H.H v. L.H., 2016 ONSC 707
COURT FILE NO.: FC-14-489
DATE: 2016/01/27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: H.H., Applicant
AND
L.H., Respondent
BEFORE: Justice Bonnie R. Warkentin
COUNSEL: Diana Carr, Counsel for the Applicant
Beverley Johnston, Counsel for the Respondent
HEARD: January 27, 2016
ENDORSEMENT
Oral Reasons on Supervised Access And Counselling:
[1] There is still some evidence to weigh. However, this morning H.H., the father in this case, was acquitted of criminal charges that stem from an allegation against him by the mother regarding an incident that she claimed occurred in 2005 prior to the birth of K. In the circumstances I have decided to deliver this oral decision immediately as it pertains to the father’s access to the children.
[2] In due course the trial will be concluded and I will provide my decision on the remaining issues and will explain in greater detail why I am making the orders I am making today. It is important to emphasize that the additional detail is with respect to my reasons for reaching my decision regarding the father’s access, not to the outcome, which I have already determined. I have heard close to 8 days of evidence and had the benefit of a significant amount of material that has accrued during the course of this proceeding.
[3] The specific issue of the father's access and the conditions to be applied thereto have been an issue before this court since 2013 after the father brought an application for divorce and to regularize his access to the children. Due to certain circumstances that I will outline in more detail in my written reasons to follow the conclusion of the trial, the father has had only supervised access to the children since November 2013. Even more troubling is that his access has been limited during this extended period, to access supervised by the Rose Garden Supervised Access centre only two times a week on weekdays for about two hours, more or less, for each visit.
[4] I am providing this oral decision immediately in order to expedite my orders regarding the father’s access and the supervision of that access. I will tell you why in writing and in detail at a later time. Today I will make some brief comments and will discuss my expectations of you over the next few weeks.
[5] This case is centred on the best interests of two children: F born […], 2003 and K born […], 2005.
[6] The law is clear that when considering the best interests of children, I must start with the presumption that it is in the best interests of the children to continue to have access to each of their parents after a separation.
[7] It is a common misconception by some parties who consider their “parental rights” as part of this analysis. This is incorrect. The court is not concerned with “parental rights”. From start to finish, my role as the judge of this case is only with the best interests of the children.
[8] It is only in certain, very specific types of cases where the Court would determine that children would not benefit from the continued association with each of their parents. The fact that one or both parents may have some serious deficits does not disentitle the children from access to that parent. I am deliberately using the wording “disentitle the children” because it is a very apt description of what I have found to have occurred in this case with respect to the children’s relationship with their father.
[9] The Divorce Act provides a very clear and concise direction to the court as to the applicable law:
In s. 16(10) the Divorce Act states:
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
And section 16(9) of the Divorce Act says:
In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
[10] In this case, the onus is on the mother to rebut the presumption of maximum contact of the children with their father.
[11] It is uncommon for a matter where the primary issue before the court is custody and access to require close to two weeks of trial time. What I have been witness to during this hearing is the mother, in effect, placing the father on trial to answer for virtually his entire life, including historical criminal convictions for which the father received a pardon prior to the parties’ marriage, the father’s upbringing, parenting experience, innuendo of sexual deviancy, gambling addictions, allegations of inappropriate conduct that are historical in nature and expectations that he will provide proof that his conduct will be perfect or as close to perfect as possible prior to any lessening of the current supervised access regime.
[12] Regarding most of the allegations against the father, I accept the findings of Dr. Weinberger that there was no basis to support certain of the mother’s allegations, in particular those of accessing and viewing child pornography or that the father’s gambling is a factor that would affect his ability to parent these children. I also accept the results of the psychological testing of both parents and the conclusions that Dr. Weinberger drew from the test results.
[13] I do not accept Dr. Weinberger’s conclusion that continuing supervision in the same format would have been in the children's best interests had the father been convicted of one or more of the charges of which he has now been acquitted. Nor do I accept that continued supervision is necessary for their protection on the lengthy seven month process as recommended in his report of February 9, 2015. Dr. Weinberger today in his testimony recommended that this period be cut in half.
[14] Even though the issue of the father’s alleged criminal conduct may now be moot, I will be commenting on that aspect of Dr. Weinberger’s report in order to underscore my findings regarding what is in the best interests of these children in my written reasons that will follow. I am also mindful of my obligation to give consideration to expert evidence, and where I do not follow the recommendations, to give some explanation as to why. My written reasons that will follow in due course will address these issues more fully.
[15] These children have been waiting for a determination of the issues before this court since November 2013 when they last saw their father outside of the supervision order. Put into context, that is almost one-fifth of K’s lifetime to date, and it is well past the time that this should have ended.
[16] When F made the disclosures she did about some of the father’s conduct during the time they were in his care, she was specifically concerned about the effect that disclosure would have on her relationship with him and the time she would be able to spend with her father. That has been a consistent theme for the children in all of the interviews they have had with both the CAS and Dr. Weinberger. The children have made it clear that they want to resume regular access with their father, provided he controls his anger and that his discipline of them is appropriate.
[17] It is my view that it is not a close call with respect to ending the supervision of the father’s access and would not have been a close call even if the father had been convicted this morning.
[18] The mother has acknowledged that the children love and need their father. While there is much to criticise about how this case has unfolded, I commend the mother for ensuring that the visits between the children and the father have occurred with minor exceptions, since the supervision order was made. This will ensure the transition to unsupervised access progresses more smoothly because the children have not lost contact with their father and maintain a close and loving relationship with him.
[19] Similarly, the father, in my view has much to commend him. He retained his composure throughout the entire period of the supervision order by remaining child focused. His immediate response when learning of F’s disclosure was concern for F and the effect that having made such a disclosure would have had upon her - he wanted to reassure her that he was not angry with her. He was also immediately remorseful about the pain and anxiety he had caused the children by his behaviour.
[20] The father has shown love and compassion to his children for the past two years as evidenced by the notes taken by the supervisors at the Rose Garden. There was not one instance to which I was pointed that indicated his interactions with his daughters was anything but loving, compassionate and consistent notwithstanding the artificial, and no doubt distressing, setting in the two different centres where the supervised visits took place. From my review of the notes as well as the interviews with the father by both the CAS and Dr. Weinberger, the father at all times in the presence of the children was a good parental role model.
[21] In addition, the father has accepted responsibility for his anger issues and inappropriate discipline of the children. He sought therapeutic help and took two of the three programs that were recommended to him by the CAS; the third one having been cancelled notwithstanding his enrollment in the program.
[22] It is now time for the children to become re-acquainted with their father outside of the artificial setting in which they have been restricted. They have the right to know him, good and bad. A normalized relationship with both parents will make them better, stronger individuals and is in their best interests.
[23] I am satisfied that unsupervised periods of care and control are not a safety issue. Having said that, I also acknowledge that there are no guarantees in life and we cannot protect children against all dangers, misfortunes, and contingencies that may come. Nor do we expect perfection or even near perfection of parents when caring for their children. Mistakes will be made and the parties will have to learn to accept that everyone has failings. A person’s failings are not a bar to maximum contact.
[24] I am of the view that at this time, in this case, the good outweighs the bad. The children are no longer small children; they are gaining independence and within certain bounds, they have the ability to fend for themselves.
[25] It is essential therefore that the issues regarding the father’s access move forward immediately and that the outcome of this court's decision on his access be implemented without further delay in awaiting the conclusion of the trial or my written reasons.
[26] So I am ordering today the immediate end of supervision at the supervised access centre. The parties shall have until this Friday morning to either collectively come up with a plan for reinstating the father’s access or I shall enforce one. While the father no doubt would prefer to move immediately to significantly enhanced access, this court is cognizant that the sudden change may not be in the children’s bests interests and therefore there must be some graduated reintroduction to the children.
[27] While I am not convinced that continued supervision of any sort is required, for the protection of the father against more allegations of misconduct and to ensure that the children have an opportunity to reconnect in an environment where they feel safe, the father’s access shall be supervised in the short term by either Ms. Winch or Mr. or Mrs. Hornsby at the father’s discretion, or any other party that the parties may agree upon or whom I may order if no agreement can be reached. I will be case managing the increase in access over the next several weeks by way of regular telephone conference hearings with counsel. The parties are also invited to sit in on the telephone conference hearings. The access will be amended as necessary moving forward as my case managing of the father’s increased access progresses.
[28] I am also ordering that a therapist be engaged by the parties to provide counselling for F, which counselling must also include the father (either together or separately as deemed appropriate by the therapist) in order to assist in the repair of their relationship and to work through any anxieties that F is experiencing regarding her relationship with her father. The parties shall have until February 5, 2016 to obtain and exchange names of possible therapists, their qualifications, and proposed therapeutic approach to assisting F and the father through this period of reunification. If the parties are unable to agree on a therapist they shall each provide me with no more than 2 names of possible therapists with the information I have just described and brief submissions from their counsel as to the reasons for their choice as well as the timing for the counselling sessions to begin. It is imperative that counselling commence at the earliest possible date. Once I have received that information I will make a decision and order regarding the therapist to be engaged. It is not my intention to require the therapist report to the court; however, I may direct the therapist to discuss issues within certain limitations with a parenting coordinator as recommended by Dr. Weinberger today in his testimony.
[29] I also order the parents to collectively, through their counsel, put together an explanation of what they will tell the children about what is going on regarding the criminal charges as well as the change from the supervised access centre to regular access. That explanation shall be vetted by me on or before Friday morning prior to any information being provided to the children. Once finalized, the parties shall follow that script as closely as possible so that the children receive the same message from both parents.
[30] If the children ask prior to then, the parents may tell the children that the father was found not guilty and that that they are now working together to have their visits with their father visits in his home but that it will be a gradual process. If queried further, they should only comment that they need to discuss this further with their lawyers and the judge before any final decisions will be made regarding when they will be visiting the father in his home.
[31] With respect to other short term orders, if the father does not provide written consent to F’s exchange programme by the end of the day tomorrow, Thursday January 28, 2016, then I will make an order permitting her to participate in that programme in order to ensure she does not lose that opportunity. The father shall also continue to pay child support in the amount he is currently paying. If I find that he is entitled to a reduction of child support in 2016, then any over payment shall be allocated to his s. 7 expenses or dealt with in any other manner that I shall determine after further submissions from the parties.
[32] I am also making an order for joint custody of the children to both parents with primary care in the favour of mother. I am reserving my decision on whether or not the mother will be granted final decision making authority to my written reasons which, subject to the others orders I will make, will depend upon both parties’ conduct between now and then as well as the strategies they come up with to deal with conflicts that develop in the parenting of the children.
[33] The end of the criminal proceeding has also put an end to the non-communication/contact order and therefore the father may now participate in the children’s activities without fear of breaching a condition. When putting together the proposals for the father’s access, I require proposals that include the father participating in the children’s activities.
[34] The continuation of the trial is adjourned until Friday morning at 10:00 am for the parties to report on the issues I have set out in this order. At that time we will schedule further dates for the continuation of the trial. As I have indicated, my intention is to case manage the implementation of my orders for the father’s increased access as it progresses over the next few weeks after which I will set a date for hearing closing submissions and if necessary will permit both sides to present some evidence regarding the outcome of the orders I am making today.
[35] My written reasons will also include a schedule of holiday access for both parties moving forward regarding shared periods of care and control during school breaks in the summer, Christmas time, and the annual spring break, etc. The parties should put their positions forward regarding this ongoing schedule and the appointment of a parenting coordinator to assist the parties moving forward.
[36] I will be reserving my decision on all other matters, including costs, pending the completion of the trial and after closing submissions of the parties.
Justice Bonnie R. Warkentin
Date: January 27, 2016
CITATION: H.H v. L.H., 2016 ONSC 707
COURT FILE NO.: FC-14-489
DATE: 2016/01/28
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: H.H., Applicant
AND
L.H., Respondent
BEFORE: Justice Bonnie R. Warkentin
COUNSEL: Diana Carr, Counsel for the Applicant
Beverley Johnston, Counsel for the Respondent
ENDORSEMENT
Justice Bonnie R. Warkentin
Released: January 27, 2016