2014 ONSC 3967
OTTAWA COURT FILE NO.: FC-12-1151 DATE: 2014-06-30
ONTARIO SUPERIOR COURT OF JUSTICE
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 H., born […], 2009
BETWEEN:
Children’s Aid Society of Ottawa Applicant
– and –
DL, AR, and SR Respondents
Counsel: Mark Hecht, for the applicant Brian Delaney, for the respondent DL Karen Leef, for the respondent AR SR, self-represented
HEARD: June 23- 27, and June 30, 2014.
REASONS FOR DECISION
T.D. RAY, J.
[1] The applicant seeks an order that the grandmother (AR) have custody, and that the father (DL), and mother (SR) have access or supervised access with certain conditions. H is 4 years old and in junior kindergarten. The father also sought custody of H, with access, subject to a number of conditions to AR and the mother. The father and the mother do not live together. AR is H’s grandmother, and the mother’s mother. AR and the applicant entered into a voluntary service agreement April 2, 2012. H had been apprehended following a protection application dated May 11, 2012, and pursuant to the order of R. Smith, J., dated May 14, 2012. The latest order (June 6, 2013 of Kane, J) is the status quo and placed H with AR with specified access to the father and access at the discretion of AR to the mother. Kane, J’s order followed a full care and custody hearing.
[2] The father opposes the applicant’s relief, and throughout the trial sought unrestricted custody on the ground, initially, that H was not a child in need of protection. The father and AR have filed plans of care. AR’s plan is very similar to that of the applicant. Both are represented. The mother filed an answer to the amended amended application dated October 29, 2013, but elected not to participate in this trial. She is self-represented and appears to be content with the positions taken by AR and the applicant.
[3] Formally the issues at the commencement of the trial were:
a. Whether H is a child in need of protection,
b. If so, what dispositive order should be made and in accord with which plan of care?
--custody by AR with access to the father, and to the mother both with conditions.
--custody to the father with access to the mother and to AR with conditions.
[4] At the end of the first day of trial, I asked for submissions from the parties on the question of whether the “in need of protection” issue continued to be a live issue in light of the fact that it is the father who is challenging the finding, but also the father who initially brought to the applicant’s attention conduct which he considered placed H at risk. The father’s counsel advised that on reflection that the father admitted “in need of protection”. In fact, I am satisfied from the history of this matter that all parties, including the father, treated this case as one where H was a child in need of protection.[^1] Findings of birth, parentage, and religion were then placed in evidence by agreement of the competing parties.
[5] The remaining issues for this trial were then limited to the issue of custody of H as between AR and the father; and access. However, after the conclusion of the evidence and at the beginning of submissions, the father announced that he was consenting to AR having custody of H. The issue then became the form of access for the father. The applicant has dealt with the mother appropriately in monitoring and assisting her relationship with H. No party is challenging the participation of the mother with H under the applicant’s supervision. That is not a live issue. The mother did not file a plan of care. I ruled early in the trial that I need hear no evidence concerning the mother.
[6] Dominique Leamen is the current case worker employed with the applicant. He gave an overview of this case since the applicant’s initial involvement in April, 2012, plus evidence of his own observations concerning the parties and H. He said the father was obsessed during his dealings about past incidents and behaviours concerning H, the mother and AR; and gave a number of examples. He was familiar with the mental health issues and said the father during times of stress would exhibit paranoid delusional qualities. He said it was very difficult to get the father back to dealing with his relationship with H. He believed that the current access to the father could be increased but that caution was necessary. It has to go slowly. He said that AR was very accommodating and supportive of H’s continuing relationship with the father and the mother. Although, she noted comments from H when he returned from seeing the father that the father was not supportive of AR; and blaming her. An incident of corporal punishment was investigated by Mr. Leamen. He was unable to verify it, and said that incidents of the nature described require context. Not only could he not verify the incident had occurred, but he had no idea of the context if it had occurred. He was not concerned.
[7] Mr. Leamen described H as a happy, engaging, and bright little boy who has difficulty adapting to change. His full day kindergarten was reduced to half days so as to ameliorate the change to his day. It took him two weeks to adjust to changes in access arrangements. The current court proceedings are a source of uncertainty for H. He described that the current custody access arrangements are working and therefore should be continued. Although he noted that when under stress, the father’s mental health deteriorates. During cross-examination, he said it is difficult to support the father when he doesn’t acknowledge his mental health issues. He said he thought AR is the best person to make decisions concerning access for H.
[8] Dr. Kagan is a psychologist who was approached by the father to conduct an independent assessment of him. After meeting with the father, Dr. Kagan concluded that he was not qualified to do the kind of assessment the father was looking for. The father then asked if he would do psychotherapy sessions with him. Again, Dr. Kagan declined. He felt the father needed long term psychotherapy, and was not prepared to get involved. The father told Dr. Kagan that another health professional that Dr. Kagan had recommended was not covered by health insurance and so the father did not pursue psychotherapy. Dr. Kagan said the father was desperate and demanding.
[9] Dr. McLean is a psychiatrist with the Family Law Clinic. He has been with the clinic since its inception in 1981. Dr. McLean has done hundreds of assessments over the years and has given evidence in the Superior Court on countless occasions. He supervised two assessments, one in 2012, and then an updated assessment in 2013. In both lengthy reports, Dr. McLean concluded that the father was not at present suitable as H’s primary care-giver. He felt concerned at the father’s ability to be inclusive and to include the other important people in H’s life if he were to have sole custody. He also concluded that the father had a personality disorder which tended to cause him to be delusional when under stress which can have a direct impact on H.[^2] He gave a number of examples which arose during the assessment process to cause him to feel concerned.[^3] It was his view that AR was a suitable person to have custody of H. She has been his primary caregiver for most of H’s 4 ½ years, and according to Dr. McLean, has shown a willingness to include the mother and the father in H’s life. He said this is an important quality for H’s stability. In cross-examination, he said he knew of no evidence of physical discipline by AR, but if they occurred, he would need to know the context for each incident. He was not concerned.
[10] Dr. McLean said that H and the father had a good relationship, and that the father’s access could be increased but was concerned at the father’s lack of insight as the limiting factor. He said that if the father persisted in unsubstantiated allegations against AR, that it may be necessary to reduce his access. He noted the father’s continuing denial of the need for psychiatric treatment in the face of his mental disorder; and that is blocking him from moving forward. Dr. McLean said that with the father blaming everyone else for his shortcomings is preventing him from addressing any issues over his access. He said that if the father was to have access going forward, that he will require psychotherapy, counselling and education concerning children. Insofar as AR, he recommended she follow along the same path in a steady fashion. He recommended that services be available to assist AR if conflict develops with the father, or if the mother’s circumstances change. He expressed doubt that the parties would accept the order of the court in this matter.
[11] The father described how the mother became pregnant with H during a very brief period of dating. While he only saw H a couple of times during the first two years of his life, he says he would have liked more access but AR refused. The father is working but says he is on ODSP from a car accident. He lives alone but claims that if he is awarded custody, he will be able to get a larger apartment. He denied that he has a mental disorder. His evidence was characterized by long complicated and rambling self-serving answers marked by constant criticisms of the mother, AR, and the applicant to fairly straight forward questions. My reminders to him to listen to and confine his answers to his counsel’s questions were ignored.
[12] When asked about his relationship with H, the father seemed focussed exclusively on himself as if it were his side of the parenting equation that was the only issue. For example he blamed AR for not putting H in organized sports, but in cross-examination admitted he had done nothing on Saturdays during his access to arrange for H to be involved in organized sports. He denied he had any mental health issues, but then morphed his answer into his view that the mother required supervised access. He said that he approached Catholic Family Services. When they asked him what he wanted to fix, he said ‘laziness’. Under cross-examination, he blamed the applicant for him not getting any mental health counselling over the past year, on the basis that no one wanted anything to do with the CAS. He admitted that a judge made an order that he not audio tape conversations with the applicant’s workers. He said he didn’t trust the workers.
[13] Two friends called on behalf of the father said they had seen no signs of mental health; and that the father was an intelligent, thoughtful, and generous person who showed himself to be a good father.
[14] AR is 51 years of age. She lives in Kanata in a two bedroom walk-up apartment, and had lived there with H since February. She is looking for work, and supporting herself and H on Ontario Works. She said that from the time of H’s birth she has spent at least 60% of her time parenting him. Initially, she did 75% of the parenting. She explained in detail his schooling, the challenges she has faced with him, and how she dealt with H. She spoke of the use of behaviour modifications sheets and they were used to divert H from his angry behaviours. These behaviours started up when there was a change in the access times or periods. AR denied ever hitting, smacking or being physical with H. She described in detail the parenting and calming techniques she has used to control H’s acting out, and out of control behaviours. AR described the access for the mother to H. It is supervised while they go to church on Sundays, and through supper when the mother leaves. She said she has permitted the mother out by herself with H for up to 2 hours on Sunday afternoons but is monitoring that period very closely. She said if the unsupervised periods do not go well, she will pull it back.
[15] AR confirmed that the father has access from after day care on Fridays until Saturday at 6pm. She prefers the communications book and no face to face or telephone communications with the father because things have not gone well in the past. She said she would have no difficulty expanding H’s access to his father providing the father stop undermining her role. She said she hoped the applicant would be able to stay involved, whatever the outcome. AR spoke positively about the father’s relationship with H, and said she would like to see the father’s access expanded to another overnight, but that it would depend on H’s behaviours.
[16] Debra Webber is a kinship worker with the applicant. She observed AR and H and found them to be affectionate and appropriate together; and found no concerns. She indicated that if requested, she would consider a three to six month continuing period of involvement to assist the parties in dealing with this court order.
[17] In determining the best interests of H with respect to an access order, I must consider the factors enumerated in s. 37(3) of the CFSA, as follow:
(1) The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
(2) The child’s physical, mental and emotional level of development.
(3) The child’s cultural background.
(4) The child’s religious faith, if any, in which the child is being raised.
(5) The importance for child’s development of a positive relationship with a parent and a secure place as a member of a family.
(6) The child’s relationships and emotional ties to a parent, sibling, relative other member of the child’s extended family or member of the child’s community.
(7) The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
(8) The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
(9) The child’s views and wishes, if they can be reasonably ascertained.
(10) The effects on the child of delay in disposition of the case.
(11) The risk that the child may suffer harm through being moved from, kept away from, returned to or allowed to remain in the care of a parent.
(12) The degree of risk, if any, that justified the finding that the child in need of protection.
(13) Any other relevant circumstance.
[18] The evidence is overwhelming that custody of H, in favour of AR, is in his best interests. The father, in submissions after four days of evidence, finally conceded that. Except for the father’s evidence, all of the evidence, including the expert opinions, pointed to AR as the logical custodial parent. She has been the constant in H’s life for the vast majority of his 4 ½ year life. She values H’s relationships with the other people in his life, particularly H’s mother and father. I was impressed with the balanced and even handed manner in which she gave her evidence. Notwithstanding the father’s constant criticism of her parenting role, she was clearly able to separate H’s interests in having a good relationship with his father from her relationship with the father. She demonstrated a maturity in allowing H to see his mother and to monitor those visits in what must be a difficult situation. The mother has a history of unfortunate issues which continue to prevent her from playing a significant role in H’s life. Yet AR respects the needs of H in having a good relationship with his mother. Presently, Sunday church and afternoons is the mother’s time with H with most of it supervised by AR. I am satisfied that she has the maturity and common sense to decide the extent and conditions under which the mother may spend time with H. The mother did not file a plan of care and did not participate in the trial. I assume she is comfortable with AR being the custodial parent.
[19] The principal factors for H at his stage of his development are his physical, mental, emotional needs and appropriate care; the importance of relationships and emotional ties to a parent….and other members of the family; and the importance of continuity in H’s care and the possible effect on him of disruption. The factors are not to be considered in isolation but are to be assessed and balanced on the basis of the evidence. I must consider these factors in fashioning an access order.
[20] The problem is the father. While he loves H, and H loves him, the father in his evidence demonstrated an appalling lack of insight into his parenting role. His orientation concerned his rights and decisions concerning H rather than H’s best interests in having solid family relationships. For example, the father was most critical of AR for not registering H in organized sports, yet he has never taken any steps to involve H in organized sports when he has H every Saturday. Without in any way suggesting that a 4 ½ year old should be involved in organized sports, the father’s criticism demonstrates the father’s further lack of insight and his all too ready willingness to engage in an attack on AR. This is but one of countless examples. Four psychiatrists recommended in one way or another that the father pursues treatment for his mental disorder. He refused to acknowledge his need for treatment on the ground that he knew better. In fact the treatment he did finally seek was for what he thought was for laziness. It was a further refusal to accept advice; and demonstrable lack of insight. The psychiatric diagnosis is a tending toward paranoid delusions with an appearance of symptoms while under stress. From my observation of the father in the witness box, he appeared to demonstrate significant immaturity and lack of insight. His lack of insight is the prime problem. For example, the evidence is that one evening, after hours, he telephoned the applicant while he had H with him. The after-hours CAS worker heard a child crying, and a cat ‘howling’ on the other end of the phone. The worker reported that the conversation was about the father reporting that he believed the mother had poisoned his cat, and wanting the applicant to have a record. In evidence, the father reported that he had also called the police and the Humane Society; but his answer as to why he called the CAS was confusing. I asked him at the conclusion of his evidence why he didn’t call a vet, if the cat was the concern. He then answered that he had done so, and that he was told it would have cost 1000’s of dollars for treatment for the cat. It is still not clear to me why he would have called the CAS when his cat was ill, unless it was a further attempt to undermine the mother and cast her in a bad light. H would have heard the conversation and would have been unnecessarily exposed to a lot of drama including allegations about his mother.
[21] While I continue to question that the father has the ability to be the custodial parent, the question is what if any access he should be awarded. While I acknowledge that Hs’ best interests are that he have a good relationship with his father, I am concerned at the father’s demonstrated propensity to undermine AR and H’s mother which is not in H’s interests. The question confronting me is how to fashion an access order for the father which will reduce the father’s propensity to undermine the other people in his life, particularly AR. If I fix access for specific periods and times, then it seems to me the father will likely misunderstand and believe they are his rights rather than those of H. In that event, he would likely start up the battle again with continued undermining of AR.
[22] H’s interests require that there be no further battling. Based on the father’s evidence, I have doubts about whether he understands these concerns.
[23] I have concluded that the best order in H’s interests require that the access, in favour of the father, be in the discretion of AR. I am well satisfied that if the father stops his belittling and critical behaviours that H will continue to feel confident in a stable atmosphere; and that AR will increase the access accordingly. If not, then she will and should reduce the periods of and terms of access. The father must understand that a good parent does not behave the way he has done. It is his lack of insight that impedes his understanding of this basic point. In order to gain insights, he will need to undertake a serious program of treatment. That is his responsibility, and if he fails, he has no one to blame but himself. But failure also carries with it the prospect of reduced time with his son. That too will be up to him, and no one else.
[24] This trial is further evidence of the father’s lack of understanding of his parenting role. None of the evidence led was new. It was the same evidence available to Kane, J, a year ago; and the same evidence available to the countless case conferences and settlement conferences that are the hallmark of family proceedings. The evidence was clear that finality was necessary for H. Yet these proceedings marched forward at the father’s insistence. It is somewhat gratifying that the father is consenting to the term of my order described in the next paragraph. However my enthusiasm is muted by the tenor of the father’s evidence a day earlier when he was in full attack mode.
[25] During submissions, the father’s counsel advised his consent to the term of a draft order proposed by the applicant as follows:[^4]
The Respondent, DL, shall not return to Court on the issues of custody and access without providing the Court with a copy of the Society’s closing letter as well as a report from a qualified mental health professional confirming that that they have reviewed both Family Court Clinic Assessments prepared in these proceedings as well as these reasons, have provided DL with meaningful psychotherapy to deal with the issues raised in the assessments; and progress has been made.
[26] I adopt paragraphs one through 6 plus the above provision in paragraph 25 to be part of the formal order.
[27] The applicant raised the question of costs. What is notable is that all of the active parties were represented. The conduct of this proceeding might be surprising even for self-represented parties. Here, all the parties are taken to have sought advice and followed their counsel’s advice. I must presume that the father ignored his counsel’s advice that he had no case, and arguably should bear the costs of proceeding as he did. I understand the applicant’s frustration. I know of no decision allowing costs in Child Protection proceedings. However, if the applicant wants to seriously advance the argument, it may make written submissions of two pages or less within 30 days, with a further 15 days for reply from the respondents, and a further 15 for further reply from the applicant.
[28] If I have overlooked a material term or issue, the parties may arrange a brief hearing through the trial coordinator’s office.
Honourable Mr. Justice Timothy Ray Date: June 30, 2014
OTTAWA COURT FILE NO.: FC-12-1151 DATE: 2014-06-30
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 H., born […], 2009
BETWEEN:
Children’s Aid Society of Ottawa Applicant
– and –
DL, AR, and SR Respondent
REASONS FOR DECISION
Mr. Justice Timothy D. Ray Released: June 30, 2014
[^1]: Exhibit 1 [^2]: Exhibit 1, tab 17, page 40. [^3]: Exhibit 1, tabs 17 and 18, page 40 in both reports. [^4]: Exhibit A