SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 5469/12

DATE: 2014-11-17

RE: Chatham-Kent Children’s Services - Children’s Aid Society, Applicant (Respondent on Appeal)

AND:

G.E., Respondent (Respondent on Appeal)

AND:

J.E., Respondent (Appellant on Appeal)

BEFORE: Heeney R.S.J.

COUNSEL:
Paul Rowley, for the Society, and agent for S. Andari, counsel for G.E.

Hamoody Hassan, for the Appellant

B. Sands-Keller, for the Office of the Children’s Lawyer on behalf of the child

K. J.E.

HEARD: November 12, 2014 at Chatham

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

ENDORSEMENT

[1] This is a motion by the Appellant J.E. (“the father”) for an order finding the Society in breach of a court order for failing to facilitate access visits between the father and the child K.E., born […], 1999. The motion seeks a similar finding against the Respondent G.E. (“the mother”) for having allegedly failed to facilitate access visits. The motion also seeks an order for access visits of 4 hours per week. Finally, the motion asks that a case management judge be assigned, as suggested by Gates J. in his endorsement of April 15, 2014.

[2] During argument, it quickly became clear that no breach of a court order had occurred. In his endorsement of April 15, 2014, Gates J. stated that “CAS will investigate and arrange a possible meeting at CAS office for K. and his father”. It did not state that an access visit shall occur. The evidence filed by the Society is clear that they made considerable efforts over the past months to arrange an access visit. Several times K. was willing to see his father, only to later change his mind. His most recent view, expressed on November 4, 2014, is that he does not want to see his father until he is older. When asked why he changed his mind from the last time he spoke with the worker, he said “I’m just afraid of what he might do. I’m not ready”.

[3] In view of that, Mr. Hassan, for the father, confined his request on this motion to this: a defined access order in favour of the father, once each week on a day to be agreed upon from 3 to 4:30 pm, at the offices of the Society.

[4] Authority for such an order flows from s. 69(4) of the Child and Family Services Act, R.S.O. 1990, c. C-11 (“the Act”). That section authorizes this court, in the child’s best interests, to make a temporary order relating to the child’s care and custody pending final disposition of an appeal.

[5] This file has a long and complicated history, and I do not propose to review it in detail. However, some review is necessary to put the father’s demand in context. The history below comes largely from the review of the evidence and the findings of fact by Fuerth J. (now RSJ) of the Ontario Court of Justice in his Reasons for Judgment released on June 25, 2012. It is an appeal of that judgment that brings the matter before this court at this time.

[6] The separation of the parties occurred in February of 2008. Following a weekend ski trip with K., the father made the unilateral decision to remove the child from his home and from the care of his mother. He refused to return the child to his mother at the end of the weekend visit, and kept him without the mother’s consent. When the mother sought the assistance of the police, the police attended at the paternal grandmother’s residence where K. was staying to pick him up. The grandmother told K. to hide in the bedroom and lied to the police, telling them that he was not there.

[7] After the mother secured the return of the child, with police assistance, the father attempted to force himself back into the matrimonial home. Following negotiations, the mother vacated the matrimonial home with K. and his older sister T. in her care and custody. Proceedings were commenced under the Divorce Act and an interim interim order was made. I was not provided with a copy of that order, but I am advised that interim interim custody was awarded to the mother, with specified access to the father.

[8] The father attempted to exercise his access pursuant to the court order, but the child refused to go. A second order was made, followed by another refusal. The Society became involved and protection proceedings were commenced. Those proceedings automatically stayed the Divorce Act proceedings.

[9] The trial of that protection application was heard by Fuerth J. over 28 days from April 21, 2011 to February 2, 2012. His comprehensive reasons released June 25, 2012 span 15 pages and 109 paragraphs. He made the following key findings, among many:

• K. had suffered emotional harm, in that he had exhibited fear and anxiety that was sufficient to cause him to withdraw from his relationship with his father. His emotional harm rose to the level of a diagnosis of Post-Traumatic Stress Disorder which, although largely resolved, was at a high risk of reoccurrence;

• The child was found to be in need of protection under s. 37(2) (f) and (g) of the Act. There was “actual harm by reason of the events that occurred in February of 2008 as Mr. E. unilaterally removed the child from the other’s care and the subsequent attempt to force his way back into the home”: para. 64;

• The trial judge categorically rejected the father’s testimony that the mother was obstructing access to his son. He said “[t]here “was not a shred of evidence of Ms. E. preventing or refusing to allow access”: para. 84;

• K. was “genuinely afraid that his father would again not return him to the care of his mother”: para. 86;

• Dr. Dundas, the consulting child psychiatrist from Toronto Sick Kids Hospital, “was clear that if the child were forced, there would be problems”: para. 20;

• The resumption of access must be addressed through clinical intervention, an option which had been offered to the father but was refused. The trial judge said this, at para. 88:

Mr. E. bears the majority of the fault for K.’s present dilemma, but Ms. E. must accept her role in this dispute as well. It is why both parents need to assess their respective actions within a therapeutic session. Ultimately however, this decision to engage rests primarily with Mr. E., who in spite of having been clearly invited to meet with Dr. Baker has instead refused, and insisted on continuing to try to force his relationship with K. by relentless efforts to maintain the regular schedule for access, which K. has equally clearly rejected.

[10] Having found the child to be in need of protection, the trial judge turned to the issue of disposition. He considered placing the child with the mother subject to supervision terms, but concluded that this might have “the unintended consequence of enabling the father to continue the litigation that he pursued in this case with great vigor”: para. 100. He ultimately concluded that it was in K.’s long term best interests that custody be awarded to the mother, with access to the father on reasonable notice, at all times subject to K.’s wishes.

[11] He concluded with the following observation, at para. 107:

I hope that the father will take this opportunity to try to gain insight into what he may be doing to inhibit trust by his son. It is up to him to earn K.’s respect and trust. It is not up to K. to willingly give trust. It is certainly not up to the mother to force K. to attend access against his wishes, and this would further harm K.

[12] Rather than following the trial judge’s advice, the father has chosen to continue the litigation. He has appealed the decision of Fuerth J. to this court. His then-lawyer Ms. Suzor had to obtain leave to late-file the Notice of Appeal in September of 2012, and that notice incorrectly named the Court of Appeal as the appellate court. This was not corrected until May of 2013 when an amended Notice of Appeal was filed. The father changed counsel to Ms. Cook in August of 2013, and again to Mr. Hassan in December of 2013. Mr. Hassan brought a motion against William Clayton, who had acted as trial counsel for the father, seeking production of his file. Production had been refused due to Mr. Clayton’s solicitor’s lien. Production was sought on the basis that it was needed to investigate whether allegations of incompetent representation would be included among the grounds for appeal. No such allegations have been pleaded to date. That motion remains in abeyance.

[13] To date, the appeal has yet to be perfected, even though 2 ½ years have elapsed since the judgment was released and transcripts have been available since June of 2013. The Society has brought a motion to dismiss the appeal for delay. That motion was originally returnable on April 15, 2014, and was adjourned by Gates J. along with all other then-outstanding motions, to await the possible appointment of a case management judge.

[14] As to the apparent merits of the appeal, Mr. Hassan submits that the trial judge exceeded his jurisdiction in making the custody and access order that he did. Section 57.1 of the Act permits the court, upon finding a child to be in need of protection, to make a custody order rather than an order specified under s. 57(1). However, ss. 57.1(6)(b) provides that no order shall be made under this section if:

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court.

[15] Mr. Hassan submits that the order made by Fuerth J. conflicts with the interim interim order made by the Superior Court of Justice in 2008, prior to the commencement of the child protection proceedings. Insofar as the order granted custody to the mother, there is clearly no conflict. However, it is argued that granting access to the father subject to the wishes of the child is in conflict with the interim interim order which granted certain specified access, the particulars of which have not been put before me.

[16] I note that this ground of appeal has not been pleaded in either the original Notice of Appeal nor in the amended version. In any event, whether or not there is any merit to that jurisdictional argument is not relevant for present purposes. What is relevant is whether it is in the best interests of the child to make an order for access under s. 69(4) of the Act, pending disposition of the appeal.

[17] The trial judge heard 28 days of evidence, and his findings of fact are to be afforded great deference by an appellate court. His findings make it abundantly clear that access must not be forced upon K. against his wishes, and that to do so would cause him emotional harm. To grant the order sought by the father would do precisely that. I conclude that such an order is not in the child’s best interests, and the motion is dismissed.

[18] While I have little confidence that the father will heed my advice any more than he listened to Justice Fuerth, I feel compelled to repeat that message. The father should seek access to his son through a therapeutic, healing process that deals head-on with their obviously damaged relationship, rather than relentlessly pursuing this litigation and attempting to force access against his son’s wishes.

[19] As to the request that a case management judge be appointed, that decision rests with me as the Regional Senior Justice. In my view, such an order is not necessary. To begin with, there is an outstanding motion by the Society to dismiss the appeal for delay. That motion should be brought back on by the Society as soon as possible since, if it is granted, the case is over and case management will be unnecessary.

[20] If that motion is dismissed, I anticipate that the motion judge would fix a strict timetable for the appeal to be perfected and heard. At that point in time, it appears to me that the only other matter that would be outstanding is the motion against Mr. Clayton for production of his file. I was left with the impression that Mr. Hassan was not anxious to pursue the “incompetent representation” ground of appeal. If I am wrong and the motion does need to be heard, it could either be scheduled for hearing or adjourned to a case conference, if the motion judge feels that the parties would benefit from the assistance of the court in that regard.

[21] There is no need to case manage the Divorce Act file, because the claims for custody and access are, for all practical purposes, in abeyance until the present appeal is disposed of.

[22] Accordingly, the motion for the appointment of a case management judge is also dismissed.

[23] If the parties cannot agree on costs, I will accept brief written submissions from the responding parties within 15 days, with the response of the father within 10 days thereafter and any reply within 5 days thereafter. Failing that, the parties will be deemed to have resolved the issue of costs between themselves.

“T. A. Heeney R.S.J.”

Regional Senior Justice T. A. Heeney

Date: November 17, 2014