Court File and Parties

Date: June 18, 2018

Court File No.: D48590/09

Ontario Court of Justice

Between:

E.H.

ANNETTE DI NARDO, for the APPLICANT

APPLICANT

- and -

O.K.

LISA A. JOHNSON, for the RESPONDENT

RESPONDENT

MARY KODRIC, on behalf of the OFFICE OF THE CHILDREN'S LAWYER, for the child.

Heard: April 12, May 14 and 17, and June 11, 2018

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The parties have both brought motions to change the parenting terms contained in the court's order dated June 30, 2010 (the existing order). The existing order grants the parties joint custody of their twelve-year-old daughter (the child). The primary residence of the child is with the respondent (the mother), with generous, specified access to the applicant (the father). Several incidents of custody were also set out in the existing order.

[2] The parties agree that there has been a material change in circumstances since the existing order was made and that it needs to be changed. The father was charged with a sexual offence against the child in January, 2015. His criminal release terms prohibited contact with the child, except through a Family Court order. The father did not move to the Family Court in 2015 to obtain such an order. The father was convicted in January, 2016. He is still prohibited by the criminal courts from being alone with the child.

[3] The father seeks an order for supervised access to the child through a private access facility (Brayden). He asks the court to maintain the joint custody provisions contained in the existing order.

[4] The respondent (the mother) seeks sole custody of the child and an order that the father have no access to the child at this time. She asks for permission to obtain government documentation for the child and to travel outside of Canada with the child without the father's consent. She asks for an order that the father shall not post online, through social media, or otherwise make public: any allegations; personal information; court documents; photographs or videos regarding her or the child and that he immediately delete or take down such information.

[5] The Office of the Children's Lawyer (the OCL), on behalf of the child, supports the mother's position.

[6] The motions to change were heard based on affidavits filed by the parties and submissions. A clinical investigator from the OCL (the clinical investigator) also filed an affidavit. The transcript of the father's criminal sentencing was filed on consent. The parties were given leave to question each other and the clinical investigator out of court. The father questioned the mother and the clinical investigator. Transcripts of those examinations were filed. The mother and the OCL chose not to conduct questioning.

[7] The issue in this case is what parenting orders are in the child's best interests?

Part Two – Background Facts

[8] The father is 49 years old. The mother is 37 years old.

[9] The parties were married on November 22, 2001.

[10] The parties separated on September 1, 2008. The mother has remarried and has another child with her husband. They live together with the child.

[11] On August 12, 2009, the father issued an application in this court for joint custody of the child and child support. The mother filed an Answer/Claim seeking sole custody of the child and child support.

[12] The parties entered into Minutes of Settlement that formed the basis of the existing order. In addition to the parenting terms, the father agreed to pay the mother child support of $190 each month, together with 50% of the child's special and extraordinary expenses, pursuant to section 7 of the Child Support Guidelines.

[13] The father regularly saw the child until January, 2015. Neither party had brought the case back to court after the existing order was made. The mother, in questioning, said that the applicant had been an involved father.

[14] On January 12, 2015, the father was charged with "Make Sexually Explicit Material Available to a Person under 18 years of age", pursuant to paragraph 171.1 (1) (a) of the Criminal Code. The father's criminal release terms set out that he could have no direct or indirect contact with the child except pursuant to a court order made after that date. He was prohibited from attending at the child's home or school.

[15] The father's access to the child stopped at that point. The father retained counsel and attempted to arrange access. No agreement was reached.

[16] On September 28, 2015, the father was charged with counseling another person, for a sexual purpose, to expose their genital organs to a person who was under 16 years of age pursuant to subsection 173 (2) of the Criminal Code. This related to the same incident as the January, 2015 charge.

[17] On January 8, 2016, the first charge was withdrawn and the father pleaded guilty to the second charge. He was sentenced to 90 days in jail. The father also received an 18-month probation order. Included in his probation order was a term that he could not have in person contact with the child except in the presence of a person who is over 25 years of age or except pursuant to the terms of a valid family court order issued after that date.

[18] The criminal court also made a prohibition order on January 8, 2016. This order provides that the father is to have no direct or indirect contact with any person under 16 years of age except in the presence of a person who is over 25 years of age. The term of this order is 10 years. The court also required the father to comply with the requirements of the Sex Offender Registry Act for a period of 10 years.

[19] The father was released from jail on March 4, 2016.

[20] The father issued his motion to change on May 24, 2016, seeking to enforce the existing order. The matter was adjourned multiple times at First Appearance Court as the father had not served the mother with his motion to change. The case did not come before a judge until August 9, 2017.[1]

[21] On August 9, 2017, the parties reached a temporary consent for the child to have supervised access with the father through Brayden. A referral was also made to the OCL. The OCL accepted the case and appointed counsel for the child pursuant to section 89 of the Courts of Justice Act.

[22] The access was unsuccessful. The child refused to see the father when she was brought to the supervised visits, despite the efforts of the mother and Brayden staff.

[23] On November 15, 2017, the court made a temporary, without prejudice order that the parties participate in Brayden's Therapeutic Access Program. The court ordered that efforts could be made to persuade the child to have contact with the father, but she could not be forced to do so.

[24] The court was advised by the mother and the OCL at a case conference on January 22, 2018 that these visits were also unsuccessful – the child was still refusing to see the father and was very stressed about being required to go to the visits. The father felt that there were some gains being made. The format for this hearing was agreed to and a hearing date was set, as were filing timelines.

Part Three – Positions of the Parties

3.1 The Father

[25] The father deposed that he had an excellent relationship with the child until January, 2015. He attributes the child's reluctance to see him to the mother's negative influence. He believes that she is alienating the child against him. He expressed the view that this has been a persistent theme since their separation.

[26] The father believes that the mother is trying to eliminate him from the child's life.

[27] The father submits that supervised access should continue. He feels that there were some gains made at the Brayden visits. At one visit, he played a game with the child, albeit in separate rooms, with the access supervisor from Brayden communicating between them. On another occasion, the child, at the request of the access supervisor, made a Christmas card for him.

[28] The father believes that if the mother is removed from the access exchanges, the child will be willing to visit with him.

[29] The father proposed that visits take place twice each month through Brayden. He would pay for the visits. Other access would be in the discretion of the child. He submitted that this provision would communicate to the child that she is being listened to.

[30] The father submitted that access through Brayden would provide the child with the requisite safety and ensure that she could reestablish her relationship with him at her own pace - if the child was reluctant to exercise access on one visit, it could be tried again at the next visit.

[31] The father would also like the child to participate with him in reintegration counseling.

[32] The father wants to remain an important part of the child's life and to have the right to continue to jointly make major decisions for her. He submitted that this will send a positive message to her.

[33] The father testified that he has complied with his probation terms. He produced a letter from his probation officer, dated July 18, 2017, confirming this. The father produced a Certificate of Completion of the Sex Offender Relapse Prevention Program 1, dated May 5, 2017, and a letter from Family Services of Peel, dated August 2, 2017, confirming that he had attended two counseling sessions about understanding boundaries and the impact of exposing children to inappropriate sexual material.

3.2 The Mother

[34] The mother denies that she is undermining the father's relationship with the child. She points to the fact that she agreed to joint custody and a generous access schedule in 2010. She said that she complied with the existing order. Even after the father was charged and couldn't see the child due to his criminal release terms, the mother deposed that she arranged access for the father's parents with the child. She said that she consented to the temporary order for access with Brayden, complied with the court orders and did her best to persuade the child to see the father.

[35] The mother is very worried about the child's adverse reactions to the access visits and doesn't feel that the child is ready at this time to see the father. She asks the court not to force her to continue to take the child to the visits.

[36] The mother also expressed her concern that the father is not taking any treatment to reduce the risk of his sexually re-offending and instead blames her for the child's reactions to him.

[37] The mother seeks an order for sole custody of the child. She described very poor communication with the father. They have not spoken since he was charged in 2015. She says that the father is also very angry at her and has posted nasty and false allegations about her on the internet. She asks for an order preventing him from doing this.

[38] The mother is now seeking individual counseling for the child to deal with the sexual offence. Funding the counseling is an issue for her. She believes that individual counseling is more important for the child than the reintegration counseling proposed by the father. The mother has contacted BOOST and the George Hull Centre for counseling, including internet exploitation counseling. Unfortunately, the waitlists are long.

3.3 The Child

[39] The child has consistently expressed her views and preferences. She does not want to see the father. She has expressed this to the mother, the staff at Brayden, her counsel and the clinical investigator.

[40] The child told the clinical investigator that she does not want to see her father again. She states that she dislikes him a lot and described her life as being better after she stopped seeing him. She does not want to attend counselling with him, talk to him, see him or have anything to do with him.

[41] The child told the clinical investigator that she found the visits with her father to be "horrible". She expressed a concern about an early visit where the father became very upset when she wouldn't see him, said something about the mother and stormed out.

[42] The child said to the clinical investigator that she finds the visits very stressful and that while she is there she wants to go to a corner of the room and cry or throw a tantrum. She stops herself, she said, because she is concerned that if she acts this way the judge might think she is a child and not listen to her wishes.

[43] The child told the clinical investigator that she searched her father's name online and found a video he posted where he was saying bad things about the mother.

[44] The child told the clinical investigator that she wasn't enjoying her visits with the father before they ended in January, 2015.

[45] The child said to the clinical investigator that her mother wants to make her happy. She said that her mother has told her that she will support whatever choice she makes about her father.

[46] The child was described as well-spoken, polite and intelligent. She is a very good student.

[47] The OCL submits that individual counseling is more appropriate for the child at this time and that the request for reintegration counseling is premature.

Part Four – Brayden

[48] Brayden's detailed observation notes of the access visits were filed on consent.

[49] The Brayden staff worked very hard to make the access visits work.

[50] The Brayden notes indicate that the child has been consistently resistant to seeing her father. At times, she refused to leave the mother's car. Some visits had to be ended early.

[51] The last visit took place on February 10, 2018. Brayden reported that the child's behaviour was consistent with the other visits. She was nervous and was only willing to play with Brayden staff in the visiting room. She refused to see her father. The child expressed to Brayden that she continues to not want a relationship with him.

[52] Brayden suggested that it would be helpful to find other resources to help the child with her feelings and memories of her father in order to help her to be willing to have a relationship with him.

Part Five – The Sexual Offence

[53] In his Change Information Form filed with his motion to change, the father deposed that: "In January 2015 I was charged with the criminal code offence of Exposure to an underage person and was convicted of the offence resulting in a probation order". He went on to depose that: "My daughter was not the victim nor had anything to do with the offence that I was convicted of".

[54] At this hearing, the father said that the child had asked to go on a live website to chat with her friends. He said that he had his iPod on and was filming this when all of a sudden there was a pop-up on the website of two women scantily clad and sitting on a bed. The women, he said, were not engaged in any sexual activity and the child viewed the website for less than a minute. He said that he pleaded guilty to avoid a trial and any embarrassment to his daughter and family.[2]

[55] When the inconsistency in this evidence was pointed out, the father said that the evidence in his Change Information Form was wrong – the offence only related to the child.

[56] The court was concerned about this inconsistent evidence and adjourned the matter in order that the parties could obtain the transcript of the father's guilty plea and sentencing (the transcript).

[57] The transcript confirms that the child was the only victim of the sexual offence.

[58] However, the facts admitted to in the criminal court case are much different than those described by the father at this hearing. The transcript set out the following facts about the criminal offence:

a) The father went on an interactive sex website on his home computer while the child was in his care.

b) This internet website allows users to begin conversations with strangers. A live image of the stranger appears on the screen via webcam and communication is effected by typing text on the keyboard. The text appears on the screen beside the image.

c) The father placed the child in front of his computer as he began conversations with women over the website.

d) The father had the child look towards the screen and had her pretend to type on the keyboard to give the impression to the women on the screen that it was the child communicating with them. In fact, it was the father who was out of view of the camera who did the typing, engaging with the women on the screen.

e) The father used the child as a prop to induce the women who he was speaking to online to expose themselves.

f) The father took pictures and video of the child seated in front of the screen with the women on the website. The women engaged in sexually explicit activity. Specifically, they were topless with their breasts exposed and kissing one another. The father took additional video and pictures of the child on the website with other women posed in sexually explicit positions, including displaying their exposed vaginal area for the camera.

g) The child inadvertently took the father's iPod home with her. When the father phoned to see if the child had it, the mother looked at it and saw the images of the child watching naked women. She contacted the police.

[59] The father admitted these facts were correct. They were carefully reviewed with him by the sentencing judge, Justice James Stribopoulos.

[60] Justice Stribopoulos stated the following at the sentencing hearing:

a) Clearly, there was some deviant sexual purpose being served by this enterprise.

b) As a parent, every fibre of the father's being should have been aimed at protecting the child. The father exposed the child to something she should never have seen and surely not something she should have seen at his encouragement and through his orchestration.

c) The crime represented a profound breach of trust. It was worrying that the father did not seem to get that.

d) As a parent, he cannot help but be repulsed by the father's actions and worried for the welfare of the child going forward.

e) Factors mitigating the sentence were: the father spared the child the ordeal of testifying and reliving the events; the father did not have a criminal record; and the father had up until then been a law abiding, contributing member of the community.

f) "One is left to wonder why someone would want to memorialize – first of all, why someone would want to do something like that, but then what – what purpose is being served by memorializing it in that way"?

Part Six – Legal Considerations

6.1 Material Change and Best Interests

[61] Section 29 of the Children's Law Reform Act (the Act) provides that a court shall not vary a custody or access order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. The parties agreed that the material change threshold has been met. This means that the court has to determine what parenting order is now in the child's best interests.

[62] Once a material change in circumstances is established, both parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing access arrangements. See: Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

[63] Subsection 24 (1) of the Act provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.

[64] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ).

[65] Subsection 24 (3) of the Act sets out that a person's past conduct shall be considered only either in accordance with subsection (4) of the Act or if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a person.

[66] Subsection 24 (4) of the Act also sets out that 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 his or her spouse or the child.

[67] The court has considered the factors set out in subsections 24 (1) - (4) of the Act in making this decision.

[68] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v. Leggatt, 2015 ONSC 4502.

6.2 Joint Custody

[69] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It can't be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[70] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260; Roy v. Roy, [2006] O.J. No. 1872 (Ont. C.A.).

[71] Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642 at paragraph 59 for a review of cases applying this principle.

[72] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children - particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

6.3 Wishes of Children

[73] In paragraph 42 of Decaen v. Decaen, 2013 ONCA 218, the court set out that in assessing the significance of a child's wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child's point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, "The Voice of Children in Canadian Family Law Cases", (2005), 24 C.F.L.Q. 221.

[74] The court should not allow the comments of the child to be the sole basis of the judgment while disregarding other evidence of what may actually be in the child's best interests. Ultimately, the weight to be attached to an expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of the child to articulate a view. See: Stefureak v. Chambers, [2004] O.J. No. 4253 (SCJ), paragraph 64.

[75] A child's wishes will be given less weight where one parent has undermined the relationship with the other parent. See: Decaen v. Decaen, supra, at paras. 42, 44-45.

[76] A party cannot simply leave the questions of custody and access up to the child. To do so amounts to an abdication of parental responsibility generally and a breach of the party's positive obligations under the order. See Godard v. Godard, 2015 ONCA 568; Jackson v. Jackson, 2016 ONSC 3466.

6.4 No Access Orders

[77] This court reviewed the law pertaining to orders for no access in paragraphs 34 to 40 of I.A. v. M.Z., 2016 ONCJ 615 as follows:

[34] Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents. See: Gordon v. Goertz, [1996] 2 S.C.R. No. 27.

[35] It is normally in the interests of children to continue and to encourage their relationships with both parents following the separation of their parents. The ultimate goal is to establish, maintain and promote relationships which are of significance and support for a child. See: Young v. Young, [1993] 4 S.C.R. 3. Children generally benefit from maximum contact with both parents, provided that it is consistent with their best interests. See: Gordon v. Goertz, supra.

[36] A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access should only be ordered in extreme circumstances. See: Worthington v. Worthington, 2000 CarswellOnt 4889 (SCJ).

[37] In V.S.J. v. L.J.G., [2004] O.J. No. 2238 (S.C.) at paragraph 135, Justice Jennifer Blishen provided a useful overview of the factors that have led courts to terminate access:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M. (B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, [2001] O.J. No. 3707.

2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B.Q.B.); Abdo v. Abdo, (1993), 126 N.S.M. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay, (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct).

4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man. Q.B.); Gorgichuk v. Gorgichuk, supra.

5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M. (B.P.) v. M.(B.L.D.E.), supra.

6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.

7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).

[38] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

[39] In M.K. v. T.R., [2014] O.J. No. 596, this court denied access to a father and considered the following:

a) The father had been violent and controlling towards the mother during their relationship.

b) The father denied having been violent. This made him a poor candidate to change.

c) The mother's stress and anxiety over the prospect of reintroducing the father into the family life was a significant consideration as it risked destabilizing the children and causing them anxiety.

d) Access is only to be ordered in circumstances where it will benefit the child.

[40] This case was followed, in very similar circumstances, by Justice Robert Spence in Scarlett v. Farrell, 2015 ONCJ 35. Justice Spence denied access to the father, finding that access would not add anything beneficial to the child's life, but rather that it would likely risk destabilizing the child, thereby resulting in significant emotional harm (par. 161).

6.5 Orders for Reunification Therapy

[78] In Testani v. Haughton, 2016 ONSC 5827, at paragraph 18, Justice David Jarvis set out the following about making orders for reunification therapy:

a) The court may order reunification therapy. That jurisdiction arises from the provisions of sections 24 (2) and 28 (1) (b) and (c) (viii) of the Act.

b) Such orders should be made sparingly.

c) There must be compelling evidence that the therapy will be beneficial.

d) The request must be adequately supported by a detailed proposal identifying the proposed counsellor and what is expected.

e) Resistance to therapy is an important factor, but is not determinative as to whether such an order should be made.

f) Where a clinical investigation or an assessment is underway, no order should be made pending their conclusion.

g) Wherever practical, appropriate direction should be given to the counsellor/therapist and a report made to the court.

Part Seven – Best Interest Factors

[79] The following is the court's analysis of the best interest factors set out in subsection 24 (2) of the Act.

Factor #1: The Love, Affection and Emotional Ties

(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.

[80] The child has a very close and secure relationship with the mother and her stepfather.

[81] The father loves the child and at one time had a good relationship with her.

[82] The child's relationship with the father has been seriously damaged for over three years and at this point she expresses no love or affection for him.

Factor #2: The Child's Views and Preferences

[83] The child's views have been clear, consistent and coherent. She has expressed them strongly to anyone who will listen to her. She does not want to see her father or participate in any process that is designed to encourage her to see him.

[84] The child is very clear that she found the access attempts through Brayden to be stressful and she does not want to be forced to go again.

[85] The court is satisfied that the views of the child reflect her true and independent feelings. This is not a case where the child's relationship with the father was undermined by the mother. While the mother is far from enthusiastic about these visits, she has complied with the court orders and voluntarily facilitated access with the child's paternal grandparents outside of the court order. She followed the direction of the Brayden staff. The child's perception, as expressed to the clinical investigator, is that the mother encourages her to go on visits and supports any decision she makes about seeing the father.

Factor #3: The Length of Time the Child Has Lived in a Stable Home Environment

[86] The child has lived in a stable home environment with the mother and appears to be thriving. She does very well in school.

Factor #4: The Ability and Willingness of Each Person Applying for Custody

[87] The mother is appropriately providing the child with guidance and education and the necessaries of life.

[88] The father breached the child's trust and sense of safety by committing the sexual offence against her.

Factor #5: Any Plans Proposed for the Child's Care and Upbringing

[89] The court received little evidence of proposed plans from the parties.

[90] The mother is exploring individual counseling for the child through BOOST or the George Hull Centre. The court agrees with the father's submission that she was slow in coming to the realization that the child needs this help, but is pleased that she is now following through on this for the child.

[91] The father wants to continue with the Brayden Therapeutic Access Program. He also wants the child to participate in reconciliation counseling with him.

Factor #6: The Permanence and Stability of the Family Unit

[92] The mother's family unit is stable and likely permanent.

[93] The child does not feel safe or secure with the father.

Factor #7: The Ability of Each Person Applying for Custody or Access to Act as a Parent

[94] The mother has been a good parent for the child. The child is doing very well in her care.

[95] The evidence revealed some flaws with the mother, including a tendency to passivity. This was reflected in her slow realization that her child needs help arising from the sexual offence – she left the counseling decision up to the child. [3] The mother also showed poor judgment in showing the Brayden reports to the child. She should be protecting the child from the litigation, not including her in it.

[96] The court finds though, that overall, the mother has acted responsibly in dealing with a very difficult situation that was not of her making.

[97] The father has shown commitment to restoring his relationship with the child. He has attended at all scheduled access visits and has paid for the Brayden services. He attends each court appearance. The court accepts that he loves the child and that he wants to have a positive relationship with her.

[98] The father has complied with the terms of the criminal and family court orders. He attended the programs mandated by the criminal courts.

[99] However, the flaws of the father as a parent are profound.

[100] The father committed a serious sexual offence against the child. The court finds that the facts admitted to by the father in the criminal case are true – not the watered down (and inaccurate) version he presented to this court. The father did not rebut, to the satisfaction of this court, the accuracy of the criminal court findings. [4] The transcript shows that Justice Stribopoulos reviewed the facts with him in detail before accepting his guilty plea. In fact, the father was initially going to plead guilty to the first charge laid against him, but when the court reviewed the facts supporting it with him, there were certain facts that he disagreed with. This led to the conviction on the second charge. The transcript shows that the father carefully considered the facts that he was willing to agree to. It also reveals that the father's instructions to the women to perform sexual acts in front of his daughter were captured on the video he took – contradicting his version in this case that these women accidentally popped up on his computer.

[101] The facts supporting the criminal conviction certainly better explain the child's adverse reaction to the father than his version of events presented by him in this case.

[102] The father used the child for his own sexual pleasure at significant risk of causing her long-term emotional harm. The father's actions were staged and planned. One is left to question where this would have led if the father hadn't been caught accidentally. This was child abuse.

[103] The father continues to minimize his actions. This increases the risk of harm to the child. The father took scant responsibility in his affidavits for the breakdown of his relationship with the child. He attributes the breakdown in this relationship to the mother's behaviour. He clearly believes his actions were insufficient to provoke this response by the child. He indicated that he only pleaded guilty to save the child the distress of testifying in criminal court. As Justice Stribopoulos said in sentencing the father, "he doesn't seem to get it".

[104] The father's affidavits focused on attacking the mother. He spent an inordinate amount of time in his affidavits attacking her for incidents that allegedly took place prior to the existing order.

[105] The father's evidence sets out a profound lack of respect for the mother and a high level of anger towards her. He claims that she has engaged in criminal behaviour, is an alienator and brainwashes the child. He referred to her at one point as delusional.

[106] The father demonstrated little judgment by posting his feelings about the mother on social media where the child can read them. In these postings, he accuses the mother of forgery and marriage fraud. He calls her a criminal. He has posted the child's picture on his Twitter account, asking for funding, violating her privacy. He lacks the insight to understand that by attacking the mother, the person the child feels secure with, he is driving the child further away.

[107] The father claimed in his motion to change that his relationship with the child is safe, loving and appropriate. This is not the case. He fails to recognize that it was his actions which have ruptured his relationship with the child. He appears to lack insight into how his actions have adversely affected the child and that his child's feelings about him are real, legitimate and her own.

[108] The father accuses the mother of charging him with the criminal offence. It was the police who charged him. He committed the offence.

[109] The father accuses the mother of taking away his relationship with the child. However, it was the criminal court, not the mother, that placed the restrictions on this relationship.

[110] The father accuses the mother of delaying his access. This was not the case. The mother's lawyer pointed out in 2015 (in correspondence to the father's previous lawyer) that a family court order was required for the father to have access (pursuant to the criminal release terms) and invited his lawyer to start an action. The father's lawyers delayed starting the action and getting the documents served. [5] The mother consented to the supervised access order once the case started.

[111] The father has demonstrated poor impulse control. An example was the January 2, 2018 visit – one of his first opportunities for contact with the child. The child would not engage with the father and he became frustrated. He said in the child's presence, "I can't do this, is your mother putting you up to this?" The Brayden supervisor tried to calm him down but the father walked out the door and said, "you don't love me". He got his coat and said as he walked out, "this is bullshit" and left the building. He showed no recognition in his material that his anger might be adversely affecting the child's feelings.

[112] The father struggled to control his emotions at the hearing. The mother's counsel was barely into her submissions when he exploded and yelled that "your client is a criminal – you'll find out later". The court took a break and the father subsequently apologized.

[113] It was the court's impression that the father was more focused on his rights and his victimization than on the best interests of the child.

[114] The father would benefit from therapy to deal with his anger issues and to develop better insight into the child's feelings and his responsibility for those feelings.

Factor #8: The Relationship by Blood or Through an Adoption Order

[115] This is a neutral factor.

Part Eight – Analysis

8.1 Custody and Incidents of Custody

[116] The evidence is overwhelming that it is in the best interests of the child that an order be made for sole custody to the mother.

[117] The mother has responsibly made decisions for the child. The father committed a sexual offence against the child and has shown little insight or judgment about her needs.

[118] The parties do not communicate at all, let alone well enough to make a joint custody order.

[119] The father remains very angry at the mother and lacks respect for her. He is an extremely poor candidate for a joint custody order.

[120] It is in the child's best interests that government documentation be obtained or renewed in a timely manner and that she be able to experience the benefits of travel outside of Canada with the mother. Given the father's hostility to the mother, the court has little confidence that he would cooperate consistently or in a timely manner with requests to sign the necessary consents. The father's consent to enable the mother to obtain or renew the child's government documentation or to travel with her outside of Canada is dispensed with.

[121] The court will order that the mother provide the father with some information about the child. She is to provide him with copies of her report cards and advise him of any medical emergency regarding the child in a timely manner.

[122] Several other incidents of custody contained in the existing order are no longer appropriate or in the child's best interests and will be terminated.

8.2 Access

[123] It is in the child's best interests that no access be ordered at this time.

[124] Several attempts were made to encourage the child to see her father. She is clearly not ready to have a relationship with him.

[125] The father submitted that there was evidence of gains made during the Brayden visits in the relationship between he and the child. The evidence does not support that submission.

[126] Twelve-year-old children do not decide whether they see their parents – that is up to the court. However, the views of a child this age are important when making these decisions, particularly when there are good reasons to support those views. The court has placed considerable weight on the child's views in the circumstances of this case.

[127] The child's estrangement from the father is understandable and justifiable. This case is easily distinguishable from the cases where children of this age are forced to exercise access with a parent against their wishes. The father breached the child's trust and sense of safety by committing a serious sexual offence against her. She does not feel safe with him. He reacted at an early visit with an outburst of anger against her, pulling further at the frayed threads of their relationship. He attacks her mother online. The child is not receiving any benefit from her relationship with the father at this time – only distress.

[128] The child is functioning well. The more she is forced to go to visits with her father against her will, the greater the risk becomes of undermining that functioning.

[129] The child has not yet opened up to anyone (that we know of) about her feelings about her father. It will likely be beneficial for her to have the opportunity to resolve these feelings and the mother should follow up on individual counseling for her. It may or may not be that the child chooses to have a relationship with the father after this process takes place.

[130] There will be an order for no access.

8.3 Reunification Counseling

[131] Following the principles laid out in Testani, supra, the court finds that this is not a case that would deviate from the principle that reunification therapy should be ordered sparingly. There is no compelling evidence that such counseling would be beneficial for the child at this time. The child was the victim of a sexual offence and wants no contact with her abuser – even if it is her father. This distinguishes this case significantly from the cases where reunification therapy was ordered because of alienating behaviour by the child's caregiver.

[132] The court finds that the mother's plan for individual counseling is in the child's best interests. The child still needs to work through her feelings about the father. She has clearly demonstrated that she is not ready to see him. Although the final decision is not up to her, the court has to take into account her strong resistance to seeing the father or participating in any counseling process with him.

8.4 The Social Media Postings

[133] The father has inappropriately vented about the mother and the court case on social media. He has also posted the child's picture publicly on Twitter to solicit funding. This is a breach of her privacy and contrary to her best interests. It has only served to drive her further away from him. This needs to stop.

[134] The court has the authority pursuant to clause 28 (1) (c) of the Act to make the orders sought by the mother and the child to prevent the father from making such postings and to require him to remove the existing ones. See: C.A.V. v. L.C.M., [2002] O.J. No. 4878 (SCJ). Many courts are now making such orders in the best interests of children. See: Shotton v. Switzer, 2014 ONSC 843; Singh v. Batoolall, [2009] O.J. No. 1046 (SCJ); Chartrand v. De Laat, [2008] O.J. No. 4529 (SCJ); Daher v. Khanafer, [2016] ONSC 5969.

[135] The father was prepared to agree to a mutual order that the parties not post material that could be harmful to the child, but he felt that the order sought by the mother was too broad.

[136] The court agrees that the order sought by the mother is a bit far-ranging. The court will order that the father is not to denigrate the mother, make any commentary or post any video about this case, the mother or the child, or post a picture of the child in any public forum, including any social media forum that the child can possibly have access to.

[137] The court recognizes that it may be beyond the father's power to remove postings from certain forms of social media. Accordingly, he will only be required to remove any such commentary, videos or pictures of the child referred to in paragraph 136 above, to the extent that it is within his control to do so. He shall do this immediately.

[138] There is no evidentiary basis to make a similar order regarding the mother.

8.5 Life Insurance

[139] The mother asked the court to terminate a term in the existing order that required her to designate the father as beneficiary of a life insurance policy in trust for the child. This claim was not pleaded or raised by the mother until the mother made submissions on the motion. The father did not have the opportunity to address this issue in his evidence. Accordingly, the court will not deal with this issue in this decision. Apparently, neither party presently has an insurance policy. It may be that the parties mutually consent to terminate this term in the future.

Part Nine – Conclusion

[140] An order shall go on the following terms:

a) The parenting provisions set out in paragraphs 1-4, 6, 9, and 11-13 of the existing order are terminated.

b) The balance of the existing order remains in full force and effect.

c) The mother shall have sole custody of the child.

d) The father shall have no access to the child.

e) The mother shall provide the father with copies of the child's report cards in a timely manner.

f) The mother shall advise the father about any medical emergency regarding the child in a timely manner.

g) The mother may obtain passports and passport renewals, health cards and birth certificates for the child without the father's consent.

h) The mother may travel with the child outside of Canada, for vacation purposes, without the father's consent.

i) Pursuant to section 28 of the Act, the father is not to denigrate the mother, make any commentary or post any video about this case, the mother or the child, or post a picture of the child on any public forum, including on any social media forum that the child can possibly have access to. He is also required to remove any such commentary, videos or pictures of the child immediately, to the extent that it is within his control to do so.

[141] If the mother or the OCL seeks their costs, they shall serve and file their written costs submissions by July 4, 2018. The father will have until July 18, 2018 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.

[142] The court thanks counsel for their thorough presentation of these motions.

Released: June 18, 2018

Justice S.B. Sherr

Footnotes

[1] It should have been easy to arrange service on the mother as the father's previous lawyer was corresponding regularly with the mother's lawyer. The court draws no adverse inference against the father (as sought by the mother) due to this delay. The father has consistently expressed his desire to see the child.

[2] See paragraphs 9 and 11 of Exhibit 8. The father was given permission during the hearing to submit this version of the incident (it had been contained in a case conference brief) and adopted it as his evidence for this hearing.

[3] The mother deposed that the child seemed fine and didn't want to go to counseling, so she didn't pursue it. She said that it was only when she read the depth of the child's distress in the affidavit of the clinical investigator that she realized that the child needed the counseling.

[4] A criminal conviction is admissible in a civil proceeding and generally constitutes prima facie proof, not conclusive proof, of the underlying facts or guilt, although it can be rebutted with evidence that was not available at the criminal trial. See: W.H. v. H.C.A.; Children's Aid Society of Halton Region v. J.O., 2013 ONCJ 191.

[5] The father had three prior lawyers. His present lawyer took the case just prior to this hearing and had no responsibility for the delay of the case.