INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
COURT FILE NO.: FC-12-1619
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF J.Y., born […], 1998 and D.T. born […], 2008.
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
R.N.T.
Respondent
I.A.T.
Respondent
Marguerite Lewis, for the Applicant Society
Self-Represented, (Father)
Robbie S. Loomer, for the Respondent Mother, I.A.T.
Cheryl Hess, Office of the Children’s Lawyer for the child, J. Y.
HEARD: February 6, 2014
REASONS FOR JUDGMENT
maranger j.
Introduction
[1] This was a very difficult child protection/family law case. The ultimate decision will forever impact the life of a six-year-old boy.
[2] The court was asked, by way of a summary judgment motion, to render a final determination on several matters, including: finding that two children were in need of protection, a final order of custody in respect of two children, and, depending, on the result of the custody motions, a final determination on the issue of access to the children’s father.
Background and Findings of Fact
[3] There is a long, tortured history to this case. This matter has been before the court several times. After taking into account the representations of all of the parties, their factums, the affidavit evidence filed, and the record of proceedings, I am able to conclude the following:
• Mr. and Mrs. T. were married in 2004. Mrs. T. had a daughter, J., from a previous relationship. J. was born on […], 1998. Mrs. T. later had a second child, with Mr. T., D., born on […], 2008.
• The Children’s Aid Society (“CAS” or “the Society”) was originally involved with the parties in January 2006, as a result of a police report concerning violence perpetrated on Mr. T. by Mrs. T.. The CAS was again involved with the parties in October 2007, based on an anonymous report concerning violence in the home. On each occasion, the Society closed the files.
• The matter at hand had its origins on July 1, 2012, when the Ottawa police contacted the Society’s after hours service and advised that they had arrested both Mr. and Mrs. T. after an incident of domestic conflict. At that stage, the children were staying with a family friend.
• On July 10, 2012, Justice Minnema had the parties before him in a family law proceeding, and made the extraordinary order that the child D. be placed in the immediate care of the CAS, on the basis that the material before him demonstrated that the child appeared to be at risk in the care of either parent.
• The initial child protection hearing in this case took place on July 12, 2012, before Justice Aiken, who made a without prejudice interim order appointing counsel to represent J.; placing D. in the temporary care of the Society; placing J. in the custody of her mother, subject to an interim supervision order and with access being at the Society’s discretion. Justice Aiken also issued an interim restraining order against Mr. T.
• On September 27, 2012, Justice Minnema heard a temporary care and custody motion; each parent sought custody of D.
• On October 12, 2012, he released his decision and made the following findings:
a) “The father recorded highly conflictual events within the home while they were happening. He purported to suffer sustained assaults and verbal abuse by the mother, often narrating through them for the benefit of the recording. He made no real effort to remove himself or the children from this conflict”.
b) “There are numerous examples from the audio recordings of the mother hitting the father when D. is present. Some of the incidents seem to almost be condoned by the father who again does not remove himself from the abuse and almost welcomes it for the purposes of the audio recording. In one example the mother is clearly upset as D. is ill and she believes the father did not properly care for them during the two weeks when she was away. The conflict between the parties continues while the child vomits.”
c) “It needs to be noted that often during the audio recordings when the father alleges being assaulted he makes a statement to the mother that are clearly out of keeping with the situation and for the benefit of the recording”
d) “There are examples of the audio recordings of conflict between the mother and J. when D. is present. At one point J reports being hit by the mother and warns D that his mother is going to hit him when he is older. On one occasion the mother admits hitting D.”
e) “The recordings confirm highly inappropriate language being used by the parents in the presence of the children.”
f) “While both parents minimize the extent of their poor behavior in the home, their main argument on this motion was that all the conflict and difficulties stemmed from the two of them being together. With their separation they both claim that the risk of placing D. individually with one of them is entirely eliminated, although neither supports a placement with the other”.
g) “J. misses D. and wanted him to come and live with her and her mother. “
h) “J. reported that she was kicked by her stepfather to the CAS worker. She provided a written statement dated July 8, 2012 saying that she is afraid to be near him. In one of the recordings a confrontation is heard and J. reports that Mr. T punched her. In response he makes a statement of denial which is clearly for the benefit of the audio recording. The exchange is more consistent with J’s account.”
i) Ultimately Minnema J. dismissed each of the parents’ application to have D. placed with either of them and left the child in the care and custody of the Children’s Aid Society with access at the Society’s discretion. Finding that the risk to the child of physical or emotional harm was such that a supervision order was insufficient to protect him.
j) In his concluding remarks Minnema J. indicates “it is clear that both parents love D. and are committed to his return to their individual care. They are encouraged to work with the Society in an effort to show the court that a placement with one of them is in his best interests.
• I adopt Justice Minnema’s findings of fact, particularly as they relate to the audio tape recordings of the incidents of violence in the home. Furthermore, I consider entirely accurate his analysis and commentary with respect to both the family dynamic and what the parties could expect in the future.
• A Family Court Clinic Assessment (“FCCA”) was ordered, on the consent of the parties, in September 19, 2012. The report was completed on February 21, 2013, by Dr. McLean. It is a 39-page, comprehensive report. Some of the key conclusions that I derived from this report included the following:
a) The couple had an extremely dysfunctional relationship. The key issue was whether, once removed from the partnership, either parent could provide an appropriate environment in which to raise D.
b) The assessment of the mother was limited due to a lack of collateral information. However, it did conclude that she suffered from no psychotic or major psychiatric illnesses, and that she presented as an intelligent, resilient woman who has overcome a number of obstacles to successfully establish herself in Canada. The report concludes that there was little, if any, risk that the mother would physically abuse D. However, it was found that she was emotionally intrusive and overly affectionate, or smothering, with him. It was suggested that the mother enroll in parenting education and counseling programs to remedy this defect.
c) The assessment of the father was that he suffers from a mixed personality disorder, with traits of narcissistic, histrionic, obsessive-compulsive personality disorders, and a possibly paranoid nature. The report opines that the mixed personality disorder impacts in all areas of his life, including relationships, employment and parenting. He shows little or no insight into his own difficulties and, instead, attributes to others any problems or difficulties that he encounters.
d) D’s sister, J., is 15-years-old and has been in the mother’s care from the beginning of this child protection litigation. The report also indicated that “D. shares a very close relationship with his sister”. It further indicated that J. expressed a clear wish to remain in her mother’s care.
e) The assessment concludes: “[O]n consideration of the above, and also in respecting the sibling relationship, we would suggest that the courts consider returning D. to his mother’s care. We would nevertheless recommend that the father be given the opportunity to prove that he can be a positive influence for his son, although we do have serious concerns that the father will not be able to support the relationship with his mother.”
• With respect to access to D. since July 10, 2012, through to the completion of the FCCA, each parent has had two scheduled visits per week, fully supervised by the Society. J. attended some of the mother’s access visits and it was observed that D. and J. had a close relationship.
• J. has indicated to the Society and to her counsel, in no uncertain terms, that she wishes to reside with her mother and does not want to have any access whatsoever with Mr. T.
• On March 26, 2013, the CAS decided to send D. to his mother’s home on an extended visit. The CAS then brought an amended protection application requesting an order placing D. in the care and custody of the mother, subject to supervision of the Society.
• On April 26, 2013, Justice Métivier granted a temporary order placing D. in the care and custody of his mother, subject to the supervision of the CAS, on a without prejudice basis.
• On June 4, 2013, a care and custody hearing took place before Justice Kane, for which he released his decision on June 12, 2013: Children’s Aid Society of Ottawa v. T. (I.), 2013 ONSC 4070, [2013] W.D.F.L. 4459. He came to the following insightful conclusions:
a) The Family Court Clinic (“FCC”) does not see Mr. T. at increased risk for physical or sexual abuse of D. but is concerned about the emotional traumatization caused by Mr. T.’s inability to acknowledge and support the importance of Ms. T. in D’s life: para. 21.
b) Mr. T. is fixated in proving Ms. T. is a bad parent. He has not been able to place D’s well-being above the struggle to prove the mother unfit. In the current supervised access visits debates arise with CAS staff. Supervised access is difficult at the best of times. Mr. T.’s job however is to make this beneficial for the child.
c) The FCCA report acknowledges that the assessment of the mother was more limited than that done of the father because of her limited capacity in English. This court request that the FCC consider whether it is possible to assess the mother further with the aid of translators or similar testing of the Russian language which Mr. T. argues is available. Presumably lack of English is not an automatic bar assessment by the FCC in the nation’s capital: para. 28.
d) This court also notes the absence of analysis in the FCCA as to the mother’s ability to shield D. from the mother’s animosity of his father. Comment thereon in any supplementary report would be of assistance: para. 29.
e) Mr. T. is an intelligent and articulate advocate. He is not to be faulted because he is pursuing this litigation vigorously, nor for the fact that he believes his son is a very intelligent and artistically gifted child: para. 30.
f) Mr. T.’s passion in this litigation however is creating a loss of focus on the issue of D’s interim well-being. Mr. T. today has not been able to separate his tacit advocacy against the other, and with authorities, from any of this child for peace and calm in the relationship between these parents: para. 31.
g) Mr. T. has adopted a “scorched earth” attitude on this motion regarding Ms. T.’s capacity as a parent.… Mr. T. expects this court to accept that he can be an opponent of his wife and almost all authority figures, but he possesses the flexibility and patience required as a single parent to care for a young child, even under the supervision of the CAS: para. 34.
h) This court’s concerns regarding the father’s present capacity to care for this child in a manner which will protect D. from Mr. T.’s oppositional attitude, from the conflict between these parents and from conduct such as joint bathing and sleeping together, do not dissolve the evidence presented by Mr. Leblanc and the reservations expressed by the violin teacher about the underlying makeup of this mother. There remains however serious issues regarding this father exposing the child’s emotional harm: para. 36.
i) He finally concluded, at para. 40, “An interim with prejudice supervision order is granted placing the child with the mother with conditions 1 to 10 as set forth in the notice of motion. This orders is made despite my reservations as to the mother’s underlying history of aggression towards her partners and her children. The risk related to the acrimony between partners currently does not exist. I believe the remaining risk to D. can be protected against with adequate supervision by the CAS of the mother until trial.”
• I completely agree with and adopt Justice Kane’s findings to that point in time. It seems to me that what was chosen was the better of two problematic parents.
• The evidence of what took place following Justice Kane’s decision through to the hearing of these motions supports the proposition that each parent decided to go down a completely different path in attempting to gain custody of D.
• The mother, who clearly had anger management issues and a lack of emotional control, decided to become a better parent for D. She opted to try and cooperate with the Children’s Aid Society in an effort to alleviate, if not eliminate, any protection concerns that they may have had in leaving J. and D. in her care.
• The path taken by Mr. T. was to ignore the wisdom contained in the decisions of Justice Minnema and Justice Kane, and, without missing a step, to continue his no holds barred attack on the mother’s capability as a parent in the hopes of someday convincing a decision-maker that he should have care and custody of D.
• The mother’s efforts at improving herself as a parent included the completion of an anger management course and the completion of a parenting through separation and divorce program (a five-week program with topics such as coping with stress, understanding conflict, problem solving, cooperative communication, effective discipline, co-parenting and parenting plans). The cooperation with the CAS was evidenced during the numerous home visits conducted by a social worker over the last year or so. The worker’s professional observations about the family dynamic demonstrate that the mother and the children were generally functioning quite well as a family. The bottom line is that the mother, by any objective standard, has, as a parent, significantly changed for the better since July 2012.
• Mr. T., on the other hand, has, despite the existence of a restraining order, continuously attempted to entice D. to have direct contact with him. In fact, he was relentless in this regard. Furthermore, in a 63-page affidavit filed at this hearing, which included references to numerous other affidavits, Mr. T. alleges the following:
a) For all intents and purposes, Ms. T. has lied at each and every one of the stages in these proceedings. Ms. T., from the time of her arrival in Canada, has assaulted the children and Mr. T. on hundreds of occasions (During the hearing itself, Mr. T. referenced being assaulted by Ms. T. 55 times in one day). Mr. T. also alleges being assaulted by J.
b) Various CAS workers fabricated evidence. Mr. T. engages in a complex analysis with respect to this allegation.
c) Police were involved in a cover-up.
d) Counsel representing Ms. T. engaged in sharp practice.
e) The CAS has been biased against him and biased in favour of Ms. T. from the commencement of the proceedings. Mr. T. accuses counsel representing the CAS of manufacturing evidence and of making false representations to the court.
f) The Family Court Clinic and Dr. McLean of omitted relevant evidence, were selective in the material used, and exaggerated or fabricated other information given to them by the Children’s Aid Society.
g) The police exhibited general misconduct in failing to charge Ms. T. with criminal assault and, more specifically, in fabricating evidence.
• After reading Mr. T’s affidavit material it becomes apparent that he would never be able to cooperate with the Ottawa Children’s Aid Society, and that he cannot accept the proposition that Ms. T. has improved her situation, that she has developed herself into a competent mother, and that D. and J. are doing well in her care. This is so regardless of the evidence.
• At paragraph 209 of his affidavit, Mr. T. indicates the following: “[I]n the face of the incontrovertible evidence of her historic violence towards the children, there is no evidence before the court that she has in any way changed. There has not been a single admission or acknowledgment that her behavior was violent. The CAS, the police, the FCC all rush to treat her as a victim. While she receives this sort of “help”, she believes she is a victim of me calling the police and will certainly continue to be violent.”
• Further, at paragraphs 229 and 230, he indicates: “I might be willing to consider the possibility of a reconciliation if all of the above conditions were installed and if she received an appropriate report from an appropriately qualified professional, with what is known as a “parachute clause” that is, if she ever demonstrated any violence or abuse, that would allow D. and perhaps J. some guarantee of being able to live free from violence and abuse. In addition, it would require acknowledgment from her that she has a very serious problem with violence and abuse and until she can satisfy the court that she no presents a risk, D. should reside primarily with me to enable him to have the confidence to report any abuse of violence when he visits her home. At present, D. is in fear of being placed in foster care again will say whatever she tells them to say as J. and myself did in November 2008 when a friend reported Ms. T.’s violence to J. and when the worker, insisted on interviewing us together”.
• Finally, however misguided Mr. T. may be, it must be said that I have absolutely no doubt that he loves D. and that, from his perspective, everything he has been doing in this process is out of his love for his son.
Issues and Analysis
[4] The court was presented with the following summary judgment motions:
a) Mr. T.’s motion for summary judgment granting him sole custody of D., and an order placing J. in the care and custody of the Children’s Aid Society.
b) A motion by counsel representing J. for an order dismissing Mr. T.’s motion and placing J. in the care control of her mother with a no access order to Mr. T.
c) The Society’s motion for a finding that the two children were in need of protection and for an order placing the children in the care and custody of Ms. T.
d) The Society’s motion for a finding that Mr. T be denied any access to D.
e) Ms. T., through her own counsel has also moved for an order granting her sole custody of the two children with a no access order and a restraining order against Mr. T.. She also asks that Mr. T. be declared a vexatious litigant.
Legal Principles
[5] Rule 16 of the Family Law Rules, provides, in part:
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
[6] The court must proceed cautiously on a motion for summary judgment and must ensure absolute fairness to the parties: The Children’s Aid Society of Ottawa v. M.C., 2003 CanLII 67754 (ON SC), [2003] O.J. No. 6307 (Sup. Ct. J.).
[7] The court must review all of the evidence to determine if there is a basis for the final order sought. A proper consideration of “a full evidentiary record” is necessary for “a good hard look” at the evidence presentation on the motion. The court is not to engage in an assessment of credibility, weighing of evidence or making findings of fact, but is determined only if there exists a genuine issue for trial, taking a hard look at the merits of the case while doing so: M.C., supra.
[8] A triable issue is one which is relevant to the issues to be decided. The test is whether the question at issue is a foregone conclusion. There may be a factual dispute on an issue, but that does not necessarily raise a triable issue if the balance of the admitted and undisputed evidence leads to an inevitable outcome. If, for example, it is a foregone conclusion, based on the admitted and undisputed evidence, that the best interests of the child require an order for crown wardship, then there is no genuine issue for trial. While there may be issues to be decided, the question is whether they are issues that require trial: J.C.J.-R v. Children’s Aid Society of Oxford County, 2003 CanLII 2388 (ON SC), [2003] O.J. No. 2208 (Sup. Ct. J.).
[9] The circumstances where a court can grant a summary judgment motion were recently analyzed by the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, 366 D.L.R. (4th) 641. Although Hryniak occured in the context of a civil proceeding, the general principles nonetheless apply to this case. At paras. 49-51, Justice Karakatsanis indicated the following:
[49] There will be no genuine issue requiring a trial and the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[50] These principles are interconnected and all speak to whether summary judgment will provide fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost-effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve the dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[51] Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.
Mr. T.’s motion for summary judgment and the motion brought on behalf of J.
[10] Mr. T’s motion for summary judgment is dismissed.
[11] In a case such as this, for the court to grant Mr. T.’s motion, I would have to find as a fact that it is in the best interests of D. to be placed in the moving party’s care and custody. This is a proposition that runs contrary to all of the evidence presented before this court: the history of the proceedings; the Society’s position, as articulated in their materials and the findings discussed above; and the conclusions in the Family Court Clinic Assessment. The findings of fact that I have made in this case all overwhelmingly support the dismissal of Mr. T’s motion.
[12] Mr. T. has also asked for an order placing J. in care and custody of the Children’s Aid Society. This request runs contrary to that of the Children’s Aid Society, as well as to the expressed wishes of the 15-year-old child. This part of the motion is also dismissed, as it is completely without merit. All of the evidence supports the proposition that the child wants to live with her mother and does not want to have access to her father.
[13] Counsel representing J. has asked for an order placing J. in the custody of her mother. Counsel for the child has also asked for a no access order to the father and for an order that the father be restrained from contacting J. These orders are all granted; none of them require a trial, and each of the requests is easily supported by the evidence presented at this hearing. The FCCA, the wishes of the child as articulated by the Children’s Lawyer’s Office, and the evidence presented by the CAS make each of these orders foregone conclusions.
The motion brought by the Children’s Aid Society for an order placing the children in the custody of the mother with no access to the father.
[14] While the motion addresses both children, given the above findings regarding J., this motion, in reality, concerns D. alone.
[15] For the Children’s Aid Society to succeed on both components of their summary judgment motion, the court must find that it can fairly and justly adjudicate affirmative responses to each of the following questions: (1) Are the children in need of protection? (2) Is it in the best interests of D. to be placed in the sole custody of his mother, Ms. T.? and (3) Is it in the best interests of D. to have access to Mr. T.?
Are the children in need of protection?
[16] Subsections 37(2)(f) and (g) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the CFSA) provide:
37(2) A child is in need of protection where,
(f) the child has suffered emotional harm, demonstrated by serious,
(i) anxiety,
(ii) depression,
(iii) withdrawal,
(iv) self-destructive or aggressive behaviour, or
(v) delayed development,
and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;
(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;
[17] The material contained in the record of this case provides an abundance of evidence to support the proposition that the two children in this case were, and are, in need of protection. This is particularly so given how the term is defined under ss. 37(2)(f) and (g) of the CFSA.
[18] I make this finding based upon the uncontroverted evidence contained in the record of these proceedings, including: the affidavits of both parties, the interim decisions of Justice Minnema and Justice Kane, and the Family Court Clinic Assessment. The evidence and history of the proceedings disclose that this was an extremely dysfunctional family, where the degree and nature of conflict between the parents and the turmoil in the household caused serious emotional and psychological harm to the children and put the children at risk of serious emotional and psychological harm.
Is it in the best interests of the children to be in the custody of their mother?
[19] Once there has been a determination that a child is in need of protection, s. 57.1(1) of the CFSA provides that a court “may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.”
[20] Section 37(3) of the CFSA provides as follows:
Where a person is directed in this part to make an order or determination the best interests of the child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationship by blood or through an adoption order.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that contiguity.
The merits of a plan for the child’s care proposed by 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.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, return to or allowed to remain in the care of a parent.
The degree of risk, if any, to justify the finding that the child is in need of protection.
Any other relevant circumstances.
[21] The evidence presented at the motion clearly shows that it is in the best interests of J. and
D. to be placed in their mother’s custody.
[22] Ms. T. has had J. in her care for more than a year and a half. Furthermore, J. is 15 years of age and has, in no uncertain terms, expressed the desire to continue living with her mother and to have no access to Mr. T.
[23] Ms T. has had D. in her care for more than a year.
[24] During this particular timeframe, Ms. T.’s care of the children was subject to a CAS supervision order.
[25] The uncontroverted evidence establishes that Ms. T. has worked diligently in cooperating with the Children’s Aid Society to eliminate any ongoing protection concerns.
[26] This cooperation has included the completion both of an anger management course and of a parenting through separation and divorce program.
[27] The affidavit of the protection worker who conducted the numerous home visits during the course of the supervision order attests to the simple truth that Ms. T., J., and D. have developed into a positive family unit. The two children are now free from the extraordinary turmoil that existed when Mr. and Ms. T. lived together. The risk of psychological and emotional harm has, for all intents and purposes, been eliminated while the children remain in their mother’s care, provided that the father is absent from the home.
[28] In determining what is in the best interests of D., I have taken into consideration his positive sibling relationship with J. That relationship can only continue if D. remains in the custody of Ms. T.
[29] When this evidence is considered by any objective standard, the result becomes a foregone conclusion. A trial is not required in this case. I am able to make the necessary findings of fact to resolve this dispute.
[30] Therefore, the Society’s motion for a summary judgment ordering custody of J. and D. to Ms. T., pursuant to s. 57.1 of the CFSA, is granted.
Is it in D.’s best interests to terminate Mr. T.’s access?
[31] Section 58 of the CFSA provides that a court may in the child’s best interests, make, vary or terminate an order respecting a person’s access to a child.
[32] The position advocated by the Society, which is supported by Ms. T., is that Mr. T. should no longer have any access whatsoever to D. The fundamental proposition put forward by the Society is that Mr. T’s inability to accept Ms. T as the primary caregiver in this case, his constant attempts at undermining her in the eyes of D., his seemingly unshakable belief that the mother and J. are violent, aggressive and a danger to D., together with his failure to follow restraining orders, should lead the court to the inescapable conclusion that access to D. should be terminated because it is no longer in the child’s best interests.
[33] In Children’s Aid Society of Ottawa v. J.B. and K.R. (unreported), Mackinnon J. dealt with a fact situation and a parent with characteristics very similar to Mr. T. In that case she made the following observations at paras. 126- 129:
[126] But, a consideration of his best interests goes beyond just the fact that he loves his mother and is glad to visit her in a supervised forum. In Dixon v. Hinsley 2001 CanLII 38986 (ON CJ), [2001] O.J. No. 3707 Zuker J. states “the best interests of a child is regarded as all-embracing concept. It encompasses the physical, emotional, intellectual and moral well-being of the child… A child’s home stability outweighs any benefit he or she might obtain by maintaining access to his or her father.
[128] Unlike M.(B.P) v. M.(B.L.D.E.) where the court did not find any benefit to the child of the key contact with her father, T. has been able to improve his relationship with his mother and gain self-esteem by the vehicle of supervised access over an approximate 18 months period . He has also required regular psychotherapy to make this progress. Against this must be balanced the fact that relationship continues to be an acrimonious one or T., that even supervised access exposes him to the ongoing acrimony Ms. R. has for Mr. B., the fact that Ms. R. does not acknowledge any responsibility or propose any remedial steps for self, and the fact that she is a essentially a person who is not amenable to supervision. It is clear that further access by the CAS is not acceptable to her. Mr. H. is not a suitable supervisor.
[129] In the end, the inability of the mother to set aside her anger and hostility towards the father, the focus or significant strengths, the balance for the benefit of her child, rather than on prolonging the parental conflict, has resulted in my decision to terminate your access.… Sadly, his mother’s inability to direct her focus upon him, rather than upon her perceived shortcomings of others, including Mr. B., has led to this result.
[34] It is this issue that has caused the court the most difficulty. While terminating Mr. T.’s access to J. was certainly a foregone conclusion, I cannot say the same when considering D. It seems to me that it would require a clear and unequivocal case to terminate a father’s access to a six-year-old through the vehicle of a summary judgment motion. The decision of Mackinnon J., referenced above, came after a 24-day trial.
[35] While there is great deal of merit in the society’s arguments. I find myself incapable of terminating the father’s access on the basis of a summary judgment motion. I cannot do so with any degree of confidence based on the evidence and the arguments presented before me.
[36] My reasons for denying this part of the motion are as follows:
• The father and son love one another and have a powerful bond. This has never been denied by anyone. The FCCA supports this finding.
• The material filed by Mr. T., although voluminous, only really dealt with the issue of him having custody of D., together with attacks against the mother and anyone who supported her position. As unrealistic and however misguided the material was, none of it directly responded to the possibility of terminating Mr. T.’s access to D. He is a self-represented litigant who has never had the opportunity to present a comprehensive response to the specific issue of terminating access to his son. “Absolute fairness to the parties” and adherence to the principal “that justice must not only be done but be seen to be done” necessitates allowing the father the opportunity to fully respond to this request.
• While I have little doubt that Mr. T. has at least some of the psychological difficulties described in Dr. Maclean’s report, the protection concerns in this case were most certainly not from the father’s actions alone. The root of the Children’s Aid Society’s involvement was the dysfunctional family setting caused by the toxic relationship between the father and the mother. They both share the responsibility.
• To eliminate any involvement in D.’s life by Mr. T. in the unique and unusual circumstances of this case requires unequivocal evidence that Mr. T. is incapable of change or of ever accepting that Ms. T. will be the custodial parent of D. It seems to me plausible that, once Mr. T. is made aware of the decision that a final order of custody has been made in favor of Ms. T., the same may act as an awakening. I am of the view that this order may encourage the father to change his attitude and comply with a supervised access order, rather than risk having no access to D. at all.
• Further evidence should be presented at the trial, such as an updated FCCA dealing specifically with the issue of ongoing access between D. and Mr. T.
[37] The bottom line is that I am not comfortable, on the basis of the evidence before me, to terminate the father’s access to D. without a trial, where all possibilities would be examined.
[38] Therefore, I direct that there be a trial on the sole issue of whether the father’s access to D. should be terminated.
[39] In the meantime, the interim supervised access order currently in place will continue until a further order of the court. The restraining order currently in place against the father shall also remain in effect.
[40] I decline to alter the existing restraining order or to declare Mr. T. a vexatious litigant, that declaration has already been made by another judicial officer. However, I will order that Mr. T. is forbidden from issuing or commencing any motions, or applications of any kind in these proceedings without first obtaining leave of the court.
Conclusion
[41] The mother and father in this case had and continue to have an extremely dysfunctional relationship. The volatility of their relationship effectively neutralized any ability they may have had to properly co-parent their children. Instances and allegations of violence, rage and the use of foul language in front of the children became the accepted norm in this family. The Children’s Aid Society necessarily became involved because of protection concerns relating to the emotional and psychological well-being of the children, D. and J.
[42] The mother and father, at the inception of these proceedings, each advocated the position that, if they were separated, they could effectively parent. The mother decided to cooperate with the Children’s Aid Society and to remedy the concerns they had regarding her parenting abilities. The father, instead of cooperating with the Children’s Aid Society and accepting that the mother had made positive changes, reiterated his recollection of the historical violence in the family unit to suggest that he was the only proper custodial parent.
[43] The issue of custody has been decided. The mother has a final custody order for both children. The issue of access to D. by the father, and whether it should be terminated on a final basis, has been left for a trial. I am confident in saying that this is the father’s last chance; if he wants to have a meaningful relationship with D., he must accept, and even support the fact that the mother is going to be the primary parent who is ultimately responsible for raising the child. If he fails to do so and the evidence at trial supports that such is the case, the very likely result will be that his access rights will be terminated. The ball is in his court.
[44] I am not going to make an order as to costs in the circumstances of this case. My perception of this matter is that it was first and foremost a child protection case. Furthermore, success was in some respects divided, as the summary judgment motion requesting an order for the termination of Mr. T.’s access to D. did not succeed.
Maranger J.
Released: March 25, 2014
COURT FILE NO.: FC-12-1619
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 J.Y., born […],1998 and D.T. born […], 2014
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
R.N.T.
Respondent
I.A.T.
Respondent
REASONS FOR JUDGMENT
Maranger J.
Released: March 25, 2014