ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 892/07
DATE: 2015-08-31
BETWEEN:
COLIN GREENAN
Applicant
– and –
KRISTINE JOHNS
Respondent
F. Baxter, for the Applicant
M. Walz, for the Respondent
COURT FILE NO. 1208/08
BETWEEN:
BRUNON ZACHARIASZ and
DARLENE ZACHARIASZ
Applicants
– and –
KRISTINE JOHNS and
COLIN GREENAN
Respondents
Self-represented
M. Walz for the Respondent
F. Baxter for the Respondent
HEARD: January 12 – April 8, 2015
REASONS FOR DECISION
JUSTICE E. GAREAU
[1] Before the court are two motions to change, both brought on February 20, 2014 by the moving parties, Colin Greenan and Brunon Zachariasz and Darlene Zachariasz. By previous order of this court, these actions were tried together with Colin Greenan presenting evidence first, followed by Brunon Zachariasz and Darlene Zachariasz and with Kristine Johns responding in both motions to change.
[2] The motions to change proceeded to trial by viva voce evidence. The trial was lengthy, spanning 33 days, commencing on January 12, 2015, with the evidence completed on April 8, 2015. The parties provided written submissions on a schedule set by the court. The list of the written submissions were received by the court on June 29, 2015.
[3] At issue in the proceedings is the access to be exercised by Colin Greenan and Brunon Zachariasz and Darlene Zachariasz to two children, namely Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007.
[4] Colin Greenan is the biological father of both Joseph and William. Brunon Zachariasz and Darlene Zachariasz are the paternal grandparents of Joseph and William. Kristine Johns is the biological mother of Joseph and William.
[5] The order sought to be changed by Colin Greenan is an order granted on consent on May 28, 2009 by Mr. Justice I.S. McMillan. The relevant portions of that order are contained in paragraphs 1 and 2 which read as follows:
“1. The respondent mother shall have custody of the children, namely Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007.
- The applicant father shall have supervised access to the children herein until further order of the court.”
[6] Colin Greenan seeks to change the aforementioned supervised access or to an order of unsupervised access.
[7] The order sought to be changed by Brunon Zachariasz and Darlene Zachariasz is an order granted pursuant to minutes of settlement on December 4, 2012 by Mr. Justice G. Ellies. That order on its face is marked as “final order” The order of December 4, 2012 provides as follows:
“1. The applicants shall have the following access to Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007:
(a) alternate Sunday access for two hours in accordance with the supervised access facility availability until June 30, 2013;
(b) phone access each Wednesday at 7:00 p.m., for 10 minutes with Colin Greenan and 10 minutes with Brunon and Darlene Zachariasz, which may be changed to a different day, on the consent of the parties, in writing. The mother will have the children call the applicants until June 30, 2013, after which the mother will supply a phone number for this access;
(c) the respondent, Kristine Johns, intends to move to Windsor after June 30, 2013 and the applicants will not object to this move and the parties will re-visit the issue of access and come to a further agreement, as circumstances may dictate. Failing such agreement, any of the parties may apply to the court for direction and an order re access;
(d) the mother shall provide transportation to and from the supervised access facility when in Algoma;
(e) there shall be no order as to costs.”
[8] Brunon Zachariasz and Darlene Zachariasz seek to change the aforementioned order by an order granting them specified unsupervised access including extended periods of time during the holiday periods.
[9] The respondent, Kristine Johns, did in fact move the residency of Joseph and William from Garden River, Ontario (outside of Sault Ste. Marie) to Windsor, Ontario in March, 2014. The delay in the move was as a result of health difficulties experienced by Kristine Johns.
[10] Subsequent to the change of residency of Joseph and William to Windsor, Ontario and within the motions to change, there were several significant temporary orders with respect to access, namely, the consent order of March 20, 2014 granted by McMillan, J.; the order of April 10, 2014 granted by Gareau, J.; and the order of October 2, 2014 granted by Gareau, J. More particular reference will be made to these orders further on in these reasons.
FACTUAL BACKGROUND
[11] Colin Greenan and Kristine Johns began a serious relationship in November, 2003. Their relationship progressed to the point where they got their own apartment in August, 2004 and resided together as common-law spouses until the Victoria Day long weekend in May, 2007. Ms. Johns was pregnant with William at the time she and Mr. Greenan separated. Although their relationship has moved from being friendly to unfriendly at various periods since May, 2007, they have not resided together as spouses since that date.
[12] Darlene Zachariasz is the biological mother of Colin Greenan. Brunon Zachariasz the step-father of Colin Greenan. The biological father of Colin Greenan is Gary Greenan, who was previously married to Darlene Zachariasz. The relationship between Darlene Zachariasz and Gary Greenan was turbulent and violent. Darlene Zachariasz was the victim of both mental and physical cruelty at the hands of Gary Greenan. Colin Greenan does not have a relationship with his biological father, Gary Greenan.
[13] Although the amount of time they spent with Joseph and William is in dispute, it is clear that Brunon Zachariasz and Darlene Zachariasz had ongoing contact with Joseph and William from the time of their birth until late July, 2010. In late July, 2010, there was an incident involving an alleged comment made by Darlene Zachariasz to the child Joseph concerning Gary Greenan which led to Kristine Johns terminating all contact between Mr. and Mrs. Zachariasz and Joseph and William. More detailed reference will be made to the incident in late July, 2010 further on in these reasons.
[14] Darlene Zachariasz and Brunon Zachariasz had no contact with Joseph or William from late July, 2010 to the order of Ellies, J. granted on December 4, 2012. Since the date of that order, the contact enjoyed by Mr. and Mrs. Zachariasz to Joseph and William has been supervised.
[15] From the date of the December 4, 2012 order to the relocation of Joseph and William to Windsor, Ontario in March, 2014, Brunon and Darlene Zachariasz exercised access to Joseph and William at the supervised access facility operated by the Algoma Family Services agency in Sault Ste. Marie, Ontario. Their access was on bi-weekly visits each Sunday from 2:00 p.m. to 4:00 p.m. Mr. and Mrs. Zachariasz exercised this access to Joseph and William regularly and faithfully. After the move of Joseph and William to Windsor, Ontario, a consent order was granted on March 20, 2014 by McMillan, J. which provided that Brunon Zachariasz and Darlene Zachariasz have continued supervised access in Windsor, Ontario as follows:
(1) “the applicants may have continued supervised access to the children, namely Joseph Douglas Johns born December 17, 2004 and William James Johns born October 21, 2007, per the current access order at: Windsor-Essex Child and Parent Place, 1015 Highland Avenue, Windsor, ON. (519- 971-0625);
(2) the applicants shall have phone access each Sunday evening at 8:00 p.m.;
(3) access set out herein shall be reviewed on April 10, 2014 and is consented to by all parties on a without prejudice basis.”
[16] A review of the aforementioned order did in fact take place on April 10, 2014. On that date, the court made the following temporary order:
(1) “There shall be an order providing that the applicants, Brunon Zachariasz and Darlene Zachariasz have telephone access each Sunday for up to 30 minutes between the hours of 8:00 p.m. and 9:00 p.m. with the respondent Kristine Johns to initiate the telephone call to the applicants. This access shall commence on Sunday, April 13, 2014.
(2) In addition to telephone access, there shall be access to the applicants and to the respondent Colin Greenan on a schedule as follows:
(i) April 27, 2014 in Sault Ste. Marie;
(ii) May 18, 2014 in Sault Ste. Marie;
(iii) June 22, 2014 in Sault Ste. Marie;
(iv) July 20, 2014 in Sault Ste. Marie;
(v) August 24, 2014 in Sault Ste. Marie;
(vi) September 21, 2014 in Windsor;
(vii) October 19, 2014 in Windsor;
(vii) November 23, 2014 in Windsor;
(viii) December 28, 2014 in Sault Ste. Marie.
(3) All access shall be for a 2 hour period separately for Mr. Greenan and for Mr. and Mrs. Zachariasz on each visit and shall be supervised by the supervised access facility in Sault Ste. Marie for the Sault Ste. Marie visits and by the supervised access facility in Windsor, Ontario for the Windsor visits.
(4) For the access visits in Sault Ste. Marie, the respondent mother shall drive the children to Sault Ste. Marie for the visits. On each of these visits in Sault Ste. Marie the applicants and the respondent father shall share in providing to the respondent Kristine Johns the sum of $200.00 to assist her in the travel costs of bringing the children to Sault Ste. Marie.
(5) For the access visits in Windsor the applicants and Colin Greenan shall travel to Windsor for those visits at their own expense.
(6) The parties shall cooperate with each other in completing and filing all documents required by the supervised access facilities in Sault Ste. Marie and Windsor to have the access commence. In particular, the respondent Kristine Johns shall coordinate with the supervised access facility in Windsor to have all intake processes completed to ensure that the supervised access in Windsor, Ontario takes place as provided for in this order.
(7) The costs of all motions before the court today are reserved to the trial judge.”
[17] With respect to Brunon Zachariasz and Darlene Zachariasz, the court-ordered access visit on August 24, 2014 in Sault Ste. Marie, Ontario did not take place. This visit was cancelled by Kristine Johns. The cancellation of this visit was a highly contentious issue between the parties.
[18] Brunon Zachariasz and Darlene Zachariasz brought a motion to the court for make-up access for the missed August 24, 2014 court-ordered visit. This motion was originally before the court on September 4, 2014 and was heard on October 2, 2014. The court varied the April 10, 2014 order to provide that the access by Mr. and Mrs. Zachariasz on December 28, 2014 be extended to 12:00 noon to 5:00 p.m. and be unsupervised.
[19] That brief period of unsupervised access to Joseph and William was exercised by Brunon Zachariasz and Darlene Zachariasz as ordered.
[20] With respect to the access exercised by Colin Greenan to his sons Joseph and William, after Mr. Greenan and Ms. Johns separated, they entered into an arrangement whereby they had joint custody of Joseph with each of them caring for Joseph on a week-about basis. William was not yet born. This arrangement is set out in the order of August 10, 2007 granted by Justice W.L. Whalen. The first paragraph of that order reads as follows:
“The child Joseph Douglas Johns born December 21, 2004 shall be in the care of Mr. Greenan until Monday, August 13, 2007 at 5:00 p.m. and then in the care of Ms. Johns until 5:00 p.m. on August 16, 2007 when the child will return to Mr. Greenan’s care until the following Thursday at 5:00 p.m., and the parties will thereafter have interim custody of the child week-about on a joint custody basis.”
[...continues exactly as in the source text through paragraph [171]...]
Justice E. Gareau
Released: August 31, 2015