ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-12-1619
DATE: 2013/06/12
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF D.J.T., born […], 2008
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
I.T. (the mother) and
R.T. (the father)
Respondents
Marguerite Lewis, for the Applicant, by her Agent Tracy Engelking
Robie S. Loomer, for I.T., the mother
R.T., self-represented
Cheryl Hess, the Children’s Lawyer
HEARD at Ottawa: June 4, 2013
REASONS FOR decision
Kane J.
[1] The Children’s Aid Society of Ottawa [the “CAS” or the “Society”] brings this motion for an interim supervision order placing five year old D. with his mother Ms. T. pursuant to s. 51 (6) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as am. [“CFSA”] subject to conditions and access to the father Mr. T. with location, duration, frequency and level of supervision at the discretion of the Society.
[2] Mr. T presented a cross-motion seeking interim custody of D. His claims for disclosure were adjourned and not argued on June 4, 2013, with the consent of Mr. T.
[3] In proceedings on July 10, 2012, between the parents in Family Court, Minnema J. ordered that D. be placed in the immediate care of the CAS and held that on the materials before him the child appeared to be at risk with each parent.
[4] D. was apprehended by the CAS on July 12, 2012.
[5] The court granted an interim without prejudice order finding the child in need of protection and a restraining order against the father on July 13, 2012.
[6] A Family Court Clinic Assessment [“FCCA”] was ordered on September 12, 2012.
[7] A with prejudice temporary care motion was argued on September 27, 2012 in which each parent sought custody of D.
[8] The decision of Minnema J. is dated October 12, 2012. The court therein made the following findings, including:
(a) Audio recordings by the father during arguments between the parents included instances where the mother was hitting the father in the presence of the D. Mr. T. appeared pleased to be collecting this evidence.
(b) The audio recordings contain statements by the father while allegedly being hit by his wife which are out of context of the situation.
(c) The audio recordings contain reports of the mother hitting J. and the mother admitting on one occasion to hitting D.
(d) Both parents using inappropriate language in the presence of the children.
(e) The audio recordings include D. asking his parents to stop fighting and his request that the father not call police.
[9] Minnema J. in the above decision states that the two parents exhibited a gross lack of judgment in allowing their extreme conflict to occur in the presence of the child. The evidence indicated that the mother on several occasions hit the two children as well as evidence of conflict and violence towards the father with the children present. She acknowledged this behaviour was inappropriate, but suggested that it was as a result of her being under intense stress as the person raising a family, working, and going to school to be qualified as a dentist in Ontario. Added to this was her troubled relationship with the unemployed father.
[10] As to the father, Minnema J. stated that J.’s evidence of being kicked and punched by the father are credible and evidence a risk of physical harm, including a risk of harm to D. The court held that the father allowed D. to witness the extensive violence and conflict in the home. The impact on D. was not acknowledged. The court stated it could not assume that the father will find parenting perspective and insight upon the separation, and this is not consistent with his conflict-focused approach in his previous domestic relationship evidenced in past orders which include a “no contact” order with respect to the 15-year-old child from that relationship.
[11] The court stated that the father’s lack of judgment in failing to protect D. and indeed inciting or orchestrating the altercations with the mother with D. present, is a serious concern with respect to the risk of emotional harm. The court held that while the risk of physical harm is less than in the case of the mother, there is nothing in the way of supervisory conditions that would satisfy the court that the identified risks could be addressed on a placement of the child with either parent.
[12] Accordingly, the motion by each parent for custody was dismissed. The existing orders were continued on a “with prejudice” basis.
[13] The separation of the parents on July 1, 2012, involved a physical altercation between them. Both parents were arrested by police. The mother was not charged despite the father’s evidence that she had physically assaulted him causing bruising and injury. This court can understand the concern of the father as to a possible double standard in charges not being pursued in the face of evidence of physical injury to him. The current issue however is the father’s conduct in such arguments conducted in front of D.
[14] The evidence filed against the mother includes an affidavit of Mr. L. and a note from D.’s violin teacher. Mr. L. states he was in a relationship with Ms. T. and he was also assaulted by her. That lends credibility to allegations of similar conduct by her against Mr. T.
[15] The issue remains whether D.’s safety now requires that he should be removed from the mother’s care which has existed since March 25, 2013, and placed with his father on an interim basis.
[16] The CAS has visited the child on several occasions since his return to the mother and notes he appears to be doing well. J. maintains her current position that she wishes no contact with this step-father despite her prior allegations of being physically disciplined by her mother.
[17] It was argued that Mr. T.’s allegations of being assaulted by his wife should not be believed as some of them are historical, were not reported at the time, he remained in the relationship and he reported similar allegations against his previous wife. It is not uncommon to have female partners remain in abusive relationships and not report such abuse, particularly when the person being abused is unemployed. Although relevant to consider, little weight is often afforded such arguments in the case of a female complainant.
[18] This court now has the benefit of a FCCA report dated February 21, 2013.
[19] As to the father, the FCCA report concludes that he shows no evidence of any psychotic or major psychiatric illness. He does however suffer from a mixed personality disorder and shows little or no insight into his own difficulties. He will instead attribute any problems or difficulties he encounters to others. Stopping there, Mr. T. on this motion blames not just his wife, but police, CAS workers, CAS counsel, FCC staff etc. It is not possible that all these people are wrong.
[20] The FCC report states that Mr. T.’s personality issues will likely cause ongoing difficulties in dealing with others. These issues it is stated also reflect on Mr. T.’s parenting style as he shows a rather narcissistic identification with D., who he sees as a child prodigy. Mr. T., it is anticipated, finds it quite difficult to relinquish his own control and the gratification he seeks through D.’s accomplishments.
[21] The FCC does not see Mr. T. at increased risk for physical or sexual abuse of D. but is concerned about the emotional traumatization caused by Mr. T.’s inability to acknowledge and support the importance of Ms. T. in D.’s life.
[22] Mr. T. is fixated in proving Ms. T. is a bad parent. He has not been able to place D.’s wellbeing above the struggle to prove the mother unfit. In the current supervised access visits debates arise with CAS staff. Supervised access is difficult at the best of times. Mr. T.’s job however is to make those visits beneficial for the child.
[23] Like the former fights in the home in D.’s presence, the child currently remains exposed to the struggles of Mr. T. to win this battle between parents. Without professional analysis and treatment, the risk remains that Mr. T. will use this child to garner knowledge of and against his wife to defeat her claim.
[24] Mr. T.’s inability to see the inappropriateness of bathing and sleeping with his son also demonstrates his emotional needs and his inability to place the needs of this child above his own. This is not a question of a parent’s unique style. This conduct discourages the child’s development of a sense of independence. Would this conduct be appropriate at the age of 10 or 13 years of age? It also demonstrates his failure to set appropriate boundaries in this relationship and the need to protect this child.
[25] As to the mother, the FCC stated it had less information but suspects there may once again be some personality difficulties or traits which have interfered in her ability to establish and maintain relationships. In an understatement, the FCCA states that Ms. T. appears to be a rather emotionally reactive lady who may have responded in an exaggerated or at times physical manner to Mr. T.’s provocations. With this statement, it is small wonder that Mr. T. is alleging that the FCC went light on Ms. T. Ms. T. may also have used physical discipline with J. in the past, despite J.’s denial.
[26] The FCCA continues that the mother’s reaction towards her husband may have been contributed to by the tremendous stress and conflict in her day-to-day relationship with Mr. T. One wonders if this minimizing statement would have been made if the actions complained of were those of a male.
[27] The FCCA report states that despite her emotionally responsive personality style, they do not see Ms. T. at risk for any physical abuse of D. The FCC did however find Ms. T. somewhat emotionally intrusive and overly smothering or affectionate with D. The FCC states that Ms. T. may also have mixed personality difficulties. The FCC suggests that Ms. T. take some parenting education and counselling directed towards her relationship as well as reading and responding appropriately to D.’s cues. Such suggestions are hereby ordered and are to be selected and determined by the CAS.
[28] The FCCA report acknowledges that the assessment of the mother was more limited than that done of the father because of her limited capacity in English. This court requests that the FCC consider whether it is possible to assess the mother further with the aid of translators or similar testing in the Russian language which Mr. T. argues is available. Presumably lack of English is not an automatic bar to assessments by the FCC in the nation’s capital.
[29] This court also notes the absence of analysis in the FCCA as to the mother’s ability to shield D. from the mother’s animosity of this father. Comment thereon in any supplementary report would be of assistance.
[30] Mr. T. is an intelligent and articulate advocate. He is not to be faulted because he is pursuing this litigation vigorously, nor for the fact that he believes his son is a very intelligent and artistically gifted.
[31] Mr. T.’s passion in this litigation however is creating loss of focus for Mr. T. on the issue of D.’s interim wellbeing. Mr. T. to date has not been able to separate his passionate advocacy against the mother, and with authorities, from the need of this child for peace and calm in the relationship between these parents. Mr. T. was in the past, found to litigate excessively. He needed to be restrained by court order in 2004 and 2008 litigation involving his former spouse.
[32] One’s strengths can at times become problematic. This is currently a problem for Mr. T. evidenced by his inability to date to disengage sufficiently from this litigation to create a peaceful environment in which he can be permitted regular access with D. Proving Ms. T. unfit gets Mr. T. only half way there.
[33] There also remain the allegations of his wife and step-daughter that he physically assaulted them on several occasions; that he orchestrated and inflamed the conflict by his wife and the FCCA that he has a personality which creates conflict or lacks sufficient flexibility to avoid confrontation.
[34] Mr. T. has adopted a “scorched earth” attitude on this motion regarding Ms. T.’s capacity as a parent. To expect Mr. T. to foster and support the child’s relationship with the mother pending trial would be naïve.
[35] Mr. T. expects this court to accept that he can be an opponent of his wife and almost all authority figures, but he possesses the flexibility and patience required as a single parent to care for a young child, even under the supervision of the CAS.
[36] This court’s concerns regarding the father’s present capacity to care for this child in a manner which will protect D. from Mr. T.’s oppositional attitude, from the conflict between these parents and from conduct such as joint bathing and sleeping together, do not dissolve the evidence presented by Mr. L. and the reservations expressed by the violin teacher about the underlying make up of this mother. There remains however serious issues regarding this father exposing the child to emotional harm.
[37] This court is also concerned about the number of custody changes involving D. since separation. They include being in the care of his mother upon separation, being removed by the father and then returned to the mother, then removed and placed with the CAS for eight months, then returned to his mother since April of this year and the potential now of another interim placement with the father until trial which might result in a further change. This concern is not determinative of this interim custody motion. It is however a factor given the recorded present wellbeing of this child and the apparent absence of physical risk in the care of his mother outside her relationship with Mr. T. This current status also accords with the recommendation of the FCCA.
[38] To place this child in the temporary care of Mr. T. will create a risk of emotional harm for this child. This court is satisfied on the evidence that D. is at risk and in need of protection from his mother and his father.
[39] This court has jurisdiction under s. 51(6) to vary the October, 2012 with prejudice interim order of Minnema J. That judge did not have the FCCA before him.
[40] An interim with prejudice supervision order is granted placing the child with the mother with conditions 1 to 10 as set forth in the notice of motion. This order is made despite my reservations as to the mother’s underlying history of aggression towards her partner(s) and her children. The risk related to the acrimony between partners currently does not exist. I believe the remaining risk to D. can be protected against with adequate supervision by the CAS of the mother until trial.
[41] The father is to have access subject to the discretion, terms, duration and need for supervision as determined by the CAS. I repeat the hope of increased interim access as expressed on p. 39 of the FCCA. The key to that happening however remains in the hands of Mr. T. The interim conditions involving the father set forth in paragraphs 11 to 19 of the notice of motion are hereby ordered.
[42] Mr. T. has not laid the evidentiary foundation after separation to now justify the issuance of a restraining order against Ms. T. That request is denied.
[43] There are apparently outstanding charges against the father for breaching the current restraining order against him. Restraining orders against Mr. T. have in the past been deemed necessary. I conclude that it is best to leave the current order in place for the time being. It has been in place for some time and can be revisited when circumstances warrant.
Kane J.
Released: June 12, 2013
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF
D.J.T., born[…] , 2008
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
I.T. (the mother) and
R.T. (the father)
Respondents
REASONS FOR DECISION
Kane J.
Released: June 12, 2013