ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-7286M
DATE: 20130611
BETWEEN:
R.G.
R.G. in person
Applicant
- and -
L.C.
Carol A. Allen, for the Respondent
Respondent
HEARD: May 22, 23, 24, June 10, 11, 2013.
REASONS FOR JUDGMENT
Conlan J.
Introduction and the Background of the Litigation
[1] This case pits the right of a child to have a meaningful and beneficial relationship with her father against the desire of the child’s mother to protect the child from what the mother believes to be abusive conduct on the part of the child’s father.
[2] In April and May 2012, I presided over a lengthy trial involving these same parties and, in part, the same issues of custody and access.
[3] That trial culminated in my Reasons for Judgment dated May 24, 2012 and the resulting Final Order which granted to the mother, L.C., sole custody of the child, K. (turning five years old in […] 2013), with access between the child and her father, R.G., on terms including a review by the Court within twelve months after the first access visit and upon receipt by the Court of a report from the parenting coordinator, Donna Broga.
[4] On November 23, 2012, on an urgent ex parte basis, I granted part of the relief sought in a motion brought by the father and ordered specified access to take place between the child and her father.
[5] On April 19, 2013, Justice Price ordered a review to take place before me on three issues: custody, access and whether the mother is in contempt of Court for failure to obey the May 2012 Final Order and/or the November 23, 2012 Temporary Order.
[6] On April 26, 2013, Justice Thompson scheduled the review hearing for three days in May 2013.
[7] The trial was not completed within the scheduled time: May 22, 23 and 24, 2013. The trial continued on June 10 and 11, 2013. What happened in between May 24 and June 10, 2013 is nothing short of shocking.
[8] The father, self-represented, called three witnesses at trial: himself, his mother, Ms. Cross, and his partner (“M.”).
[9] The mother called ten witnesses at trial: herself; K.’s teacher (“Ms. Z.”); an intake worker at Bruce Grey Child and Family Services, Ms. Lembke; a child protection worker at Bruce Grey Child and Family Services, Ms. Wallis; a child protection supervisor at Bruce Grey Child and Family Services, Ms. Pette; a police officer with Saugeen Shores Police Service, Constable Whitteveen; Dr. Lingys, a family medicine practitioner who saw the child for an ear problem on May 31, 2013; Donna Broga, the parenting coordinator who oversaw the access between R.G. and K. after the conclusion of the trial in the Spring of 2012; Lori Lanktree, a counsellor with Keystone in Owen Sound; and Dr. M.C., the mother of L.C.
The Positions of the Parties
[10] R.G. wants sole custody of his daughter. Initially, he asks for no access between L.C. and the child. After some time, he proposes that L.C. have supervised access with K. in Sudbury, Ontario.
[11] R.G. asks that I find L.C. to be in contempt of Court and impose upon L.C. a term of imprisonment.
[12] L.C. wants sole custody of her daughter. She proposes continued access between R.G. and the child as per the Order of Price J., with some amendments.
[13] L.C. admits that she was in contempt of my November 23, 2012 Temporary Order regarding telephone access. No submission was made by counsel for L.C. as to what the Court should do, if anything, about that contempt.
The Issues and Analysis
Issue Number One, Custody – should it be changed from sole custody in favour of the Mother to joint custody or sole custody in favour of the Father?
[14] Any change in the custody and access arrangements for the child must be found on balance to be in the best interests of the child.
[15] In making that determination, I shall consider subsections 24(2) through (4) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as amended (“CLRA”).
[16] There is no question that there has been a material change in circumstances since the date of my Final Order in May 2012. In particular, R.G. has had access with his daughter which I find has been consistently meaningful and beneficial to the child.
[17] Further, I find that L.C. has, for more than a year now, engaged in a concerted campaign to frustrate access between the child and her father. This Court will not sit idly by while that occurs. Such conduct on the part of L.C. is not in the best interests of K.
[18] As I concluded in my Reasons for Judgment after the first trial in the spring of 2012, joint custody is simply not a feasible option in this case. The parties live hundreds of kilometres apart. They loathe and distrust each other and cannot cooperate on any form of decision-making or day to day care regarding K.
[19] I am cognizant of the fact that any variance in the custody of K. will mean a significant change in the child’s life and what has been her day to day routine for quite a long time now. It would be a real transition and marked adjustment for K.
Section 24 of the CLRA
[20] I will use section 24 of the CLRA as a framework for my analysis as to what custody arrangement is in the best interests of the child.
[21] With regard to subparagraph 24(2)(a), I find that there is significant love and affection between K. and both of her parents. I accept the evidence of Donna Broga and find that the access visits between K. and R.G. have been, in her words, very positive, very natural and very affectionate. Ms. Broga has no concerns. Ms. Broga recommended expanded access which included weekends at R.G.’s residence in Sudbury, Ontario.
[22] I pause here to note that Ms. Broga has no horse in this race. I categorically reject the assertion by L.C. in her testimony that Ms. Broga is somehow biased in favour of R.G. In fact, Ms. Broga was a witness called by counsel for L.C. at the trial last year; and she was Court-ordered to be the parenting coordinator for the family without objection by either party; and she was a witness called by counsel for L.C. again at this trial. Ms. Broga is the only witness called at trial who is truly independent and objective, unrelated to either parent and with first-hand evidence as to the relationship between K. and her father. For those reasons, I accept and place significant weight on the evidence of Ms. Broga.
[23] I reject the argument by counsel for L.C. that I should discount the evidence of Ms. Broga because she overstepped her role as parenting coordinator and/or because she failed to comply with my November 23, 2012 Temporary Order. The former is not a fact that I find. The latter is uncertain because the wording of the said Order is capable of being interpreted such that it was not strictly necessary for Ms. Broga to personally attend at every access visit.
[24] Because L.C. has been, to date, the custodial parent of and primary caregiver for the child, it is likely that the emotional ties and attachment between K. and her mother are stronger than those between the child and her father. I have very little evidence before me to draw any reliable conclusions as to the love, affection and emotional ties between the child and other persons involved in K.’s care and upbringing, such as L.C.’s parents, on the one hand, and R.G.’s partner, M., on the other hand. I think it is safe to infer, however, that K. likely has stronger emotional ties to her maternal grandparents given that the child has known and been around them much longer than M..
[25] Regarding subparagraph 24(2)(b), I have no admissible evidence upon which I can make any reliable conclusions as to the views and preferences of the child.
[26] With regard to subparagraph 24(2)(c), there is no doubt that K. has lived with L.C. ever since the separation of the parties. How stable that home environment is I am not sure, however, there is no evidence that outside parties (such as teachers or neighbours or counsellors) have had any concerns about K.’s home environment with L.C.
[27] Regarding subparagraph 24(2)(d), I find that the parties are equally able and willing to provide the child with guidance and education, the necessaries of life and counselling if that is required to help K. I agree with counsel for L.C. that the evidence of Ms. Z. supports that K. is doing well in school. But in my view, guidance includes a recognition that it is in the best interests of K. to have a relationship with both parents. I find that R.G. is much more likely to obey a Court Order for access with L.C. than the other way around.
[28] With regard to subparagraph 24(2)(e), each parent has a plan for the care and upbringing of the child. I accept the evidence of R.G. and M. that they plan to marry each other. I accept the evidence of R.G. and M. that they have a stable residence for K. I accept the evidence of R.G. and M. that they have a thoughtful and reasonable plan in terms of services for K. including a medical doctor, a counsellor, a school and a child care provider. There are other family members in the area of Sudbury. M. has secure and gainful employment with benefits which will cover the child. R.G. is looking for work. I am impressed with the focus of R.G. and M. on what needs to be in place to ensure a smooth transition for K.
[29] Regarding subparagraph 24(2)(f), the stability and permanence of the family unit of R.G. and M. is equal to that provided by L.C.
[30] With regard to subparagraph 24(2)(g), I find that each party is equally able to parent the child. Acting as a responsible parent, however, is more than feeding, clothing and housing the child. It includes obeying Court Orders which are designed to foster an ongoing relationship between the child and the other parent, in the best interests of the child. In my view, L.C. has not and likely will not in the future do anything to act responsibly in that way.
[31] At this juncture, I wish to comment on the timing of the most recent referral by L.C. to the authorities. On April 19, 2013, Price J. ordered that the issues of custody, access and contempt be reviewed by me at a trial to take place in the near future. The matter was adjourned to April 26, 2013 to set the specific dates of the review hearing. In the meantime, on April 24, L.C. telephoned the Children’s Aid Society to complain that R.G. had sexually abused the child. That complaint had never been made before. On April 26, 2013, Thompson J. scheduled the three-day review hearing for late May 2013. That same day, April 26, L.C. and K. attended at the police station regarding the alleged sexual abuse by R.G. against his daughter.
[32] Counsel for L.C. asks that the Court find the timing of those events to be coincidental. I do not. I find it more likely that L.C. contacted the authorities to either interfere with the review hearing or get some leverage going in to it. Either way, L.C.’s motives were not benign.
[33] L.C. and R.G. are the natural parents of the child, thus, the consideration at subparagraph 24(2)(h) is neutral in this case.
[34] Regarding subparagraph 24(3)(b), I find that L.C.’s contempt of a Court Order and what happened on May 31, 2013, in the middle of this trial, constitute past conduct on the part of L.C. which is relevant to her ability to responsibly parent the child. L.C.’s contempt of Court is discussed under issue number three below.
[35] So what happened on May 31, 2013? It is shocking. It gives me cause to question L.C.’s emotional and/or mental stability. It causes me to conclude that L.C. has no respect for Court-ordered access between R.G. and the child. It causes me to conclude that L.C. is engaged in an orchestrated campaign to frustrate access between the child and her father.
[36] On May 31, 2013, in the middle of this trial and on the very day that R.G. was to have access with the child as per the Order of Price J. made in April 2013, L.C. visited a medical doctor in Mississauga because the child had an ear problem (the child and L.C. live in Southampton, a few hours away from Mississauga and between Mississauga and the access exchange place near Parry Sound, Ontario). I place no fault on L.C. for investigating the ear problem. But it is totally unreasonable that she did so without any notice to R.G. It was inevitable that R.G. would miss his Court-ordered access with the child on May 31. Yet L.C. took no steps to ensure that R.G. knew about the problem. Then, after receiving a note from Dr. Lingys that the child should not travel until improved, L.C. (again without any notice to R.G. whose Court-ordered access with the child was to continue that weekend) chose to drive the child in a direction away from her home in Southampton, away from the access exchange location near Parry Sound and eventually to the border at Niagara Falls, Ontario. L.C. claims that she had no intention of crossing the border and absconding with the child. Justice Thompson had serious concerns about that. So do I, however, suffice it to say that L.C.’s south-western Ontario jaunt was without notice to R.G., directly contrary to the Court Order of Price J. and even directly contrary to the note provided by Dr. Lingys. It was certainly not in the best interests of the child. Apparently, the child was too sick to have her Court-ordered access with her father but not too sick to drive around part of the Province to the 49th parallel. Somehow, L.C. just ended up in Niagara Falls, a place where neither she nor the child has any connection with.
[37] On June 4, 2013, upon hearing an ex parte motion by R.G. and based on evidence provided by R.G. and the police, Thompson J. issued a Temporary Order which effectively placed the child with R.G. until my decision after trial. When the trial resumed at Court on June 10, 2013, I granted leave to L.C. to file a motion to set aside that Order of Justice Thompson. After hearing viva voce evidence from Dr. Lingys and L.C. and considering the materials before Justice Thompson, I issued an Endorsement dismissing the mother’s motion.
[38] Counsel for L.C. urged the Court to characterize L.C.’s conduct on May 31, 2013 as a “lapse in judgment”. I do not. It was a callous and serious disregard for R.G., the Court Order of Price J., the note provided by Dr. Lingys and the welfare of the child.
[39] Finally, regarding subsection 24(4), I find that neither parent has been abusive to anyone in the past. Although there is simply nil reliable evidence before me that R.G. has ever verbally, physically or sexually assaulted or abused his child, let me be perfectly clear on this point. I find that L.C.’s persistent allegations against R.G. are unfounded. I find that they are part of a concerted effort by L.C. to remove R.G., permanently, from K.’s life. I do not believe that R.G. has or ever would assault or abuse his child. The Children’s Aid Society has been involved and has never brought a Protection Application. Access supervisors have never witnessed any wrongdoing on the part of R.G. Two police services have investigated and have not found reasonable grounds to lay any charge.
[40] The fact that the Children’s Aid Society investigated a referral and verified that R.G. had been physically aggressive with the child at an access visit at McDonald’s is not reliable evidence that R.G. assaulted K. It is a conclusion based on the alleged hearsay comments of the child to someone else. Besides, Ms. Broga was physically present at that visit and saw nothing of the sort.
[41] Much of the final submissions by counsel for L.C. were focussed on the argument that the Court should not find on the evidence at trial that L.C. has actively “coached” or manipulated the child to make false accusations against R.G. I agree. I make no such finding. I know one thing for sure – R.G. has not abused his daughter.
[42] It is time for the accusations by L.C. against R.G. to stop. The man has nearly been investigated to death. He is not a child abuser.
Conclusion on the Issue of Custody
[43] Having considered all of the evidence at trial, the submissions by the parties and the law including that outlined in section 24 of the CLRA, I conclude on balance that a change in custody in favour of R.G. is indeed in the best interests of the child, having regard to all of her needs and circumstances.
[44] I disagree with counsel for L.C. that this Order amounts to “an experiment” in Sudbury, Ontario. That belittles R.G. and places insufficient weight on the evidence of Ms. Broga.
[45] A Final Order shall issue granting to R.G. sole custody of the child.
Issue Number Two, Access – should there be any access in favour of L.C. and, if so, on what terms?
[46] To the extent that contact with both parents is in the best interests of the child, the Court should promote and foster as much contact as possible between K. and her mother.
[47] There is no question that L.C. has been the primary caregiver for K. since her birth. There is no doubt that L.C. loves her daughter.
[48] On the other hand, I have serious concerns about the ability or willingness of L.C. to do what is best for her daughter. L.C. has shown a disregard for the importance of K.’s relationship with her father, R.G. L.C. has shown a kind of impulsivity, as exemplified by what occurred in the middle of this trial and which led to the Temporary Order of Thompson J. referred to above, which, frankly, suggests mental instability on the part of L.C. and a risk that she may do something drastic while exercising access with K., such as attempt to flee the jurisdiction of the Court.
[49] Balancing these considerations, I will permit fairly generous and liberal access between L.C. and her daughter, however, there will be some terms and conditions placed on that access to ensure that the risk of L.C. trying to abscond with the child is as minimal as possible.
[50] A Final Order shall issue that, at a bare minimum, L.C. have unsupervised access with the child as follows:
(i) On alternate weekends on the same schedule, times and terms (including exchange location) outlined in the Order of Price J. regarding access between the child and R.G. The only exception is that the exchange shall take place at 6:00 p.m. on alternate Friday evenings so as to disrupt to a lesser extent K.’s education. That will ensure some consistency and stability in the schedule and the travel;
(ii) When exercising access with the child, L.C. shall not leave the boundaries of Grey and Bruce Counties;
(iii) If L.C. and the child leave the boundaries of Grey and Bruce Counties, then any police officer shall have the authority to stop them immediately and/or enter any vehicle or place where they are without a warrant, apprehend the child, with force if required, and return the child forthwith to the care and custody of R.G.;
(iv) When exercising access with the child, L.C. shall telephone R.G.’s residence in Sudbury daily at 6:00 p.m. sharp and permit the child to speak on the telephone with R.G.;
(v) When he has care of the child, R.G. shall telephone L.C.’s residence in Southampton every second evening between the hours of 6:00 p.m. and 6:30 p.m. and permit the child to speak on the telephone with L.C. R.G. shall not place any unreasonable limits or restrictions on the duration of the telephone access between the child and L.C.;
(vi) On such other dates and times as agreed upon, in writing, between the parties. Proof of that agreement shall be carried by L.C. on her person whenever she is exercising access with the child.
[51] With regard to point (vi) above, I expect that R.G. will not make the same mistake made by L.C. It is in the best interests of the child that she have an ongoing relationship with her mother. L.C. loves her daughter. K. loves her mother. R.G. should fully cooperate in permitting access between the child and L.C. in addition to that expressly set out above. That additional access should include items such as summer access and holidays.
[52] If, over time, L.C. demonstrates a greater appreciation for respecting Court Orders and a more responsible recognition of the importance of R.G. in the life of his daughter, then the Court may revisit the access terms set out above upon a Motion to Change initiated by either party.
Issue Number Three – is the Mother in contempt of Court and, if so, what are the consequences to her for that contempt?
[53] This is yet another instance where a party has determined that she will decide whether she will obey a Court Order or not. L.C. must be held accountable for that.
[54] Those who deliberately and repeatedly flout Court Orders regarding custody and access shall be held to account for their contempt. And by “account”, I am not referring to a shake of the finger and a gentle reminder that an Order is an Order is an Order.
[55] There are four requirements that must be met before I can make a finding of contempt against L.C. The burden of proof rests with R.G. The standard of proof is beyond a reasonable doubt. The four ingredients are: (i) that the Court Order(s) was/were clear and unambiguous, (ii) that L.C. knew about the Order(s) at the time(s) of the alleged breach(es), (iii) that L.C. intentionally did or did not do something in contravention of the Order(s), and (iv) that L.C. was given proper notice of the Order(s). Sickinger v. Sickinger, 2009 28203 (ON SC), [2009] O.J. No. 2306 (S.C.J.), affirmed 2009 ONCA 856, [2009] O.J. No. 5178 (C.A.).
[56] L.C. is a contemnor. Plain and simple. She admits it.
[57] I will take a conservative approach and deal only with the matter of contempt which is the clearest. Although I may very well have found L.C. in contempt of other in-person Court-ordered access between R.G. and the child, I see no point in essentially rubbing salt in the wound at this stage of the litigation.
[58] I find beyond a reasonable doubt that L.C. is in contempt of my November 23, 2012 Temporary Order for telephone access between the child and R.G. Each of the four ingredients has been satisfied beyond a reasonable doubt. L.C. admitted in her testimony that the telephone access did not occur as ordered. Her excuse that she left it up to the very young child to determine whether she wanted to contact her father is no excuse at all – it is absurd.
[59] The sanction for L.C.’s contempt of Court is dealt with below in terms of costs.
Conclusion
[60] Final Order to go as per these Reasons for Judgment.
[61] As the successful party after trial, R.G. is entitled to his costs. Because of my finding that L.C. is in contempt of a prior Court Order, R.G. will be awarded his costs at or close to a full recovery basis, subject of course to the normal principle of reasonableness.
[62] This is not an appropriate case to impose upon L.C. a fine, imprisonment or some other penalty as a sanction for her contempt.
[63] If the parties are unable to settle the quantum of costs in favour of R.G., they may contact the Trial Coordinator in Owen Sound to schedule a further Court attendance of thirty minutes in length to hear submissions and consider filings in that regard. That attendance may be by teleconference if the parties prefer. I shall consider the matter of costs resolved between the parties if the Trial Coordinator is not contacted by the parties within two weeks of the release of these Reasons for Judgment.
[64] This saga has gone on long enough. The parties have been embroiled in bitter and protracted litigation for much of this young girl’s life. I share the concerns of the workers from Bruce Grey Child and Family Services as to how this intense conflict must be adversely affecting the child. I encourage the parties to pause and reflect on that. Soon it will be too late, and K. will hold both of her parents accountable for effectively robbing her of what she truly deserves – a healthy relationship with both of her parents.
[65] I implore L.C. to stop seeing the father of her child as some monster. And I encourage R.G. to allow the child to have an active mother in her life.
Postscript
[66] This Final Order does not deal with any ancillary matters such as child support. The trial was confined to custody, access and the contempt issue.
[67] If the parties wish to speak to me about other issues, they may do so upon appointment through the Trial Coordinator. Again, that may be by teleconference if the parties prefer.
Conlan J.
Released: June 11, 2013
COURT FILE NO.: 09-7286M
DATE: 20130611
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.G.
Applicant
- and -
L.C.
Respondent
REASONS FOR JUDGMENT
Conlan J.
Released: June 11, 2013