CITATION: Williams v. Williams, 2021 ONCJ 380

DATE: July 16, 2021

Court File Number: 122/19

ONTARIO COURT OF JUSTICE

at Orangeville

BETWEEN:

DENISE CAROLE WILLIAMS

Applicant

and

SIMON PAUL WILLIAMS

Respondent

Justice B. E. Pugsley

Heard: July 14th, 2021

Released: July 16th, 2021

Appearances:

Applicant (Mother) and counsel Ms. A. Woodley

Respondent (Father) and counsel Ms. J. Foote

ENDORSEMENT

1. The parties are the parents of C.A.D.W. (M) (DOB: […], 2010). They married in 2010 and separated on October 23rd, 2019.

2. The Applicant states that there was increasingly concerning behavior by the Respondent before the October event which precipitated their separation, but they did not separate.

3. The brief court history of this matter is as follows.

4. On October 23rd, 2019 the Respondent was charged criminally with possession of child pornography. He was arrested and held for bail for several days.

5. On October 31st, 2019, the Applicant moved for an order without notice to the Respondent for custody and restricted access by the Respondent. At the time the Respondent was still in jail.

6. On October 31st, 2019, I made an ex parte order as asked expressly stated to provide stability to the child with a motion review date on November 13th, 2019.

7. On the 13th of November 2019, no one appeared for the Respondent and he was apparently still in jail. Justice Schwarzl adjourned the matter for motion review to December 11th, 2019.

8. On the motion review date (December 11th, 2019) the parties met and agreed to a temporary order and the matter was put over to January 8th, 2020 for a case conference. On the motion review date, the Respondent was present out of custody and was represented by senior duty counsel. The agreement called for without prejudice temporary supervised access at the Family Visit Centre in Orangeville. On January 8th, 2020, that order was fine tuned by a further consent order. The Office of the Children’s Lawyer was asked to assist but later declined to do so. Both parties then had retained counsel.

9. A further case conference date (March 11th, 2020) was adjourned on terms which started temporary child support. The matter was scheduled to have a case conference on May 6th, 2020.

10. Between March 11th, 2020, and October 21st, 2020, the matter was adjourned serially due to the effects of the COVID-19 pandemic health crisis.

11. On October 21st, 2020, the parties started to hold resolution discussions. Those discussions started to slow by the December 16th, 2020, court appearance. The parties still had not held a case conference and had never filed briefs for such a conference. A case conference was again scheduled for March 3rd, 2021 and was held that day.

12. A motion was scheduled for May 19th, 2021, for an order granting the Respondent parenting time with the child. On May 19th, 2021, the matter was adjourned (not on consent) after the Applicant late-filed a cross-motion. Costs of that abortive motion were reserved to me at the hearing of the motion and cross-motion. Parenthetically neither counsel further addressed that costs issue during submissions.

13. Finally, on July 14th, 2021, the issue of temporary parenting time between the Respondent and the child was addressed via a contested motion/cross-motion. I reserved my decision. This endorsement is that decision.

14. The Respondent submits that while his serious criminal charges are still before the court, those charges do not affect the child (now 11), never involved his son in any way, and since he is presumed to be innocent until found guilty of the child pornography charge, the fact of the charges is not relevant to his parenting time.

15. He notes in submission that his mental health was not an issue when the parties cohabited and has been under control for many years. The Respondent in his affidavit sworn on June 30th, 2021, states that he has been diagnosed with three mental health conditions and is under medical care in Goderich. He agrees that after his father died, he had times of depression and anger and states that he made statements under stress concerning killing himself.

16. He was always a close and loving father to C.A.D.W. and during their visits the child states that he wants to see him more often and shows no concerns with seeing his dad.

17. He submits that there is no need for supervised access, let alone at the Visit Centre. He seeks access overnight at his home, forthwith. If a supervisor was needed, he has family members who could protect the child should the court feel that was needed, by taking on a supervisory role. Notably, he now lives in Goderich, Ontario, and his visits in Orangeville involve lengthy drives for one-hour visits.

18. The Respondent notes that he currently resides with his mother in Goderich.

19. As will be discussed below, he is currently on terms of release on his criminal charge. At Tab 8 of the Continuing Record he purports to attach his terms of release that were in place at that time (December 20th, 2019), but does not do so despite the requirement stated in the form. No bail terms have been disclosed in the documentary record.

20. The Applicant seeks to continue the supervisory role of the Visit Centre. She agrees that these visits have gone well there but raises the issue of the serious mental health issues that the Respondent demonstrated during their marriage which she submits include multiple serious self-harm threats by her husband involving both the attendance of the police and hospital attendance. She also submits that although the Respondent is fully entitled to defend himself on the criminal charges the nature of those charges is concerning. She does not agree that his charges do not involve their family: without her knowledge the family home was searched by the police using a search warrant and the Respondent did not tell her about this. She found out after his arrest. He claimed that his cell phone, seized by the police during the search, had been “lost” by him.

21. The Respondent upon arrest was not released by the arresting officer: he was held for bail. Eventually after multiple days in custody he was released on a $10,000.00 recognizance of bail with his adult daughter (who lives nearby) as his surety. He was later re-arrested for breaching his bail, making that $10,000.00 surety subject to revocation and estreatment to the Crown. After another bail hearing he was later released again, this time into the custody of his mother as surety.

22. The Applicant states in her evidence that C.A.D.W. has recently been open about his past concerns with regard to his father’s anger. He has been having counselling and early on had some contact with the local CAS after his father’s arrest to help him deal with that traumatic event and his earlier issues concerning his father and his father’s toxic relations with C.A.D.W.’s older step-brother.

23. The Applicant states that when she has talked to C.A.D.W. about added access, C.A.D.W. has (a) stated that he would run away if forced to be overnight with his father, and (b) would kill himself.

24. The Applicant notes that there have only been a few visits recently and urges that any changes be slow.

25. She submits that supervised visits at the visit centre are still needed to protect the child and advocated continuing that pattern in the short term at least. She does not believe that other family members currently would be able to intervene with the Respondent to protect the child should that prove necessary. The Respondent was to be supervised on bail by his daughter and that did not work leaving his daughter liable to a surety revocation application.

26. No one filed any Visit Centre notes.

27. Although the Respondent’s counsel did not file a copy of the latest bail order here, I asked if she had a copy available. In my experience as a judge in both family and criminal courts it is common that release orders in cases of child pornography allegations usually restrict contact between the defendant and children under age 16. In fact, such is the case here. The Respondent is residing in Goderich because he has to live with his mother, his surety; he cannot go to parks, swimming pools or playgrounds and cannot be in the presence of a child under age 16 except with another adult. His ability to leave his home is restricted and his surety is engaged in direct supervision of him. He states that his trial is scheduled in September starting on September 23rd, 2021.

28. One of the suggested places that the Respondent states he would like to take his son on visits is a park. He is currently not allowed to go to any park or public place where children may be found. He cannot be alone with his son at the moment unless in the presence of an adult.

29. The Respondent’s criminal allegations, as yet unproven on the criminal standard of proof beyond a reasonable doubt, are none the less very concerning in this family court case.

30. The Respondent is correct to note that he has not been convicted of anything at all at this point. I observe however that the test in the family court is the civil test of proof on a balance of probabilities not the higher criminal test. Criminal charges may engage constitutional arguments that may lead to a dismissal of a criminal charge when on the civil standard of proof events may yet be provable.

31. Prior to obtaining a search warrant the police must show a judicial officer that they have reasonable grounds to believe that the thing they seek to find (here child pornography presumably) exists in the place to be searched.

32. Charges cannot be laid unless a Justice of the Peace is satisfied that an officer has reasonable and probable grounds to believe that an offence (here, again, presumably possession of child pornography) has been committed.

33. In other words, there is not just a bald allegation that the Respondent has possessed child pornography here. The alleged offences if proven are serious charges which could garner incarceration depending on the facts of the case.

34. The Respondent was held for bail for multiple days and at the bail hearing was released on a surety recognizance, the highest form of release. He admittedly was then rearrested after an alleged breach of release terms and required to live with his new surety in Goderich. These are the hallmarks of criminal allegations on the more serious side of the spectrum.

35. The Respondent in his material, and in the initial submission, noted that he had to travel long distances for short access. He did not, initially until my inquiry, advise that he was required to move to Goderich due to his own alleged breach of his first bail conditions and the fact that he was again released on bail.

36. Again, the criminal allegations are just that – allegations. In the family law context however it is concerning that the allegations involve an offence that notoriously victimizes children.

37. The Respondent states that his trial is starting on September 23rd, 2021. It may be that more clarity will appear after that time frame with regard to the outstanding criminal charges.

38. I am very concerned about C.A.D.W.’s self-harm statements to his mother.

39. Those statements, which I accept, require a cautious approach to his parenting time with the Respondent. The visit centre in Orangeville, while less than ideal for everyone, will provide a demonstrably safe venue for one on one visits in the near future. The mid-week visits, currently by video, could be expanded to in person visits if the centre is able to accommodate and if the parties’ respective schedules allow. It may be that some may be in person and some by video.

40. To be clear, my focus today in continuing the formal supervision at the visit centre is based on the current requirement to give C.A.D.W. the security of that formal, experienced, third party supervision. When there is further clarity provided in late September after the Respondent’s criminal trial, other options may be considered by the parties. At this time the Respondent’s criminal bail terms hugely constrict other community options for safe, child focused, supervision.

41. Parenting time here will continue on the same schedule currently arranged between the parties and the visit centre in Orangeville. If the centre’s availability allows for two-hour visits rather than one hour, then they will be extended to be two hours. If the centre facilitated video mid-week visits can be accommodated as in-person visits, then that should be arranged.

42. I direct that a copy of this endorsement be sent to the Office of the Children’s Lawyer by court staff as soon as possible, together with a copy of their earlier letter regretting their inability to provide service here. C.A.D.W.’s increasingly stressed situation, threat to run away, and self-harm statements suggest to me that I should give the OCL an opportunity to revisit their involvement here. I strongly suggest that C.A.D.W. needs an independent voice here.

43. The parties didn’t address costs, nor provide any comments on whether offers to settle had been exchanged. Submissions may be made as set out below if counsel are unable to address this issue between themselves.

44. I make the following temporary order, not on consent:

45. The child of the parties, C.A.D.W. (M)(DOB: […], 2010), shall continue to reside in the day to day care of the Applicant (mother).

46. The Applicant (mother) shall have sole decision making authority concerning the said child.

47. The Respondent (father) shall continue to have supervised parenting time with the said child at the Headwaters Family Visit Centre in Orangeville based upon the schedule currently in place (alternate Saturdays in person visits and alternate mid-week visits by video). The Centre and the parties are requested to attempt to provide longer Saturday in person visits, and possible in person midweek visits where health and scheduling practices permit.

48. I request that the Office of the Children’s Lawyer provide service here for the said child. I renew the formal request and order made here previously. A copy of this endorsement and the OCL letter declining the previous request shall be sent to the OCL by the court office ASAP. The parties are directed to provide fresh intake forms to the OCL forthwith.

49. If not settled between counsel, the parties may provide submissions as to the costs of this motion and cross-motion upon the following schedule: the Applicant within 7 days; the Respondent within 5 days thereafter; reply if any within five days thereafter. Submissions shall be no longer than two double spaced A2 size pages exclusive of bill of costs and offers. Submissions shall be made to me via the OCJ Family Court Portal at Orangeville and shall be to the attention of my assistant Ms. Dickinson, who will forward them to me.

50. Costs submissions with regard to the previous court date, reserved to me here, have already been completed and my costs endorsement will address that issue as well.

51. Adjourned to August 11th, 2021, at 10 am by Zoom TBST as already endorsed.

Signed: B.E. Pugsley

Justice B. E. Pugsley