Court File and Parties
Court File No.: F1980-10F957-12
Date: 2012-08-22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: M.D.B., Applicant.
and:
H.L.B., Respondent.
Before: Mr. Justice D. R. McDermid
Counsel:
I. D. D. Sneddon, for the Applicant.
B. D. Barr, for the Respondent.
Heard: August 1, 2012.
ENDORSEMENT
[ 1 ] The parties were married on August 21, 1999 and separated on May 13, 2012. There are two children of the marriage: L., born […], 1998, (age 13), and H., born […], 2000, (age 11). Both reside with the mother in the matrimonial home. On August 1, 2012, I granted a temporary order in accordance with Minutes of Settlement that resolved many of the issues between the parties on a temporary basis. What remains very much in issue is the interim, interim access that should be granted to the applicant father. The Office of the Children's Lawyer has been asked to intervene.
[ 2 ] On May 13, 2012, the father was arrested and charged with two counts of assault, one count of sexual assault, and one count of forcible confinement, all in relation to his wife. The father denies that he is guilty of any of these offences and deposes in his affidavit sworn June 27, 2012, that because of the mother's false allegations he lost his job on May 31, 2012. He was granted interim judicial release on May 14, 2012. The terms of his release, among others, include the following:
To abstain from communicating, associating with or contacting the mother either directly or indirectly except in the presence of or through legal counsel;
To abstain from communicating, associating with or contacting his children except as arranged through a third-party or unless pursuant to a Family Court order;
Not to be within 200 metres of the mother except in the presence of a Middlesex OPP officer;
Not to be within 200 metres of the mother's residence, place of employment or education.
To reside at […], London Ontario. This condition has now changed and the father is living with his parents at […], Holmesville Ontario, which is about 40 min. from the matrimonial home located at […], Ailsa Craig, Ontario.
[ 3 ] The father seeks unsupervised access; the mother's seeks supervised access. Since the norm is unsupervised access, the onus is upon the mother to justify that supervised access is in the best interests of the children.
[ 4 ] In summary, the mother's position is as follows:
The main reason for seeking supervised access is that she believes the children are at great risk of emotional harm if they are left in his unsupervised care, or, if access is supervised by his parents, as he proposes in the alternative.
She deposes in her affidavit sworn July 6, 2012 that L. has been diagnosed with "anxiety, ADHD and extreme impulsiveness" and is now in treatment with a behavioural specialist. She also alleges the father has not participated in any of the meetings or appointments.
Paragraph 34 to 100 inclusive set out the background leading to her position that supervised access is necessary.
[ 5 ] As is not unusual, the father denies many of the allegations. The mother deposes that H. is afraid to be with her father after witnessing the events leading to the criminal charges against him and will "run" if required to visit with him. She has been receiving counselling as a result of the death of her grandmother and "because of her father". L., on the other hand, has no hesitation about visiting his father.
[ 6 ] The father deposes that on May 11, 2012, he accidentally locked the mother out of the home and went to take a shower. Being unable to enter the home, the mother went to the house of a neighbour and telephoned home. The children answered the telephone and then unlocked the door. The mother was angry about being locked out of the home and slapped the father across the face "as hard as she could". The father demanded an apology; the mother refused. The husband repeated his demands for an apology, in his words "on multiple occasions" but "she refused each time" and "has still not apologized for slapping me".
[ 7 ] The events giving rise to the criminal charges against the father occurred later in the day and were not an immediate reaction to being slapped in the face.
[ 8 ] One of the inferences that might reasonably be drawn from the affidavit material is that the father tends to be controlling and seeks to impose his will on his wife and children. The mother is concerned that the father is attempting to manipulate L. into testifying in his favour and against his mother's version at the trial of the criminal charges. This is supported by evidence that when the father has had some supervised access since his release, he has been whispering to L. so that any other person who is present is not be able to hear what he is saying. The father states simply that he is telling the children that he loves them.
[ 9 ] From the material before me, I am unable to conclude that the mother is seeking to alienate the children from the father. To the contrary, there is a risk of emotional harm to the children if the father is using either of them to avoid criminal responsibility and is considering involving either of them directly in the criminal proceedings against him.
[ 10 ] In paragraph 62 of her affidavit, sworn July 6, 2012, the mother deposes that on May 13, 2012 at about 9 a.m., the father said to her, "Are you ready to get on your knees and beg me for forgiveness?” When she replied, "No", he ordered her out of the house. She told him she would not leave. She deposes,
He jumped up and ran upstairs. I followed to the bottom of the stairs. He went straight into H.'s room and started shouting loudly for her to get up, he was divorcing her mother and she needed to choose who should leave the house and who she would live with, right here and now. He raced into L.'s room and shouted the same things. Both children came running downstairs and into my arms sobbing, asking what was wrong, what we were going to do. M. came down and sat the kids on the couch and stood over them yelling and ranting about my failings as a wife and as a person. He kept asking them to choose between us. He told L. over and over, "Tell her you don't want to be with her." The children sat there and cried. … He said to L., "Tell her, tell her, tell her you want to be with me and not her, you can live with me and never have to listen to her again."
[ 11 ] In paragraph 59 of his affidavit sworn July 25, 2012, the husband deposes,
In response to paragraph 62, I do admit that I went and talked with the children after my conversation with H.. I felt that it was important that the children know what was happening and there may be changes in who would be living in the house. I disagree with how H. has characterized my behaviour. I was not shouting loudly and was not racing around the house. The children did not come running down the stairs. They stayed in the room. I did not ask the children to choose between H.r and me. I was simply letting them know that there may be some changes in the household. The children stayed in bed for some time after that and H. and I went back downstairs to talk on the couch. The other events described in paragraph 62 with respect to the children did not take place.
[ 12 ] This exchange is only one of many contained in the voluminous material filed by the parties that illustrates the polar opposite positions taken by them.
[ 13 ] If indeed the father acted as described by the mother in paragraph 62 of her affidavit, it is shockingly inappropriate parental behaviour.
[ 14 ] In my opinion, the mother has met the onus of justifying on a balance of probabilities that interim, interim supervised access to the father is in the best interests of the children. Hopefully, the Office of the Children's Lawyer will intervene and conduct an investigation. In my opinion, the access should be supervised by an objective and neutral party. Therefore, the father's interim, interim access shall be supervised at For My Kids Inc. or at Merrymount Children's Centre, once available, at the father's expense. The father shall exercise access each Sunday from 9:30 a.m. to 12:30 p.m. at For My Kids Inc. or each Saturday between the same hours at Merrymount Children’s Centre, commencing Sunday, August 26, 2012. The father shall refrain from consuming any alcoholic beverages or non-prescription drugs, including marijuana, for 12 hours prior to and during each visit with the children and he shall also refrain from discussing adult issues with them, particularly with respect to this litigation or the criminal charges he is facing.
[ 15 ] Notwithstanding the terms of the father's interim judicial release, I am satisfied that temporary orders should be granted in favour of the wife as follows:
for exclusive possession of the matrimonial home;
restraining the father from molesting, annoying, harassing, or communicating directly or indirectly with the mother, except through counsel;
restraining the father from attending within one city block of the matrimonial home and the mother's places of business, being […], London Ontario, […] and Changing Effects, […], Lucan, Ontario.
[ 16 ] If the parties are unable to agree upon costs, Ms. Barr shall deliver written submissions, not to exceed five pages in length, to Mr. Sneddon within 15 days; Mr. Sneddon shall deliver written submissions not to exceed five pages in length to Ms. Barr within a further 15 days and both counsel shall deliver their submissions to the court within 35 days. At the end of that time, I shall make an order for costs based on the material before me.
Mr. Justice D. R. McDermid
Date: August 22, 2012.