ONTARIO
SUPERIOR COURT OF JUSTICE
NEWMARKET COURT FILE NO.: FC-11-038669-00
DATE: 20151230
BETWEEN:
Jason Gordon Wallace
M. Danielle Cunningham for the Applicant
Applicant
- and -
Angela Leona Closs
Angela Leona Closs not appearing
Respondent
HEARD: November 18 and 26, 2015
JARVIS J.
REASONS FOR DECISION
[1] A child is entitled to the opportunity to be loved, guided and supported by each parent. How then should a court deal with a parent who has not had any relationship with a six and a half year old child for almost five years in circumstances where the custodial mother declines to participate in the trial process? That is the challenge in this case.
Facts
[2] James Wallace (“the father”) and Angela Closs (“the mother”) are the parents of AW, born July 3, 2009. They met in 2007 and separated in 2010. Their relationship was fueled by drugs and alcohol. While there is no evidence that the mother had a history with the local police or healthcare authorities, the father did, resulting in criminal charges involving intoxicated behaviour and at least one involuntary admission to a local hospital for attempted suicide. The diagnosis was mood disorder secondary to alcohol abuse: it was noted that the father had had a drinking problem for years.
[3] The parties separated in July 2010 after the father suspected that the mother was involved in a relationship with their drug dealer. Until that time both parties were employed and lived in the maternal grandmother’s residence. When the father confronted the mother about his suspicions, and disclosed her drug use to her mother, he was asked to leave and so moved to his mother’s residence about a 45 minute driving distance. Soon afterwards he quit his job, and a downward spiral of alcohol abuse and depression followed.
[4] For a few weeks after they separated there was contact between the parties that led to the mother agreeing that the child, then one year old, spend weekends with his father from Friday evening to late Sunday afternoon. But that access was inconsistent, and between the date the parties separated and the last time the child spent time with his father on December 26, 2010 there were only four access weekends. Almost as often as a weekend where the child was allowed to spend it with his father, there were weekends when the child was unavailable or the mother never appeared with the child, without notice that she would not be appearing. All contact between the child and his father ended after a telephone argument between the parties before New Year 2010 during which the mother’s continuing relationship with the parties’ drug dealer, with whom the mother was then living and, so it appears, still does, was discussed.
[5] The father was unemployed, depressed, had no car or savings and was financially dependent on his mother. He was 34 years old. A downward spiral led to his admission seven months later to hospital in mid-summer 2011. He was discharged after five days and soon afterwards started this Application for shared custody and access. Since he could not afford a lawyer, he represented himself. The mother delivered an Answer that opposed the father’s custody claim, and claimed sole custody of the child, supervised access to the father. She was represented by counsel.
[6] After pleadings were exchanged, the case proceeded fitfully.
[7] This is what happened:
(1) On December 5, 2011, Graham J. ordered, on consent, that the mother have sole custody of the child on a final basis and that the father undergo a psychological assessment by a professional psychologist of the mother’s choice, at her expense;
(2) Graham J. ordered that the father have supervised access. This happened once for less than a few minutes (the child was very upset);
(3) Another term of the Order made by Graham J. provided that supervised access was to be reviewed upon completion of the psychological assessment;
(4) Graham J. also ordered the parties to undergo bi-weekly drug testing. Although the father complied with testing on a monthly basis, and provided those results to the mother through her counsel, the mother never provided any drug screens. She did not comply with the Order;
(5) On August 24, 2012, Healey J. appointed the OCL. Although the OCL became involved in the case in a manner not evident from the evidence heard at trial, its file was closed after learning about the psychological assessment;
(6) A psychological assessment of the father was reported by Dr. Howard Waiser on October 23, 2012. Briefly, that report recommended supervised access only;
(7) On December 14, 2012, McCarthy J. ordered supervised access, this time through a Supervised Access Centre (“SAC”) for a three month trial period. The father completed his intake with the Centre but no access ever took place as the mother did not participate in the process. The Centre closed its file;
(8) On April 12, 2013, Healey J. ordered (again) supervised access. The father complied with the Order; while the mother completed the Intake with the SAC, she never followed up with the SAC when access would begin, and so the Centre closed its file;
(9) Healey J. also ordered that the mother provide evidence of her efforts to register for the SAC program. No such evidence has ever been provided;
(10) On March 14, 2014 an Order was made by Corkery J. discharging the mother’s lawyer of record. From that date onwards, the mother represented herself. Her residence address and telephone contact numbers were noted in the Order;
(11) On September 15, 2014 the father retained counsel;
(12) On January 20, 2015, a Settlement Conference was held. Although served with the Conference Notice and the father’s Settlement Conference Brief, the mother did not attend. McDermot J. adjourned the Settlement Conference to February 13, 2015 and directed that the mother be noted in default if she failed to attend on the adjourned date, the father being granted leave to proceed by uncontested trial in that event;
(13) On February 13, 2015, a Settlement Conference proceeded before Nelson J. The mother attended. On consent, Nelson J. ordered that the matter be scheduled for a further Settlement Conference and ordered that there be supervised access;
(14) Nelson J. also ordered that in the event of non-compliance with any of his Order’s terms, then the matter be scheduled for Trial during the earliest available Trial sittings, subject to counsel’s availability. Ordered too was that the father be permitted access to any records relating to the child’s health, religion or education from third party caregivers without the need for any other consent from the mother. She promised to provide the father with the contact information for the child’s school and doctors. No such information was ever provided;
(15) The father completed his Intake with the SAC prior to March 1, 2015 as ordered. The mother did not complete her intake until July of 2015;
(16) Access never happened. The first scheduled visit was cancelled due to an unexpected closure at the Centre; the second was cancelled due to the father’s illness; and the third visit cancelled due to the Centre’s summer closure for the Labour Day long weekend. The mother did not attend a scheduled September 19 visit or the next scheduled access date on October 10;
(17) A Trial Management Conference Notice for October 19, 2015 was served on the mother on or shortly after September 9, 2015 and the father’s Brief, along with a Request to Admit served on the mother on or shortly after September 30, 2015. The date and time of the conference were clearly noted;
(18) The Trial Management Conference proceeded as scheduled before Rogers J. The father and his lawyer attended: the mother neither filed a Brief nor attended. Directions for trial were given: those directions noted the dates for the trial sittings and required father’s counsel to serve a copy of Rogers’ J. endorsement on the mother. While it is unclear whether a copy of Her Honour’s endorsement was served on the mother, she was served effective November 5, 2015 with the father’s updated financial disclosure and the Reports and documentary evidence upon which the father intended to rely at Trial;
(19) The Trial was called to commence on November 18, 2015. The mother was contacted by the offices of the Trial Coordinator on November 17 at the contact number in the Order of Corkery J. made March 14, 2014 and, again, later early in the morning of November 18. After an appropriate length of time passed, the Trial proceeded later on November 18, in the absence of the mother. She never attended court that day, nor on November 26 when the Trial concluded;
(20) The child has not seen his father since early 2012 and, even then, that was fleeting. The last meaningful interaction between the child and his father was December 26, 2010;
[8] The father testified at Trial, as did his father, Gordon Wallace. Filed as evidence were (in addition to Dr. Waiser’s psychological assessment) medical records from the local hospital to which the father had been admitted, and where he had psychiatric consultations.
[9] In his psychological assessment prepared after the last attendance with the father on October 12, 2012, Dr. Waiser (who had also met with the mother and reviewed the father’s hospital, police and other collateral information) concluded that the father’s responses to test scores had to be “interpreted cautiously” but indicated a “limited understanding of child development.” Dr. Waiser was careful to qualify his assessment as eschewing any opinion whether the child would benefit from involvement with his father, restricting it to evaluating the father’s character with regards to his parenting abilities.
Jason does want to have a relationship with his son. However, he knows little about child development. He does not appreciate his limitations in this regard. He sees himself as being a suitable guide and mentor for a child and believes that he knows how to handle conflicted situations. He has expectations for children and when they do not respond as he expects, he can be reactive and punitive to them. He justifies his actions by believing that these are in the child’s best interests. He likes the idea of being a father, but lacks many of the skills necessary to do so in a healthy way.
It is the opinion of this assessor based upon a review of the materials that were available, meetings with Jason and Angela, and the results of the psychometric testing, that Jason should not be allowed to assume an independent, parental role with his son. It is believed that he continues to experience emotional difficulties that interfere with his emotional stability and that could impact on the well-being of his son. He lacks a healthy and appropriate understanding about children and their development. He continues to be vulnerable to substance abuse and is at some risk of self-harm. Based on these dynamics, one cannot be supportive of his having unsupervised access with his son. If it were decided that he should be allowed to have involvement with AW, it is strongly recommended that this only occur at a Supervised Access Centre or under the guidance of a responsible adult who would be able to ensure AW’s safety and well-being while with his father. It is believed that such measures are necessary, if it were decided that AW should again be involved with his dad.
[10] Despite acknowledging the fairness of Dr. Waiser’s description of his background, the father disputed several of the administered test results that suggested that he was easily frustrated, possibly resistant to change, particularly (since the report was concluded) Dr. Waiser’s view about child development. In late 2014 the father participated in a six week family parenting program that, the father said, helped him see parenting differently. He did not expand on that in his testimony.
[11] Gordon Wallace, the paternal grandfather, lived near the mother. He has known her since she was very young. After his son and the mother separated, he helped facilitate access between the child and the father by picking up the child from the mother’s work place, then driving the child to the local bus station where the father would meet them. Almost as often as Mr. Wallace was able to pick up the child were those time that the child was “not available.” Mr. Wallace had eight other grandchildren, was self-employed as a home renovator and, for the past 25 years, lived with his common-law spouse. He was aware of his son’s history of substance abuse and supported his efforts to reconnect with AW – he was prepared to assist in the child’s transportation and even access supervision should the latter be ordered.
Analysis
[12] Section 24 of the Children’s Law Reform Act requires that the merits of an application for access shall be determined on the basis of the child’s best interests. Those are identified in subsection 24 (2) as 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.
[13] The primary focus is the child. As Abella J. (as she then was) stated in MacGyver v. Richards (1995), 22 O.R. (2d) 481 (C.A.) it “is the child’s right to see a parent with whom [the child] does not live, rather than the parent’s right to insist on access to that child.”
[14] In V.S.J. v. L.J.G. (2004), 2004 17126 (ON SC), 5 RFL (6th) 319 (Ont. S.C.J.) the court was tasked with determining whether a father’s access to a child should be supervised or terminated. Blishen J. observed,
128 There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort. See Jafari v. Dadar, [1996] N.B.J. No. 387 (QL).
129 A review of the case law reveals that there are no standard criteria for termination of access within the best interests test. Madam Justice Abella noted in para. 34 of M.(B.P.) v. M.(B.L.D.E.) (1992), 1992 8642 (ON CA), 42 R.F.L. (3d) 349 (QL) (Ont.C.A.):
It is not a question of what standard should be used to deprive a parent of access, it is a question of what standard should be used in deciding what form of access, if any, should be ordered. The answer is clear from the statute: the standard is the child’s best interests.”
[15] In Kroupa v. Stoneham, [2011] O.J. No. 4350 2011 ONSC 5824, a father consented to a final Order terminating his access to his four year old son. One and a half years later he brought a Motion to Change for access. Relying on MacGyver and V.S.J., Gray J. concluded that, while the father’s past drug-fueled behaviour and refusal to pay child support were “less than exemplary”, these were not sufficient to deprive the child of the right to access with his father. A period of transitional supervised to unsupervised access was ordered.
[16] In Dhaliwal v. Dhaliwal, [2015] O.J. No. 5152 2015 ONSC 6172, the father had no contact with his six year old son for about two and a half years. While the reasons for non-contact were unclear it was “common ground…that, at some point, Mr. Dhaliwal had a significant substance abuse problem.” Transitional supervised access was ordered coupled with regular drug testing and family counselling, all to be monitored by the court. In that case, like this, there was a history of access-discouraging behaviour by the mother. Le May J. approved the comments of Mossip J. in Reeves v. Reeves [2001] O.J. No. 308,
Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent’s inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentists or doctors. It is the responsibility of good parents to ensure that children go to school, go to doctors, and go to dentists. Good parents manage their children’s health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.
[17] Like the fathers in Kroupa and Dhaliwal, the father in this case has had significant substance abuse issues: unlike those cases, though, the father in this case not only separated from the mother when the child was much younger but a much longer period of non-contact with the child obtains. And during the child’s most important years of development.
[18] So little is known about this child. Is he meeting developmental milestones? Does he have health challenges? Who, if anyone besides his mother, cares for him? And how stable is his home environment? These and many other important questions could have been answered by the mother had she chosen to participate in these proceedings. The court can only speculate.
[19] Dr. Waiser’s assessment did not rule out supervised access. While, ideally, unsupervised access is best, supervised access as Blishen J. observed in V.S.J. “is seldom viewed as an indefinite order or long term solution” and may be appropriate to,
“…protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.”
[20] The father clearly wants a strong relationship with his son. Gordon Wallace impressed me as a grandfather who is plain-speaking, reliable and desirous too of a relationship with his grandson. His other two children live with their partners and children in the Region. AW does not know his cousins, aunts or uncles.
[21] A careful balancing of the child’s right to know his father and his extended family but ensuring that the child’s well-being will not be compromised by fostering that relationship is indicated.
[22] It is my view that the child should be given the opportunity to have a relationship with his father, and his extended family. But that needs to be approached cautiously, mindful of Dr. Waiser’s assessment (despite being over three years old) and the absence of any current, meaningful, information about the child.
[23] In the event that access is ordered, the father has proposed that it be arranged through a local counselling service, Next Step Family Counselling (“NSFC”), and that Gordon Wallace be permitted to participate, possibly even as a transitional access supervisor. This is sensible. The initial costs of this process should be the father’s responsibility, to which Gordon Wallace testified he would be willing to contribute.
Disposition
[24] For the foregoing reasons, I am making the following Orders:
(1) The parents will by January 18, 2016 arrange with Next Step Family Counselling (“NSFC”) to explore what services may be required to facilitate access between the child and his father, the cost of which services shall, subject to further direction of the court, initially be the father’s responsibility;
(2) The parents shall meet with NSFC no later than February 1, 2016 and complete any intake procedure it requires by February 8, 2016. As a term of its engagement, NSFC must agree to provide to the court, upon the written request of either party, a report detailing its involvement with the parties and the child with such other information as may be relevant to access;
(3) The father shall be entitled to supervised access to the child as recommended by NSFC, the first of which times (including duration) shall be determined by NSFC at a location it chooses;
(4) Mr. Gordon Wallace shall be permitted to participate in the services recommended by NSFC, including acting as access supervisor;
(5) The parties will attend before me on February 29, 2016 for further submissions about access. Any materials that either side wishes the court to consider shall be served and filed by no later than February 24, 2016 (4:00 p.m.). This will be a one hour appearance and argument will be limited accordingly;
(6) A copy of these Reasons and the Order shall be served on the mother by father’s counsel;
(7) Any further directions with respect to implementing the terms of this disposition may be obtained on proper notice to my attention on any regularly scheduled motions court day;
(8) Approval of this Order by the mother is dispensed with.
[25] The Order of Gordon J. dated December 5, 2011, which awarded the mother final custody and required a psychological assessment of the father also ordered child support but was identified as being both a temporary and final Order. There was no evidence in the hearing before me that there had been any material change to the father’s circumstances that warranted any change to that Order. He was paying the child support ordered, still receiving ODSP. Therefore, in addition to subparagraphs (1) to (8) above the Order now made will also provide that paragraph 5 of the Order of Graham J. shall be continued as a final Order of this court.
[26] Three last matters.
[27] The road ahead for the father is challenging. Restoration of a positive relationship with his son is not therapy. The focus is what is best for AW. The father believes that he can deal with the challenges ahead and he acknowledged that failure could result in termination of any future contact with the child.
[28] As for the mother, her unreliability, breach of court Orders and inexplicable failure to deal with the parenting issues in this case will be matters to be addressed when determining the amount of costs of these proceedings.
[29] The father’s submissions on costs shall be delivered by January 18, 2016 and limited to three double-spaced type written pages, with Offers to Settle (if any) and Bill of Costs and Authorities. These shall be served on the mother at her residence address. She will have until January 27, 2016 to respond to the father’s costs submissions, also limited to three double-spaced type written pages. Reply (if any) by the father on or before February 1, 2016. No submissions other than those dealing with the issue of costs will be acceptable. All submissions, including accompanying documents shall be filed with the court office.
Justice D.A. Jarvis
Date Released: December 30, 2015