CITATION: P.B. v. C.A.O., 2017 ONSC 5357
COURT FILE NO.: FC-13-1417
DATE: 2017/09/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: P.B., Applicant
AND
C.A.O., Respondent
BEFORE: Mr. Justice Labrosse
COUNSEL: P.B., Self-Represented
Carol Meyers, Counsel for the Respondent
HEARD: August 4 and September 5, 2017
ENDORSEMENT
[1] The Respondent Mother brings this motion seeking a finding that there has been a material change in circumstance since my July 20, 2016 Endorsement which would warrant that the Respondent’s access gradually move from supervised, to partially supervised to unsupervised. The Applicant Father has requested through his Factum for an order appointing the Office of the Children’s Lawyer to become involved and for disclosure of a related Children’s Aid Society file.
[2] The issues of the appointment of the OCL proceeded on consent. As for the CAS file, it was agreed that I would review the CAS file and present any documents which were relevant to the issues in this case. After my review of the CAS file, I presented the documents I proposed to release to the Applicant to the Respondent for review with the understanding that I would hear from the Respondent’s counsel on any objections. There were no objections and the relevant documents were disclosed to the Applicant and made exhibits to the motion.
[3] As I am the Case Management Judge for this file, it is not necessary for me to go over the background evidence which has led us to this point. It is sufficient to acknowledge the following factual history:
(a) The Mother has failed to comply with court ordered access in the past. Specifically, in February 2015, she abducted the child, was located by police and charged with abduction. She was found guilty and went to jail for approximately * months;
(b) The parties agreed that the Mother would benefit from counselling to assist her in managing the conflict aggression in her contacts with the Applicant;
(c) It was previously determined to be premature to consider any access with the child which is not fully supervised.
July 20, 2016 Endorsement
[4] The July 20, 2016 Endorsement sets out the current access provisions which are:
(a) access shall remain fixed at every Wednesday, plus every other Saturday and Sunday, and remains supervised;
(b) Wednesday and Saturday access continue to take place in Orleans and Sunday accesses continue to take place at the Supervision Access Program; and
(c) both parties may request the assistance of a third party for access exchanges and will advise the other party in writing of whom will be picking up and dropping off the child.
[5] It was determined that it was premature for a determination to be made on how the Respondent’s access would progress. Such progression would be dependent on the Respondent’s ability to obtain counselling or treatment, to demonstrate an ability to properly communicate with the Applicant on issues relating to the child. The goal was for the Respondent to demonstrate that she is able to work with the Applicant and provide safe access for the child.
New Evidence
[6] The record before me provides the following new evidence:
(a) Supervised access is going well and there have been no major incidents;
(b) The CAS records involving the Mother has demonstrated that she has been supportive of the relationship between the Applicant and her other child, Jayden. While only very brief references were found in the CAS records with most being positive for the Respondent, there are certainly not any references which suggest that the Respondent is unable to accept the ongoing custodial role of the Applicant;
(c) In a letter dated October 31, 2016, Dr. Wood stated that the essentials of DBT and trauma-work could also be accessed through the Elizabeth Fry programs, Life After Trauma and the Emotion Regulation Program;
(d) The Respondent successfully completed the Emotion Regulation for Women in November 2016 and Life After Trauma for Women in December 2016. She also attended a further 6 counselling sessions;
(e) The social workers responsible for the Elizabeth Fry programs wrote joint assessments of the Respondent’s progress. The social workers indicated that the Respondent has recognized the effect that the abduction has had on her children and herself. They have opined that she is at a reduced risk of reoffending and that she no longer requires intensive counselling or programing through the Elizabeth Fry Society;
(f) Both parties have presented some of their communications from the Our Family Wizard website which I conclude demonstrate a marked improvement in the manner that the Respondent communicates with the Applicant.
[7] The Respondent moves for what I qualify as an aggressive schedule to introduce overnight and extended unsupervised access. The Respondent seeks to commence supervised exchanges at the supervised exchange centre. The Applicant is open to semi-supervised access to take place in a shopping center but does not agree that fully unsupervised access should begin until after the OCL has completed its investigation and made its recommendations.
[8] Both parties agree that to avoid conflict, there should be third-party supervision for exchanges.
Analysis
[9] As there are existing Temporary Orders in place which relates to custody and access, there is a need to demonstrate a change in circumstance before varying the terms of a Temporary Order. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that:
on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.
[10] I am satisfied that the new evidence referenced above represents a change in circumstance which warrants a change to the current access order. I come to this conclusion for the following reasons:
(a) the Respondent has responded to the previous guidance provided by the Court as to what she needed to do to demonstrate a change in circumstance;
(b) she has obtained counselling which addresses the concerns of Dr. Wood;
(c) she has had a prolonged period of two years with positive access and all parties agree that her access with C.B.A. is positive;
(d) she has maintained civility with the Applicant. While not necessarily agreeing with the Applicant, she has inquired with him about expanding access and also inquired about matters relating to C.B.A. rather than engaging in conflict;
(e) she is viewed as a reduced risk to reoffend. On this issue, there is obviously nothing conclusive that can be obtained from any counsellor. She has signed affidavits acknowledging the errors she made in the past and how she would not want to go to jail again. She also seems to realize that if she were to attempt abduction again, she would be at risk of losing both children; and
(f) at this stage, the Respondent has basically done everything that has been asked of her and while being mindful of safety concerns, it is in C.B.A.’s best interest that he benefits from more frequent access outside of the confines of supervision.
[11] My only issue is if I allow completely unsupervised access to eventually proceed following an integration schedule or if I should await the recommendations of the OCL.
[12] For the OCL’s recommendations to be as beneficial as possible, it would be best for the Respondent’s access to take place in a natural setting. Access within a shopping center is not a natural setting. While agree that a shopping center will be appropriate for the progression towards unsupervised access, the concerns which existed after the abduction have been addressed, to the extent possible.
[13] As previously stated, there is no insurance policy available to prevent another abduction. Time has passed without incident during supervised access. The nature of communications between the parents have changed and are more child focused as opposed to being focused on the conflict. The Respondent has taken steps to improve her circumstances, is working and has her other child in her care. She is looking to possibly moving to the Orleans area to be closer to the Applicant’s residence to facilitate access. While this was not put into evidence under oath, it clearly a step being contemplated which recognizes the Applicant’s ongoing custodial role.
[14] In the end, supervised access is not meant to be a long-term solution. It clearly has served a very useful purpose in these proceedings but I fail to see what more can be gained by waiting for the OCL to complete its investigation. To the contrary, I feel that the OCL investigation should proceed with the Respondent having the benefit of normal access conditions. I conclude that the Respondent should have a gradual access schedule which will progress to partially supervised visits to unsupervised visits in a shopping center to unsupervised daytime visits in her home. I will stop things at this point at which time we will allow the OCL to complete its investigation.
Disposition
[15] For the reasons set out above, the Court orders that the Respondent’s access for the next few months shall be:
a. Weeks of September 11, 18, 25 and October 2nd, 2017 – Partially Supervised:
i. Every Wednesday at the St. Laurent Mall – 5:45pm to 7:15pm with Brian Wade to facilitate exchange at beginning/end of access with a check in at 6:15pm.
ii. Every 2nd Saturday St. Laurent Mall – 9:30am to 12:30pm with Brian Wade to facilitate exchange at beginning/end of access with a check in at 11:00 am.
iii. Every other Sunday at the Supervised Access Program.
b. Weeks of October 9, 16, 23 and 30, 2017 – Partially Supervised:
i. Every Wednesday at the St. Laurent Mall – 5:45pm to 7:15pm with Brian Wade to facilitate exchange at beginning/end of access.
ii. Every 2nd Saturday St. Laurent Mall – 9:30am to 12:30pm with Brian Wade to facilitate exchange at beginning/end of access.
iii. Every other Sunday at the Supervised Access Program.
c. Weeks of November 6, 13, 20 and 27, 2017 – Partially Supervised:
i. Every Wednesday at the St. Laurent Mall – 5:45pm to 7:15pm with Brian Wade to facilitate exchange at beginning/end of access with a check in at 6:15pm.
ii. Every 2nd Saturday Mother’s Home – 9:30am to 2:30pm with Brian Wade to facilitate exchange at beginning/end of access with a check in at 12:00 am.
iii. Every other Sunday at the Supervised Access Program.
d. Weeks of December 4, 2017 and onward – Limited Unsupervised:
i. Every Wednesday at the St. Laurent Mall – 5:45pm to 7:15pm with Brian Wade to facilitate exchange at beginning/end of access.
ii. Every 2nd Saturday Mother’s Home – 9:30am to 4:00pm Supervised Exchange Centre with the Mother going directly home and remaining at home during the entire access visit until she returns directly to the Supervised Exchange Centre. The Applicant will also have the option of dropping C.B.A. off at the Mother’s Home if both parties arrange to have a third party present and consent to not using the Supervised Exchange Centre.
e. If the parties are unable to agree on a schedule during the Christmas Holiday, either party may seek an appearance before for holiday access to be adjudicated.
f. Upon receipt of the OCL Report and recommendations, if the parties are unable to agree on if and how the access arrangements should change, either party may present a motion to proceed before me.
Costs
[16] In the circumstances, the success is divided. Accordingly, there shall be no costs of this motion.
Justice M. Labrosse
Date: 2017/09/08
CITATION: P.B. v. C.A.O., 2017 ONSC 5357
COURT FILE NO.: FC-13-1417
DATE: 2017/09/08
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: P.B., Applicant
AND
C.A.O., Respondent
BEFORE: Mr. Justice Labrosse
COUNSEL: P.B., Self-Represented
Carol Meyers, Counsel for the Respondent
HEARD: July 20, 2016
ENDORSEMENT
Justice M. Labrosse
Released: 2017/09/08