SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-017527

DATE: 20130402

RE: Mariska Antoinette Peries, Applicant

AND:

Bruce Murray Campbell, Respondent

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
Philip Viater, Counsel for the Applicant

Jacqueline Mills, Counsel for the Respondent

HEARD: March 28, 2013

ENDORSEMENT

[1] This is a motion brought by the Respondent-Husband for unsupervised interim access to the child in accordance with a prior court order, as well as some other corollary relief. The Applicant-Wife brings a cross motion for an order that the existing court order dealing with access be suspended. Instead, she asks that the Respondent have access at a supervised access Centre and that she be granted interim sole custody of the child.

I. Background

[2] The parties commenced living together in May, 2008 and the child, Ryan Campbell, was born August 2, 2009. They separated in June, 2010. The Applicant commenced this proceeding in August, 2011 claiming sole custody of the child, spousal and child support.

[3] The Respondent brought a motion in December 2011 for access to the child. In his affidavit, he deposed that the motion was necessary because the Applicant was limiting his access to 3 hours a week, insisting that she be present at all times and that access be at her house. The Applicant brought a cross motion for an order appointing the Children’s Lawyer for the child and to conduct an investigation. Further, she requested police reports, a criminal record certificate and an order that access be supervised and on her terms. In her affidavit, the Applicant deposed the Respondent abused alcohol and that she was concerned for her son’s safety while he was being cared for by the Respondent. She alleged that the Respondent lived in unsanitary conditions which were unsafe for the child.

[4] By order of December 20, 2011, Justice Perkins ordered supervised access for 8 hours a week, with a mutually agreed upon adult present. He noted “arrangements to be reviewed by parties after 4 weeks with a view to expanding Respondent’s time; both parties to engage a neutral counselor or facilitator to improve their communications re: parenting issues and to address concerns re: alcohol use..”

[5] The parties could not agree on the supervisor for the access visits. Nannies on Call was initially hired and was terminated, it is unclear by whom. The Respondent proposed his mother, but this was not acceptable to the Applicant and she became the supervisor during access visits. Not surprisingly, this arrangement did not work. At one visit, the Applicant called the police.

[6] Brayden Supervision Services were hired in October 2012, with the access visits occurring at the Applicant’s home. The Applicant complained that the individuals sent by Brayden were unacceptable and the access visits ceased. Consequently, the Respondent brought a further motion for access. Justice Whitaker’s endorsement of November 15, 2012 noted, “…Despite the fears and reservations of Mariska Peries, there is no hard reliable information before the court to corroborate her expressed concerns…” Justice Whitaker ordered that supervised access should continue for 4 hours twice a week until March 9, 2013 when the Respondent would have access every Saturday from 8:00 a.m. until 6:00 p.m. From June 8, 2013, the Respondent was to have unsupervised overnight access on Saturday from 8:00 a.m. to Sunday at 8:30 a.m. From September 13, 2013, the Respondent was to have access every other weekend from Friday night at 6:00 p.m. until Sunday at 3:00 p.m. Access was to be supervised by Brayden Supervision Services and a custody and access assessment was to be arranged.

[7] The Applicant continued to be unhappy with the services provided by Brayden. The Applicant contacted Yellow Brick House, a facility for battered women, in February 2013 and indicated that she had concerns about the time the child was with his father. The CAS was contacted, it is not clear if it was by the Applicant or Yellow Brick House. Shortly thereafter, the Catholic Children’s Aid Society was contacted by friends of the Applicant.

[8] In March, 2013, the Respondent brought this motion for unsupervised access to the child and to follow the schedule set out by Justice Whitaker in his order. Access to the child had been terminated by the Applicant on the basis that the individuals sent by Brayden for the supervised access visits were incompetent. Further, correspondence sent by counsel for the Applicant indicated that Ryan did not want to attend access visits with his father and that he had disclosed that the Respondent pushed him and “assaulted” him during the visits. Included in the motion materials of the Applicant are various photographs of the child depicting bruising, which is alleged to have occurred during access visits. The Applicant wishes access to occur at a supervised access centre and requests that the order of Justice Whitaker be suspended.

II. Positions of the Parties

(a) Respondent-Father

[9] The Respondent argues that despite the court orders, he has experienced nothing but difficulty getting access to his son. Everything he does is subject to criticism by the Applicant and every supervisor is not acceptable to her. If the supervisor’s notes are complimentary of the Respondent, that individual is accused of being biased in favour of the Respondent or subject to bribery.

[10] It is submitted that when access was to increase in accordance with the order of Whitaker, J in March, 2013, the Applicant contacted various organizations, including the CAS, alleging improprieties on the part of the Respondent. Of significance is the fact that the Applicant did not report any abuse to Ryan’s pediatrician nor did she take the child to the doctor despite her allegations of “injuries” inflicted by the Respondent.

[11] Counsel emphasized that the CAS in its investigation found no protection concerns, nor did the police. It is the position of the Respondent that the Applicant is manipulating the individuals involved in order to attempt to secure an order for sole custody and to prevent the Respondent from seeing his son.

(b) Applicant-Mother

[12] In her cross motion, the Applicant has included affidavits sworn by her mother, 2 of her friends as well as several of her own affidavits in support of her request that access be suspended or that access occur at a supervised access centre. These affidavits detail concerns about the Respondent hitting the child during access visits and the reluctance of the child to go with his father for these visits.

[13] It is submitted by Mr. Viater that there has been a change in circumstances since the order of Justice Whitaker which justifies a suspension of the access visits. The evidence about the physical abuse of Ryan and the child’s unwillingness to attend at visits with his father requires that the access be suspended until the report of the assessor is received. Counsel submitted that the Court must accept the evidence of the 3 year old child and it is manifestly clear that it is not in Ryan’s best interests to have unsupervised access visits with the Respondent.

III. Analysis

[14] This is the third motion brought by the Respondent for access to his son. This court has already dealt with the issue of interim access on 2 previous occasions and in my view, it should not have been necessary for the Respondent to bring this motion to obtain what he was already entitled to in terms of access to the child.

[15] A review of the history of this action makes it clear that notwithstanding court orders specifying the terms and time of access visits, the Applicant will make her own determination about how and when access is going to occur. She seems to have the mistaken belief that because the child resides with her, she is the parent who will determine what is in his best interests, regardless of what the father’s opinion is.

[16] The solicitor for the Applicant submits that the child is being abused by the Respondent during access visits and that the supervisors are negligent while performing their supervisory duties and their evidence is biased in favour of the father. When asked what evidence exists to support the allegations of physical abuse, apart from the mother’s affidavit and the affidavits of her relatives and friends, I was advised that the court ought to rely on the statements of the child, who is 3 years of age.

[17] The affidavits of the Applicant’s mother and friends cannot be deemed to be objective or impartial. While I appreciate that these individuals have provided their own observations and opinions of how Ryan responds to the Respondent, in my view, they carry little weight because the deponents are not experts and clearly, their views are influenced by the information that has been provided to them by the Applicant. The affidavits of the Applicant are replete with hearsay, argument and speculation. There is a paucity of any hard evidence to support the serious allegations she makes against the Respondent in this litigation.

[18] In determining whether there is a risk of harm to the child as a result of his access visits with his father, I turn to the evidence contained in the notes of the CAS [Exhibit A to the affidavit of the Respondent sworn March 19, 2013]. After the CAS was contacted as a result of concerns raised by the Applicant, the worker at the CAS spoke to the Applicant, her mother, 2 of her friends, several of the access supervisors, the Respondent and the child. The CAS worker found no evidence that the Respondent was showing excessive force with his son and the complaint of inappropriate physical discipline was not verified. The CAS worker did note that Ryan was at risk for emotional harm as a result of the adult custody dispute [emphasis mine] and there was a recommendation that he obtain supportive therapy for this issue. The CAS made no recommendations about access. Similarly, the police took no action after investigating the alleged physical abuse that was occurring.

[19] Counsel for the Applicant pointed out the photographs of Ryan depicting bruising which are appended to the Applicant’s affidavit as evidence of the physical abuse. I reject this submission in its entirety. The photographs do not show any injuries; rather they show, at most, mild bruising that is consistent with a young, active child and are not in any way indicative of inappropriate conduct on the part of the Respondent.

[20] As I have noted, the affidavits sworn by the Applicant’s mother and friends are hardly objective. These affidavits are of little assistance to the Court as they simply contain recitations of what the child allegedly said about his father hitting him and the deponents’s bald statements that they have concerns about the child’s safety while he is with the Respondent.

[21] In determining access, even on an interim basis, the Court must consider the rights of each parent along with the best interests of the child. As a result of the allegations made by the Applicant at the outset of this litigation, Justice Perkins ordered supervised access. However, it is important to note that in his endorsement in 2011, he anticipated the Respondent’s access would be expanded.

[22] When the matter was brought back again before the Court a year later, Justice Whitaker ordered that supervised access continue with increased access time until June of 2013, when supervision would cease. He noted that there was no hard evidence to support the concerns raised by the Applicant. I agree and would go further. When the evidence is looked at in its entirety, I am of the view that the Applicant is resistant to any sort of access which she cannot control. Her criticism of the actions of the Respondent is unwarranted and similarly, her refusal to accept Brayden as access supervisors is unsupported on the evidence. A review of the notes from the various supervised access visits do not reveal anything that suggests that there is anything harmful to Ryan that arises from his contact with his father.

[23] It seems to me that instead of complying with the order of Justice Whitaker, the Applicant has focused her efforts on ensuring that the access of the Respondent to the child is further restricted. That path is certainly not in the best interests of the child. I do not fault the Applicant for raising concerns about her son and what transpires during visits with his father. However, when various professionals such as access supervisors, CAS investigators and police officers investigate her concerns about what is happening during access visits and find no basis for them, she cannot continue to insist that access ought to be restricted. As well, she cannot unilaterally cease providing access on the basis of her belief that it is unsafe for Ryan to see his father, particularly in a supervised setting.

[24] The order of Justice Whitaker anticipated that access would increase, not decrease and that ultimately there would be unsupervised access, with overnight visits. I see no reason to deviate from his plan, nor do I find any merit to the allegations of negligence and incompetence made against Brayden by the Applicant. I agree with the submission of counsel for the Respondent that regardless of who is selected as supervisor, that individual is bound to be criticized by the Applicant as being unfit for the job.

[25] There has been no access by the Respondent for more than a month. Access shall resume Wednesday April 3 from 2:00 p.m. to 6:00 .p.m. and Saturday April 6, 2013 from 8:00 a.m. to noon and the Applicant shall ensure that the child is ready to leave her residence at the time that access is to begin. Brayden Supervision Services shall supervise these access visits. This schedule shall continue for the month of April 2013.

[26] Commencing in May 2013, access shall be in accordance with the schedule set out in the order of Justice Whitaker. For greater clarity, the Respondent shall have access every Saturday from 8:00 a.m. to 6:00 p.m. with Brayden as supervisor.

[27] Commencing June 8, 2013, the Respondent shall have unsupervised access from Saturday at 8:00 a.m. to Sunday at 8:30 a.m. The Respondent shall have unsupervised access to the child for 7 consecutive days in July or August 2013. From September 13, 2013, access shall be every other weekend from Friday night at 6:00 p.m. to Sunday at 3:00 p.m.

[28] The other provisions of the order of Justice Whitaker of November 15, 2012 shall remain in full force and effect. The cross motion of the Applicant is dismissed.

[29] In the absence of an agreement on costs, I will accept brief written submissions of less than 5 pages following which I will fix the costs. If there are any matters arising out of my endorsement that require clarification, I may be contacted through Judges’ Administration.

D.A. Wilson J.

Date: April 2, 2013