Court File and Parties

D. v. G., CITATION: 2016 ONSC 5017 COURT FILE NO.: 3285/11 DATE: 2016-08-08

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: D.A.D., Applicant AND: H. G. (formerly D.), Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Angelo Fazari for Applicant Anthony Macri for Respondent

HEARD: 2016-08-05 at Welland

Endorsement

[1] On August 5, 2016 I gave the Applicant leave under s.57.2 of the Child and Family Services Act to proceed with his motions for custody and adjourned the motions on terms maintaining the children’s residence with the added party, the Applicant’s mother. These are my reasons. Some history is necessary to understand the proceedings.

[2] The parents were married in 2008 and produced two sons, who are now aged 10 and 5. They separated in 2011.

[3] On April 12, 2011, the Respondent went to the Welland courthouse to get information about separating from the Applicant. She had the older boy with her in the car and was pregnant with the younger. The Respondent followed her in his own car and confronted her in the courthouse parking lot, refusing to leave unless she did. She drove back to Niagara Falls. He drove after her in a reckless fashion, steering into oncoming traffic and pulling alongside her vehicle. She drove to the Niagara Falls police station for help. He attempted to block her entry into the police station and grabbed her. She broke free, ran inside and the police intervened. As a result of this incident, the Applicant was charged with criminal harassment, dangerous driving, intimidation and assault. He was released on bail the following day.

[4] On August 1, 2011, the Applicant, by now separated from the Respondent, followed her while she was driving. She pulled over to tend to the new baby. The Applicant approached her, placed his hands on her hips and demanded that she get into his car. During the ensuing argument, the Applicant yelled, "Easy way or hard way, we will be together". She left. He was arrested and charged with criminal harassment and failure to comply with his recognizance.

[5] On February 12, 2012 the Applicant pleaded guilty to criminal harassment and breach of bail in connection with these two incidents and was given a conditional discharge with probation.

[6] On August 31, 2012 the parties agreed to terms of custody and access. These terms were put into the form of a court order on consent. The order, made by Henderson J., provided that the Respondent would have custody of the children and the Applicant would have access every Wednesday evening and three weekends a month. On August 5, 2016 I was provided with a copy of the notice of application that was before Henderson J. It was an application under the Children’s Law Reform Act. I was then satisfied that Henderson J.’s order was made under the provincial legislation.

[7] On October 20, 2012 the parties had an argument. The Applicant refused the Respondent’s request to leave her home. She then tried to leave and he blocked her path, causing her to fall. Police intervention was required. The Applicant was charged with assault and forcible confinement.

[8] With the blessing of the CAS, the Respondent moved to Alberta in November 2012. The Applicant brought an application for custody under the Divorce Act. I am told that resort to the Divorce Act was made on the advice of the out of province police, in order to facilitate enforcement. I do not recall reading evidence on this, but it is not an essential fact. It simply fills out the narrative by explaining why the Divorce Act was in play at some point but not throughout. The Respondent returned to Ontario, without the children, to attend the hearing of the application on May 8, 2013. The application judge ordered that the Respondent return the children to Ontario. The Respondent promised to do so, but did not fulfil the promise. The police in Alberta, after consulting with Niagara Regional Police, declined to enforce the order.

[9] On May 22, 2013 the application judge found the Respondent in contempt. In July and August 2013 the application for custody was heard. The Respondent still having declined to return to Ontario, to return the children to Ontario or to provide their address, the judge proceeded to hear the application without the Respondent’s participation. Custody was awarded to the Applicant in orders made on July 31 and August 3, 2013. These orders would later be overturned by the Court of Appeal: D.D. v. H.D., 2015 ONCA 409.

[10] The criminal trial of the Applicant on the charges from October 20, 2012 took place in September 2013. The Respondent returned to Ontario to testify. The Applicant was convicted of assault and breach of probation. The Respondent was committed on the warrant for contempt of court and served 60 days. As a result the children were apprehended in Alberta, returned to Ontario and apprehended in Ontario. Child protection proceedings began in the Ontario Court of Justice in Welland. I was informed that the Ontario Court was scheduled to hear an application by the Society to withdraw those proceedings on August 5, 2016, following the motion before me.

[11] In the child protection proceedings the children were placed in the care of their paternal grandmother, where they are yet.

[12] On June 8, 2015 the Court of Appeal reversed the orders that gave custody to the Applicant “with the result that the order of Henderson J. is restored” and ordered a new hearing. It did not reverse the contempt order, but explained that it is spent, so there is no bar to the Respondent participating in the new hearing.

[13] The result is that if the child protection proceedings are terminated, Henderson J.’s order will be the governing order unless this court makes another order before then.

[14] Since the appeal, the Applicant has filed an amended application (C.R. Vol. 2 Tab 23) styled as a motion under s.21 of the CLRA to vary the order of Henderson J. I take it that this is meant to replace the application under the Divorce Act. That motion and the motion for interim relief at Tab 1 of Volume 3 of the Continuing Record were before me. The grandmother is now a party to those motions. She seeks, in the alternative, custody for her son, custody for herself or custody for herself and her son jointly.

[15] Also before me were a motion by Mr Macri to be removed from the record as counsel for the Respondent and a motion by the Respondent to adjourn the Applicant’s motion for interim relief. I declined to remove Mr Macri from the record until I had heard and decided the motion for adjournment and heard his submissions on behalf of the Respondent on the question of terms of an adjournment.

[16] In view of the apparent breakdown of the solicitor client relationship I decided to adjourn the motion for interim relief as long as it could be done without prejudice to the Applicant or the children’s best interest. The Applicant submits that there would be prejudice if the motion for interim relief were adjourned without any provision for interim residence of the children. There was a prospect that the child protection proceedings would be terminated within hours. The order of Henderson J. would immediately become operative and the children would be required to change their residence. I accepted that argument, gave the leave required by s.57.2 of the Child and Family Services Act and ordered that until further order of this court, the children shall continue to reside with the added party, their grandmother, with whom they have been living for almost three years, with access to the parents on the same terms as those contained in the most recent order of Martin J. of the Ontario Court in the child protection proceedings.

[17] A third custody assessment is expected. I agree with the Respondent that it is too soon to make a final decision on custody. There is however, substantial evidence available on the record as it now stands, enough to make an interim disposition. In my view the best interest of the children requires an interim disposition.

[18] Dr Mills, a psychologist, and Mr Currie, a custody and access assessor with credentials in psychology and social work, have both filed reports to the Ontario Court, Dr Mills on August 24, 2015 and Mr Currie on December 4, 2015. They both conducted careful inquiries, which were challenging because both parents are so given to the factitious. Both assessors made assessments and gave detailed recommendations to the parents, which the parents have not followed. The Respondent has psychiatric instability that needs to be addressed. The Applicant lacks insight into the gravity of his conduct in the incidents that led to criminal charges. To him, it is just a question of yelling back and forth. He does not understand how alarming it is when a man persistently stalks, chases, threatens, assaults and generally tries to dominate his partner and the sinister implications when he says, “easy way or hard way we’ll both be together.”

[19] Both parents give priority to fighting their battle over raising their children. At one point Martin J. found it necessary in the child protection proceedings to require the Respondent’s access to the children to be supervised because of concerns that the Respondent was involving the children in the litigation. As of now, however, the Respondent has regular unsupervised access.

[20] I think that Dr Mills understood and explained the dynamic that is operating in this troubling case:

In conclusion, both parties present with a psychological aura of character pathology although we have no direct evidence of a diagnostic nature. Often narcissistic men with grandiosity, entrenched anger, misogynistic tendencies and control problems attract borderline partners with histories of developmental trauma, abandonment and abuse, dissociative cognitive styles, and tendencies toward seeking out these earlier unresolved conflicts with surrogate abusers as the product of unconscious repetition compulsions. In the end, both of these parents exude negative characteristics of attachment disruptions that have affected their personality structures.

[21] In April of 2016 the Society filed the affidavit of a caseworker in support of its motion to withdraw the protection proceedings. The caseworker concluded:

The Society takes the position that it cannot continue to remain involved in this family given their resistance and/or their unwillingness to make the changes as recommended in Dr Mills’s and Mr Currie’s assessment reports. Given that neither parent feels that they need any further assistance and given that both parents continue to focus on their anger and their negative feelings towards each other, the Society’s presence only further exacerbates these negative views and the Society has become a distraction for the parents, taking them away from the main issue at hand, that being the permanency planning for the children and a shared level of involvement in the children’s lives. At the same time, there is no risk posed to the children by either parent at this time.

[22] Finally, both children have special needs. I accept the grandmother’s evidence that the children are progressing as well as can be expected with respect thereto. I note however that Debbie Good, the counsellor whom the children saw on the order of Martin J., reported on June 14, 2016 that while the children would benefit from ongoing counselling, there is little prospect of progress in therapy while parental conflict continues, as it does.

[23] The Child and Family Services Act provides:

57.2 If, under this Part, a proceeding is commenced or an order for the care, custody or supervision of a child is made, any proceeding respecting custody of or access to the same child under the Children’s Law Reform Act is stayed except by leave of the court in the proceeding under that Act.

[24] The purpose of the provision is to give child protection proceedings priority over proceedings initiated by private parties. In the present circumstances leave should be given because the child protection proceedings may end abruptly causing a sudden and potentially transitory change of residence for the children that is not in their best interest. If they are to end up moving, better it be once than twice. My order will not interfere with the child protection proceedings. It will only operate once the child protection proceedings are terminated.

[25] After announcing my disposition of the adjournment and the terms thereof I transferred the file to St Catharines on consent because that is the place of residence of the children. I reserved the costs of today to the motion judge. I then granted Mr Macri’s motion to be removed from the record.

J.A. Ramsay J. Date: 2016-08-08