Court File and Parties
COURT FILE NO.: FS-11-72269-00 DATE: 20170328 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.B., Applicant -and- S.M., Respondent
BEFORE: Van Melle, J.
COUNSEL: George F. Brant, for the Applicant S.M., Self-Represented Respondent
HEARD: March 6, 2017
Endorsement
[1] This matter was scheduled to proceed to trial in January of 2016. On January 4, 2016, the parties entered into Minutes of Settlement. The Minutes of Settlement provided that the respondent father was to have supervised access visits with the children, namely, A.M. born […], 2006 and P.M., born […], 2009.
[2] The supervised access visits were to take place:
(a) 3 out of every 4 Sundays from 11:00 a.m. to 5:00 p.m. commencing January 10, 2016, unless otherwise agreed by both parties. (b) Taking into account the convenience of the children and the parties, the respondent father shall be allowed to have a maximum of 10 hours (10:00 a.m. to 8:00 p.m.) on one of the Sundays in a four-week period with at least three days’ notice; (c) The access visits shall be supervised by Dr. M.L.M. (the children’s paternal grandfather) or Deborah Baptiste (Social Service worker); (d) The parties shall approve another neutral third party possessing the requisite training and skills for one on one supervision of the father, at a maximum rate of $20.00 per hour; (e) The children shall be allowed to telephone or e-mail their father whenever they wish, with the mother’s or designated person’s supervision, and the father may respond; (f) The above access provisions vary existing orders and agreements re: child access which otherwise shall continue; (g) The supervision expenses, if any, shall be shared 53% to the respondent, 47% applicant.
This matter shall be returned for review by Justice Van Melle for further directions regarding whether there should be a transition from supervised access to unsupervised access.
[3] The respondent’s access was supervised due to an incident in August 2007 which resulted in his conviction for sexually assaulting his then brother-in-law’s step-daughter. The Criminal Court found that the respondent had licked the belly button and stomach area of the victim; had placed his hands up under her shorts to the level of her underwear, despite indications from the victim that she did not wish him to continue, persisted in his conduct and then advised the victim she was “hot”. When the victim attempted to leave the basement area of the residence, the respondent said to her, “If I said sorry, would it make it better?” and kissed her on the lips. The victim was 12 years old at the time. The respondent was sentenced to 90 days to be served intermittently and to a period of probation.
[4] On June 20, 2016, the parties met with me and I made the following endorsement:
This matter was scheduled for today so that a review of the supervised access can take place. Mr. Currie’s assessment report contemplates a transition from supervised to unsupervised access. Unfortunately neither party felt it necessary to file any materials in support of this review. The mother’s position is that access should be supervised until A.M. is 14.
Unfortunately this review will have to be adjourned to another date. Review is adjourned to July 28, 2016 at 10:00 a.m. (for one hour). For the July 28, ‘16 date I will require sworn affidavits from each party setting forth how access has gone and his or her position on a proposal for access for the future and the reasons for the proposal. I direct Mr. S.M. to obtain a letter or affidavit and copy of her notes, if any, from Deborah Baptise, outlining her observation of the visits where she has been present. This endorsement is her authority for providing the information. All her information must be provided to Mr. Brant and the court. Mr. Brant indicates that he is planning to obtain an affidavit from M.B., the complainant in the criminal proceedings against Mr. S.M.. He is to use extremely best efforts to obtain an affidavit from her. If he is unable to do so by July 28, he must bring evidence of attempts to obtain the affidavit.
Mr. S.M.’s materials are to be served on Mr. Brant on or before July 4,‘16; Mr. Brant’s material to be served by July 18, ‘16; any reply by July 25, ‘16.
[5] On July 28 I made the following endorsement:
We are here today further to my endorsement of June 20, 2016. The Applicant continues to oppose unsupervised access. She relies on the criminal conviction relating to events with M.B. in 2007. She also relies on the psych assessment of Gosse and Mills who wrote at page 11 that a determination re. unsupervised access had to be weighed in terms of risk of sexual offence and the children’s comfort and attachment to their father. Based on the evidence before me today, I am unable to make that determination. I suggest that Mr. S.M. engage (at his expense) Mr. Currie to prepare an update to his report of October 5, 2014 to address the concerns of Goss and Mills and to update me as to the relationship between Mr. S.M. and the children and any risks. Mr. Currie will have to interview the applicant as well.
Pending such a report, access will remain as is. Affidavits in support of today’s appearance are to be provided to the assessor. The assessor should interview M.B.
Once the report is finished parties are to arrange a further appearance before me.
Mr. Brant will provide to me a copy of the transcript from the criminal proceedings in a sealed envelope. Mr. S.M. is permitted to go to the children’s school and to obtain the report cards and all information re. parent-teacher interviews directly from the school.
[6] Mr. S.M. followed my instructions and obtained an updated report from Mr. Currie. The updated report is dated December 9, 2016.
[7] To prepare the updated report Mr. Currie reviewed:
- His final report of October 5, 2014 along with the psychological assessments of A.B. (June 20, 2014) and S.M. (June 20, 2014);
- The respondent’s affidavit sworn July 4, 2016;
- M.B.’s affidavit sworn July 17, 2016;
- Applicant’s affidavit sworn July 18, 2016;
- Respondent’s reply affidavit sworn July 25;
- Court records from the Superior Court of Justice in Brampton;
- Criminal proceedings documentation;
- Pre-sentence report;
- Group therapy program report.
[8] Mr. Currie conducted the following clinical interviews:
- Clinical interview assessment of Dr. M.L.M. (S.M.’s father) on September 28, 2016;
- Clinical interview assessment of M.B. on October 30, 2016;
- Clinical interview assessment of A.B. on November 17, 2016;
- Observation/clinical home assessment of S.M., A.M. and P.M. on November 20, 2016;
- Observation/clinical home assessment of S.M., A.M. and P.M. on November 27, 2016.
[9] The assessment report update covered the following issues: risk of harm assessment considerations; assessment process considerations; custody and access report purpose; supervised access terms.
[10] Mr. Currie points out that the original assessment report recommended reviewing the supervision requirement after one year from the October 5, 2014 date of the report. Ms. A.B. objects to a transition period to unsupervised access. She takes the position that the access to both children should continue to be supervised until A.M. turns 14. Ms. A.B. suggests that the material demonstrates that Mr. S.M. is still a risk to A.M.. She will also not agree that he see P.M. on his own on an unsupervised basis because she is concerned that P.M. could be manipulated and/or groomed to assist in a possible sexual assault of A.M..
[11] She points as well to the psychological assessment that was completed on June 20, 2014 as a reason for continuing supervised access. In support, she quotes the last paragraph of the Gosse and Mills psychological report which says:
Despite their biases and presentation during this evaluation, Mr. S.M. has indeed been found guilty of the offences in question, and despite his denials, and the fact that no further evidence of clinical concern related to Mr. S.M.’s psychological health has been found during this evaluation, an elevated risk with regard to his access to minor exists based on his criminal record alone. He has served time in jail for his offenses, and has undergone a probationary period, including being restricted from access to his own children, as well as with access to his community insofar as vulnerable persons are concerned. He has been placed on the sex offender’s registry, and continues to be on there for a period of ten years following conviction. A determination regarding unsupervised access to his children should be weighed in terms of the probable or likely risk of sexual offense and the comfort and emotional attachment his children demonstrate in their relationship toward their father.
[12] The psychological assessment of the parties was conducted as part of the overall assessment. Mr. Currie had the psychological assessment available to him when he made his report. He was the custody and access assessor.
[13] The psychological assessment showed as well that Ms. A.B. was less forthright during the process, and Mr. Currie says there is evidence to suggest that her testing results, and portions of her account, must be interpreted with caution given her proclivity to deception under the current circumstances.
[14] It is noteworthy that in the same document at the penultimate paragraph of the psychological assessment it states:
She appeared to be genuine in her concern for her children’s safety, and indeed is right to question the risk that her husband poses for future custody. She was, however, overly invested in portraying him in a negative light and furthermore, it appears that her judgment and risk assessment of him continues to be significantly coloured by her own feelings about him. She has acted in a contradictory way with regard to Mr. S.M., at times characterizing him as a violent and sexually deviant man, and at others exposing herself and her children to him in a way that does not indicate he poses this type of threat. With regards to his overall risk profile, it appears to be to relatively low that he poses a risk of harm to his children. The Custody & Access assessor is advised to focus on the children’ perceptions and feelings toward their father to determine if such risks are evident.
[15] Mr. Brant obtained an affidavit from M.B., sworn July 17, 2016. In addition to describing the actual sexual assault incident, she describes other incidents that she feels in hindsight were leading to the sexual assault incident. In it, she describes the events that led to the sexual assault and her interpretation of the events. And now, nine and a half years after the sexual assault she has indicated that she felt other sexual overtures were made, however, there is no independent testimony in this regard. Her evidence must be approached with caution, as a result of the passage of time.
[16] In the updated report Mr. Currie says:
I would strongly recommend that both parents review the original Custody & Access report and each of the sections involved in the General Considerations sections. These factors are what identifies and contributes to meeting the best needs of the children involved. In situations where parents are not able to either agree on a matter or how it is handled, that is a situation where they should consider having a Parenting Coordinator who is involved in the process of deciding and resolving issues that arise between the parents involved in the situations where they are unable to do this between themselves. It was very evident in this update assessment, as well as the original one, that both parents still have a significant amount of tension between them which does not always serve the needs of the children who benefit most when the parents are able to interact effectively with each other, even though they may well have different points of view on matters but make things work between them for the sake of the children. While it is understandable that there would be family tensions amongst various adults given the circumstances of what took place in August 2007, it is nevertheless important that both parents continue to work together as best possible so that each child can have a positive and meaningful experience with each of their parents.
[17] The phased-in unsupervised access, as recommended by Mr. Currie is a very cautious plan. He says:
One of the main issues raised in the updated assessment topics was making a recommendation about addressing the topic of unsupervised access beginning for the access times for Mr. S.M. and the children. The original assessment report recommended reviewing this consideration after one year.
At this point in time, based on the clinical assessment interviews held, discussions with parents, review of case materials including the earlier Custody & Access Report, the Psychological Assessment Report, the pre-sentence report, treatment program report, supervisor letters, history of Mr. S.M.’s behavior both before and after the incident in August 2007, risk of harm to the children of having unsupervised time with their father Mr. S.M. is considered low and there is no cause for alarm. I would recommend that there be a beginning of a transition to unsupervised access. The format for this would be to start the current access sessions with a 2 hour period of time unsupervised and then have the supervisor attend for the rest of the session. This would provide the supervisor with an opportunity to see and interact with the children during the access visit and continue to supervise, as before, the rest of the access session.
Based on the information reviewed for this assessment and the clinical assessments interviews held, it is my judgment that the level of risk of harm to the children by their father to be very low. The father has also completed, sometime ago, the treatment program he was assigned to and there has been no indication of any risk of such behavior, at any time, toward his children including the fact that they are strongly connected in their interactions with their father given the level of attachment which has been consistently seen over time. These are the factors that contribute to the view that a transition to unsupervised access by started by having the start of each access time period be unsupervised for the first 2 hours. It is recommended that this format of unsupervised access be continued for a period of 4 months after which, if there continue to be no concerns that have arisen, it be extended further to a longer time period during each access visit. It is then a recommendation that after a further 4 month period of time, if all goes well after that additional time period, that there be consideration of ending the supervised access requirement altogether in the access visits. If at any time of course there are any instances of inappropriate behavior reflecting a risk of harm toward the children by Mr. S.M., that the access visits would require a supervisor be present.
In addition to this, and to include in this transition period, I would recommend that the children continue their ongoing phone, Skype and/or email contacts with their father and that these formats of contact be of an unsupervised nature starting now. This will take place when the children are with their mother, or another adult known to her, and can be a step toward there being less restriction on the phone calls the children have with their father.
[18] From my review of the reports and the affidavits, I agree with Mr. Currie that the risk to the children is minimal if, indeed, it exists at all. The transition proposed by Mr. Currie is a very cautious one. It is now time to institute that plan. I thereby order, that commencing with the next access visit, the first two hours will be unsupervised and the balance of the visit will be supervised. After four months, the first half of the visits will be unsupervised and the balance of the visit will be supervised. The parties will return to me in October, at which time it is contemplated that a regular, unsupervised access schedule will be implemented. I will want an affidavit from each party, along with supporting information, if necessary, attesting to the transition from supervised access and each party’s position regarding the impact of the transition on the children.
[19] As recommended by Mr. Currie, until the parties return to me, the ongoing phone, Skype and/or email contact is to continue, but the requirement for supervision of such contact is removed effective immediately.