Court File and Parties

Oshawa Court File No.: FC-01-2207 Date: 2016-06-20

Ontario Superior Court of Justice

Between:

Lorna Krummenacher Applicant

— and —

Kevin Terry Blackmore Respondent

Counsel: Vahe Ohanessian, for the Applicant Charles Morison, for the Respondent Kenneth G. Dutka, for the Office of the Children’s Lawyer

Heard: June 1, 2016

Timms J.

Reasons for Judgment

1On September 6, 2013, the respondent brought a motion to change two prior final orders of this court dealing with the issues of custody and access with respect to the child William Brian Thomas Krummenacher, born August 24, 2000. Those orders were my order of September 23, 2002, and that of Justice D. Salmers of July 5, 2004. Pursuant to those two orders, the applicant has sole custody of the child and the respondent is to have specified access.

2In his motion to change the respondent sought the following orders:

1. an order granting him custody, or alternatively joint custody, and
2. an order granting him generous and liberal access, including every other weekend, mid-week access, and on special occasions, or alternatively an order that the child spend time with him in the child’s discretion and that he be allowed to attend the child’s extra-curricular activities.

3In her response to the motion to change, the applicant sought a modification of the existing access order to one of reasonable access on reasonable notice, but in keeping with the child’s wishes. She also sought child support.

4The matter followed the usual route through to a trial management conference (TMC) held on March 24, 2016. A follow-up of the TMC was set for April 20, 2016. On that date the matter was removed from the trial list and set for a summary judgment motion to be brought by the applicant during the spring trial sittings. I heard that motion on June 1, 2016, and reserved my decision.

5At the hearing of the motion the respondent consented to the dismissal of his motion as it relates to custody. Notwithstanding that, the applicant still seeks to have the whole motion to change dismissed and to have the child determine if and when he will see the respondent.

6In December 2013, Justice A. Rowsell made an order appointing the Office of the Children’s Lawyer (OCL) to represent the child. The OCL accepted that appointment and named Ms. Bloom as the lawyer. Later on, when Ms. Bloom ceased to do OCL work, Mr. Dutka was appointed to replace her. As sometimes happens in cases of this nature, the OCL determined that a clinical assist would be appropriate. As a result, Ms. P. Convery was assigned to that role.

7During the argument on the summary judgment motion, counsel disagreed as to how many times Ms. Convery had met with the parties. In her affidavit of January 12, 2015, Ms. Convery outlined that she had already met separately with each of the parties, with the child alone twice, and with the applicant and the child once. In her second affidavit sworn on May 19, 2016, filed on this motion, she said that she had had two interviews with each parent and five interviews with the child. I see no reason to doubt that evidence.

8When I made my order back in September 2002, the respondent was incarcerated on reasonably serious criminal convictions. [1] In addition to granting the applicant final custody of the child, I suspended all access by the respondent for so long as he remained incarcerated. Once he was no longer incarcerated, his access was to be limited to supervised access at the Durham Supervised Access Centre (SAC).

9The respondent was released in late 2002. Access at the SAC proved problematic to set up. However by the summer of 2004, matters had progressed sufficiently such that Justice Salmers made the order of July 5, 2004, on consent, granting the respondent specified access, supervised by one of two people, for a period of approximately six weeks. After that, the access did not have to be supervised.

10For a period of nine years there were no apparent major problems with the access. Then in August 2013, the child revealed to the applicant that the respondent had been abusing him physically, verbally, and emotionally for at least one year. The child told the applicant that he was never going to visit the respondent again. The applicant therefore decided to let the child make up his own mind. That decision prompted the respondent to bring the motion to change in which he sought custody of the child.

11The child is still saying that he does not want to see the respondent. He has told his counsel that he will kill himself if ordered to do so. The applicant’s position is that she was happy to have the child visit with the respondent until the revelations made by him in August 2013. Now, given his age and his strongly stated preference, she completely supports his decision.

12The respondent denies ever abusing his son in any manner. His evidence is that a problem arose in August 2013 when the applicant refused to let the child remain with him for longer than one week, even though she had previously agreed to that. He blames the applicant and her family for turning the child against him. He alleges “parental alienation” by the applicant.

13The police were called by the applicant in August 2013, when the child was not returned to her in accordance with the holiday schedule. In turn, in September 2013, the respondent called the police when he did not get his scheduled access to the child. On neither occasion did the police take any real action. Copies of the reports from the Durham Region Police Services (DRPS) were filed on the motion.

14When Ms. Convery learned of the allegations being made by the child about his mistreatment by the respondent, she felt that they were serious enough that she must report them to the Durham Children’s Aid Society (DCAS). That caused the DCAS to launch an investigation. As per the local protocol, the DRPS as well became involved in the investigation. Copies of the DCAS records and the DRPS records for this investigation were likewise filed on the motion.

15The notes from the DCAS show that the plan was to proceed with a joint investigation with the DRPS. However, as a result of the respondent’s refusal to return calls from the DRPS, and the fact that the child was still refusing to see the respondent, the file was closed in July 2014. It was noted that the file would be re-opened if there was an order from this court permitting access to the child by the respondent.

16Although both parties rely upon the notes from the DRPS, the respondent was very uncooperative regarding the obtaining thereof and other documentation as well. Releases had been sent through the respondent’s counsel by OCL counsel in April 2014, and again in September 2014. They were never returned. The respondent told Ms. Convery several times that he was not willing to sign releases. The OCL was required to bring a motion in March 2015 to compel the production of the DCAS and DRPS records. The respondent did not file material on the motion and the order requested was made, with costs of $200.00 against the respondent. Those costs remain unpaid to this day.

17Notwithstanding his previous lack of cooperation, when arguing the summary judgement motion, the respondent attempted to use the DRPS records to bolster his position that allegations that he abused the child are trumped up by the applicant. He relies upon the words “The file is closed unfounded” found at the top of the page dated October 17, 2014. Unfortunately for the respondent, those words are followed by two sentences which shed a different light:

The victim did not provide a statement with sufficient detail to substantiate a criminal charge. The allegations are historical – excessive discipline.

As well, as is noted by Ms. Convery, the child told the police that he did not want the respondent criminally charged.

18The respondent also relies upon various entries in the DRPS notes prior to October 2014 that appear to show the applicant as confused and uncooperative. I do not place much weight on that. As well, in an attempt to show that the child was being pushed by the applicant not to see the respondent, his counsel made reference to something that the child said to the interviewing officer on September 16, 2014. I have read and re-read that entry, and can say with complete confidence that the best interpretation of what is written there is that the child was saying that the applicant did not want him to see the respondent until after the revelation of the abuse.

19The respondent attached several letters or notes from family members and friends to an affidavit dated May 31, 2016. This was his second affidavit filed on the motion. I do not consider this to be in compliance with Subrule 14(17) of the Family Law Rules, O. Reg. 114/99 (FLR). Additionally, even though the other parties did not object to the filing of this second affidavit, obviously this material did not comply with Subrule 14(20) either. In my view, those letters and notes contribute little if anything to the determination of whether I should grant summary judgment.

20What weighs very heavily to my mind are the contents of Ms. Convery’s affidavit of May 19, 2016. As set out by Ms. Convery therein, I find that the applicant did in fact support the child seeing the respondent for almost a decade before the allegations of abuse came to light in August 2013. I see nothing to support the respondent’s theory that the child has been unduly influenced by the applicant, or to use his words, that the applicant has alienated the child from him.

21Rather than try to summarise or paraphrase important elements of Ms. Convery’s affidavit, I am including paragraphs 91 to 99 of Ms. Convery’s affidavit:

91. However, William continues to be extremely nervous about his father’s volatile temper and his denigration of his mother. He does not believe he can confront his father safely. He has reasonable concerns about emotional triggers in any interaction with his father. He is quite concerned about “not going back there” and about putting his new found personal gains in jeopardy.
92. William could definitely benefit from therapy but for the same reason, “not going back there” he has consistently declined my suggestions in this respect.
93. I believe he is estranged from his father as opposed to alienated and his emotional health is precarious, although improved. He is managing well and better with his maternal family and at school and socially.
94. He is 15 years old and in a few months he will be 16. He advises adamantly and consistently that he will not see his father whether a further Court Order is made. As I understand it, there is in fact a court order for access in place which is not being enforced. The utility of using Court resources to secure a further order which will be ignored or not enforced is unclear to me.
95. Based on what disclosure about Mr. Blackmore we were able to gather and my personal interviews with him, I believe that the Respondent should work with a qualified therapist to address ongoing issues of anger and his unfortunate focus on berating the Applicant and extended maternal family.
96. At some point in the future, William may be willing to meet Mr. Blackmore and it would be helpful that therapeutic supports for Mr. Blackmore be in place.
97. William is not opposed to his father having report cards and even sending a letter to him monthly which William could, in his own discretion, read and or respond to.
98. The success of any further future contact between William and Mr. Blackmore will depend on Mr. Blackmore’s ability to control his anger and physical responses and to refrain from denigration of mother and the maternal family.
99. The report of a qualified therapist attesting to Mr. Blackmore’s successful work in this regard should be required prior to commencing any form of reintegration therapy with William and Mr. Blackmore. To ensure that the counselling is efficacious, perhaps the therapist could be provided with a copy of this Affidavit or any other Court pleadings the Court might deem of assistance.

22Like Ms. Convery, I place no weight whatsoever on the allegation of the respondent that the applicant exposes the child to a criminal environment, and that with his past and being now reformed, the child needs to spend time with him to counteract that to which the child is being exposed. That allegation was completely unsupported by any reliable evidence.

23The test for the granting of a summary judgment is found in Subrules 16(6) and 16(6.1) of the Family Law Rules (FLR):

NO GENUINE ISSUE FOR TRIAL

16. (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

16. (6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

17. Weighing the evidence.

18. Evaluating the credibility of a deponent.

19. Drawing any reasonable inference from the evidence.

24Only counsel for the respondent filed a factum for the motion heard on June 1, 2016. While recognising that the court may now evaluate the credibility of a deponent in determining whether there is a genuine issue for trial, the respondent argues that “Where the issue is as important as a relationship between the father and his child, on the basis of untested Affidavits alone, in the absence of any Transcripts of Cross Examination, in the absence of any corroborating Witnesses, it is virtually impossible to evaluate credibility or draw inferences, and it is in the interest of justice for the father to be heard at Trial.”

25Putting aside that this sentence appears to put the focus on the respondent as opposed to the child’s best interests, I see nothing in the FLR or in the cases cited by counsel that would support the proposition that there should be a higher threshold in cases involving custody or access.

26Counsel cited two cases for the proposition that when the court is considering summary judgment in family matters there is a “need for caution and for attention to principles of justice and the best interests of the child” and that “It is only in the rarest of circumstances that a trial upon viva voce evidence will not be necessary to determine a disputed question of custody.” [2]

27Both of these cases were decided before the 2015 amendment to Rule 16 which added Subrule (6.1). In the first case, the decision turned on the fact that the mother who was appealing a summary judgment order against her in a child welfare case had not had a fair hearing. To that extent, the comments relied upon by counsel herein amount to obiter. In the second case, notwithstanding comments cited by counsel herein, the judge hearing the motion went on to determine that there was no genuine issue for trial. When one reads the whole of the case, it is almost as if the judge employed those words to highlight how the facts of the case in front of her were so dramatic that she had no choice but to grant summary judgment.

28Counsel for the respondent argued that if there were a trial, then he could quite possibly successfully cross-examine both the applicant and Ms. Convery to demonstrate that the applicant had in fact deliberately alienated the child, and that the child was really not that firm about not seeing the respondent. Based on the evidence contained in the affidavits filed on the motion, both, or either, of those outcomes are exceedingly unlikely. Indeed, they are so unlikely that in my view, the test under subrule 16(6) has been more than met. Put another way, this is as clear a case as can be.

29The child, who will be 18 years old in just over two years’ time, has been saying the same thing for almost three years now. He has said it to his mother, to the DCAS workers, to DRPS officers, to each of his two OCL lawyers, and to Ms. Convery. Since he stopped seeing the respondent he is managing better at school and socially. He is so opposed to seeing the respondent that he says that he will kill himself if required to do so. How could it possibly be in his best interests to be forced to see the respondent?

30I am therefore granting summary judgment dismissing the respondent’s motion to change and granting the applicant the relief that she sought in her response to the motion to change as it relates to the respondent’s access to the child.

31Even though he does not want to see the respondent, the child is content that the respondent receive information from the school, and he wants to see his paternal grandparents. This court has jurisdiction to grant an order with respect to the respondent’s access to the child’s school records and I do so now. Whether the child sees his grandparents will be entirely up to him. They are not parties to this proceeding.

32That leaves the issue of child support. There has never been a child support order. The applicant is in receipt of public assistance. The respondent is in receipt of Ontario Disability Support Program (ODSP) benefits. The applicant acknowledges that the respondent is on ODSP; however, she argues that he also makes money collecting and selling scrap metal. To support that assertion, she relies upon what the child has told her, what the child told the police and DCAS workers in 2014, and some entries in the DRPS notes that give the respondent’s occupation as “scrap metal”.

33The applicant’s position is that this “evidence” is sufficient to cause the court to grant her summary judgment attributing minimum wage to the respondent. I disagree. Indeed, I am surprised frankly that the applicant would pursue this issue by way of a summary judgment motion. This alleged evidence is nowhere near enough to meet the test in Subrule 16(6). That portion of her motion is hereby dismissed.

34Counsel for the applicant may serve and file cost submissions, restricted to five pages, exclusive of a bill of costs, by forwarding that to my secretary within ten days of the release of this judgment. Counsel for the respondent may serve and file their response, restricted to five pages, within seven days thereafter and counsel for the applicant may serve and file their reply, restricted to five pages, within four days thereafter.

The Honourable Mr. Justice Roger Timms

Date Released: June 20, 2016

Footnotes

1The respondent pled guilty to assault bodily harm as against the applicant.

2B. (F.) v. G. (S.), 2001 ONSC 288231, 2001 ONSC 28231, 16 R.F.L. (5th) 237 (S.C.J.), at paras. 13 and 14; Cress v. Crack, 1996 ONSC 7259, [1996] O. J. No. 814 (Ont. Ct.(Gen. Div.)), at para. 19.