Court File and Parties

COURT FILE NO.: FC-13-1417 DATE: 2016/08/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: P.B., Applicant AND C.A.O., Respondent

BEFORE: Mr. Justice Labrosse

COUNSEL: P.B., Self-Represented Carol Meyers, Counsel for the Respondent

HEARD: July 20, 2016

Endorsement

[1] The Applicant Father brings this motion seeking to confirm the terms of the supervised access of the Respondent Mother with C.B.A. (born […],2013) and to set the terms under which the Mother’s access will become unsupervised if certain conditions are met. He also seeks an order for the payment of child support and other ancillary relief.

[2] The Respondent Mother has brought a Cross-Motion seeking unsupervised access or in the alternative, if supervised access is to continue, a review in three months to determine at that time if supervised access continues to be appropriate. The Mother also seeks disclosure for the purposes of a claim for undue hardship.

[3] For the reasons which follow, I agree with the Father that it would be premature for access to become unsupervised at this time. While the Father readily admits that the mother has made progress and that access with the mother is beneficial to the child, the mother needs to address her need for treatment to address ongoing interpersonal difficulties within this high conflict litigation as recommended by some of the professionals she has consulted.

[4] During the Motion, I encouraged the mother to find a way to address her need to for ongoing therapy. I have indicated to the parties that I wish to see them in roughly four months’ time to assess the mother’s ongoing progress. The parties may also seek to address the issue of child support at that time.

Background

[5] I continue to be involved in this matter as Case Management Judge to assist the parties given the high conflict nature of these proceedings. The relevant history of this proceeding has been summarized in my November 3, 2015 Endorsement.

[6] The mother’s supervised access started at the offices of the Children’s Aid Society on December 8, 2015, however the Society indicated that as of May 2016, it would no longer be in a position to continue supervising the Mother’s access. In June 2016, the Mother began access through the Supervised Access Centre on Sunday in alternating weeks from 4:15pm to 6:15pm.

[7] Also in June 2016, the Mother began having access every Wednesday from 5:00pm to 7:00pm, and every second Saturday from 5:00pm to 7:00pm with Brian Wade who is a social worker. The supervision of the access by Brian Wade costs the mother roughly $150 every two weeks.

[8] The Mother has been seen by several professional since the incident of February 2015. Firstly, as part of the criminal proceedings, she was seen by Dr. Kunjukrishnan who opined that she was reluctant to engage in candid discussion and was a risk to re-offend.

[9] Following my November 3, 2015 Endorsement, the Mother was seen by Dr. Krishnaprasad on April 18, 2016 who stated that the Mother does not have any mental health issues, is of no harm to herself or others and does not require any ongoing treatment. Dr. Krishnaprasad’s reports are very brief and do not provide much details on his assessment.

[10] As part of the child protection proceedings involving her son J., a psychological assessment dated February 26, 2016 was prepared by Dr. Floyd Wood. This assessment includes observations that the Mother was highly defensive and guarded in her test taking approach. He proposes that she should follow Dialectical Behaviour Therapy (DBT) which would take one year or more of dedication to see any clear benefits. The DBT therapy is meant to be beneficial to individuals from traumatic backgrounds and ongoing interpersonal difficulties. It provides education and skills in four key areas: emotional regulation, mindfulness, distress tolerance, and interpersonal effectiveness.

[11] Finally, the Mother confirms that she continues to receive counselling with Charu Malhotra at the Ottawa Rape Crisis Centre since about 2015. Ms. Malhotra provided a very positive letter concerning the Mother’s counselling.

[12] Within much of the documentation presented during the motion, there are indicia that the Mother continues to be significantly involved in the conflict between the parties. Comments found in Dr. Wood’s assessment and the Mother’s communications with the Father suggest that the need for further counselling or therapy is a real issue that the mother has not fully addressed.

Position of the Parties

The Applicant Father

[13] By way of a revised Notice of Motion, the Father seeks:

(a) An order that access remains fixed at every Wednesday, every other Saturday and Sunday and remains supervised;

(b) An order that Wednesday and Saturday access continue to take place in Orleans and Sunday accesses continues to take place at the supervision access program;

(c) An order that access remains supervised for a further period of six months during which time the respondent will secure dialectical behavior therapy, attend said therapy for a minimum of three months and provide a letter detailing:

(i) progress made;

(ii) attendance; and

(iii) the possibility of moving access to unsupervised access.

(d) A progressive increase to unsupervised access when the letter referenced above has been provided along with numerous related conditions;

(e) An order that both parties can request the assistance of a third party for exchanges;

(f) An order for the respondent to pay child support in the amount of $168 per month starting June 1, 2016 in line with the child support guidelines;

(g) An order that child support and current careers of $600 will be registered with the Family Responsibility Office;

(h) An order for full financial disclosure by the Mother for the last three years as per the Form 20 request sent to the Mother on July 11, 2016;

(i) An order that the Applicant Father’s spouse will be permitted to have indirect access to the psychological reports and assessments to assist the applicant in representing himself before the court; and,

(j) Other ancillary relief.

[14] The Father submits that while access and communications with the Mother have improved since the unfortunate events of February 2015, the Mother has shown indications that she is still very much involved in the conflict and that she still finds opportunity to criticize the Father in how he cares for C.B.A.. The Father does not feel that there has been sufficient change in the Mother’s behaviour to merit either an increase in access or that the access be unsupervised.

[15] The Father opines that C.B.A.’s access with his mother is positive and agrees that at the appropriate time access should progress. The Father’s affidavit readily admits that C.B.A. benefits from access with his mother and acknowledges that C.B.A. looks forward to access with his mother. The Father’s affidavit material is quite positive towards the Mother and he is open to seeing progression in the near future. In order for access to progress, the father feels that the Mother should be required to follow-up with the DBT therapy as a precondition to having access increase or progress to being unsupervised.

The Respondent Mother

[16] The Mother brings a Cross-Motion seeking the following relief:

(a) an order for unsupervised access and that in six months time a review be conducted increasing the frequency and duration of access to appropriate;

(b) in the alternative, in order that the current access regime remain in place and be reviewed within three months to reconsider the appropriateness of unsupervised access at that time;

(c) an order that for the purposes of making an undue hardship calculation the applicant provide financial information about himself and his spouse.

[17] The Mother seeks for access to become unsupervised. She is of the view that supervised access has progressed sufficiently for it to become unsupervised. She has made efforts to participate in the DBT therapy sessions and has been told she does not qualify for the DBT therapy with the Canadian Mental Health Association. However, there is an acknowledgment on her behalf that she has not been able to benefit from the type of treatment recommended for her in an assessment performed by Dr. Wood in ongoing child protection proceedings. Reference to such assessment complied with section 54(8) of the Child and Family Services Act.

[18] The Mother states that her son J. is now living with her. She is a single mother and receives no support for J.. Her income level is at or about minimum wage. She spends roughly $150 every two weeks for Mr. Wade to supervise access with C.B.A.. She states that she cannot afford to pay child support or pay the registration costs for DBT therapy.

[19] The Mother also admits that she may not have explored all the available options for her to benefit from DBT or similar type therapy. She needs to further inquire with her family doctor as to the availability of a referral to a psychologist who’s services would be covered by OHIP or if there is possible funding available to allow her to participate in DBT therapy.

[20] As for increasing the current supervised access, the Mother cannot afford to pay to have Mr. Wade supervise additional hours and there no additional time available at the Supervised Access Centre. The Mother has not made any proposal for any third party who could be satisfactory to the Father or to the Court to supervise the access. While she would like to have more access with C.B.A., she has no plan to allow for this to happen given the ongoing need for supervision and its associate cost.

Analysis

[21] In his factum, the Father submits that my assessment of how access should progress either supervised or unsupervised, is determined in considering what access is in the best interest of the child. He refers to section 24 of the Children’s Law Reform Act and various case law which is instructive in determining the Court’s approach in granting access in high conflict cases.

[22] However, as there are existing Temporary Orders in place which relates to custody and access, there is a need to demonstrate a change in circumstance before varying the terms of a Temporary Order. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that:

on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.

[23] This applicable law must be considered in light of the current circumstances whereby I continue to work with the parties as case management judge. The Mother’s access had initially been set by the Temporary Order of Justice Ray dated September 9, 2014. I then suspended the Mother’s access on February 20, 2015 following the Mother’s abduction of C.B.A.. Subsequently, supervised access was reinstated by me in my Temporary Order dated December 3, 2016. Clearly, the Mother’s access has been the subject of changing circumstances. While the applicable law relating to varying temporary orders continues to apply, consideration must be given to my role as case management judge and the ongoing objective of working with the parties involved in high conflict litigation.

Access

[24] At this stage, it is premature to consider the manner in which access will progress in the future as a result of the Mother’s ongoing changing circumstances. While progress has been made on several fronts by the Mother and the Father himself acknowledges that unsupervised access may be appropriate in the near future, I agree with him that this does not yet constitute a change in circumstance which would warrant a variation to the current Temporary Orders. The Court will therefore adjourn the Father’s requests to structure the progression of access until better evidence is available that additional or unsupervised access is in the best interests of the child. The Court will therefore adjourn the Father’s requests to structure the progression of access.

[25] As for the Father’s requests to confirm the current access provisions, the Mother did not oppose the relief requested at paragraphs (1), (2) and (8) of his revised Notice of Motion. However, before any further changes can be made to the access regime, further evidence will be required to confirm that a change in circumstance has occurred.

[26] The Mother’s request for unsupervised access is clearly premature at this time. She has not been able to address the therapy recommendations made in the assessment of Dr. Wood and consequently, the Court continues to have concerns about the level of her ongoing animosity with the Father and her ability to make decisions in the best interests of C.B.A. while involved in high conflict litigation. The goal of the DBT is to provide education and skills in emotional regulation, mindfulness, distress tolerance and interpersonal effectiveness. While the mother continues to participate in counselling with the Ottawa Rape Crisis Centre, there is no evidence that this counselling can address the goals of DBT therapy. There is not sufficient evidence before me to justify any consideration to access becoming unsupervised or of lessening the supervision restrictions.

[27] However, I can advise that if the Mother had been able to either afford the costs of more supervision hours or found a third party access supervisor who would be reasonably acceptable, I would have considered increasing the duration or frequency of supervised access. The Father has been forthcoming in his evidence to support the relationship between C.B.A. and his Mother and his evidence demonstrates his willingness to encourage safe access between C.B.A. and his Mother. However, given the absence of reasonable options for increasing access, the current provisions should remain in place as specified in paragraphs (1) and (2) the revised Notice of Motion.

[28] I further confirm that in order for the Mother to demonstrate a change in circumstance which would justify a variation to the current access provisions, the Mother will need to demonstrate that she has addressed her ability to offer safe access to C.B.A.. The existing evidence of Dr. Krishnaprasad, while addressing the need for a full assessment as requested in my December 3, 2016 Endorsement, does not provide evidence on the Mother’s progress or need for further therapy or counselling.

[29] Evidence of a change in circumstance will have to be assessed when provided. However, it would seem that the Mother needs to address the need for DBT-type therapy in order to demonstrate that she is able to work with the Father and provide safe access for C.B.A.. I will remain available to the parties through the Trial Coordinator to facilitate the ongoing need to deal with custody and access issues.

[30] Finally, the Father requested that his spouse be entitled to have access to the psychological reports and assessments of the Mother for the purpose of aiding the Father with the paperwork in this litigation. This was not strenuously opposed by the Mother and the Father’s spouse has offered to provide a confidentiality/non-disclosure undertaking satisfactory to the Mother. I am of the view that this request is reasonable.

Child Support

[31] With respect to child support, the Mother has indicated that she will be making a motion for hardship given her current circumstances. She has requested additional disclosure from the Father to complete the analysis. The Father consents to the requested disclosure set out at par. 5 of the Mother’s Cross-Motion.

[32] As a result of the Mother’s pending request for undue hardship and her need to focus her available income on paying for supervised access, the Father’s request for child support is adjourned until the return of this matter. The funds being spent by the Mother on supervised access are not very different than the amount she would pay for child support. While this is not the Father’s fault, it is a reality of the Mother’s financial circumstances. This does not preclude the Father from making a retroactive claim for child support.

[33] In approximately four months’ time, I expect that the Mother will be in a position to present her motion for undue hardship and there will have been a further period to assess the need for ongoing supervised access. The Father’s requests for child support and other related relief may be brought back at that time.

[34] Finally, the Mother has requested relief related to the filing of her Financial Statement and supporting documentation. This relief was not opposed and as such, is granted as set out below.

Disposition

[35] For the reasons set out above, the Court orders that:

(a) access shall remain fixed at every Wednesday, plus every other Saturday and Sunday, and remains supervised;

(b) Wednesday and Saturday access continue to take place in Orleans and Sunday accesses continue to take place at the Supervision Access Program;

(c) Both parties may request the assistance of a third party for access exchanges and will advise the other party in writing of whom will be picking up and dropping off the child;

(d) The Father’s request for child support is adjourned pending the Mother’s request for an order for undue hardship or if the Mother’s motion is not made within 4 months, the Father’s may request that his motion for child support be reconsidered;

(e) The Father’s spouse may have access to the Mother’s psychological reports and assessments for the sole purpose of assisting the Father in his preparation for this litigation provided that the Father’s spouse provides a confidentiality/non-disclosure undertaking which is reasonably satisfactory to the Mother;

(f) The Father shall provide the Mother with the following documents:

(i) 2015 Notice of Assessment;

(ii) 2015 Notice of Assessment from his spouse and any other adult in his household;

(iii) Number of dependent children currently residing in his household.

(g) The Mother:

(i) Be permitted to file her Financial Statement without her 2013, 2014 and 2015 Notices of Assessment;

(ii) Make her best efforts to file her 2014 Income Tax Return and serve it upon the Applicant;

(iii) Serve the Applicant and file with the Court her 2014 and 2015 Notices of Assessment and her 2013 Tax Summary once she receives them from the CRA.

Costs

[36] In the circumstances, the Motions before the Court are still a work in progress. This is not a circumstance that warrants an order for costs at this stage. Accordingly, there shall be no costs of these motions.

Justice M. Labrosse Date: August 5, 2016