COURT FILE NO.: FC-10-1113

DATE: 2012/06/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

J.A.

Applicant

– and –

K.D.Y.

Respondent

Earl Atnikov, for the Applicant

Adriana Doyle, for the Respondent

HEARD: May 15, 2012

REASONS FOR JUDGMENT

Kane J.

[1] This matter involves J.D.Y. ["J."] who will be seven years of age on [...], 2012. He is the son of the parties. He is in the sole custody of his mother pursuant to the order of Kealey J. dated December 5, 2007.

[2] J. was born on [...], 2005, while his parents were cohabiting. During that cohabitation, J.A. and K.D.Y. fought with one another frequently which included the application of force by each towards the other. J.A. was charged criminally as a result.

[3] The proceeding before Kealey J. in December, 2007, proceeded in the absence of J.A. K.D.Y. was awarded sole custody. That order states that J.A. shall have no access to his son. In obtaining that order, K.D.Y. relied upon the lengthy criminal record of J.A., including spousal violence against herself, excessive use of alcohol and consumption of illegal drugs.

[4] The applicant and respondent have a high-conflict relationship. Each is determined to impose their will upon the other, allegedly for the sake of the child.

[5] Notwithstanding the above order stating there was to be no access, J.A., through the offices of the Children’s Aid Society, exercised supervised access with J. in May and June, 2008. The reports from the CAS indicate that it ultimately terminated such supervised access due to J.A. missing some scheduled visits and concerns the Society noted in the father’s parenting of his son during these visits.

[6] The record before me indicates that other than a brief unexpected encounter in a shopping mall, J.A. has had no access with his son from July, 2008 to date, or approximately four years.

[7] J.A. brought this application first returnable in July of 2010 in which he sought custody, joint custody of J. or, in the alternative, access.

[8] K.D.Y. has on three occasions consented to an extension of time to prevent a dismissal of the application due to the expiration of time. Under the current schedule, this application is scheduled to be dismissed unless it is brought on for hearing prior to June of 2012, which will not occur without a further extension of time which K.D.Y. now refuses to consent to.

[9] The father’s present motion is to enforce an earlier order regarding the preparation of a report by the Office of the Children’s Lawyer. The mother presents a cross-motion for summary judgment. Both motions are dated May 8, 2012.

[10] J.A. is responsible for his late compliance or non-compliance with the provisions of the order of Kershman J., dated January 20, 2011. J.A. was ordered to provide a signed consent for the release of his police records; that he immediately complete a drug/alcohol screening within 30 days; that he submit to a full psychological assessment regarding his propensity to violence, his psychological profile and identification of any personality disorder. It states that his failure to comply with such order will result in an adjournment of his application until all items as ordered are completed. In contemplation of J.A.’s compliance with the subject order, the court ordered the Office of the Children’s Lawyer with social worker be appointed and provided with the criminal record, the drug/alcohol screening and the psychological assessment for consideration in the preparation of such report.

[11] J.A. did not perform the drug/alcohol analysis within the 30 days as ordered. He did produce an analysis by mid-May, 2011, which indicates a positive testing for cannabinoids.

[12] A copy of his criminal record was not produced until the beginning of May, 2011. It apparently does not include his conviction for an assault of the respondent which was the subject of much litigation up to and including the Supreme Court of Canada.

[13] J.A. did not produce the psychological risk assessment of himself, paid for by the respondent’s mother, until August of 2011. It was however not reasonable to expect a full assessment could be performed in 30 days.

[14] J.A. provided his consent to the release of his criminal records as ordered.

[15] K.D.Y. following August of 2011 then adopted interference tactics to prevent the preparation of an opinion report by the Office of the Children’s Lawyer. Initially, she took the position that the assessor could only meet with the child once in the mother’s presence in her home. K.D.Y. maintained this unreasonable position until ordered by McLean J. on October 19, 2011 that she cooperate with the Office of the Children’s Lawyer to permit the interview of the child in a neutral setting.

[16] K.D.Y. then adopted a new and unreasonable position. She took the position that the final order of Kealey J. in 2007 and the above order of McLean J. prohibited the Office of the Children’s Lawyer’s assessor from arranging a session to observe the interaction between the father and his son. McLean J.’s reference to “keep in mind” Kealey J.’s order was a caution, not a prohibition.

[17] It is illogical and self-serving to suggest that a social worker’s assessment on an application to vary custody, or permit access, is not entitled to conduct clinical observation sessions between the non-custodial parent and the child. Without that information, K.D.Y. knew that the Office of the Children’s Lawyer could not provide a report with its opinion whether access was or was not in the interest of this child.

[18] K.D.Y.’s opposition in preventing a full report being prepared has resulted in the Office of the Children’s Lawyer issuing a limited report with no opinion.

Motion for Summary Judgment

[19] In support of her motion for summary judgment, K.D.Y. filed her affidavit as well as that of her mother. Her notice of motion indicates that she is also relying upon five specific historical affidavits from herself and her mother within the four volumes of the court’s record.

[20] J.A. filed nothing in response to the mother’s motion for summary judgment. Instead, the applicant invited the court to review the four volumes of the continuing record but did not articulate what issue required a trial in this action beyond the absence of an opinion report from the Office of the Children’s Lawyer. That is an insufficient response to a motion for summary judgment.

[21] Rule 16 of the Family Law Rules, O. Reg. 114/99, mandates this Court to make a Final Order where there is no genuine issue requiring a trial. This is clearly indicated by the use of the word “shall” in sub-rule 16(6) of the Family Law Rules. Specifically, this Court must make a Final Order if the evidence does not disclose a genuine issue requiring a trial. (Children’s Aid Society of Hamilton v. A.(M.), 2007 CarswellOnt 3977, para. 60; Children’s Aid Society of Toronto v. H.(R.), 2000 ONCJ 3158, 2000 CarswellOnt 6170 (Ont. Ct.); Children’s Aid Society of Ottawa v. M.C., 2003 ONSC 67754, 2003 CarswellOnt 9373 (Ont. Sup. Ct.) p 2.)

[22] A proper consideration of “a full evidentiary record” is necessary for a “good hard look” at the evidence on the motion. (B.(F.) v. G.(S.), 2001 ONSC 28231, 2001 CarswellOnt 1413 at para. 19 and Children’s Aid Society of Ottawa v. M.C., supra, at paras. 10 and 11).

[23] The existence or non-existence of a fact, which is not determinative of the result of the proceeding, is not a fact material to an action requiring a trial. (Children’s Aid Society of Ottawa-Carleton v. A.C., [2007] O.J. No. 1322 (S.C.) at para. 6).

[24] The onus is on the moving party, the Society, to show that there is no genuine issue requiring a trial. Summary judgment may be granted where there is no substantial evidence on an issue, where the evidence that is tendered is too incredible to be accepted by reasonable minds, or even if accepting its truth, it is without legal probative force. (Children’s Aid Society of Ottawa-Carleton v. A.C., supra, paras. 8 and 10).

[25] Where the moving party presents a prima facie case for summary judgment, the responding party must provide evidence to rebut that case. (Children’s Aid Society of Ottawa v. M.C., supra, at para. 11).

[26] If the party moving for summary judgment presents a prima facie case, the responding party must put their “best evidentiary foot forward” to demonstrate that there are the material facts in dispute and/or there is an issue of credibility requiring a trial in order to prevent summary judgment. A responding party must not rest on the mere allegations or denials of the party’s pleadings, but must set out in affidavit material or other evidence. (Children’s Aid Society of Hamilton v. A.(M.), supra, para. 65 and B. (F.) v. G. (S.), supra, para. 13).

[27] J.A. is some 40 years of age. He has an extensive criminal record commencing in 1982 consisting of some 43 convictions for which he has spent up to 90 days incarceration for some of those convictions. He has been convicted on more than one occasion of theft, possession of stolen property, possession of a prohibited weapon, possession of property obtained by crime, uttering threats, assault, possession of narcotics and possession of narcotics for the purposes of trafficking, resisting arrest, and forcible entry.

[28] The records produced from the Children’s Aid Society indicate that he was unable in a supervised access environment to successfully continue that limited relationship.

[29] As stated, J.A. has been absent from his son’s life for the past four years. After commencing legal proceedings to gain access, J.A. is late in complying with a court order to demonstrate that he was free of alcohol and drug dependency and has the psychological health to positively impact in a relationship with his son.

[30] J.A. admitted to Dr. Eaton in May, 2011, to regularly using marijuana on a weekly basis and accordingly tested positive for the consumption of that drug. He indicated to the author of the psychological risk assessment report in July of 2011 that he reverted to using drugs in prison while he was depressed but has not used any since being released.

[31] The same assessment report of the applicant dated August, 2011, records information from J.A. that he has held a number of part-time jobs but never for very long. For the most part he historically supported himself through criminal activity. He reports that he was diagnosed with attention deficit hyperactivity disorder as a youth and was made a crown ward of the CAS at approximately 13 years of age. J.A. attended the New Directions Program (NDP) in 2004 but he was unsuccessful in taking the Anger Management Program (AMP) while incarcerated.

[32] In his summary and recommendations, the psychologist, Dr. Gauzas, states that J.A.’s overall clinical risk to re-offend is considered to be in the high moderate range for non-violent recidivism, and the low moderate range for violent recidivism. It is likely that returning to alcohol and/or drug will further increase his risk to re-offend. The same author reports J.A. as stating that he has started a specific diet to reduce his symptoms of ADHD. The author therefore recommends that he participate in an assessment to determine if he is still experiencing ADHD and to what extent as there are medications which may prove helpful in alleviating at least some of the symptoms.

[33] As to whether a trial is necessary, one must then consider the present circumstances of the child. For the moment, J. has a number of serious issues which he is dealing with.

[34] A paediatric assessment was conducted at the Children’s Hospital of Eastern Ontario for the ADHD clinic regarding J.D.Y. in September of 2011. In her report, Dr. O’Kelly records serious concerns from J.’s school regarding his aggressive and non-compliant behaviour. The mother resisted her son be labelled as suffering from ADHD.

[35] In her summary, Dr. O’Kelly states that the reporting by school officials since kindergarten reflect difficulties with self-regulation, frustration tolerance and defiant behaviour. Dr. O’Kelly states that the mother’s period of pregnancy with J., followed by the first three years of this boy’s life prior to separation, involved high levels of stress due to the conflict between the parents. That stress is reported as including the mother’s experience of extreme physical abuse in her relationship with J.A. which diminished her ability to attach to the child and led J. to pick up on extreme anxiety in his environment.

[36] Dr. O’Kelly states that J. may have ADHD. She states that contact by J. with his father would not be in the child’s best interests and that removing that possibility would help the mother to get her life back on track thereby minimizing the negative impact of the first three years of trauma which had a very negative impact on J.’s infancy.

[37] Dr. O’Kelly authored a later follow-up report dated April 26, 2012, indicating that J. had been diagnosed as having ADHD and an oppositional defiant disorder. He has since March, 2012, been receiving medication twice per day for this disorder.

[38] Dr. O’Kelly records that an application for a section 23 school has been initiated due to J.’s continued difficult behaviour at school. J. remains impulsive; he can be aggressive and is very demanding.

[39] As to J.A.’s application for access, Dr. O’Kelly states that in making that decision, current consideration has to be given to the fact that J.’s behaviour requires excellent self-regulation, education about ADHD and dedication on the part of his parent. Dr. O’Kelly states that J. requires consistency and that his parent must have good impulse control and be capable of emotional self-regulation in order to respond constructively to his challenging behaviour.

[40] K.D.Y. has put forward a prima facie case for summary judgment. J.A. limits his response to the mother’s breach of court order in preventing the preparation of a complete OCL report.

[41] The combination of J.’s present issues and the need for his parent to be knowledgeable in how to treat and deal with his present condition, coupled with J.A.’s own issues as he struggles with ADHD and drugs and the absence by him of concrete evidence as to how his lifestyle and psychological health has improved sufficiently that he is capable of managing and interacting consistently with J.’s very demanding circumstances are critical on a motion for summary judgment.

[42] The applicant has not given the court an evidentiary foundation to identify that there is an issue requiring a trial as to J.’s present needs and the level of capacity of J.A. to regularly and consistently respond to and cope with those needs. This prevents me from coming to any conclusion other than this motion for summary judgment should be granted.

[43] The above conclusion disposes of the motion by J.A. for an order to complete the report by the Office of the Children’s Lawyer. J.A. was informed by OCL on October 24, 2011 that he would need a fresh court order to allow the assessor to complete an opinion report. J.A.’s response is his present motion, six months later. J. deserves a more timely response from his father.

[44] Given the non-compliance and interference by the mother in the preparation of the OCL report, there will be no order as to costs.

[45] K.D.Y. is hereby ordered commencing February 1, 2013, to send a photocopy by mail of any medical and educational reports she receives regarding J. during the previous 12 months to J.A.

Kane J.

Released: June 14, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

J.A.

Applicant

K.D.Y.

Respondent

REASONS FOR JUDGMENT

Kane J.

Released: June 14, 2012