Court File and Parties

CITATION: Graham v. Homer, 2015 ONSC 2601
Court file no. 67/09
Date: 20150407

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: John Graham, applicant

- and -

Kelly Homer, respondent

BEFORE: Bale J.

COUNSEL: David Curtis for the applicant Isaac Birenbaum, for the respondent

HEARD: March 30, 2015

ENDORSEMENT

[1] The underlying proceeding in this case is a motion to change made by the respondent in January 2012. There are now two motions before the court: a motion for judgment made by the applicant in October 2014; and a motion, made by the respondent in November 2014, requesting dismissal of the motion for judgment and an order appointing the Children’s Lawyer to make an investigation and report, or alternatively, an order directing a custody and access assessment.

[2] The order that is the subject of the motion to change is a consent final order made by Ingram J. on January 18, 2011. The order provided that the parties would have joint custody of their daughter Molly Graham, and that Molly’s primary residence would be with the applicant. The respondent was to exercise access on alternating Saturdays, from 10 a.m. until the immediately following Wednesday at 10:00 a.m., and in the intervening weeks, on alternate Sundays from 5:00 p.m., until the immediately following Wednesday at 10:00 a.m. In her motion to change, the respondent requested significantly increased access, as well as scheduled access for statutory holidays & cet. She also requested a custody and access assessment.

[3] On April 14, 2012, Hatton J. ordered a custody and access assessment to be conducted by the Kawartha Family Court Assessment Service. The assessment was to include assessments of:

• whether the parties, or either of them, have any psychiatric, psychological, or other disorder or condition that might impact upon their ability to care for Molly;

• the need for, and likelihood of success of, clinical interventions; and

• the nature and extent of any conflict between the parties, and the effect that any such conflict has had on Molly.

[4] In addition, the order provided that the respondent’s access would thereafter take place at the Kinark Supervised Access Centre in Cobourg, on alternate Sundays, for a minimum of two hours and a maximum of three hours, subject to the discretion of the access centre personnel.

[5] On July 5, 2013, Hatton J. made an order restraining the respondent from communicating with the applicant, or with Molly, except for the purpose of exercising the previously ordered supervised access. In addition, on the same date, Hatton J. made an order prohibiting the respondent from posting, on social media, any information relating to the applicant or his family, and any information relating to the dispute between the parties.

[6] The assessment ordered on April 14, 2012 did not proceed on a timely basis. The respondent obtained a legal aid certificate in January 2013 but says that she was unable to find counsel who would accept the certificate. She says that following the making of the assessment order, she heard nothing further about the conduct of the assessment until June 2013. It is not entirely clear to me why she did nothing to follow up during that period of time, other than because of ongoing financial difficulties, lack of legal representation, and a general failure to follow up which has pervaded her conduct during the entire proceeding. In any event, in July 2013, with the help of her parents, the respondent paid $1,000 to Kinark as her share of the retainer required prior to the commencement of the assessment.

[7] The respondent’s first interview with the Kawartha Family Court Assessment Service was scheduled for, and took place on, January 23, 2014. She says that at the interview, she was told that the assessment could not proceed further until she obtained legal counsel. She says that in March of 2014, she called Kawartha to let them know that she had still been unable to obtain counsel. Her explanation of why the assessment did not proceed would seem to be confirmed, at least in part, by a letter from Kawartha to the applicant dated September 4, 2014, in which the assessor says that the assessment had not proceeded past the initial interviews, due to difficulties the respondent had securing legal counsel and paying for her part of the assessment, and the “lack of response/communication” from the respondent. However, the reason for the assessor’s reference to a difficulty in paying for the assessment is unclear given that it appears that she had paid what she had been asked to pay to that date.

[8] For reasons that, again, are not entirely clear to me, the respondent discontinued her access in June of 2014. Respondent’s counsel indicates that she was going through an emotional period. In any event, as a result of her failure to attend, Kinark closed the respondent’s file with the result that the supervised access was effectively terminated.

[9] On October 22, 2014, the respondent was served with the applicant’s motion for judgment returnable November 17, 2014. She then contacted Legal Aid and was told that her certificate had lapsed and that she would have to reapply for legal aid, which she did. Her application was approved on November 13, 2014.

[10] In his motion for judgment, the applicant requests a final order for sole custody, with access to be supervised at Kinark for two hours, on one Sunday per month. In response, the respondent requests a temporary order reinstating the bi-weekly supervised access which she gave up in July 2014, and an order appointing the Children’s Lawyer to make an investigation and report, or alternatively, an order that the assessment in progress at Kawartha be continued. In the meantime, custody would remain joint, and Molly’s primary residence would remain with the applicant.

[11] The question by which I must be guided in deciding the case is: “What is the best reasonably achievable outcome for Molloy Graham?” I put it this way because, as is not uncommon in family law, the best outcome for Molly may not be reasonably achievable.

[12] Molly is six years’ old. The two hours per month of supervised access, proposed by the applicant, would deprive her of the relationship with her mother that she deserves. The best outcome for her, as for almost any child, would be some sort of joint parenting regime. However, before joint parenting could even be considered in this case, the respondent would have to get her life under control, which will entail treatment for her mental health issues. The applicant acknowledges that these issues are treatable. In these circumstances, the best way forward is for the Kawartha assessment to be completed, the need for, and likelihood of success of, clinical interventions to be evaluated, and for any recommended treatment to be undertaken.

[13] In support of his position that a final order should be made now, the applicant argues that it is too late to follow the assessment path; that there is no assurance that the respondent will allow the assessment to be completed; that there is no assurance that Mr. Birenbaum’s retainer will be maintained; that the respondent won’t respect the results of the assessment, unless she agrees with them; that she won’t accept the treatment necessary to deal with her mental health problems; that it is a hardship on him to provide transportation for bi-weekly supervised access (Campbellford to Cobourg and return); that that the proceeding is costing him too much money; and that co-parenting will never be possible, because any communication between the parties is likely to result in false allegations against him and arrest.

[14] The respondent argues that she has always wanted the assessment to take place (she requested it in her motion to change); that her failure to follow through with the assessment has been as a result of financial difficulties and difficulties retaining counsel; that she now has counsel and will follow through with the assessment because she realizes that doing so is the only possible way for her to achieve the meaningful relationship with her daughter that she is intent on having; that there is too much contradictory evidence to allow summary judgment; and that a “final order” for access once a month for two hours can’t reasonably be expected to be final.

[15] As of January 2014, the applicant was still prepared to follow through with the Kawartha assessment. When asked directly whether Molloy should be denied the best outcome as a result of the delay between January 24, 2014 and the present, applicant’s counsel answered in the affirmative and said that when viewed in the light of everything else that has happened in the case, the most recent period of delay is a sufficient reason to terminate the assessment process, and to proceed to a final order. In other words, it’s time to give up on achieving the best result for Molly. I disagree.

[16] Because of the clinical issues involved, this case is a prime candidate for a custody and access assessment. The assessment was considered to be appropriate in August 2012 when the initial order was made. In January of 2014, the applicant was still prepared to follow through with the assessment. At present, the issues which prompted the assessment remain unresolved. While the further delay which will result from a continuation of the assessment must be taken into account, I am not persuaded that the final order requested by the applicant is in Molly’s best interests. Considering the reasons for the delay up to November 2014 when Mr. Birenbaum was retained and indicated that the respondent wished to follow through with an assessment, the applicant should have agreed to continue the assessment, rather than instructing his counsel to proceed with the motion for judgment. As a result of his failure to do so, considerable further expense and delay have been incurred.

[17] In the result, the applicant’s motion for judgment will be dismissed. On the respondent’s motion, there will be an order that the assessment ordered by Hatton J. on April 14, 2012 be completed, and that the supervised access contained in the same order be reinstated. The Kawartha Family Court Assessment Service is requested to expedite completion of the assessment. Because access has not been exercised since June of last year, access may be re-introduced gradually, at the discretion of Kinark personnel. All other orders currently in place shall remain in force, unless modified directly, or by necessary implication, by this order.

[18] Applicant’s counsel spent a great deal of time detailing what he argued were inconsistencies and exaggerations in both out-of-court statements made by the respondent and in her evidence on these motions, and asks that I make an adverse finding with respect to her credibility. I have not found it necessary to do so. In deciding to dismiss the motion for judgment, I am not endorsing the evidence of either party, where that evidence conflicts. The facts which support the completion of the custody and access assessment were found to exist in August 2012, and they continue to exist today.

[19] In the event that his motion for judgment was dismissed, the applicant requested that the respondent post security for costs in the amount of $25,000. However, such an order would be counter-productive at this time, and in any event, the respondent does not have the financial resources to post security.

[20] Based upon her success on these motions, the respondent would normally be entitled to an award of costs. However, given that her financial difficulties have been a major stumbling block in the resolution of this case, in lieu of making an award of costs, I exercise my discretion under subsections 30 (13) and (14) of the Children’s Law Reform Act, and order that the fees charged by the Kawartha Family Court Assessment Service, for the completion of the assessment, be paid by the applicant without contribution from the respondent.

[21] Given the nature of many of the allegations made in the materials filed in support of the motion for judgment, the parties shall consider whether a confidentiality order should be made under section 70 of the Children’s Law Reform Act, and if so advised, request such an order either before, or at the time of, their next court appearance.

“Bale J.”

Released: April 7, 2015