Court File and Parties
Court File No.: F939/16 Date: October 6, 2016 Superior Court of Justice – Ontario Family Court
Re: Nancy Mbuku Komi, applicant And: Oliveira Joao, respondent
Before: MITROW J.
Counsel: Alla Kikinova for the applicant Patricia Miller, duty counsel for the respondent
Heard: October 5, 2016
Endorsement
[1] There are two motions before the court: the applicant mother’s motion initially returnable August 10, 2016, where the substantive relief sought was an order that the respondent’s access be supervised at the Merrymount supervised access program (“Merrymount”) and an order pursuant to s. 28 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 that the respondent not attend at the applicant’s home, school or place of employment, or come within 50 metres of her home when the applicant is outside her home.
[2] The substantive relief claimed by the respondent father, in his motion initially returnable October 5, 2016, was interim access every Friday from 5:00 p.m. to 7:00 p.m., every Saturday from 1:00 p.m. to 7:00 p.m. and every Sunday from 12:30 p.m. to 5:00 p.m.
[3] Each party also requested that his or her motion be heard before a case conference.
[4] The child is almost 14 months of age. There is no real dispute that the child has been in the applicant’s sole primary care since birth and that the parties cohabited briefly, separating soon after the child was born.
[5] The order of Aston J. dated August 10, 2016 included the following: the motions were adjourned to October 5, 2016; the case conference was set for December 19, 2016; on an interim interim without prejudice basis, the respondent was provided with access to the child at Tim Hortons for one hour on August 10, 2016, being the child’s first birthday; and on an interim interim without prejudice basis, the parties were ordered not to attend at each other’s place of residence, and not to contact the other in any manner including phone, text, email and Facebook.
[6] It is noted that the substantive relief in Aston J.’s order was on consent. Also, the parties are in agreement that the provisions in Aston J.’s order dealing with communication between the parties and non-attendance at the other party’s residence should continue. The order below provides for same.
[7] The applicant deposes that the respondent has shown little, if any, interest in the child since birth. She sets out a number of access visits that she has facilitated and that she has supervised prior to the order of Aston J. She deposes that the respondent would be absent for periods of time and that his interest in the child, and his visits, were sporadic.
[8] The applicant makes a number of allegations regarding the respondent being physically inappropriate with her and engaging in threatening behaviour. Police were called, but the applicant’s evidence is no charges were laid.
[9] The respondent, for his part, disputes allegations of any improper conduct towards the applicant; his theory of the case is that the applicant is systematically preventing access. He deposed that the one-hour access visit ordered by Aston J. did not occur. The respondent explained some of his absences as occurring because he travels regularly to Angola to visit family. The respondent is from Angola.
[10] The respondent did not serve his responding motion material and his motion until September 26, 2016.
[11] This prompted a detailed affidavit sworn September 30, 2016 from the applicant, being in part a reply and in part a response to the applicant’s motion for unsupervised access.
[12] The sad reality is that the respondent is not having any access to the child. The applicant’s position is that the level of the respondent’s interactions with the child has been so minimal and superficial that access, at this time, should be supervised.
[13] The applicant’s uncontradicted evidence in her last affidavit is that the child had a seizure near the end of June 2016, requiring her to be taken to hospital by ambulance; the applicant deposed that when the respondent attended at the hospital, that he refused to answer any medical history about himself and his family and that he told the applicant that the child’s seizure was the applicant’s fault, coming from her side of the family. The applicant deposed that the child has had further seizures.
[14] It is noted the applicant was self-represented when she filed her initial affidavit that focused substantially on the respondent’s alleged inappropriate conduct towards the applicant.
[15] By the time of her second affidavit, the applicant had retained counsel; however, I find that this affidavit took significant liberties, and started from the beginning of the parties’ relationship, and dealt with numerous facts occurring prior to the applicant’s initial affidavit sworn August 4, 2016, including the child’s seizures.
[16] The result is that almost the entire affidavit sworn September 30, 2016 constitutes a violation of R. 14(20), para. 3 of the Family Law Rules.
[17] However, at the same time, with her counsel’s assistance, this affidavit by the applicant provides to the court some helpful and relevant evidence on the access issues. The respondent made no request to strike any portions of this affidavit.
[18] The respondent submits that his mother should, for now, supervise the access, assuming that the court finds that supervision is required and, if so, only for a limited period.
[19] It is a concern that, although the applicant proposes Merrymount to supervise the access, she adduces no evidence as to when Merrymount could start the supervised access. The applicant does depose that she has completed her intake at Merrymount, and puts blame on the respondent for failing to go to an intake appointment, and thus the applicant argues that the respondent would be responsible for any delay in having Merrymount start supervised access.
[20] During argument, it was suggested by Ms. Miller that Merrymount could not actually start any supervised visits until sometime in November 2016.
[21] I find that, for now, the respondent’s access should be supervised at Merrymount, which I find is in the child’s best interests.
[22] However, given the above discussion regarding the applicant’s last affidavit, the respondent should be afforded a further opportunity to address whether access can be supervised by his mother, or others, and to adduce evidence as to when supervision should terminate. A second reason for allowing this opportunity is the possibility of a not insignificant delay in waiting for an available spot at Merrymount.
[23] It is noted that there was no evidence tendered by the respondent as to his mother supervising access, nor any affidavit from his mother. During argument, the applicant submitted that she would be opposed to access occurring at the respondent’s parents’ residence.
Order
The respondent shall have interim access to the child supervised at Merrymount three times per week for three hours each visit, unless this exceeds the maximum for each visit as allowed by Merrymount, in which case each visit shall be the maximum allowed by Merrymount.
The respondent forthwith shall attend at Merrymount to complete his intake requirements.
The respondent shall pay for any fees charged by Merrymount, including fees to provide a report summarizing the visits.
After attending for nine visits at Merrymount, the respondent is at liberty to bring a motion to have unsupervised access.
This order is without prejudice to the respondent’s right to bring a motion to vary this interim order as follows: a) removing the requirement for Merrymount to supervise access; b) instead, to have access supervised by his mother, or any other family member; c) specifying the number of supervised visits that need to occur before visits are unsupervised; and d) if the respondent brings such a motion, the affidavit evidence shall include a form 14A affidavit general, and a properly completed form 35.1 affidavit, from the person who will be supervising the access visits.
Paragraphs 5 – 8 inclusive of the order of Aston J. dated August 10, 2016 are continued until further order of this court.
Within 30 days, the applicant shall obtain, at her expense, and serve and file, a medical report from the child’s physician in relation to the child’s seizures, including symptoms, diagnosis (to the extent possible), treatment and prognosis.
The respondent’s time to serve and file his answer is extended to October 21, 2016.
If costs are not agreed, the parties may make written costs submissions within 30 days, forwarded to the trial coordinator. The costs submissions shall be accompanied by proof of service on the opposing party.
“Justice Victor Mitrow” Justice Victor Mitrow Date: October 6, 2016