ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-14-1157
DATE: 2015/12/17

BETWEEN:

A.R.
Applicant

– and –

J.L.K.
Respondent

Kevin Doyle, for the Applicant

Self-Represented

HEARD: September 30, October 1, November 23-27, 2015 (at Ottawa)

REASONS FOR JUDGMENT

Shelston J.

[1] The applicant (mother) and the respondent (father) are the natural parents of J.J.K., born […], 2006. This trial is to determine what is in the best interests of J.J.K. on the issues of custody and access.

Position of the parties

[2] The mother’s position is that she should have sole custody of the child and the father should have access as follows:

(a) every second weekend from Friday after school to Monday morning;

(b) two weeks during the summer school vacation;

(c) alternating weeks during the Christmas school holiday;

(d) Father’s Day; and

(e) any other times the parties may agree.

[3] Further, the mother seeks an order that she be granted the right to obtain and retain a passport for the child and an order dispensing with the father’s consent if she travels outside of Canada with the child.

[4] The father’s position is that he should have sole custody of the child and the mother should have access to the child as follows:

(a) three weekends per month from Friday after school to Monday morning;

(b) one day during the week after school until 7 p.m. with drop off to be at the Starbucks attached to the Lord Elgin Hotel;

(c) alternating weeks during the summer school holiday;

(d) every Mother’s Day; and

(e) an equal sharing of the Christmas school vacation.

[5] Regarding the passport for the child, the father does not wish that the mother obtain and retain a passport for J.J.K.. He is not prepared to sign a travel consent letter on the basis that he is concerned that she will flee the jurisdiction with the child.

[6] In the alternative, the father’s position, if he is not granted custody of the child, is that he should have the child three weekends per month, alternating weeks of the summer school holiday, every Father’s Day and equal sharing of the Christmas school vacation.

[7] The trial commenced September 30, 2015. After one day of evidence, on October 1, 2015, the father terminated the retainer of his counsel and sought an adjournment of the trial so that he could retain new counsel. I granted the adjournment to the next sittings which were scheduled for November 23, 2015, ordered that the matter would proceed at that time whether or not the father had counsel and reserved the issue of the costs for the trial sittings of September 30 and October 1, 2015.

[8] On November 23, 2015, the father sought another adjournment to the January 2016 trial sittings because he had not had sufficient time to retain a new lawyer. I denied the request based on my previous ruling of October 1, 2015. The trial proceeded for the entire week of November 23-27. The father acted as his own counsel.

Background

[9] The parties met in Ottawa, Ontario approximately 12 years ago in 2003 at a narcotics anonymous meeting. At the time, the mother was 18 years of age and the father was 30 years of age. By the second night, the father was staying with the mother at her apartment in Aylmer, Québec, which she shared with her brother.

[10] The mother admitted that when she met the father she was in a very rebellious stage of her life. The parties moved for a period of time to St. Thomas, Ontario, where according to the father “they smoked pot and drank a fair bit”. During this period of time, the mother was charged with fraud for writing a cheque with insufficient funds. She pled guilty and was sentenced to community service. She never did the community service, left the jurisdiction and only dealt with the charges in 2014.

[11] The father admitted that he was not a perfect guy and that he had made mistakes, but that he had waited until he was 33 years of age to have a child. He admitted that he was not ready to have a child before that time.

[12] The father admitted that he has an extensive criminal record; that he was “a criminal before [his] daughter was born”; that he ran a “chop shop” where he purchased stolen vehicles and sold stolen automobile parts prior to the birth of the child and that the parties purchased and sold drugs both in Ottawa and in St. Thomas, Ontario.

[13] The parties slept on couches at friends’ apartments, they had no jobs and at one point they lived in a van on a ranch. The mother states that she was the subject of verbal and physical abuse by the father. Despite these events, the mother would separate and reconcile with the father. From December 2005, they stayed at an apartment on L[…] Street, where they stayed for one and a half to two years.

[14] The child J.J.K. was born on […], 2006.

[15] The parties’ recollection of dates and times was very spotty. Neither party had a clear recollection of when certain events occurred. It is not surprising considering their previous lifestyle.

[16] The parties then moved to an apartment on B[…] Road where they stayed a few months. During this period of time there were many unpaid bills for rent, cable and Hydro. The father would drink with friends and would leave the child care responsibilities to the mother. The father did not change diapers.

[17] At that apartment, the parties separated because the father again attacked the mother and attempted to strangle her. In 2008, after the parties separated, the father threatened to harm her. He was charged, found guilty and incarcerated.

[18] The mother always retained the child during this period of time. She moved to Gatineau in an apartment. In 2008, after the father was released, the mother agreed that the father have access through the Centre Jeunesse de l’Outaouais (CJO).

[19] The parties reconciled and lived together for a few months before separating a last time in 2009. The mother recounted incidents of domestic violence by the father against her over the years. The parties reconciled and separated approximately six times over the course of their relationship.

[20] The mother gave birth to a second child named J. in 2010. She has access to the child every second weekend and the child resides primarily with his natural father.

Involvement of the CJO

[21] The CJO agreed to set up supervised access visits for the father. The calendars for the months of August, September and October 2008, prepared by the CJO, were filed as Exhibit 2 and disclose a series of visits by the father to J.J.K..

[22] The CJO became involved because of concern that J.J.K. witnessed domestic violence as well as concerns about drug use by the mother and improper hygiene for the child. During their investigation, the mother admitted that she was using marijuana since the age of 13 and that she had used marijuana in front of her child.

[23] By November 2008, the position of CJO was that the child would reside with the mother and that the father would have some overnight visits possibly three times per week, as set out in the Rapport de révision filed at Tab 5 of Exhibit 2.

[24] The CJO applied to the Youth Court in the province of Québec, which granted the mother the physical custody of J.J.K.. By order dated February 20, 2009, the Youth Court granted the parties custody of J.J.K. on alternating weeks.

[25] By report dated October 6, 2009, at Tab 5 of Exhibit 2, the recommendation of the CJO worker was that the child would be living with both parents with certain requirements such as not being exposed to violence, drug use or alcohol use.

[26] By report dated May 3, 2010, filed at Tab 3 of Exhibit 1, the worker indicated that the child was spending alternating weeks with each parent, that there were no incidents of violence and that both parents were attending narcotics anonymous meetings regularly.

[27] The worker indicated at page 6 of the report “it’s important to note that Mrs. A.R. is doing steps towards the Superior Court to get J.J.K.’s full custody, the mother has an appointment with a lawyer at the mid of May”.

[28] Based on the above, the CJO terminated their involvement on June 4, 2010, and made a series of recommendations including one that the mother would be applying to the Superior Court for custody.

[29] The mother testified that problems arose during the alternating weekly schedule when the child was with her father and that the mother observed that the child had no appetite, had unkempt hair, had dirty nails and was exhausted after spending a week with the father. The mother testified that the child would come back “haywire”. Based on the negative effect of the alternating week schedule, the mother indicated she was going to apply for custody in the province of Québec where she was residing and would seek that the father have access.

[30] The mother commenced court proceedings that resulted in a decision of the Honourable Justice Isabelle of the Superior Court in the province of Québec, dated May 2, 2011, at Tab 7 of the trial record, which provided as follows:

(a) grants to the applicant (mother) the physical and legal custody of the child J.J.K.;

(b) orders that the child J.J.K. will attend the pre-kindergarten English school, Pierre Elliott Trudeau, in the sector of Hull, in September 2010;

(c) grants to the defendant (father) access rights with the child J.J.K., access rights that will be determined upon mutual agreement between the parties;

(d) orders the defendant (father) to be sober at all times he has the child J.J.K. under his care;

(e) reserves the applicant’s (mother) rights for child support for the child J.J.K.;

(f) orders the defendant (father) to inform the applicant (mother) by writing when he will start a job and/or if there is any modification concerning his financial situation, so the applicant (mother) can make all the arrangements to establish child support starting from the date the defendant (father) started working and/or starting on the date the modification has occurred;

(g) orders the defendant (father) to submit to the applicant (mother) before June 1st of every year a copy of his federal and provincial income taxes report and notice of assessment from the federal and provincial government;

(h) shortens the delay of service and presentation of the present motion;

(i) the whole without costs.

[31] The mother said that the father advised her that he was going to evade service and consequently she applied for an order that he be served by an advertisement in the newspaper.

[32] The father’s evidence is that he was exercising alternating weekly access with the mother and that after the order was obtained, the mother attended at his home in Ottawa with the police to retrieve the child. When the police arrived, the father refused to release the child. The father was aware of the Québec court order dated May 2, 2011 but he took no steps to seek to set aside the said order or to apply a different order, including an order for joint custody of the child and equal time with the child.

[33] At the end of his week with J.J.K., the father returned the child to the mother. After the Québec court order, the father was not involved with the child. He would call to see her and he would have sporadic access including when he took care of her for a four-day period when the mother went out of town.

[34] Up to July 13, 2013 the mother was the main caregiver to the child. She had registered J.J.K. in school with the G[…]School and had taken her to doctor appointments.

[35] By 2013, the parties were discussing the possibility of integrating the child with the father starting with every second weekend. The mother was still concerned about the father’s failure to properly feed or bathe the child.

[36] The father’s evidence is that prior to July 2013, he was having sporadic access to J.J.K..

Incident of July 13, 2013

[37] On July 13, 2013, an incident occurred that has forever altered J.J.K.’s life. As a result of this incident, the mother was hospitalized for 28 days, J.J.K. moved from the primary care of her mother to that of her father and she changed school systems from the province of Québec to the province of Ontario.

[38] According to the mother, on July 13, 2013, after having an argument with a friend at her home she was very emotionally upset. She was crying. She left her home with J.J.K. and drove to a river. She parked the vehicle on private land and left J.J.K. asleep in the back seat. She went to the river to calm down. Her evidence is that she wanted to be baptized. She had an epiphany that Jesus would be born as a baby and not as a man. During this period of time, a third party called the police.

[39] The mother indicated that she had been wearing a pirate hat from a morning activity with J.J.K. and that this may have led the officers to be concerned about her. The police detained her and took her to the Hôpital de Gatineau.

[40] J.J.K. was placed in a foster home on the evening of July 13 and on the morning of July 14, an officer of the Ottawa Police Service attended at the father’s home to advise him that his child was in foster care. The father immediately travelled to the foster parents’ residence and took the child.

[41] The father returned to his residence in the Barrhaven area of Ottawa. He left Ottawa on July 15 for approximately a month and returned to his parents’ home in Copenhagen, Ontario. He testified that he needed time to regroup and to provide stability for the child.

[42] The child did not see her mother during this period of time. The mother sought access to the child but the father did not agree. It is interesting to note that the mother’s other child J. saw her when she was in the hospital, as J’s father brought the child to see his mother.

[43] Upon admission at the Hôpital de Gatineau, the mother was seen in the emergency department. The attending physician, Dr. Marcel Boily, made a provisional diagnosis of “mal. Bipolaire, episode mixte”, as set out in the hospital records in the Applicant’s Book of Documents, Tab 1, page 43.

[44] On July 15, 2013, the mother was seen by a psychiatrist, Dr. Javed Moamai. On July 15, 2013, at the Applicant’s Book of Documents, Tab 1, page 68, Exhibit 1, Dr. Moamai made the following comments regarding the mother:

IMPRESSION DIAGNOSTIQUE

Trouble bipolaire de type 1 épisode maniaque caractéristiques psychotiques

La sévérité de la maladie est sévère

Abus de cannabis

[45] The mother was transferred to the Hôpital Pierre-Janet on July 25, 2013, and remained there until August 9, 2013. According to the hospital records, at the beginning of the hospitalization the mother accepted medication but then decided not to take the medication and contested her hospitalization. Eventually the mother became compliant and took the medication. The final diagnosis by Dr. Alexander Cadivy, found in the Applicant’s Book of Documents, Tab 1, pages 5-6, Exhibit 1, stated as follows:

Trouble bipolaire, épisode actuel maniaque avec symptômes psychotiques

Abus de substance (cannabis)

... (continues exactly as in the source through paragraphs [46]–[175], including all headings, paragraphs, and orders, verbatim)

Shelston J.

Released: December 17, 2015