ONTARIO

SUPERIOR COURT OF JUSTICE

KINGSTON COURT FILE NO.: 306/13

DATE: 2015/07/31

BETWEEN:

J.C.
Applicant

– and –

A.H.
Respondent

Douglas R. Haunts, for the Applicant

Stephen L. Zap, for the Respondent

HEARD: July 21, 22 and 23, 2015

REASONS FOR JUDGMENT

MINNEMA J.

Nature of the Case/Issues

[1] The parties dated for at least four months and never lived together. Sometime after ending their relationship the mother had a female child. The father’s paternity was eventually established by D.N.A. testing; he insisted the child was his and the mother was not certain. The father’s initial access was limited and supervised by the mother’s family. Close to one year ago it moved to the Salvation Army Supervised Access Centre (“SASAC”) for one hour per week and that continues. The child is now over two and a half years old.

[2] The father brought an application seeking joint custody and shared parenting but has since agreed to sole custody to the mother and that order has been made. So the main issue before me is whether the access should remain supervised and at the SASAC. Child support also needs to be determined.

Background Facts

[3] At the time of trial the applicant father, Mr. J.C., was 20 years old, and the respondent mother, Ms. A.H., was 19 years old. When in their mid-teens both were rather difficult for their respective mothers to control. The child L.S.H. was born in […] of 2012, when the parties were 17 years old.

[4] The report from the Office of the Children’s Lawyer (“OCL”), dated June 3, 2014, was in evidence on consent. It summarized the history of the parents. Its author, clinical investigator Sandra Kapasky, questioned both their individual abilities to care for the child. The child’s maternal grandmother (“MGM”), was noted to have taken the lead parenting role for L.S.H. Regarding the father, the report noted that he had limited parenting experience, serious stressors as a child, and had been sexually active at a young age.

[5] The father’s sexual behaviour was given considerable attention in this trial.

[6] At age 11 the father and a girl the same age were sent home from a summer camp because of sexual activity. In high school there were a number of simultaneous complaints from six girls all around his age of 14, alleging sexual assaults in the nature of touching breasts and his putting a hand down their pants while kissing. These were investigated by the police and no charges were laid. Ms. Kapasky characterized them as “unsubstantiated.”

[7] The mother indicated to the clinical investigator that the father was obsessed with sex. He did not deny it. However, in her evidence she acknowledged that she was a willing participant with numerous daily encounters. The exception was their very last time which she said occurred after the relationship had already ended. She alleged that she met the father at a shopping mall where he worked, and was forced into sex in a baby-change room. Both parties were age 16 at the time. There were a number of reasons to question her account. It was not referred to in the OCL report. When cross-examined, the mother’s story varied somewhat. She said that the father persisted in requesting sex and she acquiesced, adding that she only did so because she was fearful for her safety. There was no evidence of past physical abuse or violence by the father in support of that alleged fear. The mother told the MGM about the encounter who in turn called the police. It is unknown what was said in the course of the investigation, but no charges were laid. The last inconsistency was that the mother told the clinical investigator that her relationship with the father ended when she was pregnant. Yet, per the above account, it already ended before this last coupling at which time the child was conceived.

[8] Although not referred to in the body of the OCL report, both the mother and MGM admitted in their evidence that when interviewed by the clinical investigator they told her that the father was a pedophile and grooming L.S.H. for sex. The bases for that very serious allegation were as follows. The father’s initial access was in the maternal great grandmother’s (“MGGM”) home, supervised by her and the MGM. The MGM observed the father hold the child on his lap, which she thought in itself was concerning. At other times she claimed observing that he held the child on his chest while in a reclined position, low enough that there was contact between her feet/legs and his genital area. She also claimed to have viewed something inappropriate on the father’s cell phone; however what it was did not come into evidence. The MGGM said she saw the father swing the child up and down such that her feet came into contact with his genital area. The mother indicated that she observed the father applying diaper cream inappropriately, although the context was unclear; great pains were taken to ensure that she did not have any contact with the father and she was not involved in the access supervision. I had trouble following how the sum of these occurrences over a year and a half of closely supervised access could lead to an unshakable conviction that the then 18 year old father was a pedophile.

[9] The clinical investigator indicated in her report that additional information about the father’s behaviour was required, and made certain recommendations including that access begin taking place at the SASAC, that the father supply proof of completing a parenting course and of seeing a personal counsellor, and that he attend at Dr. Eccles’ clinic and provide a copy of the report upon receipt. Dr. Eccles is a registered psychologist providing forensic behaviour services related to sexual behaviour. The parties consented to a court order along those lines on July 2, 2014. The father indicated in his evidence that he did connect with a counsellor but did not follow through. No letter was provided. He and his mother testified that he attended parenting classes, which was not disputed, but there was no certificate or proof from the instructor as to what was accomplished. The father did, however, fully comply with the central recommendation regarding Dr. Eccles.

[10] That report, co-authored by Dr. Eccles and a practicum student, is dated September 9, 2014, and was in evidence on consent. Dr. Eccles noted that while the father admitted that he can be “pushy” and persistent in efforts to have sex with reluctant women in the hope that they will change their minds, there was no evidence that he had ever used physical force. He has no adult history of sexually inappropriate behaviour with children or underage girls. However, the testing supported that the father has a rather low threshold for “sexual responsivity”, meaning that he demonstrated heightened arousal for most categories of sexual stimuli. Dr. Eccles explained that such a response did not mean that the father is likely to act in a planned manner to engage in sexual behaviour with children, but it did suggest that nudity or close physical contact with individuals who do not match his primary preference, being adult women, may nonetheless elicit a sexual response. This led Dr. Eccles to conclude with the following passage which was the focus of both parties in this trial:

We have no evidence that [the father] presents a risk to children per se. However, given that his arousal is not necessarily inhibited by cues of age, as phallometric test results suggest, it might be prudent for him to avoid changing his daughter’s diaper or bathing her, especially if he is not being supervised.

[11] The father’s access at the SASAC took a while to organize and as a result Dr. Eccles’ report was received before it commenced. Before the first visit the mother and MGM attended at the SASAC to show the Coordinator a copy of the report and express their concerns about the father holding the child on his lap. Very sensibly, the Coordinator imposed conditions that the father not diaper the child or change her clothes during visits, but no restrictions were put in place with respect to his holding of the child.

[12] While the court order of July 2, 2014 provided for access at the SASAC for “up to two hours per week”, the MGM, who handled all the arrangements on behalf of the mother, refused to agree to anything beyond one hour. The Observational Report from the SASAC for the weekly visits from September 10, 2014 to October 22, 2014 was in evidence. It indicated that the father’s access went well. No concerns were noted relating to how the father holds or handles the child. Although the father continues to attend regularly, neither party felt the need to request an update in light of the modest cost. Interestingly, some of the MGM’s communications with the SASAC staff were also noted. She had mostly negative things to say about the father. The following is the excerpt from the end of the second visit:

[MGM] arrives on time. [Father] is informed that the visit has ended. [Father] says, “Okay it’s time to go.” He exchanges a hug and a kiss with [Child]. He says “I’ll see you next week.” The Family Monitor walks with [Child] to the entrance. Staff hands the grapes and crackers to [MGM] who says, “Well they’re cut this time. That’s a start. Last time they weren’t.” [MGM] says, “[Child] is in daycare but I don’t want him to know, but she has a snack right before she comes, so he doesn’t need to bring any.” The Family Monitor says goodbye and they will see them next week. [MGM] smiles and says, “I hope not” and leaves with [Child]. [Father] leaves the Centre after the wait period has ended.

While it was not disputed that both the MGM and the mother would prefer that the father not have any access, what the above exchange also shows is the MGM communicating her negative feelings about the father in front of the child, and her wish to hide information from him.

[13] I understood that the MGM had only ever spoken to the paternal grandmother once, and then very briefly. However, she was adamant that the paternal grandmother would be unable to supervise access because years earlier, as a rebellious 16 year old, the father lived “on the street” for about four months. This is not withstanding that the MGM’s own child, the mother, also lived on the street for one month during that time. Living “on the street” equated to “couch surfing”, meaning they lived briefly with whatever friend would allow them to sleep over, or in a shelter, but not at home.

[14] I heard evidence from the paternal grandmother, a paternal aunt, a family friend, and the father’s girlfriend. They are all intelligent, none have a criminal record, and each was willing to support the father in seeing his child, which included providing supervision and abiding by any court ordered conditions. There was nothing to suggest that any of those witnesses would be unreliable access supervisors, subject of course to their availability; all had gainful employment and the father’s sister lives about an hour away.

[15] The father’s girlfriend is young, the same age as the mother at trial, but she presented as significantly more mature. She and the father have been dating for one and a half years, and are expecting a child in November. The father has been accompanying her to pre-natal classes. They are not living together yet because she is tied to a lease in her present accommodation. They plan to cohabit when the child is born. She holds both a full and part-time job, with separate reputable employers. She has an understanding of the father’s sexual history, and indeed was interviewed for the Dr. Eccles’ report. She was completely frank and believable when she explained assertively how she and the father have been able to manage his rather voracious sexual appetite by better communication.

[16] Unfortunately the child L.S.H. has some developmental delays. Her speech is clearly behind, and other possible delays are being explored. She is not yet ready to be potty-trained. She was recently seen by a speech therapist who provided recommendations to the MGM. These were not communicated to the father. Despite the concerns, L.S.H. appears to be a happy and very active little girl.

Analysis – Access

1. Law

[17] The parties never married. The legal test for access is therefore found in the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (“CLRA”). Section 24(1) directs me to determine this proceeding on the basis of the child’s best interest in accordance with subsections 24(2), (3) and (4). Subsection 24(2) directs me to consider all of the child’s needs and circumstances with specific items mentioned; not all are applicable to access although that list is not exhaustive.

2. Child’s Needs and Circumstances

(a) Plans

[18] The father’s plan for access is not ambitious at this stage. He would like it moved away from the SASAC. He does not see the need for supervision, but is content to follow Dr. Eccles’ recommendations. He feels there should be a graduated expansion of his time with the child. He lives on his own in a one bedroom apartment that was described as neat and clean. As noted, he and his girlfriend plan to live together with a new baby come November.

[19] Despite her pleading otherwise, the mother wished that the access could end all together. If not, she wanted it to continue at the SASAC indefinitely. If the court was not prepared to do that, she was willing to have it supervised again by the MGM and MGGM in the latter’s apartment. She would not entertain access being supervised by any of the father’s witnesses except, possibly and reluctantly, the family friend upon hearing her evidence.

(b) Emotional Ties and Relationships

[20] The father has always pushed for more time with his child but this has been thwarted by the mother and her family, who again unabashedly said they prefer that he have no contact at all. They see his requests as harassment. At essentially one hour a week since the child’s birth, the relationship between father and daughter is still embryonic. The father wants to develop meaningful and close ties. His family members, as a result of being blocked, have no relationship.

[21] While this analysis is dealing just with the father’s access, it was clear that both the MGM in particular and the MGGM to a lesser degree have taken on significant roles in the child’s care.

(c) Child’s Views and Preferences

[22] Even if she were not delayed, the child is much too young to be able to provide her views and preferences. The MGM suggested that the access should continue at the SASAC as L.S.H. is familiar with that setting given that she also attends church there. However, the child moves between the mother/MGM’s home, the MGGM’s home, the day-care, and the SASAC with no noted concerns. The child’s apparent comfort at that facility cannot trump access in the father’s home.

(d) Status Quo and Stability

[23] The fact that the father has only ever had limited supervised access to the child is not a status quo that is in the child’s best interests. I do not accept that increased access to the father will impact the child’s stability.

(e) Parenting Ability

[24] Other than the cloud regarding Dr. Eccles’ recommendation, there is nothing convincing me that the father is having any difficulty meeting the requirements of an access parent. While he has not provided the required proof of completion for the parenting course he has attended, he is in pre-natal classes with his girlfriend. The SASAC report does not raise any notable concerns.

3. Summary/Conclusions

[25] In addition to the general summary of the law above, I add the following. Access is only to be ordered when there will be a benefit to the child: Worthington v. Worthington (2000), 2000 22469 (ON SC), 13 R.F.L. (5th) 220 (Ont. S.C.J.). Contact with each parent is valuable for the child, and judges should ensure that this contact is maximized where it does not conflict with the child’s best interests: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at para. 204. This ‘principle of maximum contact’ is an important consideration in determining a child’s best interests under both the CLRA and Divorce Act, R.S.C. 1985, c.3 (2nd Supp.): Wilson v. Wilson, 2015 ONSC 479, at para. 65.

[26] The mother conceded that she was still angry at the father, which might explain her resistance to his involvement. However, the MGM has been the driving force in decisions respecting the child; the mother at best agrees, at worst falls in line. The MGM was also resistant to the father’s involvement. It is not difficult to understand why. She was initially dealing with her own rather immature pregnant 16 year old. Involvement with another troubled 16 year old, the father, would not have been welcome. Further, she had good reason to be upset about their relationship.

[27] The reality is, however, that the pregnancy was several years ago. The parents, who were children themselves at the time, are now adults. The father, to his credit, has picked himself up from where he was. Although he did not complete high school, at the age of twenty he has steady employment and his own apartment. He started in the food services industry as a dishwasher and is now a cook. He has been consistent with his interest about the child, attending all available access visits. He has no criminal record, and, other than Dr. Eccles’ recommendation, the only mark against him at this stage is that he failed to follow through with the counselling and complete the parenting course. Despite the positives, the MGM and the mother have not been prepared to give him or his family any chance to become involved in the child’s life, for the child’s benefit, beyond the one hour a week supervised access.

[28] Dr. Eccles was not called as a witness. His report went into evidence on consent. His recommendations, based in part on clinical tests, were unchallenged. However, it would be impractical and unworkable for me to simply make an order giving the father unsupervised access with a condition that he not change or bathe the child - L.S.H. is not potty trained and she is non-verbal. Still, I can see no reason why the father should not have increased access so the child can have a more meaningful relationship with him, and no reason why, with numerous adequate access supervisors available, his visits should continue at the SASAC.

[29] I have already communicated to the parties my general thoughts, essentially a summary of the above, at the conclusion of the trial. I gave them an opportunity to see if they could come to some practical agreement or arrangement taking into account the schedules of the various participants. They were unable to do so, despite the benefit of experienced counsel. Therefore, considering only what is best for L.S.H., I make the following orders:

(1) The parties shall communicate by text or email. Phone numbers or email addresses shall be provided. Communications shall be limited to access arrangements and updates on the child, and remain respectful at all times. To be clear, these communications are to take place between the parties, and not through third parties.

(2) The father shall have the full right to communicate with the child’s school, day-care, medical providers, and service providers, and to obtain information from them regarding the child. The mother shall provide him with the contact information. She shall forthwith inform the father of all recommendations made by the speech therapist, so that he can implement them during his access.

(3) The father shall have access to the child one hour per week, at a reasonable time of his choosing if the parties cannot agree, as confirmed in writing. The child shall be dropped off at his home to start access. After access, the child shall be dropped off at the mother’s home by the father. Any of the MGM, the mother, the MGGM, or such other person as agreed, may do the drop off or be at the mother’s home to receive the child after access.

(4) The father shall not bathe or change the child. His access shall be supervised by any one or more of the four witnesses in this trial, or such other supervisors as agreed. The supervision shall be for the purpose of ensuring that the above condition is followed, and as such a supervisor shall be present and available at all times to assume those tasks if necessary.

(5) After three weeks the access shall expand to two hours a week, with the same conditions applying.

(6) After three weeks the access shall expand to two hours twice a week, with the same conditions applying.

(7) After three more weeks, the access shall expand to include four hours every other weekend in addition to the two hours twice per week, again with the same conditions applying.

(8) The parties may agree to vary the frequency or duration of the access visits in writing.

[30] Before the father applies to the court for further access or to relax the supervision, he shall complete the requirements of the interim order of July 2, 2014, regarding counselling and a parenting course.

Financial Matters – Facts, Law, Analysis

[31] Child support is largely determined by the Child Support Guidelines (Ontario), O.Reg. 391/97, as amended (“Guidelines”).

[32] The father has not paid any child support. However, it is not disputed that when he tried to pay it was refused. This is not surprising; it is consistent with the mother and MGM not wanting him to have a relationship with the child. Indeed, child support has not even been pled.

[33] The mother now seeks child support back to the date the child was born or at least to the date the application was started in […] of 2013.

[34] The test regarding retroact