ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2199/11
DATE: 2012-05-01
BETWEEN:
CHRISTINE MARGARET GULBRANSON Applicant – and – BRENT STANLEY GULBRANSON Respondent
T. Frederick Baxter, for the Applicant
Michael O’Neill, for the Respondent
HEARD: April 26, 2012
INTERIM ORDER
JUSTICE E. GAREAU:
[ 1 ] This is a motion at Tab 19 of the continuing record by the respondent father for an order for specified access to his children, Amber Gulbranson born […], 1998 and Devon Gulbranson born […], 2003. The respondent seeks alternate weekend access, summer vacation access and specified telephone access each Wednesday at 7:00 p.m.
[ 2 ] The applicant mother resists the father’s claim for interim access arguing that his access should be supervised. Since there are no agreeable third party supervisors, the mother’s position would restrict access to the AFS supervised access facility. This would in essence restrict the father’s contact to two hours each week.
[ 3 ] The mother’s position is based on her allegation that the father was abusive during the course of the marriage, although the allegations center around Mr. Gulbranson’s alleged abuse of her rather than allegations of abuse toward the children. Although there are criminal charges pending and Mr. Gulbranson is on a criminal court recognisance not to communicate with Mrs. Gulbranson, little detail was provided as to the particulars of the allegations in the criminal matters. The mother alleges that the father spoke meanly and negatively toward the children when they were together and is concerned that this conduct will escalate if he has access to the children in the absence of a third party supervisor.
[ 4 ] The parties have lived separate and apart since March 2, 2011. The parties entered into a written separation agreement dated March 3, 2011. The applicant is requesting as part of her relief in the application that the agreement be set aside. The agreement is signed by the parties and witnessed. The written separation agreement provides that the mother and father have joint custody of Amber and Devon with the children having their primary residence with the mother. As to access, the agreement states: “The non-custodial party has fair and reasonable access.”
[ 5 ] The father had ongoing access with both Amber and Devon from the date of separation until August, 2011. The father took the children for a one-week vacation to his parents’ home in Warkworth, Ontario in August, 2011 and after that summer access visit, he indicates that he was advised by the applicant that she would no longer permit access unless it was supervised. The father claims that no reason was given by the mother for taking this position, although he indicates in his affidavit at Tab 20 of the continuing record when he indicated in his responding material that he wanted custody of Amber and Devon, that his difficulties with access began.
[ 6 ] The father has not agreed to supervised access and as a result he has not had access to his children since the August, 2011 vacation. The matter is complicated by the fact that the oldest child, Amber, who is 13 years of age, now does not want contact with him. The father alleges that the mother has alienated Amber from him but no conclusions can be drawn or findings made as to his allegation at an interim stage on the affidavit material before me.
[ 7 ] The mother has filed affidavits from her mother, Catherine Knight, (Tab 22 of the continuing record) and her aunt, Marilyn Maki (Tab 1, Volume 1 of the continuing record). Both affidavits urge the court to impose supervised access on Mr. Gulbranson. Both affidavits refer to allegations that are dated and, in my view, do not persuade that the children would be in any danger or harm if unsupervised access was granted to Mr. Gulbranson. In paragraph 4 of her affidavit at Volume 2, Tab 1 of the continuing record, Marilyn Maki states: “My assessment of Brent is that he is not responsible where the children are concerned. While he holds down a responsible job, his family skills are very lacking. He is a total control freak – he comes across as credible if you have no experience with him.” Ms. Maki provides the court with no facts or evidence to support this statement. It is clear from the content of these two affidavits that neither Catherine Knight or Marilyn Maki are independent witnesses and I place little weight on their evidence at this interim stage.
[ 8 ] The father had unsupervised access until sometime in August, 2011. There is no evidence that either Amber or Devon were harmed during this access or that they were in any danger while in the care of their father. Although it appears from the affidavit of Marilyn Maki, it is clear that Amber does not want to go on unsupervised access and the father concedes that this is Amber’s wish at the present time, there is no evidence that Devon does not want to go on unsupervised visits with his father. In paragraph 7 of his affidavit sworn on March 9, 2012 at Tab 20 of the continuing record, Mr. Gulbranson relates a call he had with Devon when Christmas access was trying to be arranged:
“I attempted to arrange Christmas access but the applicant did not respond to either me or to the requests sent to her lawyer. I did receive a telephone call from my son two days before Christmas informing me that he was on speaker phone with his mother present and that I should agree to supervised access. My son pleaded with me to accept these conditions of his mother as he had not seen me now for almost 4 months and wanted to spend time with me.”
I am satisfied that Devon wishes to see his father.
[ 9 ] The records of the Children’s Aid Society for various periods spanning the period from October 22, 2003 to August, 2011 are attached as Exhibit “A” to the affidavit of the respondent sworn March 9, 2012 at Tab 20 of the continuing record. In a case note dated March 31, 2011, it is noted: “The children have not disclosed any concerns for their safety with the mother or the father.”. The Society records notes that Devon is “happy with his parents and safe with them.”. Perhaps most telling is the notation that comments: “The mother reported having no significant concerns during the access visits with the father.”
[ 10 ] At this interim stage, I am not satisfied that there is a need for the father’s access to his children to be supervised. To order supervised access will duly restrict the development of the relationship that Amber and Devon should have with their father and create artificial barriers between them. In some cases, where there is a real possibility that the children will be harmed if access is unrestricted, supervision is necessary, but this is not one of those cases.
[ 11 ] I am very concerned about Amber not wishing to visit with her father. I have made an order requesting that the Children’s Lawyer become involved and hopefully that office will be involved and assist in re-establishing the relationship between Amber and her father. This relationship is to be encouraged and I am concerned that Amber is made too aware of the difficulties between her mother and father. My concern is based on the notation in the Children’s Aid Society records as recently as July 19, 2011 in which the child protection worker notes: “I indicated to Christine that I was concerned that Amber knows so much about the current situation, that when Christine talks about the abuse, I see no reaction and Amber and that is concerning, and adjusted to Christine to stop talking about adult issues in the presence of Amber.”
The behaviour of both Mr. Gulbranson and Mrs. Gulbranson will now be scrutinized within this court proceeding and hopefully they will take note of this.
[ 12 ] Given her age and the acceptance by the father that for whatever reason Amber does not want to go on access visits at this time, I do not intend to compel Amber to go on visits by a court order. However, Amber should understand that she is able to go with Devon on all or part of his access visits with his father and Mrs. Gulbranson should make every effort to encourage Amber to go on these visits. Access pertaining to Amber is reviewable at any time and upon receipt of a report or information from the Office of the Children’s Lawyer.
[ 13 ] There has been an issue about telephone access and there should be regular contact by telephone between Devon and his father. Similarly, I see no reason why the respondent should not be entitled to attend at the school of Amber and Devon, and obtain directly from the school and all other service providers reports, records and information pertaining to Amber and Devon.
[ 14 ] For these reasons, there will be an interim order as follows:
(a) the respondent father shall have interim access to Devon Gulbranson born […], 2003 on the weekends of May 4, 2011 and May 11, 2012 from Friday at 3:30 p.m. to Sunday at 7:00 p.m. and on alternating weekends thereafter. The father shall attend at Devon’s school to pick him up on Fridays. The applicant will pick Devon up at the home of Kelly Gulbranson-Burden at 90 Champlain Street, Sault Ste. Marie, Ontario Sundays at 7:00 p.m. If there is no school on Fridays, the applicant mother shall deliver Devon to the home of Kelly Gulbranson-Burden to enable the respondent to pick up Devon from that home;
(b) the respondent shall have summer holiday access in 2012 with Devon Gulbranson born […], 2003 from August 3, 2012 at 7:00 p.m. to August 12, 2012 at 7:00 p.m. The applicant shall deliver Devon to the home of Kelly Gulbranson-Burden for access and pick up Devon at that home after access has concluded;
(c) the respondent’s access to Amber Gulbranson born […], 1998 is reviewable at any time upon further motion by the respondent and upon receipt of a report or information from the Office of the Children’s Lawyer;
(d) the respondent shall have telephone access to Devon each Wednesday evening at 7:00 p.m. commencing May 9, 2012. The father shall place the call to Devon and Devon shall be made available to receive the call from his father;
(e) the respondent father is entitled to attend at the school of Amber Gulbranson born […], 1998 and Devon Gulbranson born […], 2003 and to obtain directly from their school and all other service providers, reports and records pertaining to Amber and Devon;
(f) the applicant mother and the respondent father shall not discuss the issues in this court case with Amber or Devon;
(g) the applicant mother shall not make demeaning remarks about the respondent father in the presence of either Amber or Devon or to third parties in the presence of either Amber or Devon;
(h) The respondent father shall not make demeaning remarks about the applicant mother in the presence of either Amber or Devon or to third parties in the presence of either Amber or Devon;
[ 15 ] In the motion at Tab 19 of the continuing record, the respondent has claimed costs of the motion on a substantial indemnity basis. Although I am aware that this practice is discouraged, my view is that costs of this motion should be reserved to the trial judge. The trial judge may have the benefit of the OCL report and will have the benefit of viva voce evidence and be in a better position than I am to assess the motivation behind the mother’s refusal of unsupervised access and why Amber is refusing to exercise access to her father. Costs of the motion at Tab 19 of the continuing record are reserved to the trial judge.
Justice E. Gareau
Released: May 1, 2012
COURT FILE NO.: 2199/11
DATE: 2012-05-01
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: CHRISTINE MARGARET GULBRANSON Applicant – and – BRENT STANLEY GULBRANSON Respondent
REASONS ON MOTION
Justice E. Gareau
Released: May 1, 2012