NEWMARKET

COURT FILE NO.: FC-08-029284-00

DATE: 20130718

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N.S., Applicant

AND:

C.N., Respondent

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL:
S.N., Self-Represented Applicant

I. Mang, Counsel for the Respondent

G. van Hoogenhuize, Counsel for the Office of the Children’s Lawyer

HEARD: July 18, 2013

ENDORSEMENT

[1] Two motions are before me. N.S., the applicant mother, requests a reversal of the prior custody order in order to grant her custody of both children, A.V.N. and A.S.N. with no contact with C.N., the respondent father, for an indeterminate period. She also requests ancillary orders to enforce provisions of the prior order and this one by ensuring that A.S.N. is taken to the airport for the flight to Kelowna B.C. to attend the Family Reflections Reunification Camp and that the respondent comply with all entry requirements of the program. This type of order is required by the Program requirements to ensure that there will be not only attendance and success in overcoming alienation from the mother during the program’s originally proposed 4 days but that follow-up counselling to that end will succeed over the long haul.

[2] The second motion also is directed at the same Program. It proposes to set aside and vacate the order of July 4, 2013. Arising from a case conference in which there was discussion by all parties of participation in this Program, I made the order dated July 4, 2013 on consent dealing with attendance at the Program in the week of July 21-26 and requiring that the children be in the mother’s custody only during the duration of the Program that week in the case where the father decided not to attend but to connect from home. That accorded with my understanding of the program at the time as a one-week program, with follow-up through local counsellors including the children’s present therapist Dr. Collins, but as essentially a one-week program following the report from which, as well as evidence from the parties, I would review the prior orders for custody and access in the context of the goals to be achieved.

[3] Now I have received further material and have had a chance to read it (the whole proposal came up through Ms. Rosen and N.S. on July 3 without any prior notice and was again discussed on July 4 briefly in view of the requirements of shortness of time). The review of the prior orders of January 24 and 25 and supplemental orders following trial was moved to August 19, 2013 to accommodate the participation for a week in this Program.

[4] I want to correct one very important misconception of the review hearing that I ordered in January 2013. One of the parties stated during submissions on these motions that the review process was near its end. That is far from the case. The first phase of the review was the hearing of Dr. Collins’ evidence. Next is receipt of the therapists’ reports and filing of affidavits and any notices of motion proposing changes to the original orders which are to be heard commencing August 19 at 10:00 a.m. and hopefully ending that week. Following that hearing I will make a final order. The review process has barely begun and I have every expectation that it will be finished by the end of August including the final decision.

[5] In any event, I have considered the submissions of the counsel and of N.S. and I will now deal with them.

[6] First, the Family Reflections Reunification program as I now more fully understand it is a one-year process beginning with the week-long participation at Okanagan B.C. In addition to the above-mentioned custody reversal with a no-contact provision, both to operate for an indeterminate time, the scope of decision-making required by the Director is very wide, in effect letting her determine the entire process and all after-care services. The Director would accede to a term in the order that she report regularly on progress. Other suggestions for the qualifying order are set out but these are the most important ones for the court to consider.

[7] What I am being asked to do, in my view, is to substitute for the court’s due process and therapeutic orders, a Program on the basis of no peer-reviewed research as to the success of this Program, and no independent evidence of its efficacy and its quality of accommodation and services. My order following the review will be based on expert and parental evidence of those who know these children best and may very well include a no-contact order for a period of time and temporary custody of the children in a neutral residential setting, depending on the evidence and my findings, followed by a gradual reintroduction of the father into the children’s lives. It also may not. But the findings will be to use the best facilities and people we have to deal with this situation following a fair hearing and appraisal of the evidence of all relevant persons. I cannot cede the considerable powers granted this court under the statutes I am dealing with to act in the best interests of the children to a Program the experience and value of which I have no independent evidence.

[8] Second, I find no fault in anyone regarding the order of July 4. Everyone was acting under severe time pressures, as I still am, and I certainly never saw this Program as a substitute for the process we have only begun on June 28and will continue in on August 19. I also do not see the delay of the review hearing to August 19 as time that will not be well spent.

[9] I understand completely N.S.’s feeling that trying anything is better than doing nothing. But that is not the issue. As a judicial officer with duties toward the welfare of these children as well as to the parties, I cannot act in the absence of evidence. This is one of several programs that have come on the scene recently and in each case, the court requires some evidence other than a program’s own claims before the court entrusts two children to it for a long term program which will go well beyond the court’s own process of review.

[10] The motion by the respondent is granted and paras. 1 and 2 of the order of July 4, 2013 are vacated. The motion of N.S. is not granted. In the circumstances, there will be no costs.

[11] As both Mr. Mang and N.S. raised the recommendation of Dr. Collins for a no-contact period of the children with the mother for the summer, I will say this. I cannot make orders without some due process including notice of motions to opposing party or parties. I have had a recommendation of Dr. Collins, as well as his evidence of which I have notes. It has been before me for some time yet no motion has ever been brought forward in that regard. I am open to considering the implementation of Dr. Collins’ suggestion at least for the rest of the summer but only after hearing or reading submissions from the parties. I can consider it on short notice if necessary within the week from yesterday. I will be out of the country between July 24 and August 1. In the meantime I can direct him to meet with the children, as he said, in preparation for such a possibility by sending him a copy of this endorsement. I am adding this simply because one of the parties is self-represented, and not as any prejudgment of the issue.

HOWDEN J.

Date: July 18, 2013