SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 222/11
DATE: 2012-06-21

RE: Thomas Arthur Clark, applicant

AND: Aaron Gaanderse, respondent

BEFORE: Mr Justice Ramsay

COUNSEL:
The applicant in person
Mr Ralph H. Frayne for the respondent

HEARD: 2012-06-21 at St Catharines

ENDORSEMENT

[ 1 ] The parties never married. They began living together in 1999. They produced two daughters, who are now 7 and 5 years old. The parties separated in December 2009. Since then they have both gone bankrupt. A final order has given custody of the children to the respondent mother, with a temporary provision for supervised access to the applicant father. The remaining issues are retroactive and ongoing child support and the final form and extent of access by the father.

Access

[ 2 ] On July 19, 2011 McPherson J. gave supervised access to the applicant for three hours every other week, to be arranged through Pathstone Mental Health. On March 30, 2002 Pathstone notified the parties that it would no longer provide services because of the applicant’s conduct at the March 17, 2002 visit.

[ 3 ] Access has been restricted to date because of a number of incidents in which the applicant acted in an angry and verbally abusive manner. One of these incidents led to charges of uttering a threat, upon which the applicant has now been convicted. He is to be sentenced in July on three counts of uttering a death threat and one count of breaching a recognizance. In a telephone conversation about access, the applicant told the respondent that if she ever allowed the children to visit at her boyfriend’s parents’ house again, he would kill her, him and them (the parents). While on bail with a condition to have no contact with the respondent, he emailed her repeatedly. In his testimony before me the applicant justified these acts. The justification was lame. It demonstrated rather that he has no insight into his responsibilities to other people in normal social intercourse.

[ 4 ] On another occasion, according to the respondent and her boyfriend, the applicant, frustrated at the older daughter’s behaviour, told the mother to come and get her and referred to the daughter, in the daughter’s earshot, in obscene terms that no reasonable father would ever use in referring to his own child, whether within or without her earshot. The applicant denied the utterances. I do not believe him. I believe the respondent. I found the boyfriend to be a very presentable and responsible young man. His evidence provides powerful confirmation of the mother’s testimony as to these conversations. I had no problem with the mother’s testimony in any event. She struck me as sincere and as someone who has genuinely suffered. I am alive to the possibility of a litigant exaggerating in such matters but I do not think that any such thing occurred here. The applicant on the other hand, did not make such a good impression. He did not misbehave, but the tension in his voice and demeanour are almost palpable. His final words at the trial were essentially nonchalant bravado and not inclined to inspire confidence. His criminal threats against the respondent are objectively proven facts. His conviction for breach of recognizance gives me concern about his character for having respect for the judicial system, and this, too, has some effect on my assessment of his credibility.

[ 5 ] The course of intimidation has not been entirely verbal. On one occasion, when the applicant took exception to his own sister’s involvement with the children, he forced his way into her house by pushing against the door, with her on the other side of it.

[ 6 ] The respondent testified that the course of conduct has actually made her and the children ill. As examples, one child is afraid to go to the bathroom by herself. Another has become afraid of the dark. The respondent herself is in a state of constant alert. She attributes her recent miscarriage to the stress and I have no doubt that she does so correctly. I also think that these effects are desired on the part of the applicant. He has taken an anger management course, but I do not see this as a problem in anger management. In the courtroom the applicant had no trouble behaving himself, because he knew that attempts to intimidate the court or the lawyer would not be tolerated. When he is alone with women and children he gives his anger free rein in order to accomplish his purposes.

[ 7 ] It is not in the best interest of the children to allow this man unsupervised access. There is little point in ordering supervised access, since he has proven unwilling to comply with the basic minimum requirements of the supervising agency. Until the applicant’s attitude changes, supervised access is doomed to fail. I propose to order no access at all.

[ 8 ] This is not to say that the applicant will never see his children again. The respondent says that she wants her daughters to see their father, but first he needs counselling, and then a period of supervised access to make sure that it has worked. I believe that she is sincere and I think she is right. I reject the applicant’s contention that the respondent wants to keep him from the children. His allegations in this regard strike me as fantastic and paranoid in the circumstances. I do not purport to be able to make a psychiatric diagnosis, but he is certainly acting like a person with a serious disturbance in his ability to perceive and evaluate events in a realistic fashion. Whether that is from some sort of mental or emotional disturbance or simply the product of a domineering and immature personality makes no difference for my purposes.

[ 9 ] There is no point in ordering counselling when the applicant is not ready for it. If he wants to see his children again, he knows what he has to do. He has to demonstrate to his family that he has actually changed his behaviour. Probably this would involve extensive counselling. If he acts reasonably, his sister may be willing to approach the respondent with a reasonable proposal for gradual re-introduction at some point in the future. Given the amount of damage that has already been done to the children, no doubt the respondent would require professional intervention. I think that it is in the children’s best interests to leave these decisions to her.

Child support

[ 10 ] The respondent earned $46,000 in 2010. The table amount for that income is $697 a month for two children. The respondent’s reported income for 2011, the year he went bankrupt, is nil. He testified (see exhibit 5) that since January 2012 he has earned almost $9,000 as a self-employed maintenance man for condominium residences.

[ 11 ] I agree with the respondent that the applicant should have been paying child support from December 2009, at least in my view until his finances fell apart in 2011. I am also aware that the applicant has some ability to make undeclared income. However, taking into account the voluntary payments that were made ad hoc for various items and the uncertainty of his income for a significant part of this period, I do not think that there is a monthly amount that I could simply plug into the tables back to a specific date. The best I can do is to consider the circumstances of the entire period and attempt to arrive at a reasonable lump sum. I fix that sum at $2,000.

[ 12 ] The respondent was ordered to pay child support of $438 a month commencing February 15, 2012 based on an imputed income of $30,000 by the temporary order of J.W. Scott J. dated January 10, 2012.

[ 13 ] On the evidence before me, which gives a clearer picture of current income than was available in January, $25,000 strikes me as a reasonable assessment of what the respondent can earn.

[ 14 ] I do not think that there are any affordable extraordinary expenses on the evidence before me.

[ 15 ] In summary, I make the following final order:

a. The applicant will have no access to the children, no right to be consulted or informed of decisions relating to the children and no right to the children’s school, health or other records.

b. Paragraph 2 of the temporary order of Scott J. dated January 10, 2012 is terminated. The applicant will pay ongoing child support at the rate of $375 a month for two children based on an imputed income of $25,000 a year commencing July 15, 2012.

c. The applicant will pay as additional retroactive child support the sum of $2,000 in 20 equal payments of $100 commencing July 15, 2012;

d. A support deduction order will issue;

e. This order may be taken out without the applicant’s approval.

[ 16 ] The parties may make written submissions to costs. The respondents’ are due 10 days after this endorsement is released. The applicants’ are due in 10 further days.

J.A. Ramsay J.
Date: 2012-06-21