Court File and Parties

COURT FILE NO.: FC-16-2431 DATE: 2017/06/13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: K.E.L. (L.), Applicant AND S.A.L., Respondent

BEFORE: Justice Engelking

COUNSEL: Karla Policelli, for the Applicant Michael Chambers, for the Respondent

HEARD: June 8, 2017

Endorsement

[1] The Respondent father brings a motion seeking to “recind” portions of the orders of Shelston J. of November 14, 2016 and Hackland, J. dated November 21, 2016 and replace them with an order granting the father temporary sole custody of the children, E.L., born on […], 2011, and S.L., born on […], 2014, with no access to their mother, K.E.L.

[2] The circumstances leading to the motion are, to say the least, highly unusual. The parties were married on October 6, 2006, and separated exactly 10 years later, on October 6, 2016. Two children, namely E.L. and S.L., were born of the marriage.

[3] The Respondent was arrested and charged with a number of offences on November 12, 2016, largely as a result of an email he was thought to have sent to the Applicant’s lawyer(s) and the CAS on November 12, 2016 wherein he threatened to kill the Applicant, the children, the Applicant’s parents and her sister, followed by himself. Significantly, the Respondent was also charged with offences emanating from September 27, 2016, November 6, 2016 and between November 5 and 13, 2016. Significant restrictions were placed on the Respondent in his Recognizance, including that he was not to have any contact, direct or indirect, with the Applicant, the children, the Applicant’s parents and her sister, nor was he to attend the matrimonial home.

[4] As a result of the very serious threats contained in the email dated November 12, 2016, the Applicant brought an urgent, ex parte motion seeking an order of sole custody of the children, no access to them by the Respondent and a restraining order, all of which was successful in obtaining on a temporary without prejudice basis from Justice Shelston on November 14, 2016.

[5] The matter was back, with notice, before Justice Hackland on November 21, 2016, and on the date Hackland J. maintained the provisions of Justice Shelston as they related to custody and access, and then dealt with a number of disclosure and other issues, including disclosure by the Respondent of his medical records. At paragraph 9 of his order, Hackland, J. ordered that the Respondent’s request for supervised access was dismissed on a without prejudice basis “so that the court may receive guidance from a mental health professional as it relates to any medical limitations or safety limitations concerning the Respondent’s proposed access”.

[6] The Respondent provided the records of his family physician, Dr. Andre Gauthier, as well as of two psychologists he has seen between May of 2013 and November of 2016, Dr. Marilyn Keyes and Dr. Orly Rumstein-McKeen respectively.

[7] The Respondent also provided for this motion a letter from psychologist, Kirstine Postma, dated December 2, 2016, and a letter from psychiatrist, Dr. Ahmed Rostom dated December 8, 2016, to which I will refer more later.

[8] By a very unusual turn of events, on May 3, 2017, the Ottawa Police Services contacted the Children’s Aid Society of Ottawa, whom had been involved with the family (for a third time) as a result of the November 12, 2016 e-mail and subsequent events, and advised them that the Applicant mother’s arrest was imminent and they feared for the safety of the children in the care of their mother as a result. The children were apprehended for one night, but were returned to the care of their mother the next day.

[9] On May 5, 2017, all of the charges that had been laid against the Respondent were dropped, including those not having to do with the November 12, 2016 e-mail. As a result, all of the restrictions that had been placed upon him as result of his Recognizance were no longer in existence. The Respondent, however, remained subject to the restraining and no access orders contained in Justice Shelston’s order and continued in Justice Hackland’s.

[10] Later on the very same day, May 5, 2017, the Applicant was charged with four counts of public mischief (CCC 140(2)), one having to do with the November 12, 2016 e-mail and another with allegations of the Respondent breaching the non-communication order, two counts of assault (CCC 267(b)), one having to do with the Respondent and the other with the eldest child, E., and one count of criminal harassment (CCC 264(3)), having to do with a number of alleged efforts to harass the Respondent. The Applicant was placed under arrest and remained in jail until May 9, 2017 at which time she was released on very strict conditions, including that she was to have no contact with the children, and was to live with her father as her surety.

[11] The children’s maternal grandmother, with the knowledge and acquiescence of the CASO, assumed care of the children while the mother was incarcerated and upon her release while the no contact provision was in place. On May 30, 2016, the mother was successful in obtaining a variation of her release conditions such that the no contact with the children provision was removed. The mother was permitted to resume habitation in the matrimonial home with the children with the proviso that it was the understanding of the CASO that one of the maternal grandparents would be present at all times she was with the children.

[12] The Respondent was, of course, at this time still subject to the previous court orders and could not participate in or assume care of the children. On May 11, he had sought to obtain a date for an urgent motion, as by that time the charges against him had been dropped and those against the Applicant had been laid. However, it was not possible for the court to provide a motion date until the week of June 5, hence the motion date of June 8, 2017 before me.

[13] Based on the above-noted significant changes in the situation, the Respondent is now seeking an order that the children be placed in his care and custody. He is also seeking an order that the Applicant have no access to the children until the criminal matters are sorted out or until further order of the court. The Respondent’s position is that the Applicant has manipulated the situation by 1) writing the November 12, 2016 e-mail and alleging that it came from him, and 2) poisoning the minds of the children, particularly E., against him.

[14] The Applicant’s position is that, notwithstanding that the police dropped all the charges against the Respondent, and have laid charges against her, the Respondent wrote the November 12, 2016 e-mail and he represents a danger to herself and the children. Her position, moreover, is that the Respondent has abused E., physically, psychologically and sexually, such that she suffers from Post-Traumatic Stress, and that the Respondent should not have any access to the children, particularly not without the involvement of the professionals involved with E. to discern how, if there is going to be any access, it should take place. In support of her position, the Applicant relies on a report from Dr. Gunnink, who is her family physician, dated January 22, 2017, and a letter from Lorraine Jaksic, who is the Applicant’s counsellor, dated June 3, 2017, each of whom received spontaneous disclosures by E. regarding her father.

[15] Dr. Gunnink’s report refers to E.’s symptoms first coming to her attention on November 26, 2016, and Ms. Jaksic noted that on December 14, 2016, E. spoke in the presence of her and the Applicant about “events” with her father for 22 minutes. According to Ms. Jaksic:

E. stated that “mostly on soccer nights, Mondays, daddy would get mad and…”; she described being dragged to the garage, stripped of her clothes and pushed into the garage, the door closed and locked, where she was yelling to be let out, so cold, and no one was helping her; she described trying to look after Lexie (family dog, I later learned) only to be punished because she needed Daddy’s help and he was busy on the phone…; she stated that she loved Lexie and didn’t want Daddy to kick her down the stairs again. As abruptly as she had started talking, E. paused and then stated simply, “That’s enough”. She was flat calm. In describing these events E. repeated several of them several times (i.e. “so cold”…; “no one to help me…”, etc..).

[16] Bringing E. to Ms. Jaksic was initiated by the Applicant after first meeting with her on December 12, calling her in a “panic” on December 13, and meeting with her, and calling her again on December 14 asking to meet with her, notwithstanding that Ms. Jaksic had recommended the day before that E. may need a child psychiatrist or team of trauma professionals.

[17] In her letter, Dr. Gunnink stated: “E’s provisional mental health diagnosis is that of PTSD from abuse in the home, which she has stated came from her father. This diagnosis has been reached after speaking with E.’s mother, with E. herself and in discussion with the on call child psychiatrist for the Children’s Hospital of Eastern Ontario (CHEO).” She noted the same disclosures being made by E. to her as described in paragraph 15 above.

[18] The Respondent categorically denies any allegations of abuse of his daughter, or son, S., for that matter, and states that their minds, but particularly E.’s as she is older, have been poisoned by the Applicant, with either the collusion or acquiescence of the maternal grandparents. One example of this to which he points is the suggestion in E.’s mind that he has harmed or will harm the family dog, Lexi. The Respondent admits to one inappropriate incident where he was rough with Lexi which was witnessed by the maternal grandparents. He says it was in September of 2011 when E. was a baby, and he was trying to get Lexi into the basement while she was barking and E. was sleeping. The maternal grandmother says the incident was in 2014, and that the Respondent kicked the dog down the stairs. Regardless of whether it was in 2011 or 2014, E. did not witness it and no other specific incident was cited to the court by the Applicant, or her parents, of the Respondent doing anything to Lexi.

[19] Yet, E. made numerous allegations to Detective King of the OPS in an interview on January 9, 2017, that the Respondent “would kick Lexie and grab by head and ears strike her upstairs and throw her downstairs”, apparently while the Applicant was in the house, as E. continued to say: “Lexie would bark for help go find mom me and S.. Mommy would give Lexi a hug, I would give Lexie hug too, and S..” E. alleged, moreover, to Detective King that the Respondent told her he would kill Lexi with a knife. Interestingly, on January 19, 2012, the Applicant reported to Joanne Ryan of the CASO that E. “claimed that her father took a knive [sic] and held it to the dog’s throat, and told her he would kill her dog if she told her mother” (about the things that occurred when her mother was at soccer), but I have seen no reference to E. disclosing that to the professionals with whom she is involved.

[20] All of that is to say that a great deal of E.’s anxiety and preoccupation is in relation to the well-being of the family dog, Lexi, which the Respondent father states is in reality over one instance which she did not witness (she was asleep) or was too young to remember.

[21] The other disclosures of E., if true, are certainly traumatic in nature. Subsequent to her December 14 meeting with the Applicant and E., Ms. Jaksic made a statutory report to the Children’s Aid Society of Ottawa, and the allegations of physical and sexual abuse and emotional harm were investigated by the Society and the OPS. They resulted in no charges against the Respondent, and the CASO concluded that: “…the allegations of physical and sexual abuse by the father were not verified. However, the allegations of emotional harm were verified as a result the child’s nightmares and anxiety resulting from the child’s belief that she was sexually abused.”

[22] By January of 2017, Detective King of the OPS was expressing concerns to the CASO about the Applicant, even though, at that time, the Respondent was facing several charges as I indicated in paragraph 3 above. Detective King advised the child protection worker, Ms. Ryan, that she did not believe that any abuse (by the father) took place, and that “the mother is doing so much damage on this child.”

[23] At the time of the Applicant’s arrest in May of 2017, the OPS remained concerned about not only her potential influence over the child, E., but also that of the maternal grandparents. The OPS did not support the children being placed in the care of the maternal grandparents between May 5 and May 9, nor did they support the Applicant’s conditions of release being altered to allow her to return to the matrimonial home and resume care of the children on May 30, 2017, hence the need for the hearing before Justice Ryan Bell on that date.

[24] The Respondent relies upon the position of the OPS to support his request for custody and for an order of no access by the Applicant to the children. Indeed, both he and the police appear to fault the CASO for taking the position in their letter of May 29, 2017 that they would not be opposed to the Applicant residing in the family home with the children on the understanding that a maternal grandparent would continue to reside there and be present at all times the Applicant would be with the children. Neither appear to understand the role of the CAS, which is to determine, in any case, if there are child protection concerns in the care of children such that the existing custodial arrangement should be intrusively interfered with by them. It is not the role of the CAS to determine what is in the best interests of children, nor is it their role to preserve the state’s evidence. In this case, the CAS was satisfied that there were no such concerns with the care the children were receiving such that they would take steps to intrusively interfere.

[25] The court has jurisdiction, either by virtue of s. 16(2) of the Divorce Act, 1985, c. 3 (2nd Supp.), or s. 21 of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended to make a temporary order for custody of and/or access to the children. In so doing, I am to be guided only by what is in the best interests of the children. Based on the changes the children have already experienced, the stability they have found in the current arrangement and on the evidence before me, including with respect to E.’ provisional diagnosis of suffering from some form of PTSD, I am not, on a temporary basis, inclined to change the existing custodial arrangement. At this stage of the proceedings, based on untested affidavit evidence, the court is unable to determine the heart of the issue, namely what E. has experienced to cause her to express what she has to professionals. If it can ultimately be proven that E. is being influenced in the manner her father asserts, custody may well be varied in the future. It is not going to be varied today solely on the basis that the Applicant stands charged with crimes (including one relating to an assault of E.) and the Respondent does not, if the day to day needs of the children for care and nurturing are being met.

[26] Having said that, I am prepared to order access to the Respondent father, which access shall take place in the presence of his mother, E. and S.’s paternal grandmother, R. L. The Applicant objects to the paternal grandmother playing a role in monitoring the Respondent’s access largely on the basis that she has not been present in the lives of the children for the past seven months. The paternal grandmother has given an explanation as to why that has been so, and given the bizarre nature of the case, I accept her explanation as reasonable. Out of an abundance of caution, and fearing that somehow her interaction or messaging to the children might be seen as “indirect communication” by the Respondent, Ms. R. L. made the conscious choice to not have contact with the children through the Applicant or her parents, or indeed with the Applicant or her parents.

[27] The evidence otherwise suggests, and it is not contested, that Ms. R.L. was very involved with the children prior to her son being charged with uttering death threats against them and being placed on very stringent restrictions in relation to them. As with the maternal grandparents, the paternal grandmother was very often called upon to provide care to the children, and spent significant time with them, including at the time of the events leading up to the separation between November 4 to 6, 2016. The evidence is that she is nothing but a loving, caring and involved grandmother to E. and S. Ms. R. L. trusts that from the children’s perspective, unless they have been influenced otherwise, her absence will only be as if she had gone away for an extensive period, likening it to many other grandparents who go to Florida or Arizona for parts of the year. The Applicant, in fact, in her affidavit sworn on June 6, 2017, acknowledged that Ms. R.L. has been unavailable for prolonged periods in the past due to travel, the death of her husband and illness, which given the nature of her relationship with the children has not presumably been to their detriment.

[28] I am confident on the evidence before me that Ms. R.L. will appropriately attend to the needs of the children while overseeing their care with the Respondent. I engage her for this purpose only because of the vulnerability of the children in the circumstances, particularly E., and because at this stage we do not know what exactly they have experienced.

[29] The Respondent has provided copies of his medical and counselling records, and the aforementioned letters of Kirstine Postma, dated December 2, 2016, and Dr. Ahmed Rostom dated December 8, 2016, pursuant to the order of Justice Hackland dated November 21, 2016. A review of those records confirms that the Respondent is an individual who can suffer from depression (since an episode and diagnosis in 2013), which is generally treated, and who has some obsessive/compulsive tendencies, but mostly who has been struggling with the demise of the marital relationship, which began in earnest in January of 2016. None of the above suggest that the Respondent presents a danger such that he should not have contact with the children. Nor, I note, does the CAS of Ottawa “take a position regarding the ongoing custody and access matter before the Family Court” in their letter to the Respondent dated June 6, 2017. I take from that letter that the CAS is content to have the court make an order that it deems is in the best interest of the children, and therefore, an order for access to the Respondent will follow.

[30] In order to allow the children to become reacquainted with the Respondent and Ms. R. L., my order as to access will be:

(a) Until further order of the court, and on a temporary basis, paragraph 4 of the order of Justice Shelston dated November 14, 2016, and paragraphs 1 and 9 of the order of Justice Hackland dated November 21, 2016, shall be varied to permit the Respondent to have access to the children, E.L. and S.L. as follows: a. On Saturday, June 17, 2017, from 2:00 pm to 6:00 pm; b. On Sunday, June 18, 2017, from 2:00 pm to 6:00 pm; c. On Saturday, June 24, 2017, from 2:00 pm to 6:00 pm; d. On Sunday, June 25, 2017, from 2:00 pm to 6:00 pm; e. On Saturday, July 1, 2017, from 2:00 pm to 6:00 pm; f. On Sunday, July 2, 2017, from 2:00 pm to 6:00 pm; g. Commencing Wednesday, July 5, 2017, every Wednesday from 3:00 pm to 6:00 pm; h. On Saturday, July 8, 2017, from 2:00 pm to Sunday, July 9, 2017 at 6:00 pm; i. On Saturday, July 22, 2017, from 9:00 am to Sunday, July 23 at 6:00 pm; j. Commencing on Friday, August 4, 2017, every second weekend from Friday at 3:00 pm to Sunday at 7:00 pm.

(b) All such access exercised by the Respondent to the children shall be in the presence of the paternal grandmother, R. L.;

(c) Arrangements for transportation of the children for access shall be made between the paternal and maternal grandparents;

(d) If the Respondent is unavailable to exercise the Wednesday access as set out above due to his work schedule, the children shall be permitted to spend that time with the paternal grandmother, R. L., in furtherance of her role in supporting the Respondent’s access to the children.

[31] The Applicant filed a Notice of Motion requesting an order for an assessment by Dr. Fances Smyth pursuant to s. 30 of the Children's Law Reform Act. I am cognizant that the endorsement of Master Champagne deeming this matter urgent was with respect to the issues of custody and access, and that Justice Doyle is the assigned case management judge. On both of those accounts, and on account that the Respondent has forcibly had no relationship with his children since November of 2016, I am not inclined to make that order today. Having said that, I encourage the parties to revisit this issue with Justice Doyle at a more appropriate juncture in the case.

[32] The Respondent is entitled to costs for his limited success on the motion. If the parties cannot agree on same, then they may submit written submissions not exceeding three pages together with bills of costs and any offers to settle within 15 days of the release of this decision.

Justice Engelking Date: June 13, 2017