Collins v. Collins, 2015 ONSC 3558
NAPANEE COURT FILE NO.: 430/08
DATE: June 2, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REBECCA ANN COLLINS
Lucienne MacLauchlan, for the Applicant
Applicant
- and -
MICHAEL ROBERT COLLINS
Sheri Thompson, for the Respondent
Respondent
- and -
FRANK AND JEANNE COLLINS
Christina Rorabeck, for the Co-Respondents
Co-Respondents
HEARD: April 29, 2015
REASONS FOR JUDGMENT
James J.
[1] The applicant moves for:
(a) An order terminating the temporary supervised access order of Minnema J. (Notice of Motion, Page 6, Tab 18, Vol. 2, Continuing Record, December 3, 2013);
(b) A mobility request to move with the children to southwestern Ontario (Notice of Motion, Tab 29, Vol. 4, Continuing Record, April 20, 2015);
(c) An order terminating the temporary access order of Abrams J. in favour of Frank and Jeanne Collins (the “co-respondents”) (Notice of Motion, Page 6, Tab 23, Vol. 3, Continuing Record, December 3, 2014).
[2] The respondent moves for the following: (all at Notice of Motion, Tab 30, Vol. 4, Continuing Record, January 30, 2015):
(a) An expansion of his access rights;
(b) An order that the respondent and the parties’ children participate in re-unification therapy; and,
(c) Leave to amend his pleadings to include a claim for custody.
[3] The parties were married for about eight years from 2000 until they separated in 2008.
[4] They have five children. In addition the applicant has a child, Brianna, age 17 from a previous relationship.
[5] Following separation the parties had joint custody and implemented a shared parenting arrangement until July 2012 when the respondent was charged with three charges of a sexual nature in relation to Brianna and two counts of domestic assault in relation to the applicant.
[6] In the face of these charges, the respondent consented to a final order granting sole custody to the applicant with no provision for access.
[7] The Children’s Aid Society became involved. The Society took the position that the respondent should not have unsupervised access and that the respondent should take steps to enhance his parenting capacity, focusing on specifically anger management and alcohol consumption.
[8] In November 2013 the respondent obtained an order from Minnema J. granting supervised access on terms, but the access didn’t commence until March 2014.
[9] In May 2014 the respondent pled guilty to one count of assault on Brianna, one count of assault on the applicant and received 18 months’ probation. It was a condition of the probation that the respondent was to have no contact with the children except as authorized by court order.
[10] The respondent’s supervised access was authorized by an order in December 2013 but didn’t recommence until March 2014. Supervised access took place on a somewhat irregular basis until September 2014 when the supervised access centre withdrew its services because the children were resistant to attending. In relation to Mikayla, who is now 14 years old, the respondent has not had access for nearly three years.
[11] Concomitant with the respondent’s request for supervised access in late 2013, the co-respondents brought a motion for temporary access in December 2013. Unfortunately this process took a year to complete but they eventually got access in December 2014. This was short-lived for a couple of reasons. The children complained to the applicant about the overnight access visits with their grandparents then in January, 2014 the youngest child, Sophie, was diagnosed with leukemia.
[12] Sophie’s illness prompted the applicant to seek a bed in one of the province’s children’s hospitals. This has led to the applicant’s relocation with the children to a community near London, Ontario.
[13] I would identify the primary issues as follows:
Sophie’s illness. Her cancer diagnosis is a relatively recent development and it is obviously a worry to the entire family.
Is it in the children’s best interests to resume contact with the respondent? If so, the evidence shows that the re-introduction of access ought to be done in a gradual, sensitive and child-focused manner.
[14] At the hearing of the motion, counsel for the respondent acknowledged that there was a reasonable basis for the applicant’s request to relocate to southwestern Ontario.
[15] Also, counsel for the applicant indicated that the venue for the litigation ought to remain in Napanee rather than Middlesex County.
[16] The onset of Sophie’s illness and the children’s relocation to southwestern Ontario constitute material changes in circumstances that open the door to a review of what is in the children’s best interests.
[17] Like most temporary motions, the evidence upon which the various requests will be determined is contained in affidavits. Affidavit evidence is qualitatively different than oral testimony at a trial where witnesses are subject to cross-examination and credibility is more easily assessed. Evidence on motions is often untested and is sometimes incomplete.
[18] I am cognizant that there may eventually be a trial at a future date; hopefully not, but it is a possibility. This means that as a motion judge, I should tread carefully in terms of making factual findings or making definitive pronouncements on untested affidavit evidence.
[19] Notwithstanding these evidentiary concerns, a number of observations may be made that inform my view of an appropriate disposition on a temporary basis:
(a) The applicant has sole custody and at this stage the respondent must accept her decision to live in the London area for an indefinite period.
(b) Following separation, there was a pattern of shared parenting.
(c) The paternal grandparents historically have been a positive part of the extended family but recently their relationship/contact with the children has been strained and not sufficiently child-focused. It appears that overnight visits with all the children may have been overly-ambitious. They have been the proxies for their son. They have a large investment in what happens next.
(d) There is an unexplained disconnect between the positive observational notes from the access visits at the Salvation Army Access Center and the children’s growing resistance to attending access visits. The comment Noah made to Ms. Furlonger, the program coordinator at the access center, as reported on page 23 of the Conboy report, that when he did not attend access visits “everything is good at home” prompts me to question the true nature of the applicant’s messaging to the children.
(e) The applicant’s position that the respondent should have no access is contrary to the maximum contact principle which operates to promote contact with both parents that is appropriate in the circumstances. There is evidence from which it could be inferred that the applicant has not sufficiently encouraged the children to attend access visits. The applicant’s Facebook reference to the respondent as a “waste of flesh” reinforces my messaging concern.
(f) Unless access is implemented soon, there is a risk that the children will grow even further apart from the respondent. I appreciate that the applicant needs support in her role as primary parent, especially now with a sick child to care for and dealing with a judicially-imposed access regime will be a complicating factor. However, it appears to me that there is a real risk that the applicant’s visceral dislike of the respondent may have coloured her perspective and actions vis-à-vis the children’s relationship with their father and if left unchecked, may result in permanent damage to the relationship, which is not in the children’s best interests.
(g) It is unclear whether Dr. Joynt is providing therapy or counselling to the children. It seems that she is an advocate for the applicant’s position on access. It does not appear that she has had contact with, or input from, the respondent. At the same time, her reports of what the children have told her are significant and highlight the need to proceed cautiously.
(h) The evidence suggests that the respondent needs to commit to increasing his parenting capacity. While Dr. Eccles indicated that the respondent is at low risk to re-offend in a sexual manner, there are significant qualifications to this opinion. In particular his comment that the respondent scored very much above average on the Self-Deceptive Enhancement subscale is cause for concern. It points to a lack of personal insight. The respondent may not fully appreciate the children’s reluctance to see him.
(i) Daytime access for the respondent for limited periods of time with others present does not present any sort of safety risk for the children.
Post Motion Developments
[20] At the hearing of the motion, I invited counsel to consult and determine whether a mutually-acceptable access arrangement could be negotiated and I indicated that I would withhold my decision for a brief period in order to allow discussions to occur. Subsequently I was provided with “supplemental submissions” on behalf of the applicant on the access issue and a “therapy and access proposal” from the respondent and co-respondents. In addition, I was provided with the report of Laura Conboy dated May 5, 2015, a clinical investigator engaged by the Office of the Children’s Lawyer.
[21] The applicant’s current position is that telephone/Skyping would be suitable together with written communications but is opposed to face to face contact.
[22] The respondent’s current position sets out a detailed access regime complemented with a reunification or re-integration therapy proposal. The applicant agrees when access resumes, it ought to be conducted with therapeutic assistance. The respondent’s therapy proposal ought to have been detailed before the motion, not afterwards, as it puts the applicant at a disadvantage. In my view it may be beneficial to have third party assistance to facilitate the re-establishment of access and visitation but this issue was not well-developed when the motion was argued and will not form part of an order at this time. This is a matter that the parties will have to address with the assistance of counsel. The involvement of a third party to facilitate access will require a consensus between the parties on how to proceed.
[23] Respecting the report of the clinical investigator, it is unfortunate that it was not available when the motion was argued and I have not had the benefit of submissions on the investigator’s observations and conclusions. The clinical investigator’s opinion was that “access cannot be supported at this time as it appears to be having an adverse effect on all of the children” notwithstanding that the children were not interviewed nor were observational visits conducted. The writer acknowledged the incompleteness of the report. These factors lead me to conclude that less than the usual weight ought to be accorded to the report.
Disposition
[24] The applicant’s request to terminate the respondent’s access is dismissed.
[25] The applicant’s request to terminate the access of paternal grandparents is dismissed.
[26] The applicant’s request to relocate to the London area is granted.
[27] The respondent’s request to amend his pleadings to include a request for custody is granted.
[28] The access request of the respondent is granted effective immediately, to take place in and around the City of London on the following conditions. The respondent’s access visits must include the full-time presence of either one or both co-respondents so that at least one of the co-respondents will be present when the respondent is exercising access. The access visits may occur as frequently as one weekend in six, initially up to 2 hours per day on Saturday and Sunday, increasing to up to 3 hours per day after the first visit. The access exchange location is to be mutually agreed upon, failing which the respondent shall select a location in the vicinity of the children’s home.
[29] Mikayla can decide whether she wishes to participate in the access visits or not.
[30] The need to approach the access visits cautiously and with sensitivity to the children’s perspectives and concerns cannot be overstated.
[31] After the first visit, the applicant and the respondent will take reasonable steps to arrange for telephone access once per week, up to 10 minutes per child. Recording of conversations is prohibited. The parties shall be flexible and accommodative in making telephone access arrangements.
[32] Written communications with all the children, provided they are constructive and positive in tone and outlook, are permitted for both the respondent and the co-respondents.
[33] The parties are directed to make reasonable arrangements that are consistent with the terms of this endorsement so that Sophie can resume contact with the respondent, including in-person access, with either or both co-respondents present. Because of her illness and treatment regime, customized access arrangements may be required. In fact, the needs of each child shall be considered individually. A “one size fits all” approach may not be appropriate.
[34] The request for reunification/reintegration therapy was unsupported at the hearing of the motion by any particulars- who/what/where/when- and in the absence of these details at the relevant time leads me to conclude that the request ought to be dismissed without prejudice to a further motion with better evidence.
[35] I have received costs submissions from the parties. There are several components to the various cost claims advanced by the parties:
(a) The respondent’s motion relating to Sophie’s illness and hospitalization that was argued on January 19th;
(b) The respondent’s motion for resumption and expansion of access;
(c) The respondent’s request for reunification therapy;
(d) The applicant’s motion to terminate the respondent’s access;
(e) The applicant’s motion to relocate to a new community.
[36] The applicant claims costs of about $17,000.00 which includes her court appearances on both January 19 and April 29. The applicant was successful in relation to subparagraphs (a) and (e) set out above.
[37] The respondent breaks down his costs claims into two components: i) $3,565.00 to and including January 19, and ii) $10,043.00 for legal services provided subsequent to January 19.
[38] The co-respondents claim $5,197.00.
[39] In all cases these claims are based on the full hourly rate of the various lawyers (full indemnity) rather than a portion of these hourly rates, typically 60% (partial indemnity).
[40] In the absence of a favourable written offer to settle or improper conduct warranting sanctions by the court (neither of which is present here) the usual basis for recovery of costs from an opposing party is on the partial indemnity scale.
[41] The applicant has docketed about 14 hours to and including the hearing on January 19 or $10,200.00, 60% of which is about $6,100.00. The applicant was successful on January 19.
[42] Regarding the hearing on April 29, success was divided. As between the applicant and the respondent I make no order as to costs respecting the court hearing on April 29, 2015.
[43] As for the co-respondents, their participation in the proceeding on April 29 was marginal. The nature of their access has necessarily changed because of the children’s move to London but access has not been terminated. The co-respondents’ bill of costs includes travel time which is usually not permitted on a party and party basis. I allow the costs claim of the co-respondents in the amount of $1,250.00 inclusive of disbursements and HST.
[44] I allow the applicant’s cost claim in the amount of $6,500.00 inclusive of disbursements plus HST of $845.00 for a total of $7,345.00.
[45] Rather than requiring the applicant to pay the costs order in favour of the co-respondents, I am directing that the amount payable by the respondent to the applicant shall be reduced by the costs allowed to the co-respondents. This will have the effect of leaving the issue of the co-respondents’ costs as between the co-respondents and the respondent. The net amount payable by the respondent to the applicant will be reduced by the amount of the costs award in favour of the co-respondents. The applicant’s costs payable by the respondent are to be paid forthwith.
Mr. Justice Martin James
DATE RELEASED: June 2, 2015
CITATION: Collins v. Collins, 2015 ONSC 3558
NAPANEE COURT FILE NO.: 430/08
DATE: June 2, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
REBECCA ANN COLLINS
Applicant
-and –
MICHAEL ROBERT COLLINS
Respondent
-and-
FRANK AND JEANNE COLLINS
Co-Respondents
REASONS FOR JUDGMENT
Mr. Justice Martin James
DATE RELEASED: June 2, 2015