervised contact to children.
• Although Dr. Pearce would normally recommend that such an individual attend a relapse prevention program for sexual offenders, given M.'s limited ability in English Dr. Pearce did not think this treatment was feasible.

[14] At the request of family counsel, M. was reassessed by Dr. Pearce in May 2017. Dr. Pearce provided a report dated May 8, 2017 and was cross-examined.

[15] Dr. Pearce's diagnosis remained unchanged, as did his caution that M. have no unsupervised contact with anyone under the age of 16, including his daughter. He made it clear that although the victim in the 2009 assault was male, that male and female children would be at risk of sexual assault by M.

[16] Dr. Pearce testified that, unlike his presentation in 2010, M. now denied that he had done anything wrong in his dealings with the child in 2009. After questioning by Dr. Pearce, M. claimed that he had been "pressured" in to pleading guilty and that he had lied to the court in doing so.

[17] Dr. Pearce noted statements that M. has made to other doctors inconsistent with what he said to Dr. Pearce. For example, in 2016 M. told his HIV specialist that he could not see his daughter because his wife had filed "false reports" accusing him of abusing a child. Dr. Pearce found that M. was evasive and not honest in his continued claims that he had not contracted HIV through sexual activity or through the use of intravenous drugs.

M.

[18] M.'s first affidavit sworn July 22, 2015 in support of the Motion to Change stated as follows.

• The parties separated in 2012 when A. falsely accused him of forcing her and the child to go to Pakistan with him. Police told him to leave the home and return A.'s travel documents to her; he did so. A. did not want him to have contact with the child.
• He was later in 2012 charged with sexual assault in an "unrelated matter" and sentenced to 3 years' probation.
• In 2013 he had supervised visits with the child at Society offices.
• He had a strong bond with the child.
• The last time he saw Jarzan was in September or October 2013 at Society offices.
• In 2013 he discovered he was HIV positive and his mother became ill.
• He agreed that A. would have custody and did not request access because of emotional turmoil caused by the loss of his family, his mother's illness and his own ill health.
• He has now "accepted my circumstances", and wishes to have access.

[19] M. filed a further affidavit sworn November 30, 2016 in which he said the following.

• M. admitted that Society had insisted from the time of Jarzan's birth in 2010 that he never be left alone with the child.
• M. admitted the facts related to his sexual assault conviction against the child.
• For the first time, M. alleged that A. had promised him that if he agreed to "give" her custody and request no access, she would allow access despite the "formal court order" providing for no access. M. stated that A.'s refusal now to allow access constituted a "material change in circumstances".
• M. attached to his affidavit a 2016 report from Dr. Adriana Carvalho to support his claim that he had been depressed when he signed the consent to a no access order, but was now emotionally stable. M. told Dr. Carvalho that he had never seen a psychiatrist. He told her nothing about his conviction for sexual assault of a child. Dr. Carvalho stated that M. had a "low mood" because of his separation from his child. She saw his problem as situational and recommended no treatment.
• M. suggested that his access be supervised "at this time". He said that his brother N. would pay $1,000 to fund supervised access, and that this would cover the cost of 7 visits. He was confident that he could find more funding if further supervised visits were necessary.

[20] In cross examination or in response to questions from the court, M. testified as follows.

• The only change in his circumstances since the October 2014 order was his change of mind, to request access.
• He understood that he would breach the prohibition order if he attended at a supervised access centre.
• His sole source of funds is his ODSP payments, which leaves little room for discretionary spending. He is able to visit Pakistan regularly, once or twice a year for two months at a time, and these visits are financed by family.
• Prior to the October 2014 order he was obligated to pay child support of $120 monthly; his support obligation was ended by that order.
• M. testified at one point that he saw the child supervised by N. in 2015, after he started his motion to change. He then said that he didn't see the child after the October 2014 order. He last re-affirmed his original evidence that the last saw the child in September 2013 at Society offices.

M. N. B.

[21] M. N. B. is M.'s older brother. He filed an affidavit in which he stated as set out below.

• He is a cab driver and lives in Hamilton with his wife and 4 children.
• He has a close relationship with his brother and formerly had a good relationship with A.
• Following the parties' separation, and "particularly in 2014", he arranged with A. to allow M. access to the child many times[2], without the knowledge of the Society and despite the fact that this was in violation of the order in the protection proceeding. On these visits A. would bring the child to Tim Horton's, and the visits would be supervised by N. Jarzan was always happy to see her father.
• A. proposed to him many times that if M. agreed to give up "his rights to custody and access" that she would allow him visits supervised by N.
• N. pressured his brother to agree to this proposal.
• After the order of October 3, 2014, A. refused to allow access.

[22] In cross-examination, N. was asked to explain the inconsistency between his evidence and M.'s as to whether A. had actually allowed him to have visits supervised only by N. and when such visits occurred. N. offered no explanation.

A.

[23] A.'s Response to the Motion to Change, sworn September 11, 2015, stated the following:

• M. was charged with sexual assault of a child in 2009, long before 2012, as M. claimed.
• The Society investigated when she was pregnant with Jarzan. It had Dr. Pearce's report in which he opined that M. was likely a pedophile and that he should not have unsupervised access to children.
• The Society cautioned A. that she should never allow M. to be with the child unsupervised. She tried her best to follow that directive.
• In 2012 M. tried to get her and the child to travel with him to Pakistan to circumvent Society restrictions on his contact with the child. She objected. He took her travel documents. She complained to the Society. Police came and M. returned her documents. She and the child fled to a shelter.
• The Society arranged for M. to have access supervised at their offices. M. objected to this; it was "a cultural embarrassment". He was irregular in the access, travelling to Pakistan for months at a time and, when he was in Canada, simply not showing up or cancelling visits.
• In the fall of 2013 M. refused to continue supervised access at the Society. That was the last time he ever saw Jarzan.
• She now opposed supervised access. Jarzan had no bond with M.; she had last seen him when she was 3 years old. She did not trust M. to be consistent in going to access.
• She certainly would never agree to unsupervised access, given that M. was an untreated sexual offender against children.
• She did not think that there was a material change relevant to the issue of access since the date of the order, October 3, 2014.

[24] A. remarried in February 2016. She says that her husband and Jarzan have a close, affectionate relationship.

[25] A. swore a further affidavit on December 20, 2016 in response to M.'s second affidavit and the evidence from N. She states as follows.

• She vehemently denies that she ever arranged with N. to allow M. access in contravention of the Society's directions and the court order. She had a good relationship with her worker from the Society and appreciated her support. There was no reason for her to go behind the worker's back. She had everything to lose and nothing to gain.
• N. did ask her to allow access supervised by him, and she refused. N. and other family members continued to pressure her to do so, and she continued to refuse. She finally changed her phone number to cut off contact.

[26] In further evidence at the hearing, A. said that she had no difficulty with the prior protection order providing that M.'s access be at the Society's discretion and the Society's decision that it must be supervised in their offices. Her views changed when M. frequently failed to attend visits; it was hard on Jarzan. Then M. stopped coming to visits entirely. She decided by September of 2014 that it would be better if there was no access if M. could not commit to being regular in attendance. When M. proposed through his lawyer to terminate the access, she agreed. She was willing to give up rights she had to child support; M. had only paid $50 for two months.

[27] A. testified that even after M.'s access ended, she did not prevent his family from seeing the child. His sister has seen Jarzan regularly; she visits every 1-2 months. M.'s nieces and nephews visit her home and see Jarzan. A. testified that, despite M.'s evidence that he missed Jarzan, he has sent no letters, cards, or gifts to the child for at least 3 years.

[28] A. testified that Jarzan is doing well in school, academically and socially. She does not ask A. about M.

Analysis

[29] Section 29 of the Children's Law Reform Act deals with the court's jurisdiction to make an order varying a final order of custody or access.

29. 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.

[30] There are sound policy reasons for limiting the opportunity to re-litigate issues, particularly issues concerning children's care. Courts are an important public resource. Access to justice is diminished if the courts allow individuals to re-argue disputes unless there is a good reason. Where children are concerned, stability and security is important. Orders with respect to their care should not be changed by courts unless an important factor material to the issue has changed since the last order.

Not every change is "material". To be a "material" change, a change must relate to the conditions, needs or circumstances of the child or the ability of a parent to meet the child's needs.[3]

[31] Variation of a final order for custody or access is a two-part process. The Ontario Court of Appeal in P. v. G.-P., 2009 ONCA 782, made it clear that a change material change must be established first, before any variation or evidence about "best interests" is considered.

As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485, 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation.

Has there been a material change?

[32] Has there been a material change since the order of October 3, 2014 relevant to the issue of M.'s access to Jarzan?

[33] There is no evidence indicating a change in the child's needs or circumstances.

[34] With respect to M.'s circumstances, I find the following:

• He continues to be diagnosed as a likely pedophile.
• Expert opinion continues to be that he should have no unsupervised access to any child under the age of 16.
• He continues to be subject to a prohibition order, in force until February 10, 2021. That order would prevent him, for example, from attending at a supervised access centre where children were present.
• He continues not to have undergone any treatment with respect to his deviant sexual preference.
• He continues to live alone, and to spend 2 months out of Canada in Pakistan at least once a year.

[35] M.'s circumstances have changed in one respect. At the time of the October 2014 order[4], the evidence was that M. had taken responsibility for his sexual assault of a child by a guilty plea. M. appears to have changed his mind about whether his actions were wrong. As Dr. Pearce notes, M. denied to him this year that his behaviour with the child in 2009 was wrong, and in fact tried to blame his former wife for his prosecution on the charge. Despite M.'s denial of criminal responsibility to Dr. Pearce, in his November 2016 affidavit, he admitted his guilt once again.

[36] M.'s refusal to consistently accept responsibility for his criminal actions does not constitute a relevant factor that would justify a re-opening of the issue of whether he should have access to Jarzan. This refusal indicates a lack of insight into his own actions, and does not raise hopes that he will be rehabilitated. After having heard the evidence of Dr. Pearce and M., I would be loath to recommend to a criminal court any loosening of the prohibition order that would allow M. greater access to children.

[37] In cross-examination, M. agreed that the only important change since October 3, 2014, relevant to the issue of access, is that he has changed his mind, in that he now is willing to have supervised access. In most circumstances, a simple change of mind cannot be sufficient to re-open a case regarding a child's residential and care arrangements. This is not a case in which M. made an impulsive decision without benefit of counsel and moved quickly to ask for relief upon regretting the decision. M. had counsel throughout the case. The consent signed (and its amendments) makes it clear that the issues were negotiated over a year's time. M. waited until 10 months after the order to move to change it.

[38] M. now argues that A. agreed to allow access (supervised by N.) if he agreed to a no-access order, and that it is her failure to abide by this agreement that constitutes a material change. I note that the order in question was not an order providing that access was at A.'s discretion. It is a "no access" order. It was not open to A. to allow M. access unless that order was changed. M.'s argument is that A.'s failure to join him in actions which violated the order constitute a material change.

[39] The proposition is questionable, but in the circumstances of this case I do not need to consider it further. I find that M. has failed to establish that A. agreed to violate the order. I find that M.'s credibility is called in to question for a number of reasons.

• M. failed to say in his initial affidavit supporting his motion to change that A. had promised to allow him access when he agreed to give up the legal right to access. It was only over a year later, after the significance of "material change' had been explained, that he advanced this story. If M. believed that A. had lied to him to obtain a no access order, surely he would have said so right at the beginning, when he made his claim.

• M.'s story about the alleged agreement is inconsistent with the evidence of his brother, N. N. says that A. cooperated with him in letting M. see the child several times, particularly in 2014. M.'s evidence is that the last time he saw Jarzan was in September of 2013 at the office of the Society.

• As Dr. Pearce noted, M. has been an unreliable or evasive reporter in other respects. M. claimed to Dr. Pearce that he pled guilty to sexual assault in 2010 even though he was not guilty. M. did not claim in his evidence before me that his guilty plea was based on a lie; I would have rejected such evidence as an abuse of process. However, the fact that he made this claim to Dr. Pearce indicates to me that M. is prepared to tell different stories to different people if he perceives it is to his advantage.

[40] N.'s evidence does not lend credibility to M.'s claim, because of the inconsistency between the brothers' evidence on a central fact, noted above. I accept the argument of A.'s lawyer that N. fabricated this story late in the case in an effort to help his brother.

[41] M.'s lawyer submits that A. had a motive to enter into the agreement alleged—a desire to escape the scrutiny of the Society. The evidence does not support that argument. A.'s relationship with the Society was not adversarial. The Society supported her in separating from M. and in caring for her daughter as a single parent with little support in Canada. Her relationship with the Society worker, Ms. Holland-Green, was positive.

[42] It was M. who chafed at Society oversight of his activities, so much that he stopped seeing the child a year before he entered into the consent to a no access order. The other incentive for M. to enter into the agreement was, of course, that it relieved him of a support obligation.

[43] I find that M. has failed to establish that there has been a material change in circumstances relevant to the issue of access. His motion to change the order of October 3, 2014 is dismissed.

[44] If costs are sought by A., brief written submission should be served and filed within 15 days, with responding submissions to be served and filed within a further 15 days.

Released: October 16, 2017

Signed: Justice E.B. Murray

Footnotes

[1] A pseudonym

[2] N. could not recall the number of visits, or when they occurred; he finally said that perhaps 2 or 3 visits occurred.

[3] Gordon v. Goertz, (1996), 2 SCR 27

[4] As noted in Dr. Pearce's first report