ONTARIO COURT OF JUSTICE

CITATION: S.W. v. L.C., 2019 ONCJ 922

DATE: 2019·12·23

COURT FILE No.: Woodstock D239/17

BETWEEN:

S.W.

Applicant

— AND —

L.C.

Respondent

Before Justice S. E. J. Paull

Heard on December 3, 2019

Reasons for Judgment released on December 23, 2019

James Batten..................................................................................................... for the applicant

L.C.................................................................................................................... on his own behalf

PAULL J.:

[1] Before the court is the issue of what, if any access L.C. has to his son. The child’s mother, S.W. seeks an order for no access.

[2] This matter proceeded to trial for one day on December 3, 2019 and the parties and mother’s current partner were the only witnesses.

Background and Positions of the Parties

[3] The parties lived together from approximately October 2015 to October 2017. They have one child together, O.C. (male) born […], 2017. Both parties were 18 years old when this matter began in early 2018, and O.C. is the only child for each of them.

[4] S.W. filed an application seeking sole custody and supervised access and child support. L.C. filed an answer not opposing custody or child support and seeking access.

[5] The parties filed partial final minutes of settlement on the day of trial agreeing to sole custody to S.W. and fixing child support. The only issue at trial related to L.C.’s access.

[6] At trial, L.C. sought a final order for supervised access that mirrors the current interim order of September 24, 2019 which outlines a progression to unsupervised and regular access. S.W. sought a final order that there be no access order on the basis of father’s failure to follow through with the interim access orders, and his drug use and abusive behavior while they were together.

The Law

[7] The court must decide what access order is in the child’s best interests and consider the factors set out in subsection 24 (2) of the Children’s Law Reform Act in reaching this decision. This subsection reads as follows:

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) any plans proposed 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.

[8] Section 24 (4) of the CLRA requires me to consider if a party has committed violence or abuse against the spouse or parent of the child, a member of the person’s household, or the child when considering their ability to parent.

[9] No one factor in the statutory definition of a child’s best interests is given statutory preeminence. The court should consider the level of hostility and the extent to which that hostility may undermine the child’s stability. Wilson v. Wilson, 2015 ONSC 479.

[10] The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents and the child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

[11] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[12] 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. M.A. v. J.D., 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946 (OCJ).

[13] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615.

[14] In Miller v. McMaster, 2005 CarswellNS 420 (N.S.S.C.), the court stated that "supervised access is not a long-term solution to access problems which usually arise in high conflict custody and access cases where distrust and negative parental allegations abound. Supervised access is appropriate in specific situations, some of which include the following:

a) Where the child requires protection from physical, sexual or emotional abuse;

b) Where the child is being introduced or reintroduced into the life of a parent after a significant absence;

c) Where there are substance abuse issues; or

d) Where there are clinical issues involving the access parent.

[15] In all situations where supervised access is ordered, the hope and expectation is that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve. Izyuk v Bilousov, 2015 ONSC 3684.

[16] Supervised access is usually a temporary arrangement. However, when the court does not expect the risks addressed by supervision to diminish, it is appropriate to order long-term supervision of access. Tuttle v. Tuttle, 2014 ONSC 5011.

[17] Long-term supervision of access ordered in L.W.-A. v. J.C., 2017 ONCJ 741, where the parent was a registered sex offender, had taken no treatment, showed little insight into his issues, continued to be investigated for sex offences and had breached court orders.

[18] A court may limit or cancel access to minimize risk to a child from a parent’s conduct or lifestyle: W.(B.H.) v. W.(S.M.), [2001] S.J. No. 161 (QB). Long term harassment and harmful behaviours towards the custodial parent causing the parent and child stress has qualified. Stewart v. Bachman, [2003] O.J. No. 433 (SCJ); Dixon v. Hinsley, 2001 CanLII 38986 (ON CJ), [2001] O.J. No. 3707 (OCJ).

[19] In V. S. J. v. L.J.G., 2004 CanLII 17126 (ON SC), [2004] O.J. No. 2238 (S.C.) at para. 135, Blishen J. 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 CanLII 38986 (ON CJ), [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 CanLII 3124 (NS C.A.), (1993), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay 1987 CanLII 147 (AB Q.B.), (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.).

[20] Blishen J. was also careful to remark at para. 136:

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

[21] Blishen J. went on to remark that in her view, supervised access should always be considered as an alternative to a complete termination of the parent/child relationship, stating at para. 140:

Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits; the child reacts badly after visits; or, where the access parent continually misses visits or is inappropriate during the access then termination must be considered. See: Studley v. O'Laughlin, supra; Worthington v. Worthington 2000 CanLII 22469 (ON S.C.), (2000), 13 R.F.L. (5th) 220 (Ont.Sup.Ct.); Lacaille v. Manger 1994 CarswellOnt 2089; Dixon v. Hinsley, supra.

Evidence and Analysis

[22] The parties have been the subject of two substantive interim orders during this proceeding as follows:

1. September 24, 2018: pursuant to minutes of settlement, custody to mother, supervised access on alternate weekends at Merrymount for two hours, child support of $227 per month.

2. September 24, 2019: pursuant to detailed minutes of settlement, custody to mother, with supervised access at Merrymount for two hours per month commencing October 2019. Upon the respondent attending three consecutive visits and providing a clean drug screen, supervised access was to expand to two hours on alternate weekends at Merrymount.

The access arrangements were to be reviewed for the purposes of expanding the duration and frequency of the visits and for the purpose of transitioning the visits from supervised to unsupervised within six months after the commencement of these visits.

The respondent to notify the applicant in writing in the event he was unable to attend access and to provide 24 hours’ notice. All communications between the parties regarding the child were to be in writing, and the parties were to immediately notify the other of any changes in their address, telephone number, or email address.

Both parties were also ordered to refrain from making negative comments about the other party in the presence of the child and not expose the child to any negative comments or adult conflict.

Child support was ordered at $440 per month on an income of $47,500.

[23] The applicant is currently 20 years old and lives in Tillsonburg, Ontario. She began residing with L.C. in or about October 2015 and separated in or about October 2017. O.C. was born […], 2017.

[24] During the relationship she testified to some physical but mostly verbal abuse by L.C. S.W. did not testify to any specifics of the physical abuse other than that he had punched holes in the wall. She stated that after O.C.’s birth L.C. punched a hole in the wall and threw a blender across the kitchen. These incidents occurred with O.C. present. After they separated there was an incident of him banging on the front door of her home which scared her.

[25] S.W. testified that while they were together L.C. provided little help with caring for O.C. and that she was primarily responsible for him. Following separation and before the incident of L.C. banging on the door she offered for him to come over to her home three times a week for visits. He was often late or did not attend.

[26] She testified that L.C. also used methamphetamine during the relationship, however acknowledged that she had as well.

[27] S.W. is currently in a relationship with D.C. They met in December 2017 and moved in together in April 2018 to the three-bedroom apartment D.C. lived in. D.C. has a child who visits every other weekend. He works for various people as a “scrapper” (collecting metals) and gets along very well with O.C. She felt that O.C. views D.C. as a father figure.

[28] She testified to no concerns with D.C. regarding drug or alcohol use, however, he acknowledged in his testimony two DUI convictions with the most recent being in February 2018. She testified that she plans to marry D.C. in the future and to live as a family in the country.

[29] S.W. consented to the detailed interim order of September 24, 2019 which outlined a progression for father’s access but indicated in her testimony that she should not have agreed to this order. She testified that she sees no role for L.C. in O.C.’s life as he is “not fit”. She seeks a no access order on the basis of L.C.’s temper, his inconsistency in attending access, and because of concerns she has with L.C.’s family.

[30] D.C testified on behalf of S.W. as follows:

1. He is 25 years old and gets along very well with S.W. and O.C. He views his relationship with S.W. to be a long-term relationship.

2. He has one child, C., who is 5 ½ years old and visits regularly on weekends and holidays. C. and O.C. get along very well together.

3. He testified to no involvement with the CAS or to any outstanding criminal charges, but acknowledged two DUI convictions, one in February 2012 and the other in February 2018.

[31] L.C. testified as follows:

1. He disputed that he only changed one diaper when the parties were together and stated that he was involved in caring for O.C. along with S.W. He acknowledged that he used meth a couple of times during the relationship and that he had put holes in the wall, however, O.C. was never present.

2. He acknowledged missing some of the visits at Merrymount because he was sick, and because he did not have a cell phone or any way to contact Merrymount.

3. He was of the view that the visits he did attend went very well, and during the second visit O.C. called him “Dad”.

4. He attended detox at the Centre of Hope in the winter of 2018 for four days, and testified that he has not used drugs since. He has worked for approximately seven months for a concrete former in London Ontario.

5. He agreed that at this time O.C. really does not know who he is, however he is committed to the plan outlined in the interim order of September 24, 2018, and he seeks that access continue pursuant to that order on a final basis.

[32] The Merrymount records were filed in evidence and neither party disputed their contents. The records outlined the following involvement with the parties.

[33] Following the interim order of September 24, 2018 which provided for supervised access at Merrymount, L.C. did his intake on October 25, 2018 having missed his first intake on October 4, 2018. S.W. did not contact Merrymount until October 30, 2018 and completed her intake on November 7, 2018.

[34] Up to March 19, 2019 a total of 10 visits were scheduled. Merrymount cancelled three visits on November 25, 2018, December 9, 2018, and December 23, 2018 because of staffing issues.

[35] L.C. did not attend the scheduled visits on January 6, 2019, February 3, 2019, February 17, 2019, and March 17, 2019, and did not call to cancel three of these visits. He attended visits on December 16, 2018, January 20, 2019, and March 3, 2019.

[36] The access notes outline appropriate interactions between L.C. and O.C. (including hugs) and no indication of concerns were noted by staff or O.C. After the visit on January 20, 2019, Merrymount staff overheard O.C. tell his mother that he had fun at the visit. Further visits were scheduled for March 31, 2019 and April 28, 2019. L.C. did not attend or call to cancel these visits.

[37] On April 30, 2019 Merrymount reduced the number of scheduled visits to once per month due to L.C.’s inconsistent attendance. After speaking with both parents, the next visit was scheduled for May 26, 2019. However, this visit did not occur as Merrymount suspended visits following a call from S.W. on May 23, 2019 where she indicated she was stopping access because she had safety concerns with L.C.’s family. When asked by staff if they could relay the reason to L.C. why she was terminating visits, S.W. asked that they not do so at that time.

[38] L.C. called Merrymount on July 6, 2019 seeking to schedule visits, but none were scheduled as S.W. had not contacted Merrymount. He called Merrymount again on September 30, 2019 (after the order of September 24, 2019 was made) and requested that access be scheduled. Staff received a call from S.W. on October 11, 2019 and offered to start access on October 27, 2019, but S.W. indicated she was unavailable until November 2019 because of a previous engagement.

[39] S.W. also requested that staff speak to L.C. about not being called “Daddy“, as O.C. knows her boyfriend as Daddy and not him. Staff advised her of their policy of following the child’s lead on this issue, and that they cannot tell L.C. that he cannot refer to himself as Daddy. Merrymount staff did have a conversation with L.C. about their policy on this issue which he agreed with.

[40] Visits were scheduled for November 10, 2019, December 15, 2019 and January 12, 2020.

[41] At the time of trial only the November 10, 2019 visit had occurred. The access notes indicate that upon arrival S.W. indicated that O.C. had been crying. Staff observed no concerns and noted appropriate interactions between L.C. and O.C., and that O.C. hugged his father goodbye at the end of the visit.

[42] There is a presumption that regular access by a noncustodial parent is in the best interests of children. S.W. seeks to terminate access, which is the most extreme access order the court can make, and one that will certainly have long-term implications in how the child’s life unfolds. Given the profound restriction she seeks, clear and compelling justification is required.

[43] S.W. cites a number of grounds to support her position, including L.C.’s temper and abusive behaviour during the relationship.

[44] L.C. acknowledged that during the relationship he put holes in the wall at the home, and did not dispute throwing the blender or the allegation that he banged on her door on one occasion following separation. S.W. testified to physical and verbal abuse by L.C. but offered no other specific factual allegations to support this. The only evidence offered related to holes in the wall, although it was left unclear how often this may have occurred, and one incident of him throwing a blender and banging on her door. L.C. does not have a criminal record or outstanding charges, and there was no evidence of CAS involvement with the parties.

[45] These incidents, while highly inappropriate, do not on their own justify a termination of the parent-child relationship. They would support that any access remains supervised for a period of time to ensure that L.C. is physically and emotionally safe before access is expanded and moves to unsupervised.

[46] Further, I am not convinced on the limited evidence presented that L.C. is a danger to S.W. or the child. Since the parties separated in or about October 2017 the only evidence of abusive or threatening behaviour was the incident shortly after separation of L.C. banging on her door. Few particulars were provided other than that he did this, and it scared her, and there was no evidence of any other inappropriate interactions or behaviours since then directed at S.W. or the child.

[47] There was also no evidence that L.C. denigrates S.W. or that he has used access for this purpose.

[48] The evidence from Merrymount of the few interactions L.C. has had with O.C., outlined that L.C. appeared gentle and caring, and interacted positively and appropriately with both O.C. and staff. There was no indication staff had any concerns and O.C. did not indicate or behave in a manner that suggested he was anxious or concerned. There was no evidence to suggest that L.C. has ever neglected or abused O.C. during his supervised access.

[49] In addition, the Merrymount records indicate that after the visit on January 20, 2019 staff overheard O.C. tell his mother that he enjoyed the visit. O.C. also hugged L.C. goodbye at the end of the most recent visit on November 10, 2019. Prior to that O.C. appears not to have seen his father since the visit on March 3, 2019.

[50] S.W. also cited safety concerns with L.C.’s family as a justification to terminate access, but offered no evidence to support this allegation.

[51] S.W. also cited methamphetamine use by father during the relationship as a concern, but offered no other particulars or facts. L.C. acknowledged he had used meth a couple of times during the relationship. However, S.W. acknowledged in her testimony that she had also used meth during the relationship.

[52] L.C. stated he attended detox in the winter of 2018 and has remained clean since then. He offered no independent confirmation of this, and at the time of trial had not provided a clean drug screen which was part of the terms of his access expanding as outlined in the September 24, 2019 interim order because he had not yet had the three visits at that point.

[53] Based on the evidence before the court these concerns justify continued supervised access but not a termination of access.

[54] The most compelling ground offered by S.W. to justify an order of no access relates to L.C. not following through with access when offered, and that as a result O.C. does not know his father at this point. L.C. acknowledged that in the circumstances of his limited contact O.C. likely does not know him.

[55] After the interim order of September 24, 2018 up to May 2019 L.C. had a total of three supervised visits at Merrymount. Of the remaining visits scheduled during this period three were cancelled by Merrymount for staffing purposes, and a further six visits were missed or cancelled by L.C.

[56] After the March 3, 2019 visit L.C. did not have a further visit until November 10, 2019.

[57] L.C.’s failure to consistently and regularly attend visits is a concern and suggests that a relationship with his son was not a priority for him. This has resulted in a lack of a relationship and attachment between L.C. and O.C.

[58] Continually missing visits as he did is behaviour that can support a termination of access. He has been provided the opportunity to develop a bond and attachment with O.C. and chose not to fully avail himself of that opportunity.

[59] However, the responsibility for the fact that there were no visits after May 23, 2019 up until November 10, 2019 rests primarily with S.W. and not L.C. S.W. contacted Merrymount on May 23, 2019 (three days before a scheduled visit) and unilaterally stopping access.

[60] She did this in contravention of the then current interim order that directed access at Merrymount. She did not return the matter to court to seek to vary the order. She simply refused to cooperate with Merrymount in scheduling further visits.

[61] L.C. was entitled to rely on that order and sought to schedule access by calling Merrymount on July 6, 2019 without success. He obtained another access order on September 24, 2019, and contacted Merrymount again on September 30, 2019 to arrange visits.

[62] While L.C. has not acted in O.C.’s best interests by missing visits up to May 2019, neither has S.W. when she unilaterally terminated access on May 23, 2019 in spite of the court order and without returning the matter to court. It was clear in her testimony that she sees no value in O.C. having a relationship with L.C., because she felt he was unfit, and because O.C. already had a father figure in her new partner.

[63] In spite of the interim access orders in place which were made on consent L.C. has had the opportunity for only one visit since May 2019. In the circumstances it is the applicant who bears the responsibility for there being no access after May 23, 2019 up until November 10, 2019. Had the court received evidence that S.W. continued to facilitate access in accordance with the order to the extent offered by Merrymount, and that L.C. continued to not attend, I may have been more inclined to consider terminating access because of his non-attendance at this time.

[64] There are also additional considerations. This is not a situation where L.C. has denied the concerns regarding his drug use and inappropriate behaviour during the relationship. He acknowledged his challenges and accepts that access should be supervised for the time being.

[65] He has also conducted himself in a reasonable and child focused manner with respect to the issues of custody and child support, which he conceded in his answer, and consented to in interim and final minutes of settlement. There was no current evidence of abusive or derogatory behaviour by L.C. towards S.W. or O.C., or evidence that the child was at risk of physical or emotional harm during supervised access. The interactions outlined in the Merrymount access records describe positive and appropriate interactions between L.C. and O.C.

[66] A parent does not have an absolute right of access, however, refusing access should only be ordered in extreme circumstances. Worthington v. Worthington, 2000 CanLII 22469 (ON SC), 2000CarswellOnt 4889 (Sup.Ct.). Access is only to be ordered in circumstances where it will benefit the child and be in their best interests.

[67] I am also mindful that an order for no access should be made only in the most extreme cases, and that supervised access should be carefully considered first. The only issue that would support a termination of access (rather than access remaining supervised) is L.C.’s inconsistent attendance. However, as a result of S.W.’s unilateral action of suspending access and not adhering to the interim order, I am unable to conclude at this time that supervised access has been tried and failed. L.C. attended the only access scheduled since May 2019 and testified to his commitment to following through.

[68] The grounds offered by S.W. do not reach the high bar or include the multitude of factors that are required to terminate a parent-child relationship when the entirety of the circumstances are considered. Having said that, now that access has started again as of November 10, 2019, if L.C. continues the pattern of missing visits as he did in early 2019 it may well justify a review of an order for access.

[69] The primary concerns in this matter are L.C.’s prior lack of follow through with access with the result being that O.C. does not know him, and L.C.’s prior inappropriate behaviour during the relationship. Supervised access is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated. The concerns in this matter can be appropriately addressed by access remaining supervised until such time as L.C. has established sufficient consistency and stability.

[70] O.C. has a right to know his father, and to form and maintain an attachment to him. The circumstances in this case does not amount to the extreme or unusual conditions necessary for that fundamental right to be forfeited. Continuing access at Merrymount is appropriate, so that O.C. may be reintroduced into the life of his father in a supervised and supported setting. It is also appropriate that access remain once per month for two hours. If L.C. attends three consecutive visits access will expand to alternate weekends at Merrymount. S.W. is expected to facilitate that access, and L.C. is expected to consistently follow through with it.

[71] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the child. Having considered all the factors outlined herein, and in s.24 (2) of the CLRA, the best interests of O.C. do not support an order terminating access, but rather for continued supervised access until such time as L.C. has established a pattern of consistency and stability.

[72] On the basis of all the considerations outlined herein, there shall be a final order as follows:

1. Access by L.C. to the child as follows:

a. Once per month supervised at Merrymount for a minimum of two hours.

b. After three consecutive visits have been attended by L.C. (which shall not include visits cancelled by Merrymount or S.W.) the visits will increase to alternate weekends for a minimum of two hours supervised at Merrymount.

c. The parties shall immediately notify the other of any changes in their address, telephone number, or email address.

d. Other times as agreed between the parties.

The parties are encouraged to agree on the issue of costs, if any, in this matter. However, if the parties are unable to agree the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments by January 10, 2020, with the responding party filing written submissions, not to exceed three pages, excluding attachments by January 24, 2020. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.

Released: December 23, 2019

Signed: “Justice S. E. J. Paull”