ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-11-2531
DATE: 2013/12/09
BETWEEN:
Sylvie Gregoire
Applicant
– and –
Frank Philion
Respondent
Self-represented
Self-represented
HEARD: December 3, 2013
REASONS FOR JUDGMENT
Minnema J.
[1] This was a Motion to Change by the respondent Frank Philion dated October 21, 2011. Mr. Philion was seeking a variation of the access order of Wilson J. dated January 8, 2009, which simply says that access shall be as agreed upon between the parties. The respondent Sylvie Gregoire in her Response to Motion to Change was seeking to have Mr. Philion’s access terminated. This matter was set for trial. Mr. Philion did not appear. Both the court’s administration and Ms. Gregoire in her testimony confirmed that he was aware of the date. Ms. Gregoire gave oral evidence along with relying on the affidavit material she had filed. Her only other witness was her husband Jay Fisher.
Issue
[2] The main issue in this uncontested trial was whether Mr. Philion’s access to the children should be terminated.
Facts
[3] The parties have two children between them, Dillon Philion born May 18, 2003, age 10, and Emma Philion born November 23, 2004, age 9.
[4] Ms. Gregoire indicated that Mr. Philion has not complied with access orders or agreements, yet he regularly seeks the assistance of the court to address access issues. She indicated that she has tried for years to accommodate his access, and has sought to have him get treatment for alcohol abuse and anger issues to make the access arrangements work. She indicates frustration and no success. She has tried mediation, made agreements and consented to orders, and even then Mr. Philion does not comply or take the children. She said that the children are now “scared” of being with him and are in counseling. After access Dillon will break down because of how he is treated by his father.
[5] Ms. Gregoire indicated that she is very concerned in that Mr. Philion has actively and directly encouraged the children to rebel and act poorly while in her care. She indicates that this was confirmed by the school’s principal. Following access Dillon in particular is violent at school, and has been suspended due to his behaviours. Ms. Gregoire indicates that Mr. Philion has even encouraged Dillon, still a young child, to run away. She feels Dillon in particular is hurt by the access. While Emma pays little attention to what her father tells her, she has ADHD and Mr. Philion would refuse to administer her medication asserting that she did not need it. Mr. Fisher corroborated that when access was occurring it would affect the children’s behaviour for long periods afterwards, and they would be generally upset. He also noted that their father would make promises to buy them presents and for further access that he would not keep.
[6] Ms. Gregoire spoke about Mr. Philion’s harassing behaviors towards her. When intoxicated he would call her incessantly demanding to see the children and threatening her. He would phone repeatedly, often during the night, using speed-dial. They could not talk as Mr. Philion would constantly call Ms. Gregoire and Mr. Fisher inappropriate names. Mr. Fisher indicated that they’ve been called “every name under the sun.”
[7] Mr. Philion has harassed Ms. Gregoire and Mr. Fisher by posting allegations on a web-site ‘theDirty.com’ alleging that they are users of crack cocaine and that Mr. Fisher is a pedophile and child abuser. It is very difficult if not impossible to defend against such allegations made in social media, or to get the offensive material removed. Ms. Gregoire is very concerned, rightly so, about the permanency of such postings and that the children could at some point in their internet searches view this very inappropriate material that identifies them and their caregivers.
[8] Mr. Philion in his own affidavit identified involvement with the Ottawa Children’s Aid Society regarding other children. He also noted his own criminal record, disclosing convictions for criminal harassment and uttering threats in 2009. Ms. Gregoire testified that these related to her. Mr. Fisher added that this record is not complete as Mr. Philion has pled guilty to charges that he threatened to kill them and take the children approximately two years ago.
[9] There was a very thorough Report of the Children’s Lawyer dated October 23, 2012 in this file. It corroborated in a general way much of the above and concluded as follows:
The information gathered indicates that Ms. Gregoire has made greater progress than Mr. Philion in achieving changes to address the instability that has characterized this family system for years. It also seems clear that Mr. Philion’s limited progress in achieving stability is hurting the children emotionally. It would be ill-advised to support Mr. Philion in having defined access time with the children until there is evidence that he has made substantial and enduring progress. [Emphasis not added.]
Until that time, it seems that the paternal grandfather, Mr. D. Philion may be well-positioned to support the children in having at least some contact with their father, while minimizing, as much as possible, the potential risk associated with contact with him. Use of services available through the Supervised Access Program in support of Mr. Philion’s contact with the children is not advisable until after he makes substantial progress on the goal of stability.
[10] As noted there, for a time the paternal grandfather had his own access and Mr. Philion had some contact through him. This provided some supervision. However, Mr. Philion Sr. stopped his participation and discontinued his own access around the time of the marriage between Ms. Gregoire and Mr. Fisher on June 22, 2013. It was not clear why, as the couple had been in a relationship for well over two years before they married. In any event, Mr. Philion’s own access seems to have all but ended coinciding with the withdrawal by his father. Ms. Gregoire’s evidence was that even though there is a consent order for access made in these proceedings dated February 21, 2013, Mr. Philion has only seen the children for one hour on Thanksgiving since that time.
Law
[11] The legal tests for custody variation are found in the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended. Section 29 indicates that I cannot vary Wilson J.'s order unless I first find that there has been a material change in circumstances that affects or is likely to affect the best interests of the children. If I make that finding, s. 24(1) directs me to determine this proceeding on the basis of the children’s best interests in accordance with ss. 24(2), (3) and (4). The children's best interests is the overarching consideration: see s. 29 and Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 at para. 50.
[12] Subsection 24(2) directs me to consider all the children’s needs and circumstances. Eight items are specifically mentioned, but that list is not exhaustive. I have also considered the factors listed in V.S.J. v. L.J.G. (2004) 2004 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. S.C.J.) with respect to the request to terminate access. In looking at a person’s ability to act as a parent, which is one of the listed considerations in s. 24(2), I am specifically directed by ss. 24(3) and (4) to consider whether that person committed violence or abuse against persons within their extended family or any child. However, I am not to consider any other past conduct unless it is relevant to the person’s ability to act as a parent.
Analysis
[13] I have no difficulty finding a material change in circumstances. Indeed, both parties in bringing their competing claims for variation presumed such a finding.
[14] In V.S.J. v. L.J.G., supra, the court at para. 135 listed the factors most commonly considered in terminating access in the children’s best interests. A number of those factors are clearly established in this case, namely:
Long term harassment and harmful behaviours towards the custodial parent causing the parent and the children stress or fear.
A history of … unpredictable and uncontrollable behaviours, alcohol abuse, that present a risk to the children’s safety or well-being.
Ongoing severe denigration of the other parent.
Neglect or abuse to a child on the access visits.
[15] While the first three are self-explanatory on the evidence summarized above, the fourth factor is found in Mr. Philion’s instructions to the children to misbehave, and the OCL’s conclusion that the children are being hurt emotionally.
[16] The court went on in V.S.J. v. L.J.G. to note at para. 137: “[a]s the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination.” The OCL clinical investigator considered this option and noted that there are very limited possibilities given Mr. Philion’s behavior. Specifically, it identified that using the Supervised Access Program was not advisable.
[17] I explored with Ms. Gregoire other possible options for supervised access, given that Mr. Philion Sr. is no longer involved. Her view was that any arrangement that requires contact between her and Mr. Philion is to invite further harassment, risk, and harm, and that any arrangement must provide for an adequate level of supervision.
[18] Finding a way to make an order that maintains Mr. Philion’s contact with his children is fatally hampered by his own lack of attention. There is no evidence from him that he has engaged with the services sought by Ms. Gregoire and as recommended by the OCL. In electing not to appear on this trial, a proceeding that he initiated, he is not available to allow me to explore his current level of commitment to services or even to supervision possibilities. He did not seek or request any supervision in his pleadings. As such, I am not comfortable granting supervised access, or even granting it conditional on steps first being taken by him. Without Mr. Philion’s participation and buy-in, there is no basis on which to craft an order in a way that is safe for both the children and their primary/custodial caregivers. The court can only decide these issues based on the evidence and position of the parties before it.
Decision
[19] The respondent Mr. Philion’s motion is dismissed. The applicant Ms. Gregoire’s responding motion is granted. Mr. Philion’s access is terminated.
Mr. Justice Timothy Minnema
Date: December 9, 2013
COURT FILE NO.: FC-11-2531
DATE: 2013/12/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sylvie Gregoire
Applicant
– and –
Frank Philion
Respondent
REASONS FOR JUDGMENT
Minnema J.
Released: December 9, 2013