ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-0360
DATE: 2014-07-02
B E T W E E N:
David Andrew Talbot
Paul Lesarge, for the Applicant
Applicant
- and -
Laura Lorraine Talbot,
Michael Cupello, for the Respondent
Respondent
HEARD: June 26, 2014,
at Thunder Bay, Ontario
Platana J.
Decision On Motion
[1] This is a motion for an order directing that the Applicant shall have unsupervised access to the five children of the parties. Supervised access was originally ordered by Pierce J. on January 26, 2012. The Applicant was permitted to have access weekly for up to two hours twice a week. The endorsement made at that time notes that the Applicant was on an undertaking that he not have contact with the mother, resulting from criminal charges then pending.
[2] The history of this matter notes numerous court appearances dealing with related matters around support and property issues. The issue of his access has been regularly adjourned. On November 28, 2013, it was on the February running list for trial, but was adjourned to permit further settlement conferences. It was then traversed to the June 2014 running list.
[3] On May 15, 2014, the motion was before Pierce J., who determined that it was premature in light of the June trial scheduled. A trial record was ordered to be filed forthwith.
[4] On May 29, 2014, at the request of the Applicant it was traversed to the September 2014 running list. Shaw J. noted that a trial record had not been filed, and if not filed by June 13, the matter “shall be struck from the trial list”.
[5] On June 5 the Applicant brought a motion to change the terms of the access and to permit unsupervised access. The matter could not be heard, and was adjourned preemptory to June 26.
[6] On the return of the motion on June 26, no trial record had yet been filed. The motion to change the access to unsupervised was finally dealt with. The trial has now been adjourned to the September trial list and an order made that the trial record be filed no later than July 4, 2014, at 4:00 pm.
Applicant’s Position
[7] Mr. Lesarge submits that since the order for supervised access was made, Mr. Talbot has completed several parenting programs. A letter filed from CFS, dated October 13, 2013, does not oppose unsupervised access. He argues that last January the Children’s Centre changed the access schedule from all four children two hours per week on alternate Tuesdays and Sundays (eight hours per month) to every Tuesday for two hours. There have been a significant number of occasions where one or more of the children did not attend.
[8] The Applicant argues that his new partner has not been allowed to see his children, and this deprives them of an opportunity to participate meaningfully in his life.
[9] Mr. Cupello, for the Respondent, relies on the endorsement of Pierce J. that with a scheduled trial date, this motion is premature. He argues that the Applicant’s behaviour since the order in January 2012 is such that the Respondent has had to bring motions because he was not abiding by court orders.
[10] Essentially, he submits that the delay in proceeding to trial lies in the Applicant’s failure to file a trial record. Further, he submits that het endorsement of Justice Pierce that the motion is premature because the trial is scheduled, still applies.
[11] This is an unusual situation where access has been supervised for such a lengthy period of time. Three of the children have now refused to attend.
[12] The central issue from my point of view is that despite the length of time of supervised access this matter now must proceed to trial in September. I instructed counsel to speak to the trial co-ordinator immediately following the motion regarding their position on the trial list. While there can be no question that supervised access – as good as the provision is – is somewhat artificial, the visitation schedule filed as part of the materials relied on shows that a number were cancelled by the Applicant.
[13] The focus must be on the best interests of the children. While it may be more difficult for the Applicant to argue issues of custody and access without having had the children with him on an unsupervised basis, there is also the possibility that after the trial, supervised access may still be found to be what is in their best interest. That would require an additional disruption in their lives in having to return to supervision status.
[14] It is apparent from the arguments advanced and the material presented by each party, that this is a matter where the parties should have the benefit of presenting their respective cases through the evidence of witnesses at trial.
[15] It is, in my view, not in the best interests of the children to change the arrangements they have experienced for over two years when the trial is now two months away. The focus cannot be on what may be in the father’s best interest in being able to present evidence at trial but in keeping the children’s lives in a stable manner until a full and final decision is made.
[16] I have instructed the trial co-ordinator to use every best effort to ensure that this matter proceeds in September.
[17] This motion is dismissed.
[18] The parties may address the issue of costs, if necessary, by written submissions through the office of the trial coordinator within 30 days. Submissions shall not exceed 5 typewritten pages. If submissions are not received, costs shall be deemed to have been settled by the parties.
___”original signed by”
Mr. Justice T. A. Platana
Released: July 2 2014
COURT FILE NO.: FS-11-0360
DATE: 2014-07-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Andrew Talbot
Applicant
- and -
Laura Lorraine Talbot,
Respondent
DECISION ON MOTION
Platana J.
Released: July 2, 2014
/mls