Court File and Parties

COURT FILE NO.: FC-14-1343 DATE: 2017/04/05

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

BETWEEN:

The Children’s Aid Society of Ottawa Applicant – and – E.P. (Mother) Respondent -and- T.M. (Father) Respondent

Counsel: Judith Hupe, for the Applicant Wendy Rogers, for the Respondent (Mother) Stephen Pender, for the Respondent (Father) Marcelle Story, for the Office of the Children’s Lawyer

HEARD: March 28, 2017

Endorsement

J. Mackinnon J.

[1] Justice M. T. Linhares de Sousa authorized the Father’s motion for unsupervised access to proceed before the trial which is scheduled for October 2017. His access to his two daughters has been supervised since June 2014. The parties agree that there should be some forward progression of his access. They disagree as to how that should occur.

[2] The Society would like the access to remain in its discretion, but has outlined a proposal that would see his access move to semi-supervised in the community after about 5 more weeks and therefore towards the goal of unsupervised visits if in the children’s best interests. It gives no “credit” for the three supervised visits that have taken place in March, states no number of semi-supervised visits to be required, and proposes no actual schedule for moving forward thereafter.

[3] The Father asks for an order that would permit him to move now to two, two hour, semi-supervised visits in the community, then to three full days of unsupervised visits in the community, followed by alternate weekend visits in his home from Saturday at 10:00 a.m. until Sunday at 7:00 p.m.

[4] One difficulty with the Father’s proposal is that he has only recently advised the Society that he has moved to Cornwall where he is cohabitating with “Kate”. The Society will need to know her full name and address so that it can conduct the necessary record checks and determine the suitability of the residence for access.

[5] A second difficulty with his proposal is that it contemplates an automatic progression of his access without any oversight. This is problematic given the concerns I noted with respect to his exercise of access in my reasons endorsed on March 24, 2016. In addition in his third report Dr. Worenklein concluded the Father still did harbour animosity towards the Mother which is sometimes communicated to the children. Dr. Worenklein went on to note the associated risk of harm to the children’s identity and relationship with their Mother.

[6] After a careful review of the record, I am satisfied that there is a foundation for Dr. Worenklein’s conclusion and concern.

• See Vol. 3 Tab 10
  • Para 53: Ms. Conquest explained to the Father not to speak negatively about the Mother during visits. He replied, he can speak to the children however he wants because he is their parent (June 6, 2016)
  • Para 111: During visits in May, June and July 2016 the Father alluded to putting a note in the girls pocket to give to their Mother, that she should not need to be reminded to cut their nails, was not able to manage them properly and should try harder. He also questioned them about what their Mother is telling them.
• See Vol. 3 Tab 9
  • Para 57: In October 2016, the Father criticized one child’s hair on two occasions, creating the possibility the child would regard this as criticism of her Mother (hair dirty, nasty looking, un-brushed). In October, he also spoke harshly and in a negative way to the children, about not listening to him, and how to behave at school.

[7] The Father missed three visits in a row in December 2016, before calling the CAS to explain that he could not visit on Monday’s due to work commitments. I also find that the Father chose not to exercise any access to his children between sometime in January 2017, when his employment ended, and March 8, rather than to see them under supervision at the Society office.

[8] There has been an improvement in that the Father’s communications to the children of his feelings about their Mother have lessened. The children love him, want to spend more time with him, and would prefer to see him outside of the Society premises. The Father continues to be extremely rude and uncooperative with CAS staff. He is frequently angry at and dismissive of them. It does not appear that he is aware that this type of conduct does impact the court’s assessment of how he will be able to control himself during unsupervised visits with his children. If successful at trial, he will regularly be exposed to third parties in positions of authority in relation to the children (teachers, doctors, coaches) and he must be able to demonstrate to the court that he can cooperate, communicate and control his temper in these types of situations for the benefit of the children. Treating the CAS staff civilly would be a good place to start.

[9] The Father’s non-attendance at scheduled visits has been a recurring problem. For access to progress, he must attend all scheduled visits.

[10] Accordingly, while I conclude his access should be expanded in stages, I also conclude that oversight is necessary to see how the children handle the progression towards unsupervised access and the changing locations of access.

[11] I prefer the proposal made by the OCL. It is attached with some amendments to it. I order the father’s access to the children to be as set out in the attachment for the period of 10 weeks that it should entail.

[12] It is also a term of my Order that if the Father misses any access visit, the access progression will revert by one visit. By way of example, if he misses the first of two visits, then he shall be required to complete three such visits before moving to the next stage of access. Or, if he has had two semi-supervised visits in the community and misses the next visit, access will recommence with a third semi-supervised visit in the community.

[13] During the time this order is in place the OCL should continue to meet with her clients, the CPW should receive input from the children’s school, and those providing the supervision should also take note of the Father’s compliance with the direction to not speak or communicate negatively about the Mother, and about the children’s comfort level and demeanour as the access progresses.

[14] If problems arise during this time that the OCL or CAS believe would warrant a change in the terms of access the matter may return to court with the fresh evidence.

[15] To assist the parties in the event “all goes well” with the access as I have ordered, I would suggest the following next steps for their consideration, which are dependent upon the Society having approved the residence in Cornwall and “Kate” for access:

• 4 visits commencing Saturday at 1 pm, overnight, with a return on Sunday at 1 pm;
• Alternate weekend visits from Saturday 10 am, overnight until Sunday, at 4 pm; and
• Pickup and drops to occur at a specified neutral location, not to include the Mother’s home.

[16] Should the parties be unable to agree on the next progression of the Father’s access, they should return to court on June 12 at 2:00 p.m. before the presiding judge for a further motion set for one hour only.

J. Mackinnon J.

Released: April 5, 2017

OCL PROPOSAL – March 28, 2017

1.0 Fully supervised visits:

[INFORMATION OMITTED]

1.2 In community – 2 consecutive visits of 2.0 hours duration

[INFORMATION OMITTED]

2.0 Semi supervised visits: (ideally on Saturday [INFORMATION OMITTED])

2.1 In community – 2 consecutive visits of 4.0 hours duration

[INFORMATION OMITTED]

2.2 In community – 2 consecutive visits of 8.0 hours duration

[INFORMATION OMITTED]

3.0 Unsupervised visits: (pick up a drop off at a supervised access location [INFORMATION OMITTED])

3.1 Saturdays - 4 full days

[INFORMATION OMITTED]