Nicole Neal v. Andrew Neal, 2014 ONSC 4274

ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS 11-155 (Cayuga)
DATE: 2014-07-17

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Nicole Neal

Elaine Rosewell, for the responding Applicant

Applicant

• and -

Andrew Neal

Aubrey D. Hilliard, for the moving party Respondent

Respondent

HEARD: 16, 17, 18, June 2014

RULING

PARAYESKI, J.

Introduction and Background

1At the conclusion of trial evidence, I asked that counsel provide me with written submissions. I have received and reviewed the same, including reply submissions by counsel for the moving party respondent. I have also reviewed the affidavit materials which the parties agreed should be considered as part of trial evidence.

2The sole remaining issue at trial had to do with the respondent father’s access to the two children of the marriage, namely M.N.N. (date of birth […], 2005) and E.A.N. (date of birth […], 2008). Access has progressed over time. It began as supervised access at Dalhousie Place and, following a contested hearing before Gordon J. in September of 2013, went on to unsupervised access weekly on Saturdays from 11:30 am to 6:30 pm. The respondent father seeks expanded access to include overnight access on alternate weekends. The applicant mother opposes any change to the access ordered by Gordon J., as described above.

Analysis

3While acknowledging that the children deserve to have a meaningful relationship with their father, the mother expresses concern with “the childrens’ emotional reaction to:

a) overnight access;

b) overnight access in an unfamiliar setting;

c) overnight access with an unfamiliar tenant;

d) risk of children seeing the father’s reaction to stress, be it self-harm or physical reaction and having to deal with those issues after they went to bed or in the middle of the night;

e) newness of the geographical and neighbouring setting in dealing with emergencies; and

f) adjusting to the father’s partner.”

4The father acknowledges having mental health issues which, in the past, have led to rage that has involved self-harm and property damage. The only evidence of anyone else being harmed by the father was the mother describing him as having bodily thrown her out of his apartment at some point in time pre marriage. The children have been carefully isolated and sheltered from the father’s mental health problems.

5The father’s rages were said to be in response to stressful situations. Since the separation, no such rages have been identified in evidence. The father has taken courses at Mohawk College which he says have provided him with insight into his problems and which have led him to conduct, including extensive exercise, which allows him to better handle stress. He has been to counselling for his issues, and has been taken off prescription medications. The Children’s Aid Society has been involved since shortly after the separation. It is the Society’s view, as expressed by its workers, that overnight access would not endanger the children. It has closed its file. That opinion is shared by the father’s counsellor.

6There has been one instance of the father having slept for more than a full day or two since the separation, but it is acknowledged that this was the result of a migraine headache. It is conceded that migraine headache is not a manifestation of the father’s mental health issues.

7The father lives with a new partner in her townhouse in Hamilton. Living with them is a tenant or boarder, who is a student at Mohawk College. The layout of the townhouse is such that the room designated for the childrens’ sleeping arrangements is on the same floor as the room of the tenant, and one floor below the bedroom of the father and his partner. The evidence is that the Children’s Aid Society has interviewed the tenant and observed the sleeping arrangements, and that it has no concerns with overnight access in that setting. I am not prepared to label the tenant as being some kind of threat to the children in the complete absence of evidence that he is so.

8The evidence before me is that the children get along well with the father’s new partner. There is no concern that she poses any kind of danger to them.

9In sum, there is a considerable body of evidence that overnight access is appropriate. That said, I do not see the mother’s concerns as being anything other than sincere and motivated toward protecting the children.

10The mother counters virtually all of the father’s evidence with no doubt honestly held but entirely subjective responses. For example, she asserts that the Children’s Aid Society investigation was not thorough enough and that it is based upon limited information which she feels the father gave to the Society, and that the Society failed to seek out adequate independent confirmation of the information upon which it relies. The mother feels that the father’s counselling has not been undertaken long enough to be effective, and, moreover, that the counsellor’s opinion is only founded upon what the father has told him. The mother cites what she says are examples of the father not communicating well or his not being forthcoming with information that she would like. None of the examples given constitute a danger to the children.

11The parties agree that M.N.N. in particular is a sensitive child. She is extraordinarily intelligent, but appears to be fearful by nature. Of note, in my view, is the difference between how the father and the mother appear to address that fact. I reject the mother’s assertion that the father focuses on his problems and not those of the children, and those of M.N.N. in particular. He appears to have insight into her concerns. He described how he spoke to her about them in a sensitive, graduated manner. The mother, on the other hand, described her reaction to M.N.N. saying that she would like to spend overnight with her father by asking the child who she would want to be present during such visits. Rather than being positive, the mother focused on what she herself perceives to be dangerous. This is unlikely to be helpful. I doubt very much that the mother is intentionally adding to M.N.N.’s fears, but that may well be the effect.

12On the evidence before me, I am convinced that overnight access is in the best interests of the children. I do not know what more the father could do under the circumstances to address the mother’s concerns. What I do know, however, is that time is passing, and that the sooner the children are able to normalize their relationship with their father the better.

13Overnight access is not limited to parents with perfect mental health histories. The issue turns on evidence about what the present and the future is likely to hold. While past conduct can be of assistance in predicting the future, it is not perfect in that regard. Nothing is.

14I utterly reject the mother’s specious submissions that the father is using the children as therapy for himself or that access as proposed by the father is for his own benefit only.

Order

15An order is to go expanding the father’s access to the children as follows:

1. the respondent shall have access to the children M.N.N., born […], 2005 and E.A.N., born […], 2008 on alternate weekends from Saturday at 10am to Sunday at 5pm commencing forthwith.

2. on the weekends that the respondent does not have the children, he shall be permitted to attend any extra curricular activities the children may have.

After eight weekends:

3. the respondent shall have access with the children on alternate weekends from Friday at 4:30 pm to Sunday at 5 pm.

4. the children shall spend time with the respondent on their birthdays regardless of the regular access schedule from 3pm to 7pm.

5. the children shall spend Father’s Day with the respondent from 10am to 7pm regardless of the regular access schedule.

6. the children shall spend Mother’s Day with the applicant from 10am to 7pm regardless of the regular access schedule.

7. during the summer holiday period in 2014, the children shall spend time with the respondent every Wednesday, or some other weekday as agreed between the parties, from 10am to 7pm.

8. commencing in 2015, the respondent shall have two non consecutive weeks (seven day periods) of access during the summer holiday period with the children, of which weeks the respondent shall notify the applicant on or before May 30th annually

Costs

16If the parties are unable to agree with respect to costs, they may make brief written submissions to me in that regard. Each set of such submissions shall not be longer than three type written pages in length, not including a costs outline. The father’s submissions, if they are being made, are due on or before August 15th, 2014, and the applicant mother’s submissions are due on or before August 30th, 2014. The father shall then have a further seven days to reply. The costs submissions, if any, shall be forwarded to my attention at the John Sopinka Courthouse in Hamilton.