SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS – 12-379374
DATE: 20130604

RE: Camille Marie Lemieux, Applicant/Respondent in the Motion

AND:

Kevin Gordon Mercer, Respondent/Applicant in the Motion

BEFORE: Kiteley J.

COUNSEL: Cheryl Goldhart, for the Applicant/Respondent in the Motion

Barbara Puckering, for the Respondent/Applicant in the Motion

HEARD: April 30, 2013

ENDORSEMENT

[1] This is a motion by the Respondent for regular overnight access and summer access for one week pending the completion of a s. 30 assessment.

[2] The parties began to live together in December of 2004 and they were married on May 22, 2005. Eleanor was born on April 17, 2008 and Rufus was born on September 13, 2009. The parents separated on June 19, 2011. These proceedings were commenced on June 25, 2012.

[3] On July 23, 2012, the parties attended a case conference during which I made an order on consent without prejudice for temporary supervised access on Tuesdays and Thursdays from 4:00 p.m. to 8:00 p.m. and Saturdays from 10:30 a.m. to 5:00 p.m.

[4] On November 6, 2012 Justice Susan Greer heard submissions on motions brought by both parents. The Applicant asked for an order appointing Dr. Irwin Butkowsky to conduct a s. 30 assessment and, pending the assessment report, an order that the Respondent see the children at the supervised access centre on alternate Saturdays from 11:30 to 1:30 and Tuesdays and Thursdays from 5:00 to 7:00 and that he should be responsible for all costs of supervision. The Respondent asked for an order that the exchanges be supervised but that he have unsupervised access every Tuesday and Thursday from 4:00 to 8:00 and Saturday from 10:30 to 5:00.

[5] In her reasons for decision released December 11, 2012[1], Justice Greer ordered the s. 30 assessment that she expected to commence in January 2013. She made an order that the Applicant had interim/temporary sole custody of the children on a without prejudice basis. She directed the Applicant to keep the Respondent informed about matters involving the children and directed that the Respondent was entitled to attend activities in which the children participate.

[6] Greer J. held that supervision had to be removed in order to provide the Respondent with time where he could show that the children are not at risk being with him unsupervised. She varied the July 23rd consent order by removing the supervision on Tuesdays and Thursdays from 4:00 to 8:00 p.m. She directed that the Saturday access would continue to be at the access centre for the month of January only with the parties sharing equally the costs of each visit. She directed that the arrangements for Saturday would otherwise continue namely pick up at 10:30 at the Royal Conservatory of Music and return to the Applicant’s home by 5:00 p.m.

[7] Greer J. directed the Respondent to “take a course in an Anger Management Course, to prove that he is serious about changing his behaviour that was seen by the children prior to the parties’ separation.” She further directed the Respondent’s counsel to provide documentation to show that he had enrolled in the program and the expected duration of the program and provide a copy of the certification showing he had completed it.

[8] The motion for temporary child support had been before Greer J. but there was insufficient time. It was adjourned and on April 8, 2013, Justice Archibald made an order that was largely on consent. In addition to ordering the Respondent to pay child support in the amount of $281 per month commencing in April 2013, the order provided that each of the parties may attend at the others residence to pick up or drop off the children provided that the parent who is receiving the children or dropping them off will remain on the porch of the residence or at the vehicle. He directed the parties to speak with Dr. Butkowsky the following day to determine whether his assessment could be completed by mid-July 2013 and if not, then the Respondent could bring a motion by April 30th to change the assessor. He also ordered that the Respondent was to determine a third party to receive and forward text messages and that communication via text messaging was permitted with respect to the children’s issues.

Motion by the Respondent

[9] In his notice of motion the Respondent asked for an order permitting the children to have overnight access and have a one week vacation with him. In the factum filed on his behalf, he asked that an order be made allowing him to pick up the children from day care on Fridays and return them to the Applicant on Saturday at 5:00 p.m. He also asked for one of the two weeks that the day care is closed during the summer.

[10] In his affidavit, the Respondent asserted that the Applicant delayed in paying Dr. Butkowsky’s retainer and that Dr. Butkowsky was unable to start the assessment until mid-April. The Respondent said that they had been advised that with summer holidays, it is likely that the report will not be available until October 2013. The Respondent reported that on March 22, 2013, Dr. Butkowsky advised the lawyers that he would not make any interim recommendations about overnight access so as not to compromise the assessment process and while he preferred that the parties not bring motions during the currency of the assessment, he understood that the Respondent would be seeking overnight and summer access to the children.

[11] The Respondent also reported that there are no longer any outstanding criminal charges against him which he says have been instigated by the Applicant. He asserted that it is not fair to the children that they not be able to stay overnight at his home and that they are constantly wanting to stay. In addition, having missed the past summer as a result of these proceedings, he did not want the children to miss yet another summer with their father. The Respondent took the position that it is not in the best interests of the children that they continue to be denied a normal relationship with their father. In his affidavit, he did not specifically refer to a material change in circumstances.

[12] The Applicant is opposed to the motion. Counsel for the Applicant caused to be served and filed an affidavit of SKP (the real estate agent who had participated in listing of the matrimonial home for sale in late 2012 and who described the Respondent’s behavior toward her when she tried to present an offer that he considered to be unacceptable); the affidavit of JYK (a parent who made observations of the Respondent’s interactions over an extended period in January 2013); the affidavit of GL (the mother of the Applicant who made observations of the Respondent’s interactions with the children on March 23rd and April 20th and of changes she has noticed in Eleanor including ignoring her mother, becoming angry, slamming doors and even shouting at her mother and grandmother as well as being non-responsive to questions about how she feels); and the affidavit of the Applicant. At paragraph 17 of the affidavit of the Applicant, she referred as well to the affidavits on which she had relied in the motion before Greer J.

[13] In her affidavit, the Applicant provided a copy of a letter in which she demonstrated that she had paid Dr. Butkowsky’s retainer on December 12, 2012. She attributed the delay to Dr. Butkowsky’s schedule. She reported that he expected to have a disclosure meeting by August 2013 and if the parties required the written report, he anticipated providing it “within a few months thereafter”. She reported on statements the children had made that suggest the Respondent continues to make inappropriate comments to the children, that he continues to struggle with anger management and that he continues to involve them in parental conflict. She described an incident on March 2, 2013 and she too described the incident on April 20, 2013 during which she said the sister of the Respondent (SM) was present. At paragraph 22 she also described Eleanor’s behavioural changes.

[14] In an affidavit sworn April 29, an assistant of Ms. Puckering reported on her conversation with SM and SM’s version of what happened on April 20th. She also attached a certificate of completion of a 16 week comprehensive Anger Management and Domestic Violence Program on November 20, 2011 and reported on other steps the Respondent had taken with respect to counseling and parenting advice.

[15] In response to that, the Applicant provided an affidavit sworn April 30, 2013 that described her communications with SM in November 2012 at which time SM had expressed a concern about the Respondent driving during a snowstorm and scaring SM’s children during which the Respondent told her children to shut up and she described him as being in a “complete rage”. SM said in an email that she would never let her brother care for her children.

Preliminary Objections

[16] Ms. Goldhart raised two preliminary objections. The first was that the Respondent had failed to comply with the order of Greer J. as to taking an anger management course. In my endorsement made on April 30th I agreed that his completion of such a course in 2011 did not constitute compliance. While directing that he must comply before he takes any other step in the proceeding, I noted that the issue of non-compliance had first been raised on the Friday preceding the hearing of the submissions on this motion. I concluded that it would not be fair to find that his non-compliance was a barrier to the motion.

[17] The second objection was that the motion had already been decided by Greer J. and was res judicata. In my endorsement made on April 30th, I held that the motion before Greer J. had not addressed summer access and was not res judicata on that issue. The motion before Greer J. had addressed regular access and she had not expanded the duration or the frequency. I noted that, on that point, it may be res judicata. However, since Ms. Puckering intended to argue material change in circumstances I did not dismiss the motion on the basis of that preliminary objection.

[18] Having had the benefit of full submissions, I understand that before Greer J., the Respondent had not asked for overnight access. I conclude that the issues he raised on this motion, namely overnight access and summer week-long access have not already been determined and are not subject to res judicata.

Analysis

[19] Ms. Puckering argued that the material changes in circumstances were that the assessment did not start in January on account of delay by the Applicant and Dr. Butkowsky’s schedule and that Dr. Butkowsky had refused to make any recommendations about changes to the schedule including the summer. She also argued that it was not fair to the children that they not have access in the summer. Lastly, she noted that the criminal charge that was outstanding in November when submissions were heard by Greer J. had been stayed.

[20] As Ms. Goldhart noted, the order made by Greer J. was dated December 11, 2012 and less than five months had elapsed before the hearing of this motion on April 30, 2013. I agree with Ms. Goldhart that there is a heavy onus on a party seeking to vary a recently established regime of access. For three reasons, I am not persuaded that the Respondent has met that onus.

[21] First, while Greer J. observed that she expected the assessment to begin in January, she made no reference to when the assessment would be completed. The fact that the disclosure meeting is likely to be in August and the report, if required, would be “within a few months thereafter” is not a material change in circumstances. None of the other circumstances relied on by Ms. Puckering constitute material changes in circumstances.

[22] Second, I agree with the submission that the children should not be deprived of a “normal relationship with their father”. However, based on the evidence of JYK (who is independent of the parties) and the evidence of GL and of the Applicant, the current relationship is causing considerable stress and anxiety at least to Eleanor. The evidence of JYK is particularly important to my conclusions about the Respondent’s ongoing behaviour.

[23] As for the evidence of Ms. Puckering’s assistant, it is hearsay from SM. Accepting for the moment that she could not be available to provide her own affidavit, it is logical that she would diminish the extent of the conflict on April 20th because she was there and did not intervene. Furthermore, her email communications with the Applicant as recently as November 2012 indicate her historical concern about her brother and the impact on her own children. As between the evidence of the Applicant and GL on the one hand and the evidence of the Respondent and the hearsay evidence of BC and SM on the other hand, I rely on the former.

[24] Third, the evidence marshaled on behalf of the Applicant demonstrates that the Respondent still has no insight into his own behaviour. Even in his own affidavit he blames the Applicant for restricting his time with the children and takes no responsibility for any of his own conduct that might be impacting the children. Greer J. noted in paragraph 24 that the Respondent had admitted to “serious errors” with respect to his communication with the Applicant. That admission appears not to have provoked changes in his behavior. Submissions on this matter started at 2:10 and concluded at 4:00 p.m. At about 3:30, Ms. Goldhart interrupted her submissions and asked me to direct the Respondent not to stare at the Applicant. Indeed, I had noticed that he was staring at her across the table. If he cannot control that behaviour in a court room in which his lawyer, Ms. Goldhart and others were present, it stands to reason that it is likely that the description of his behaviour when he is with the children is more consistent with the evidence of JYK, GL and the applicant than with his evidence.

[25] As indicated above, I did not conclude that the Respondent’s failure to comply with the order of Greer J. to attend an anger management program precluded him from bringing this motion. On this record, the Respondent’s anger management issues are an obstacle to the court making an order that he have what he considers to be a “normal relationship” with his children. I am not persuaded that exposing the children to longer contact with him is in their best interests. A significant expansion to overnight and extended summer access is not warranted.

ORDER TO GO AS FOLLOWS:

[26] The motion by the Respondent for increased temporary access is dismissed.

[27] The Respondent is prohibited from bringing any motion for any relief or taking any other step in the proceeding until he has provided to counsel for the Applicant a certificate of completion of an Anger Management Program in accordance with the order made by Greer J. dated December 11, 2012.

[28] If by June 11, 2013 the parties are unable to agree as to costs of this motion, then the following shall occur:

(a) By June 18, 2013, counsel for the Applicant shall make written submissions as to costs not exceeding three pages plus offer to settle and costs outline;

(b) By June 25, 2013 counsel for the Respondent shall make written submissions not exceeding three pages plus offer to settle.

Kiteley J.

Date: June 4, 2013

[1] 2012 ONSC 7033