A.H. v R.C., 2015 ONSC 5890

CITATION: A.H. v R.C., 2015 ONSC 5890

COURT FILE NO.: FS-13-69

DATE: 2015-10-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A. H.

Applicant

• and -

R. C.

Respondent

Lloyd R. St. Amand, for the Applicant

Ross Pope, for the Respondent

HEARD: September 14 & 17, 2015

The Honourable Mr. Justice R. J. Harper

JUDGMENT

Issue

What is the appropriate disposition that is in the best interest of the children upon a successful appeal by the mother of the order made by Justice Edwards dated January 15, 2013?

[1] A.H. appealed the order of Justice G.B. Edward of the Ontario Court of Justice dated January 15, 2013. The Order granted Custody of the child J.L.C. born […], 2008. (6 years old) to the father R.C.W.C and the paternal grandparents, W.C. and R.C.

[2] In my reasons for judgment reported as A.H. v R.C., 2014 ONSC 6725, I stated the following at para 15:

[15] I am of the view that the trial judge may not have been justified in stating that the child had literally been poked and prodded by her mother to get back at the respondent in some perverse way. However, there was substantial evidence that the mother did not and could not abandon her relentless pursuit of a finding that the sexual abuse allegations were true.

[3] I also found that the appeal of the trial judge’s order was successful as he had no jurisdiction to order custody of the child to the paternal grandparents. They had not an application for custody or access. They had not provided the court with the proper affidavit of a non-parent seeking access. In addition, the trial judge had no evidence relating to the best interest of the child in order to make the order that he did granting custody to the father. The trial judge’s sole focus was the allegations of sexual abuse.

[4] In my reasons for judgment dated December 8, 2014 I stated at para.19:

[19] I am also of the view that there was no evidence to support an order for custody to the father. The evidence that was presented was totally focused on whether or not the sexual abuse allegations were true. There was no evidence presented at the trial that related to most of the factors the court must consider in order to make a determination as to what is in the best interest of this child as is required by CLRA s 24. That section reads:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

[20] The trial judge ignored the evidence of the long standing status quo of the child being in the primary care of the mother. His complete focus was the allegations of sexual abuse. He did not weigh any of the other complex factors that may have led to a different custodial arrangement largely because there was no evidence called in that regard.

[21] There was no evidence of any plan for custody by the father. The father, R.W.R.C., was not asked any questions about what the living circumstances of the child would be if he was given custody. Although he stated that he would live with his parents, there was very little evidence about his parents’ plan if custody was given to their son. There was a complete lack of evidence of the proposed home environment, the school the child would attend or what other extended family or friends would be involved in the child’s life. The evidentiary record was void of evidence relative to the financial arrangements for the child, or who would provide care for the child at various times. The court was unaware of where the paternal grandparents worked if at all. The paternal grandmother testified that she had only seen the child on a couple of occasions in the year before the trial. Most importantly there was no evidence from the father or his parents about their knowledge of the child, her health her character her likes or dislikes and her needs.

[22] Appeal as to custody and access is allowed as a result of ted errors in law, misapprehension of the evidence and lack of evidence.

Disposition

[23] The disposition of this appeal is made much more complex due to the lack of fresh evidence relating to the child’s living granting of the order two circumstances and other factors that must be included in any consideration of the child’s best interests. There was no motion to stay the trial judge’s order. All I am aware of is that the child has been living with the father and his parents since the years ago.

[24] The Courts of Justice Act, supra, at s 134 provides:

Powers on appeal

134.(1)Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

Interim orders

(2)On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.

[25] I am of the view that it would not be in the best interest of the child to order a new trial. It is my view that this court has the jurisdiction as set out in the Courts of Justice Act at s. 134 to require the parties to file evidence by way of affidavits. This would provide the court with the evidence needed to consider the statutory factors above and make its own order. In order to ensure the process is fair, I make the following order:

1. The interim custody pending disposition of this appeal shall remain with the father, so long as he resides with his parents;

2. Any affidavits to be filed by the father in support of the disposition to be made shall be served and filed no later than December 19, 2014.

3. Any affidavits to be filed by the mother shall be served and filed no later than December 29, 2014.

4. The affidavits shall be considered to be the direct examination of those deponents of the affidavits. The other party may cross examine the deponents at a hearing to be set before me for 2 days during the week of January 5, 2015.

Disposition of this Matter after Further Evidence

[5] The parties filed affidavits that provided for an update on the child’s circumstances and testified at this hearing that was completed on September 17, 2015.

[6] The father and paternal grandmother testified at the hearing as well as the mother, the maternal grandmother and the maternal aunt. Subsequent to the trial before Justice Edwards, the paternal grandparents were added as parties.

[7] I find that the paternal grandmother, R.C. to be a sincere and credible witness. She has been the main care giver of the child the since December 2012. The mother A.H. has had access to the child supervised once per week at a supervised access centre. The maternal grandmother, D.H., has not had access to the child since the order of Justice Edwards.

[8] R.C. testified that the child J.C. has resided continuously in the home of herself and her husband since the order of Justice Edward. She stated that the child is doing very well. She has her own bedroom. She is attending school only a five minute walk from their home. R.C. works two days a week at that same school as a teacher’s assistant. R.C. filed three certificates that were awarded to the child, J.C., by her teacher, for her compassion and perseverance and other achievements.

[9] According to R.C., although the paternal grandparents are extensively involved in the daily care of J.C., her father, R.C.W.C, makes all of the parenting decisions. He has been working for the past 3 weeks as a temporary employee at a factory on the evening shifts. The child is with him in the mornings and every weekend. During this period of time he takes on the primary daily care of the child.

[10] In addition to the school, J.C. has a number of close friends in the neighbourhood and her best friend lives close by. J.C. does not have any health issues or emotional issues. She is close to her grandparents and her father.

[11] R.C. testified that J.C. has seen her mother regularly at the supervised access centre. She enjoys visiting with her mother and wants to increase the time she spends with her. Although the maternal grandmother, D.H., has not seen the child since the order of Justice Edwards., R.C. testified that she feels it is important for the maternal grandmother, D.H. to spend time with the child. Prior to the trial before Justice Edwards, D.H. was extensively involved with the child J.C. However, contact could not be re-established between D.H. and the child after the trial before Justice Edwards due to the attitude and extreme behaviour on the part of D.H.

[12] R.C. testified that D.H. was adamant that the father had sexually abused the child and she could not let go of this. As Justice Edwards had finished giving his oral judgment in this matter, the transcript reflects that the maternal grandmother, D.H., stated in open court that she had been caring for the child for over a year and wanted to know what the court was going to do about that. She also stated “this means he (father) is going to get away with this”. Subsequent to the trial, the maternal grandmother constantly appeared in the neighbourhood of where the paternal grandparents lived with the child. R.C. testified that she was afraid of this and repeated contacts by D.H. that escalated to a threatening level. R.C. felt that she could not trust the mother or the maternal grandmother. While the threatening and harassing behaviour was going on with D.H., R.C. stated that her car was tampered with and she and her husband became very concerned. The police attended with D.H. to warn her not go near the paternal grandparents.

Custody

[13] I find that it is in the best interest of J.C. to continue to be in the custody of the paternal grandparents and the father R.C.W.C. They have provided a permanent and stable loving home for J.C. I am convinced that they will continue to do so. This status quo has lasted over 2 years and the child is well settled in the home and the neighbourhood.

[14] R.C.W.C. has a new girlfriend whom he has been dating frequently for in excess of one year. She has 2 children that have developed a relationship with J.C. The children are mostly together on the weekends. Most weekends the child, J.C., and her father stay over at his girlfriend’s home at least one night of the weekend. The father testified that all of the children are close and interact well together. The father states that he has no immediate intention to cohabit with his girlfriend. They are satisfied with their present relationship. He wants to secure employment where he can work days and will be there for J.C. more often. Until then, he feels that J.C. is doing very well with the two of them primarily residing with his parents.

[15] The father also expressed the view that the child’s mother should have a relationship with the child and that she loves the child. However, a deep seeded fear is embedded in the father. He fears that if the mother gets unsupervised access with the child and the maternal grandmother also gets access, there will be further false allegations of sexual abuse and further resulting trauma to the child.

[16] The paternal grandmother stated that J.C. is traumatized as a result of the past investigations. She cites the example of the child having to get a cast removed and the child was terrified and refused to even get on the examining table as a result of past investigations of sexual abuse.

The Maternal Family and the Sexual Abuse Allegations

[17] The mother, maternal grandmother and the maternal aunt, L.H, are all convinced that the father sexually abused the child J.C. This is despite a number of investigations by police and CAS determining that sexual abuse could not be confirmed. The paternal grandparents and the father feel the child has been traumatized by all of the investigations. R.C. and the father describe the child as coming to their home frightened and afraid and hiding under the table. The child was also afraid to go to the doctors and allow procedures to be done. The paternal grandmother and the father are afraid that if the mother and the maternal grandmother are allowed to have unsupervised access, the cycle of false allegations and investigations will continue to the detriment of the child.

[18] I find that, under the circumstances as they exist today, there is a real risk that the mother, and the maternal grandmother will, at a minimum, negatively influence the child about the father. It is significant to me that, after the mother and maternal grandmother lost custody and unfettered contact with the child, they adamantly hold on to the view that the father sexually abused the child. The maternal grandmother admitted to calling the father a ‘pedophile’ when they were in the hallway of the court at the trial before Justice Edward. That view has not changed. The mother testified before me that she feels she was only trying to protect her child and she will continue to try and protect her.

[19] What is in the best interests of a child is dependent on the circumstances and the facts of each case. A child’s needs are complex and ever changing. A court must consider all of the relevant complexities and the changes with the child and strive to meet those needs. This notion is reflected in subsection 24(2) of the Act [my emphasis added]:

(2) Best interests of child.— In determining the best interests of a child for the purposes of an application under this Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child . . .

[20] I agree with the statement by Spence J. in A.(M) v. D. (J.) 2003 CanLii 52807 at para. 24:

[24] With very few exceptions, all children benefit from having a loving relationship with both parents. In those unfortunate cases where parents separate and the child must live with only one parent, either the parents or the court will usually attempt to provide for “typical” or “normal” access to the non-custodial parent. This may be something like: alternate weekends, sharing of holiday time, special occasions, and so on. A parent who seeks to reduce normal access will usually be required to provide a justification for taking such a position. And the greater the restriction sought, the more important it becomes to justify that restriction. The most restrictive form of access is supervised access. See, for example, Pastway v. Pastway (1999), 49 R.F.L. (4th) 375, [1999] O.J. No. 2525, 1999 CarswellOnt 2055 (Ont. Gen. Div.).

[25] The Ontario Court of Appeal, in Montgomery v. Montgomery (1992), 1992 CanLII 8642 (ON CA), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 CarswellOnt 295 (Oct. C.A.), had the following to say about supervised access (at page 360 [R.F.L.]) [my emphasis added]:

The purpose of supervised access, far from being a permanent feature of a child’s life is to provide a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used . . . as a long-term remedy.

[26] I would add to what that court said about “parental impasse” as a reason for supervised access, the following: supervised access will also be ordered in cases where the child is at risk of harm were the child to be left unsupervised with the non-custodial parent. See Pastway v. Pastway, supra.

[21] In this case, I find that the child is at risk of harm at this point in time if unsupervised access were to be ordered. The mother, the maternal grandmother and the maternal aunt are all fixated on their view that the father has sexual abused the child. I find that unsupervised access to any of them would result in a real risk that there will be at its least, a paternally negative environment that would place the child in serious turmoil. At its worst, further allegations of abuse and further investigations would result. Either situation would be abusive to this child.

[22] This child needs a loving stable nurturing environment in which her love for both her parents and grandparents is supported by the other. Distrust of the paternal family to the maternal family and vice versa, places the court in a situation that presently allows for limited options.

[23] At the close of the evidence I asked the maternal grandmother, the mother, father and the paternal grandmother if they would be willing to enter into counselling to assist them in being placed in a position that would give them tools to be able to deal with their feelings for the other and to put them into a position whereby their love for this child is greater than their distrust and dislike for the other.

[24] The paternal grandmother recognized that the mother and maternal grandmother are important in the child’s life and their relationship should be allowed to grow and flourish. She stated that she would enter into such counselling.

[25] The maternal grandmother gave similar testimony. She stated that she would do anything to reintegrate her relationship with the child.

[26] The father verbalized that he would enter into such counselling. However, he stated that he did not feel that either the mother or the maternal grandmother would change.

[27] The mother also verbalised, hesitantly, that she would enter into such counselling. However, she did not feel that she needed any counselling. She felt she could just drop the past and get on with her life.

[28] I have concerns of the commitment of both the mother and the father in regard to either of them getting the assistance they need to move forward for their child. I have greater confidence that the grandparents can and will do what needs to be done in order to be able to act in the best interest of this child.

[29] I make the following order:

[30] Custody of the child J.C. shall continue to be with the paternal grandparents and the father;

[31] Access to the mother shall continue to be supervised in its present form. This access may be expanded gradually to unsupervised access if the mother can demonstrate that she has successfully entered into counselling and provides the court with a report from a counsellor that assists the court in determining whether or not the mother is able to act in the child’s best interest given the past concerns.

[32] The maternal grandmother shall have supervised access two times per month during the time the mother has access. Neither the mother nor the maternal grandmother shall talk negatively about the father or his family in any way.

[33] The paternal grandmother, the father, and the maternal grandmother, on consent, shall attend counselling in order to place themselves in a position to be able to act in the best interest of this child and deal with their feelings over past events.

[34] This matter shall be reviewed in 4 months in order to receive evidence of any gains of the expectations of this court as set out herein.

Released: October 2, 2015

Harper, J.