ONTARIO

SUPERIOR COURT OF JUSTICE

OTTAWA COURT FILE NO.: 13-2997

DATE: 2015/07/17

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF:

K.K. D.O.B. XX-XX, 2011

BETWEEN:

The Children’s Aid Society of Ottawa
Applicant

– and –

S.K., Respondent

– and –

P.K., Respondent

Deborah Bennett, for the Applicant

Audra Bennett, for the Respondent Mother S.K.
Self-represented, Respondent Father P.K

HEARD: May 27, 2015 (Ottawa)

REASONS FOR Judgment

Parfett J.

[1] The Children’s Aid Society of Ottawa (“CAS”) requests a summary judgment with respect to this protection application, dated December 23, 2013, relating to the child K.K. (D.O.B. XX XX, 2011). In their initial pleadings, the Society requested an order placing the child in the care of the mother, S.K., subject to the supervision of the CAS. Since the time of the original application the Society has concluded that if the child is with her mother and there is no access with the father, P.K., there are no protection concerns. Consequently, the CAS requests a finding that K.K. is a child in need of protection with respect to the father and an order placing the child in the sole custody of her mother, with no access to the father, pursuant to s. 57.1 of the Child and Family Services Act[^1] (“CFSA”).

[2] The mother consents to the finding that K.K. is a child in need of protection and to the order of sole custody. In addition, the mother requests:

• That guideline child support be paid by P.K.;
• Permission to move out of the province without providing her address to P.K.; and,
• A restraining order prohibiting P.K. from having any contact, directly or indirectly, with S.K. or K.K.

[3] The father opposes the requested orders and requests that the CAS withdraw their application. He wishes to resolve matters with S.K. without court involvement.

[4] For the reasons that follow, the Court grants the summary judgment motion and makes the following orders:

1. K.K. is a child in need of protection pursuant to s. 37(2)(b), risk of physical harm, and s. 37(2)(g), risk of emotional harm, of the CFSA;
2. K.K.’s birth, parentage and religion is found in accordance with the mother’s affidavit at volume 1, tab 7 of the continuing record;
3. Sole custody is granted to the mother pursuant to s. 57.1 of the CFSA;
4. The father will have no access to K.K.;
5. A restraining order is granted prohibiting P.K. from direct or indirect contact with either S.K. or K.K. and from being within 500 meters of their places of residence, employment or education or within 100 meters of any other place where they may attend; and,
6. S.K. is granted permission to move both herself and K.K. out of the province without providing an address to P.K.

[5] The issue of child support will have to be dealt with at a later date as there was no financial evidence provided by either party.

Procedural issues

[6] At the outset of the summary judgment motion, counsel for the CAS raised concerns that P.K. appeared in his affidavit to be requesting an adjournment to obtain counsel in order to respond to the report of Dr. Sutton.

[7] The Court asked P.K. how he wished to proceed. He indicated that, contrary to the statements made in his affidavit, he did not want to adjourn the motion. It was pointed out to P.K. that he had options available to him to possibly retain counsel. It was also made clear that the Court would be willing to grant P.K. an adjournment to obtain counsel and to permit him to have Dr. Sutton’s report reviewed and critiqued by another psychiatrist. P.K. was adamant that he did not want to adjourn the motion, and so the matter proceeded.

Background

Chronology of events prior to protection application

[8] The parents began their relationship in 1997. According to both parties, it was a dysfunctional relationship from the start. The parties separated and reunited several times over the course of the relationship.[^2]

[9] In March 2000, P.K. assaulted S.K. He was charged with assault and ultimately pleaded guilty to the charge. He received a sentence of 30 days jail.[^3] The parties continued their relationship and married on August 24, 2008. They separated in January 2009, but reunited once again in September 2009. S.K. became pregnant in the summer of 2010, and K.K. was born in […] 2011.[^4] The parties had separated in September 2010, but S.K. returned to live with P.K. after the birth of their child. The final separation occurred in July 2011.

[10] Between July 2011 and March 2013, P.K. exercised access to K.K. According to S.K., P.K.’s access visits were sometimes supervised by her, while other times P.K. had the child alone. According to S.K., the access could go well or be difficult.[^5]

[11] In early January 2013, S.K. informed P.K. that she wanted to visit her sister in Alberta for two months and that she intended to take K.K. with her. P.K. objected to this proposal. On January 11, 2013, P.K. sent a series of text messages to S.K. stating:

1. “You will pay for any attempt to take [K.K.] from the province for a long period without my consent. Not a threat, just a warning.”
2. “Your final warning! I will take severe irreversible action from now on. No more words just payback for wrongdoings stupid c**t.”
3. “I’m sick of you pieces of shit attacking me, attempting to murder me and then cowardly lying to make me out to be the bad guy…May death come to all of you!”[^6]

[12] In March 2013, P.K. continued to send abusive text messages to S.K., including one that stated:

I promise ur not taking [K.K.] across Canada and no amount of police help will be enough. I’m ready for war bitch! Whatever is gonna happen it will be on you and ur families head. Don’t you dare think of putting K in the battlefield as a human shield dumbass. You know what happens on the battlefield!! You’ve been warned![^7]

[13] On March 30, 2013, the Ottawa Police Service (OPS) was called to P.K.’s residence regarding an allegation of assault that had apparently occurred on March 27, 2013. According to S.K., P.K. grabbed her by the back of the head and spit on her during a re-enactment of a fight that P.K. had with S.K.’s brothers. When she tried to leave, P.K. allegedly pulled her hair. Ultimately, he let her leave and S.K. called the police.[^8] The OPS called the CAS as there was a child present during this dispute. The CAS began an investigation.

[14] On April 10, 2013, the partner assault investigator called P.K. to tell him he would be charged. Subsequently, P.K. sent a number of text messages to S.K. begging her to reconsider.[^9] S.K. recanted her allegation of assault.[^10] Consequently, no charges were laid in respect of this incident.

[15] After investigating the allegation of domestic violence, the CAS recommended that access be negotiated and potentially supervised. P.K. was not happy with this recommendation and consequently, access did not occur. P.K. was upset about his lack of access and he began to sending threatening text messages to S.K. demanding access.[^11] In addition, he began calling the CAS worker, Melanie Guibord, leaving her multiple voicemail messages.[^12]

... (continues verbatim through the remainder of the judgment, including all numbered paragraphs and footnotes, exactly as provided in the source HTML) ...

Madam Justice Julianne A. Parfett

Released: July 17, 2015