Rawlinson v. Brocklebank, 2015 ONSC 3177

CITATION: Rawlinson v. Brocklebank, 2015 ONSC 3177

COURT FILE NO.: FC-15-488-01

DATE: 20150519

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LEAH RAWLINSON, Applicant

AND:

MICHAEL BROCKLEBANK, Respondent

BEFORE: The Hon. Mr. Justice R.E. Charney

COUNSEL: L. Kirwin Counsel, for the Applicant

Self-Represented, for the Respondent

HEARD: May 14, 2015

ENDORSEMENT

[1] The Applicant originally brought this without notice motion on April 29, 2015, for a restraining order and an order to require that the Respondent’s access to their two children, ages 2 and 4, be supervised.

[2] The Applicant alleges that the Respondent has a history of physical violence against her. He has a criminal record for two sexual assaults. The first was against a 4 year old girl more than twenty years ago when he was fifteen years of age. The victim was a person that he was babysitting, who complied with his request to perform fellatio on him. The second was against an eighteen year old, nine years ago, when he was thirty years of age.

Background

[4] When the Applicant and Respondent separated in November 2013 they signed a separation agreement which stated that the children will primarily reside with the mother, with access to the father “whenever [he] wants, granted with the [mother’s] approval”. In practice they have alternated parenting time every other week since November 2013.

[5] The Applicant has filed material relating to a custody and access dispute involving the Respondent and his daughter from a previous relationship of only two months. That dispute resulted in a court order granting the Respondent supervised access with his daughter for two hours on alternate Sundays. Part of the evidence filed in that dispute was an assessment by Psychologist Dr. Raymond Morris dated March 30, 2012, which was filed with the Applicant’s affidavit material on this motion.

[6] Dr. Morris made the following observations with regard to the Respondent:

(i) It was his view that a “sharp increase in parenting skill” on the part of the father would be necessary for unsupervised access.

(ii) A comprehensive psychiatric report from May 2010 indicated no definitive conclusion regarding pedophilia because the diagnosis requires more than one documented incident and a positive phallometric examination.

(iii) The father represents a “low to moderate risk of future sexual offence”.

(iv) Psychometric test results find no substantive support for a significant mood or cognitive disorder.

(v) The father had “maladaptive narcissistic personality attributes” which were extremely resistant to change and he did not present as motivated to change.

(vi) He recommended a progressive supervised access order.

[7] The Applicant alleges that her children are displaying “strange behaviour”, such as her daughter putting food and toys in her vagina, and her son whispering to her daughter to touch his penis. There is also reference to a “recurring fused labia” although counsel for the Applicant acknowledges that the doctor does not know the cause of this and there is no evidence that this is related to sexual activity. The Applicant claims that she did not know the truth about the Respondent’s previous criminal convictions until just before she brought this motion in April. She was provided with this information by the mother of the Respondent’s other daughter who was the subject of the earlier custody and access dispute. The criminal convictions did not relate to either the mother or daughter of that dispute. The Applicant has also provided a letter that was prepared by Lorie Walton, who has a Masters of Education and is a “Certified Child Psychotherapist Supervisor”. This letter was also part of the record in the previous custody dispute. Ms. Walton’s comments are based exclusively on information provided by the opposing party in that dispute, and her review of Dr. Morris’s March 30 Report. Ms. Walton never met with the Respondent in this matter. Given her reliance on Dr. Morris’ report and her limited expertise as compared to Dr. Morris, I am of the view that her comments add nothing to the comments and conclusions of Dr. Morris, and I have not given them any consideration in my analysis.

[8] The Respondent has asked that any decision with regard to the Applicant’s motion await the report of the CAS. He states that he has had shared custody since November 2013, and there is no real evidence of any impropriety with regard to his care of the children. I am also mindful of the fact that Dr. Morris’ concerns regarding the Respondent’s access to his daughter in the other case stemmed in part from the fact that the Respondent had had very little contact with his other daughter when he applied for access, and that when he was observed during supervised access “an attachment or bond of consequence was not observed”. In contrast the Respondent has been involved in the care of his two children from this relationship since the separation in November 2013, and there is no evidence before me that he has failed to care for them properly while they are in his care.

Conclusion

[9] My decision on this issue must be based on the best interests of the children. In making this determination I may consider past conduct in relation to whether the Respondent “has at any time” committed abuse against any child. (s. 24(4) of the Children’s Law Reform Act, RSO 1990, c. C.12). The evidence that causes me concern in this matter is the Respondent’s conviction for sexual assault against a four year old twenty years ago. While this may have been many years ago, and there is no evidence of any similar conduct since that time, I understand that the revelation of such a conviction would come as a concern to any mother no matter how long ago the conviction occurred. While I understand that the conviction was some time ago, sexual abuse of any four year old child is obviously something that the court takes very seriously. The children in this proceeding are only 2 and 4 and their ages increase my concern about their vulnerability. It is reasonable for the mother, and the court, to wait for the outcome of the CAS investigation before making this difficult decision about whether it is safe for the children to continue to be in their father’s care without supervision. An abundance of caution in these circumstances compels me to make a temporary order restricting the Respondent to supervised access until the CAS can provide the Court with a written report to indicate whether it has any ongoing concerns in relation to this situation. I understand that a Court date has been scheduled for June 17, 2015, and this issue can be reconsidered again at that time if CAS has provided its report by that time. I also order the continuation of the restraining Order granted by Justice McDermot until that date. The Applicant’s allegations of past physical violence by the Respondent give rise to a risk of harm until the custody and access issue regarding their children can be resolved.

[10] This Court Orders:

(i) The Applicant be granted temporary sole care and custody of the children Benjamin Brocklebank and Lucille Brocklebank.

(ii) The Respondent Michael Brocklebank be permitted supervised access visits with the children at a supervised access centre pending the report of the Children’s Aid Society.

(iii) The restraining Order granted by the Honourable Justice McDermot dated April 29, 2015 is continued until June 17, 2015.

(iv) Costs of this matter are reserved to the final determination of custody and access.

(v) The Simcoe County Children’s Aid Society provide copies of all records in its possession relating to Michael Brocklebank to counsel for the Applicant and Respondent.

[11] A copy of this decision will be forwarded to the Simcoe County Children’s Aid Society.

CHARNEY J.

Date: May 19, 2015