CITATION: T.P. v. K.B., 2017 ONSC 2273

COURT FILE NO.: FC-15-1980

DATE: 2017/04/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE T.P., Applicant

AND

K.B., Respondent

BEFORE: Shelston J.

COUNSEL: Gonen Snir, Counsel for the Applicant

Jirina Bulger, Counsel for the Respondent

HEARD: April 6, 2017

REASONS FOR DECISION

[1] The main issue before me is whether or not the biological father of the child J.T.P., born […], 2013, should have access to his son. Both parties have filed motions seeking various temporary claims for relief.

[2] The applicant (“father”) seeks access to his son on a gradually increased basis culminating in access every second weekend from Friday after school to Monday morning and every other week from Tuesday after school until Thursday morning. Further, the father seeks a court order that the child not be removed from the city of Ottawa, that the respondent (“mother”) provide the father with a residential address of the child and that the police enforce any access order.

[3] The mother opposes any access by the father to the child. She seeks to suspend, terminate or vary the order of Justice Minnema dated April 13, 2016, an amendment to her pleadings, an order that the father’s not communicate with the mother, her children or any other member of her family; sole custody of J.T.P.; an order dispensing with the written consent of the father for any travel documents for the child, to obtain his passport, to register them in school or for any other matter which may otherwise require the signature or permission of the father and finally she seeks costs on a full indemnity basis.

[4] The parties lived together from October 2011 until March 31, 2014. During that time they had one child namely J.T.P.. The mother had other children namely H.1, A. and H.2, who is now deceased.

[5] On March 31, 2014 the father sexually assaulted the mother in front of J.T.P. and A.. He was arrested and found guilty after a trial of sexual assault. He was sentenced to two years less a day and was released on July 29, 2015.

[6] After separation, the mother and the children went to a shelter and she has relocated to an undisclosed location. She was and remains afraid of the father. The father has not seen the child since March 31, 2014.

[7] On September 14, 2015, the father commenced proceedings seeking joint custody of J.T.P., access to J.T.P. and A.; an order that the mother not be permitted to travel outside of the jurisdiction with the child without the father’s consent and police enforcement of any access order.

[8] In the mother’s Answer, dated March 30, 2016, one of the orders that she sought was that the father complete an anger management course, a parenting course and drug screening before any supervised access can occur at a supervised access program with J.T.P..

[9] On April 13, 2016 Justice Minnema conducted a case conference where, on consent, he granted the father supervised access at FSO Ottawa subject to its rules and conditions and the parties were to cooperate in a timely way in connecting with the centre providing the required information. In the event that the wait time to access the FSO program was too long, the parties were permitted to engage another supervised access program and the matter was adjourned to a settlement conference date to be set at the request of counsel.

[10] On April 14, 2016, the father applied to FSO in Ottawa for supervised access. On May 12, 2016, counsel for the father sent an email to the mother’s then lawyer requesting that her client submit her application to the FSO. On May 25, 2016, another reminder was sent to the mother’s then lawyer repeating the request to submit required documentation to FSO. On June 9, 2016, a third reminder was sent to the mother’s then counsel requesting that she apply to FSO.

[11] On June 10, 2016, the mother contacted the Family Visitation and Exchange Services of Renfrew County in Pembroke, Ontario where she inquired how long it would take for her son to start access with the father. Unbeknownst to the father, the mother was not living in the city of Ottawa.

[12] From June 10, 2016 to mid-November 2016, the mother and the father were in contact with the Family Visitation and Exchange Services in Renfrew County on multiple times regarding the commencement and procedure for the agency to supervise the access of the father to the child pursuant to the court order. At no time prior to this motion did the mother allege that she did not consent to the court order. No access was ever started

Position of The Parties

[13] The father seeks to have extensive access to his son on a gradually increasing basis as well as information as to where the child lives and an order authorizing the police to enforce the terms of access.

[14] The mother opposes any access by the father as not being in the child’s best interest and further submits that she never consented to the order of Justice Minnema. The mother seeks to suspend, vary or terminate the order of Justice Minnema and, at the motion her counsel made an oral motion to extend the time to permit the mother to seek leave to appeal the order of Justice Minnema.

Analysis

Order of Justice Minnema

[15] With respect to the mother’s request to suspend, vary, terminate or appeal the order of Justice Minnema, I must consider the circumstances concerning the order of April 13, 2016.

[16] The mother admits that she was in the courtroom that day. The mother states that she never consented to the order however she fails to file an affidavit from her then counsel either corroborating or denying her version of events.

[17] I draw an adverse inference in the mother not submitting an affidavit from her then lawyer. This evidence was something within the mother’s control yet she failed to submit that affidavit. There is simply no explanation. I can only conclude that her then lawyer would not have supported the mother’s allegation that she did not consent.

[18] When I consider the written endorsement indicating the order was on consent, the actions of the father and his counsel to start access and my conclusion regarding the mother’s lawyer and the adverse inference that I have drawn, I find that the order was on consent. This finding is further supported by the evidence from Family Visitation and Exchange Services in Renfrew County which indicates that the day after the third notice was sent by counsel for the father on June 9, 2016, on June 10, 2016, the mother contacted the supervised access centre. The evidence from the supervised access centre confirms that over the next five months the mother was in communication with the centre inquiring on commencement of access, the nature of the environment, intake information received by the father and general information. At no time did she allege she did not consent to the court order.

[19] I conclude that the mother consented to the order on April 13, 2016, the order was not appealed and the time for seeking leave to appeal has expired. I reject the mother’s oral motion requesting permission to have an extension to seek leave to appeal because the order was made almost 1 year ago. The delay is too long.

Access

[20] In January 2017, the father brought this motion returnable April 6, 2017. The mother filed her responding materials on March 28, 2017, after having changed counsel.

[21] I have considered the following legal principles in arriving at my decision:

(a) there is a presumption that regular access by non-custodial parent is in the best interests of children. The right of a child to visit with the non-custodial parent, to know and form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort. See Jafari v Dadar 1996 NBJ. No. 387;

(b) the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination. It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent\child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact on the children. See Jennings v. Garrett 2004 17126 para 137;

(c) supervised access, whether short, medium or long-term, should always be considered as an alternative to a complete termination of the parent-child relationship. Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits, the child reacts badly after visits, or, where the access parent continually misses the visits or is inappropriate, then termination must be considered. See Jennings v. Garrett supra paragraph 140;

(d) the court should take into consider the following principles on terminating any access to the natural parent being:

(i) the maximum contact principle;

(ii) the right of a child to know and have a relationship with each parent;

(iii) a limitation of a consideration of parental conduct to that contact which impacts on the child;

(iv) the risk of harm: emotional, physical and sexual;

(v) the nature of the relationship between the parents and its impact on the child;

(vi) the nature of the relationship and attachment between the access parent and the child; and,

(vii) the commitment of the access parent to the child. See Jennings v. Garrett supra para 143.

[22] Terminating access by the father to his child is exceptional relief that is reserved only as a last measure. I have found that the mother consented to an order that the father have supervised access. I find that the father has taken a parenting course, taken a new direction’s program completed in November 2015 and has submitted drug testing in the year 2015 confirming negative results. Further, I have considered the letter from the father’s parole and probation officer which confirms that the father has participated in counselling and programming to address his substance abuse, domestic violence history and has received psychological services. Also, I have considered the letter from Dr. Kingston, the father’s psychologist who does not believe that the father presents as an imminent risk for violence towards others including children in his care. However, the doctor indicates that if the father would resume using his substances, the risk for violence would increase.

[23] With respect to access, the right of access belongs to the child. Clearly there is no relationship between the mother and father. However, the child has a right to know his father. There are limitations on that right that can only be taken into consideration after the father has started to exercise access to his child. The father is a stranger to the child and I find that the access, at the beginning, should be of short duration. How and whether it is increased or terminated will depend on the child’s reaction.

[24] I do not find it in the child’s best interests to accede to the father’s request for gradually increase access or to terminate any access by the father to his child.

[25] I order, on a temporary basis, the father to have access to the child, the first and third Saturdays of each month commencing with May 3, 2017 for one hour as arranged through the Family Visitation and Exchange Services in Renfrew County. I order that the parties shall complete any required documentation required by the Family Visitation Exchange Services in Renfrew County to facilitate the commencement of access.

[26] The frequency of access/termination of access may be reviewed after August 31, 2017 to permit sufficient time to ascertain the child’s reaction to said access.

Other Relief

[27] On the issue of temporary custody of the child J.T.P., I find that the mother has been the main caregiver of the child since birth. The father has not seen the child since March 31, 2014 as a result of his criminal act of sexually assaulting the mother. I find it is in the child’s best interests that temporary custody be granted to the mother.

[28] I order, on a temporary basis, that the father’s written consent for any documentation for the mother to travel with J.T.P., to obtain a passport for J.T.P., to register J.T.P. for school or for any other matter which may otherwise require the signature provision of the father is hereby dispensed with.

[29] I have considered the mother’s continuing fear of the father and her efforts at relocation. I will not make a court order requiring the mother to disclose the child’s residential address and I will not restrict movement outside of the city of Ottawa because currently she resides outside of the city of Ottawa.

[30] With respect to the father’s request for police enforcement, I reject that request. If the mother fails to bring the child to the supervised access program, there are other remedies available to the father other than having the police attend to enforce any order in the face of the mother’s fear that the father will learn of her location.

[31] On consent, the father shall file an amended application no later than April 24, 2017, respondent shall file an amended answer by May 5, 2017 and the father may file a Reply, if any, by May 12, 2017.

Costs

[32] On the issue of costs, I find that success has been divided on the various issues before me. However, the parties seek costs, the applicant shall provide his cost submissions not to exceed two pages with any offers to settlement and Bill of Costs attached no later than April 21, 2017. The respondent shall file any responding cost submissions the same restrictions by May 5, 2017.

Shelston J.

Date: April 12, 2017

CITATION: T.P. v. K.B., 2017 ONSC 2273

COURT FILE NO.: FC-15-1980

DATE: 2017/04/12

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: T.P., Applicant

AND

K.B., Respondent

BEFORE: Shelston J.

COUNSEL: Gonen Snir, Counsel for the Applicant

Jirina Bulger, Counsel for the Respondent

REASONS FOR DECISION

Shelston J.

Released: April 12, 2017