ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-07-2383-4
DATE: 2012/05/30

BETWEEN:

N.G. Applicant – and – J.T.W. Respondent

Steven A. Fried, for the Applicant
Self-represented / No one appearing

HEARD: May 15, 2012 (Ottawa)

REASONS FOR DECISION

KERSHMAN J.

Introduction

[ 1 ] The Applicant (“Mother”) brings a motion for various relief. The Respondent (“Father”) brings a cross-motion for various relief. The relief sought by the Applicant is as follows:

(1) That the Father’s motion dated February 22, 2012, requesting leave to file a lawsuit against the Mother and the CAS be dismissed or stayed with costs for being an abuse of process;

(2) That the provisions of the Final Order of Madam Justice de Sousa dated December 12, 2008 (“de Sousa J. Order”) relating to access to the child, A.R.G.W., born […], 2004, (“A.R.G.W.”) be varied to provide that the Father’s visits be supervised or suspended pending satisfactory conclusion of a mental health evaluation;

(3) That the Father provide the Mother with copies of all medical and mental health records and any reports, letters, and information from the Father’s treating physicians or mental health care professionals for the last eight years;

(4) That the Father cooperate as required by the child protection agencies in Ottawa and in Gatineau; and

(5) Costs of this action.

[ 2 ] Based on additional information received by the Applicant and the Court from the Father about him going to pick up the child from school on May 16, 2012, the Mother sought the following additional relief at the motion:

(1) A restraining order prohibiting the Father from attending at the child’s school and/or daycare and removing the child from either the place pursuant to s. 35 of the Children’s Law Reform Act , R.S.O. 1990, c. C.12 (“ CLRA ”);

(2) An extension of paragraph 5 of the de Sousa J. Order for police enforcement of any order of the Court on this motion;

(3) An order for supervised access at the discretion of the Mother;

(4) An order under s. 140 of the Courts of Justice Act that the Father be prohibited from instituting any further proceedings in any court without leave of the Ontario Superior Court;

(5) An order that the Father be prohibited from seeking any variation in relation to access until he provides the Mother and the Court with a psychiatric evaluation and confirmation that he is fit to care for the child and that the cost of such evaluation be at his own expense; and

(6) That the Father’s consent be dispensed with in approving any order as to form and content relating to the motion and cross‑motion.

[ 3 ] The Father did not attend at court on May 15, 2012, although he was well aware that the matters were proceeding on that date since his cross-motion had been set down for that date.

[ 4 ] At 1:57 p.m. on May 15, 2012, the Father sent a fax to the court office. In it he stated, in part, the following:

After considerable reflection, unfortunately I will not be able to attend today as I believe that, having being labelled a vexatious litigant, my attendance will unnecessarily prejudice my case and unduly aggravate the applicant. It is for similar reasons that both parties missed the last hearing of March 26.

However, I request that the matter continue to be heard today . The applicant’s lawyer has been served all documents; including those included with the respondent’s Confirmation notice, and this fax. While granted a risky strategy, I respectfully request that my arguments and evidence be heard through written representation only, and if necessary, the Court to use the respondent’s time to review the documentation in Chambers.

Moreover, to me the motions are so clear‑cut that on a “level playing field” I cannot remotely imagine losing. I will shortly be advising A.R.G.W.’s school that pending today’s outcome, I will be at the school tomorrow to pick up my daughter. A.R.G.W.’s Beaver leader is also hoping that she will attend the final graduation celebration tomorrow evening [May 16] where 100 people (including her friends) are expected to attend. The school and Beavers will be formally informed tomorrow morning of today’s outcome.

However, I do not believe that the legal system is fair to single Dads . While the respondent fully expects the Court may visit considerable punishment on him for any number of applicant-alleged, fallacious and contrived procedural contraventions, substantively I also fully and respectfully hope to be permitted to pick up my daughter, unsupervised, at her school at 3:30 p.m. Wednesday May 16, 2012, unless the Court very clearly makes an order to prevent this.

If the Court does not make such an endorsement (or order), or if the school does not feel it necessary to obey a less‑than‑clear order and refuses to release the child into my custody, I will respectfully immediately serve and file an appeal and stay application with the Ontario Court of Appeal, with a request for an expedited process, as used in 2009, and permitted in the OCA’s Practice Directives . The hearing will likely take place six months later, and if necessary, an application decision from the Supreme Court of Canada another six months hence. …

[Emphasis in original.]

Factual Background

[ 5 ] The Father and the Mother were never married nor did they ever live together. At all material times, the Father resided and continues to reside in Wakefield, Quebec. The Mother resides in Ottawa, Ontario.

[ 6 ] There is one child, A.R.G.W., born […], 2004. Her mother has been her primary caregiver since birth, and A.R.G.W. has lived with her since birth and has attended school and daycare in Ottawa.

[ 7 ] Mr. Justice McMunagle granted a Final Order in File No. FC-07-2382-2 on January 31, 2011, wherein the Father was required to obtain leave of the Ontario Superior Court of Justice prior to commencing any further proceedings. At that motion the Father was seeking to vary the Order.

[ 8 ] Madam Justice de Sousa, at para. 7 of her Final Order dated December 12, 2008, provides the following:

7. Both parents are required to inform the other of any medical conditions or medical condition developments which may affect negatively their ability to care for the child. The parents are of course free to make any other agreement as to how they shall care for their child. Such agreement is to be made in writing and signed by both of them.

[ 9 ] According to the Mother, the Father has been exhibiting strange and erratic behaviour over the past several months, and the Mother is quite concerned about the Father’s ability to care for A.R.G.W..

[ 10 ] As an example, on December 13, 2011, being a Tuesday evening on which the Father had access after school until 8:30 p.m., he dropped the child off early at the Mother’s home at 6:15 p.m., without prior notice and without coming to the door. The child said, “Daddy sad, not feeling well.”

[ 11 ] On December 14, 2011, the Mother received a message from Constable Robitaille of the MRC des Collines police in Quebec, in which he advised that they had taken the Father to the Wakefield Hospital due to mental health concerns over his erratic behaviour. The police indicated to the Mother that this was not the first time that they had been called and taken him to the hospital. No details were provided. The police were called in as a result of the Father not attending work for several days without notice or reason. The police then contacted Les Centres jeunesse de l’Outaouais (“CJO”), the child protection agency in Gatineau, Quebec, to advise as to some potential parenting concerns.

[ 12 ] The case was referred by the CJO to the Ottawa Children’s Aid Society (“CAS”) who recommended that the Mother deny the Father access to A.R.G.W. until they completed their investigation.

[ 13 ] On December 19, 2011, the Mother spoke with Sacha Sharma (“Mr. Sharma”), a child protection worker with the CAS, and he advised her that it was appropriate for the Father to have telephone access with A.R.G.W. and that the Father could come to A.R.G.W.’s events provided that a supervisor was present at all times. The Mother informed the Father of this conversation.

[ 14 ] On December 20, 2011, the Father informed the Mother that he had resigned from his employment with the Government of Canada. No reason was provided. The Father had been employed as a public servant since in or about 2000. His most recent position was as a senior policy analyst with Aboriginal Affairs Canada earning approximately $100,000.00 per year.

[ 15 ] After the CAS investigation, Mr. Sharma advised the Mother that she should deny access to the Father pending a more complete investigation.

[ 16 ] The Mother received a copy of a letter from the CAS addressed to the Father, dated January 5, 2012 (erroneous dated January 5, 2011) asking that the Father contact them. The Mother was advised by the CAS that at no time did the Father reply to the letter.

[ 17 ] On January 23, 2012, the Mother contacted Mr. Sharma and requested an update on the situation. Mr. Sharma advised her that the Father had not responded to his numerous phone calls or letters. The Mother, in turn, informed the Father that he could not have unsupervised access with A.R.G.W. until this matter was resolved; however, she advised him that he was welcome to come to her home to visit with A.R.G.W. while she was present or call at any time. He did not respond.

[ 18 ] On January 24, 2012, Mr. Sharma advised the Mother of the status of the case and faxed a letter dated January 24, 2012 (erroneously dated January 24, 2011) to the Mother’s lawyer. The letter indicated that the CAS was closing the file as the Mother was protecting A.R.G.W. by not allowing unsupervised access to the Father.

[ 19 ] The Mother has serious concerns about the Father’s mental health issues and his coping abilities. Notwithstanding the fact that the Mother supports a strong relationship between A.R.G.W. and her Father, the Mother is concerned that he is not getting the medical attention that he needs. The Mother is concerned about A.R.G.W.’s security, the adequacy of food, sanitary conditions, his ability to keep a schedule by getting her to school on time and appropriate sleeping arrangements. Apparently the Father and A.R.G.W. share a bed while at his home in Wakefield. There is also a concern of the Father being in the nude when A.R.G.W. is at his home.

[ 20 ] Based on the Father’s erratic behaviour and it appearing to become more severe, the Mother would like assurances from a medical professional that the Father can provide a safe environment for A.R.G.W. while she is in his unsupervised care.

[ 21 ] The Mother would also like to see long-term supervision of the Father through the CAS and/or the CJO where they can continually assess his ability to parent adequately and provide the basics to support A.R.G.W.’s needs.

... (caselaw text continues exactly as provided)

Mr. Justice Stanley J. Kershman

Released: May 30, 2012