COURT FILE NO.: FC-16-1642 DATE: 2017/03/22 ONTARIO SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF S.M. (DOB: […], 2005)
BETWEEN:
The Children’s Aid Society of Ottawa Applicant – and – C.L. (Mother) – and – M.M. (Father)
Marguerite Lewis, for the Applicant Annemarie Roodal, for the Respondent, Mother Cedric Nahum, for the Respondent, Father Pamela Barron for the Office of the Children’s Lawyer
HEARD: March 13, 2017
REASONS ON MOTION
SHEARD J.
[1] The Children’s Aid Society of Ottawa (“the Society”) brings this motion for an Order placing the child, S.M, (DOB: […], 2005), (the “Child”), in the temporary care and custody of her mother, C. L. (the “Mother”).
[2] The Mother consents to the Order. The Child is represented by the Office of The Children’s Lawyer (the “OCL”), who also supports and consents to the Order sought on behalf of the Child.
[3] The respondent father (the “Father”) opposes the Order.
[4] The Mother and Father separated in 2007. The Father asserts that, despite that the Mother had made unsubstantiated allegations against him in order to gain sole custody of the Child, the parents had been able to share custody of the Child until the events that precipitated this court application. Until August 2016, the Child alternated living three days with one parent and four days with the other.
Events that triggered Apprehension
[5] The Society became involved with the family on June 23, 2016, after Ottawa Police Services (the “OPS”) had been called as a result of a loud, public, argument between the Mother and the Father in front of the Child. The parents and the Child had met at the Child’s pediatrician who was being consulted about the Child’s behavioural problems at school. The parties began to argue over Child support at the doctor’s office. After the appointment, the Father told the Mother that they were “going to talk about this” and he followed the Mother and the Child out of the building to the hospital parking lot. The Mother’s sister (a police officer) was waiting in the car. The argument escalated with all adults apparently yelling. A passerby stopped his car to offer assistance. The OPS were called.
[6] The Society’s affidavit material states that the OPS reported that the Father had been verbally aggressive and physically intimidating towards the Mother, her sister, and to the person who had tried to intervene and calm the situation.
[7] In his affidavit of December 14, 2016, the Father admits to some of what was reported to the Society but states that this is the first and only time he had sworn in front of the Child. He says that the nature and extent of this argument “has been completely misrepresented”. Later in his affidavit he acknowledges also having used profanity or inappropriate language in front of the Child when someone cut him off on the road.
[8] On July 13, 2016, Leandro Silva-Stone, a Child Protection Worker (“CPW”) with the Society, met with the Mother and the Child respecting the June 23, 2016 event. He spoke alone with the Child who reported that she did not like going to her Father’s house. Although many of the Child’s complaints were not child-protection oriented, she did state that the Father yelled a lot and said that she had witnessed the Father lose his temper in a store and yell at the counterperson. Another time she saw him yell at someone who brushed against his arm.
[9] On July 31, 2016, the Society received a report that the OPS attended at the Father’s apartment after the Mother reported that he failed to return the Child to her. The OPS reported that the Father was angry and confrontational. When an officer asked to speak with the Child, the Father initially refused, although he did ultimately let her speak with them. The Child was reportedly in tears and told OPS that she did not want to be with the Father and wanted to go home to her Mother.
[10] The Father suggests that the OPS were called by the Mother after she and the Father spoke on the phone. The Father said that the Mother had called to ask when the Child would be brought back and that in that telephone conversation he told the Mother that she and her sister owed him an apology for their behaviour of June 23. The Mother then allegedly responded with “we’ll see what happens when I call the police on you.”
[11] Based on their assessment of the situation and that the Child was upset and tearful and asked to go to her Mother’s home, the OPS removed the Child from the Father.
[12] The Father admits that it was a heated argument with the OPS and that he was very upset. He denies the statements in the Society’s affidavit that he was yelling and swearing at the OPS officers, and called the Mother “crazy and a b---ch”. He accuses the Mother of creating scenes in public “to make him out to be a villain” and that he was upset with “the elaborate lie” put together by the Mother. He expressed regret if his actions upset the Child.
[13] On August 11, 2016 the Society learned that the Mother had returned the Child to the Father as per the existing custody order. Mylene Soucy, another CPW with the Society, attended at the Father’s home accompanied by the OPS. She asked to speak alone with the Child. The Father agreed, but only if the OPS stayed outside. Ms. Soucy did not agree to that and spoke to the Child from the hallway, in front of the Father. The Father told the Child to report on their day’s activities and of their plans for the next day. The Father stated that the Mother was the one with the “crazy personality” and, in a reportedly angry tone, stated that the Society needed to realize that the Mother was the one causing problems.
[14] When an OPS officer repeated that Ms. Soucy needed to speak alone with the Child, the Father “banged the door and went into the apartment.” Alone with Ms. Soucy, the Child reported that her Father was “strange” and that she was “always scared that he’s going to ‘flip out’”. She stated that when the Father flipped out, he yelled and swore at people. The Child was “crying and sighing” and said that she did not feel safe staying with him. She said that although he had never hit her, when he gets mad she feels as though the Father is going to hurt her.
[15] Based on the Child’s disclosures to the CPW, she was apprehended. Upon hearing of this, the Father told the Child that “one day, you’ll grow up and you’ll see how your Mother is, you’ll see!” and slammed the door shut. The Father refused to give the Child any of her belongings. She had no shoes on and she was taken in her stocking feet to her Mother’s home.
Temporary Order Granted August 16, 2016
[16] On August 16, 2016 Justice V.J. Mackinnon made a temporary and without prejudice Order, placing the Child with the Mother subject to supervision and conditions. The Order was made without notice to the Father and was based on the Society’s evidence (the “Mackinnon Order”). The Father was to have supervised access at the discretion of the Society. The matter was to be spoken to on August 23, 2016. The Mackinnon Order and the supporting materials were served on the Father the following day.
[17] When the matter was before the Court on September 19, 2016, the Father indicated he did not wish to speak with duty counsel and took no position. Both parents asked to have to October 4, 2016 to file responding materials and the settlement conference was scheduled for November 21, 2016. Neither the Father nor his lawyer attended on November 21, 2016. The Father’s lawyer asked OCL counsel to speak as his agent as he had another matter scheduled for that date. The Court was advised that the Father had scheduled a care and custody hearing for December 5, 2016 and the settlement conference was adjourned to December 20, 2016.
[18] There was some mix-up about dates and the Father did not proceed with a care and custody motion on December 5, 2016. The Father’s responding affidavit was dated December 14, 2016. On December 20, 2016 the Father asked that the settlement conference be converted to a motion. That request was not granted. The endorsement of December 20, 2016 set a two-hour care and custody hearing; scheduled the trial for October 10, 2017; and a TMC for August 21, 2017.
[19] Except for a brief and unplanned encounter on the street in front of the Child’s school, as of the date of this motion, the Father has not seen the Child since the apprehension in August 2016. The Father’s explanation for not seeing the Child was that if he gave in to supervised access, it would appear to the Child, and to the Court, that supervised access was necessary to protect the Child. The Father concluded, therefore, that it was better that he not see the Child at all. As a result, over seven months have passed without the Child seeing the Father.
[20] OCL counsel confirmed that the Child knows that it has been the Father’s decision not to see her because of his views about supervised access.
Onus on Society to Show Possibility of Harm if Access Unsupervised
[21] On this motion, the Society has the onus to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the Child is left with the Father it is more probable than not that she will suffer harm. The Society must also establish that the Child cannot be adequately protected by the terms and conditions of an interim supervision order to the parents.
[22] The Father argues that the Society has not met its onus. The Father asserts that there are just a few discrete incidents on and after June 23, 2016 involving the Child, none of which provide sufficient evidence to support a conclusion that the Child will suffer harm if left with the Father.
[23] The Society’s materials refer to other allegations. Since apprehension, the Child has reported that the Father had pushed her and bruised her and, that when she was younger, left her with a stranger or allowed her to go off with a stranger who touched her inappropriately. The Father asserts that the Mother has coached the Child to make these allegations against him; that for the ten years since separation there have been no allegations of abuse or improper parenting or care made against him.
[24] The Father argues that his reaction to having the OPS attend at his door was understandable given the circumstances. He asserts that the events in June, July and August 2016 were three discrete incidents between the Father and Mother. The Father denied ever having physically harmed the Child and argues that if the Child had been bruised in the past, the Mother would have seen the bruises. There was no such evidence from the Mother.
[25] The Mother argues and put forth evidence that the Child’s behavioural problems occur after spending time with the Father and that the Child has suffered emotional harm at the hands of the Father and that to return her to his care would cause harm to the Child.
[26] The Father denied that his conduct has harmed the Child. He reasoned that, as the Child has been living with the Mother since August 2016 and is still suffering from behaviour and emotional problems, he is clearly not the cause of the Child’s problems. The Father asserted that, in the absence of expert or professional evidence correlating the Child’s current problems with anything he has done, the evidence is insufficient for the Court to reach such a conclusion.
[27] The Father criticizes the Society for not having included in its materials a report from the Child’s counsellor. The Father argues that without such evidence, the court is unable, on its own, to conclude that the Child has suffered any harm as a result of the Father’s behaviours.
[28] Counsel for the OCL defended the decision not to put evidence from the Child’s counsellor before the Court: the Child has only just become comfortable with her counsellor and to expose the Child’s private discussions with the counsellor would harm the Child and undermine this new patient and counsellor relationship.
[29] As to whether his refusal to have any contact with or to see the Child in the over seven months since her apprehension has caused her any harm, the Father asserts that there is no evidence one way or the other.
[30] Despite that he has not seen the Child in over seven months, the Father submitted that the Society’s motion should be dismissed and that access should resume to what it had been prior to August 2016: three days with one parent and four days with the other.
[31] Responding to the Father’s reason for not exercising supervised access, the Society points out that the Mackinnon Order was made on a without prejudice basis. Therefore, had the Father exercised access on a supervised basis, it would have been without prejudice to his right to argue that access ought not to have been supervised.
[32] It is worth noting that not only has the Father refused to see the Child, if he must do so under the supervision of the Society, he has also entirely refused to cooperate with the Society, as required of him by the Mackinnon Order. In argument, counsel for the Father suggested that the Mackinnon Order was invalid as it had been made without notice to the Father. He argued that the Father was not obliged to obey its terms for that reason. When asked whether the Father had taken any steps to either set aside or appeal the Mackinnon Order, the response was that he had not, but preferred instead to bring his own Care and Custody Motion.
[33] In fact, the Father has not brought a Care and Custody Motion. At the first appearance before the Court, on September 23, 2016, the Father indicated that he did not wish to speak to duty counsel. The Father did not attend on the settlement conference that was scheduled for November 21, 2016. The Father either did not seek a date or was unsuccessful in obtaining a date for a Care and Custody Hearing, prior to today’s hearing. This hearing was not brought by the Father. In addition, nowhere in the Father’s written material does he assert that the Mackinnon Order was invalid; ought not to have been made; or ought to been set aside or varied. Those submissions were made only in argument and there is no evidence before me to support those arguments.
[34] In his affidavit and factum, the Father freely acknowledged that he has not cooperated with the Society and that he will not do so in future. He justifies his non-compliance with that term of the Mackinnon Order because in 2007 the Society disclosed to the Mother that the Father was receiving psychiatric care, in breach of the Society’s duty of confidentiality. For that reason, the Father no longer trusts the Society.
[35] The Father has also refused to speak to counsel appointed by the OCL to represent the Child. OCL counsel had met with the Mother and wanted also to meet with the Father. In her oral submissions and on her Motion Confirmation Form, OCL counsel confirmed that when her assistant attempted to contact the Father to set up an appointment “he was belligerent and rude, swearing at her and insulting her.” OCL counsel also emailed the Father’s lawyer three times to try, without success, to set up an appointment with the Father.
Position of the OCL
[36] Counsel for the OCL advised the Court that she has met with the Child who has expressed her clear and consistent wish to remain in the care of her Mother on a full-time basis and has stated that she is afraid of the Father. The Child has reported that the Father is “loud, unpredictable” “yells and swears at random people” and constantly disparages and insults her Mother to her. The Child has also told her counsel that for several years she has not wanted to live with the Father but has been afraid to tell anyone, including her teachers, for fear that no one would believe her. The Child reported to her OCL counsel that for that reason “she acted out at school for attention.”
Disposition
[37] I do not agree that the Court cannot conclude on the evidence that the Father’s verbal outbursts to the Mother, in the presence of the Child; to the police officers in the presence of the Child; to strangers, in the presence of the Child; his physical pounding on tables, and the door (when the police were there) in front of the Child and his raised voice directing the Child on how to respond to the police inquiries when they attended at his home, have not caused her emotional harm. To the contrary, on all of those events the Child was observed to be tearful and upset.
[38] Furthermore, the Child reported to the Society workers that when at her Father’s home and he gets into an angry mood she has moved her dresser to block her bedroom door so that he cannot enter her bedroom. The Child has told three CPW’s of her fear of her Father. She has expressed those same concerns to her own counsel on more than one occasion. The Child is clearly having difficulties and acting out at school, including yelling profanity, behaviour similar to that she has observed in her Father. I conclude that the Father’s behaviour has caused her harm and that it is reasonable to conclude that it has contributed to the Child’s outbursts and difficulties at school.
[39] The Father’s refusal to see the Child is very concerning. He claim that to give in to supervised access might somehow reflect badly upon him and prejudice his position has no basis: the Mackinnon Order was made “without prejudice”. His behaviour suggests that he is unable to recognize or to put the best interests of the Child ahead of his own hard feelings or anger.
[40] Moreover, in the face of the Mackinnon Order, he refuses to cooperate with the Society because of his alleged mistrust of the Society by reason of an event that occurred ten years ago. That behaviour is compelling evidence that a supervision order would be unsuccessful. It is also further evidence of the Father putting his personal interests and views ahead of the interests and needs of the Child.
[41] I accept the Father’s arguments that the evidence before the court was incomplete: the Court had no evidence of how the Father and Child behave together. That evidence is often put before the Court in the form of reports of the supervised access. That evidence is not available in this case because the Father refused to see the Child in a supervised setting. Therefore, not only has the Father’s choice not to see the Child deprived her of seeing the Father, it has deprived the Father of the opportunity to be observed. And, in turn, has deprived the Court of that evidence which might have been of assistance on this motion.
[42] I accept the submissions put forth by counsel for the OCL that it would harm the Child to expose her private counselling notes at this juncture of the proceedings. There is ample evidence before the Court that the Child has emotional challenges and that she needs counselling. Given the other evidence put forward that supports the temporary order being sought, it is unfair to criticize the Society for failing to include evidence of intimate discussions between the Child and her counsellor.
[43] Based on all of the evidence before me, I am satisfied that there is ample evidence to support the conclusion that reasonable grounds exist to believe that there is real possibility that if the Child is returned to the care of her Father it will cause her harm.
[44] For all the above reasons, the Society’s motion is granted and I make the following Orders:
ON A TEMPORARY, WITH PREJUDICE BASIS:
- An order placing the Child, in the temporary care and custody of the Mother, subject to supervision by the Society, pending disposition of the Application, with the following conditions:
Conditions for the Mother:
The Mother will work cooperatively with the Society, allowing the Society workers access to her home for announced and unannounced home visits and attending meetings as requested.
The Mother will allow the Society workers private access to the Child in the home and in the community.
The Mother will inform the Society of any change in contact information or address.
The Mother will sign all requested consents for the release of information allowing the Society to exchange information with services providers involved with the family, after consultation with legal counsel if desired.
The Mother will meet the Child’s physical, emotional, medical and educational needs.
The Mother will not allow contact between the Child and the Father without prior approval by the Society.
The Mother will report to the Society any incidents of conflict she is involved in with the Father.
The Mother will obtain counselling for the Child.
Conditions for the Father:
The Father will work cooperatively with the Society, allowing the Society access to his home for announced and unannounced home visits and attending meetings as requested.
The Father will sign all requested consents for the release of information allowing the Society to exchange information with service providers involved with the family, after consultation with legal counsel if desired.
The Father will inform the Society of any change in contact information or address.
The Father will not have access with the Child unless pre-approved by the Society.
The Father will attend, participate in and successfully complete a program that addresses the impact of domestic violence on children such as the Caring Dads program.
The Father will attend, participate in and successfully complete a program that addresses parenting through separation and divorce.
The Father will obtain a psychiatric assessment and follow the recommendations of the assessment.
Access between the Father and the Child shall be at the Society’s discretion, in keeping with the Child’s wishes and best interests.
Sheard J.
Date: March 22, 2017
COURT FILE NO.: FC-16-1642 DATE: 2017/03/22 INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF S.M. (DOB: […], 2005) BETWEEN: The Children’s Aid Society of Ottawa Applicant – and – C.L. (Mother) – and – M.M. (Father) reasons on motion Justice L. Sheard
Released: March 22, 2017