Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: A.R.T., applicant
AND:
O.A., respondent
BEFORE: MITROW J.
COUNSEL: James E. Dean for the applicant
William J. Doran for the respondent
HEARD: October 11, 2017
ENDORSEMENT
INTRODUCTION
1The respondent father brings this motion for an interim order varying a final order. The respondent seeks an interim access order that provides for expanded access and unsupervised access.
2The respondent recently had commenced a motion to change the final order of Marshman J. dated December 5, 2014 (“the final order”) made in this court. The respondent seeks expanded unsupervised access to the parties’ child, Ashtyn, who turned age five in September 2017.
3The applicant’s position set out in her affidavit is that there should be no change to the existing final order at this time and, in particular, the applicant strongly opposes the request of the respondent for unsupervised access and also the respondent’s request to be able to take the child to the United States, where he resides, for access.
4Despite Mr. Dean’s able and forceful argument in support of the applicant mother’s position, for reasons that follow I find that it is in the child’s best interests for some expansion of access at this time and with the access to be unsupervised.
BACKGROUND AND DISCUSSION
5The respondent is from Nigeria. He resides in Ohio; he is a U.S. citizen and works fulltime as a corrections officer; the respondent has family in Ohio and the respondent owns his own home there. These uncontradicted facts underlie the respondent’s submission that he is “rooted” in the United States. The respondent deposes that he has no interest in interfering with the primary custodial relationship between the child and the applicant.
6Although the respondent was served personally in the United States with the application and other documents that led to the final order, the respondent failed to appear in that proceeding and, accordingly, the final order was made at an undefended hearing. Pursuant to that final order, the applicant was awarded sole custody of the child. The final order also included the following provisions in relation to custody/access matters:
(a) that only the applicant can apply for a Canadian passport and the respondent’s consent to same is dispensed with;
(b) the respondent is prohibited during the child’s minority from pursuing United States or Nigerian citizenship for the child, or obtaining a passport for the child from any jurisdiction;
(c) the respondent’s access was ordered to be on reasonable notice to the applicant and “under the supervision of the applicant or any other mutually acceptable third party”;
(d) the respondent was not permitted to leave the City of London during access; and
(e) there was reasonable access with the child via Skype or telephone.
7There is no dispute between the parties that, subsequent to the final order, the respondent exercised supervised access at Merrymount – Family Support and Crisis Centre. The report dated September 5, 2017 from Merrymount, summarizing the dates of the supervised visits, filed on consent, established that since the date of the final order the respondent had two visits in 2016 (August and November) and five visits in 2017 (March, April, May, June and August). The parties, at the hearing of the motion, were not able to agree whether there was a visit in September. The respondent was present at the hearing and the court was advised that a visit was expected to take place before the respondent returned to the United States.
8The applicant advanced a number of reasons why access should remain supervised in London. It was the applicant’s evidence that the respondent is hostile and aggressive when they converse on the telephone. The applicant deposes that for that reason she restricts her communications with the respondent via text or email.
9The applicant describes the respondent in the past as exhibiting a bad temper.
10Several years ago, the respondent was criminally charged in relation to an allegation of assault against the applicant. The respondent describes the charge as “assault”; the applicant describes the charge as “sexual assault.” There was no evidence filed from the criminal proceeding verifying the exact charge. However, there is no dispute that the respondent was found not guilty of the charge. It appears from the evidence that the incident relating to the charge occurred in London, Ontario.
11The respondent deposes that the charge was laid as a result of the applicant’s false allegation. The affidavit material conflicts as to whether the respondent had engaged in any physical or other abusive conduct towards the applicant; accordingly, no finding of fact can be made on this issue given the conflicting evidence; the known fact remains that the respondent was found not guilty in criminal court.
12The applicant deposes to having significant concerns that, if the respondent takes the child to the United States, he will either keep the child there or take the child to Nigeria. The applicant adds that the respondent has made threats to take the child to a boarding school in Nigeria. As corroboration, the applicant attaches some “screen shots” of a conversation between the parties where the applicant asks the respondent the name of the boarding school in Nigeria and the respondent explains that he will find some names and let the applicant know.
13The applicant, in her affidavit, does not attach any timeframe to this alleged threat. The “snapshot” exhibit does show a date of June 14, 2014. Considering the evidentiary record on the motion as a whole, including the respondent’s current circumstances as to his “roots” in his community, I am unable to make any finding as to a current credible or imminent threat that the respondent will abscond with the child if he has unsupervised access either in Canada or the United States.
14The applicant was critical of the respondent’s failure to implement supervised access sooner. The applicant also criticizes the respondent’s failure to have access visits take place on successive days, as Merrymount was prepared to do in order to accommodate the respondent, who was travelling from Ohio. The applicant complains in her submissions as to “why now” is the respondent pursuing unsupervised access. I am unable to attach much weight to these submissions. Although the respondent should have implemented the supervised access much sooner, the fact is that the respondent has stepped forward in the recent past to pursue a relationship with the child and has attended supervised access visits. The fact that the respondent has been investing significant time and effort recently and travelling a long distance to spend two hours or less with his son in a supervised access visit should not be minimized, and is some corroboration of a genuine desire by the respondent to see his son.
15The applicant submits that the respondent cannot be trusted. She points to his affidavit where he deposes that he pays his child support, whereas the Family Responsibility Office statement shows arrears of just under $11,000 as at August 1, 2017. The final order provided for child support starting January 1, 2015 in the amount of $789 per month consisting of the table amount ($451) and s. 7 expenses ($338). Further, the applicant alleges that the respondent has not paid the $2,750 ordered in costs.
16While I agree that the respondent’s failure to comply with the child support order and costs order is wrong, and casts a negative light on his conduct, I am not prepared to utilize this fact to assess what is in the child’s best interests in terms of access. The Family Responsibility Office will need to enforce the arrears through its available channels. Having said that, in terms of the applicant’s general lack of trust of the respondent, it would be wise for the respondent to take immediate steps to pay up the arrears and costs.
17It is noted that during the hearing of the motion, the respondent tendered his U.S. passport and his driver’s licence so that copies could be made and given to the applicant’s counsel.
A. Interim Variation of a Final Order
18Although the applicant argued that any change to the existing order should await the final disposition of the motion to change, neither party addressed, specifically, the court’s jurisdiction to make an interim variation of a final order under the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“the Act”).
19Sections 29 and 72 of the Act are relevant:
Order varying an order
29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
Interim order
72 In a proceeding under this Part, the court may make such interim order as the court considers appropriate.
20While the effect of s. 72 is to permit an interim variation of a final order, there is a two-step process involved that first requires the court to determine whether there is a material change in circumstances which, in appropriate situations, can be made at the interim stage: Crawford v. Dixon, 2001 CarswellOnt 364 (Ont. S.C.J.), at para. 19.
21In Swan v. Swan, 2002 CarswellOnt 1621 (Ont. S.C.J.), Granger J. granted leave to appeal to the Divisional Court an interim order which varied a final order by changing the residence of the children from one parent to the other parent pending trial. The motion’s judge determined, in the circumstances, that it was not necessary to make a finding of material change in circumstances.
22The Divisional Court allowed the appeal, set aside the interim order and adopted the reasons of Granger J. on the motion for leave: Swan v. Swan, 2002 CarswellOnt 2627 (Div. Ct.).
B. Disposition
23In the present case, I am satisfied that a material change in circumstances has occurred and that it is necessary, in the child’s best interests, to make an interim order that contains a graduated expansion of access, with the access being unsupervised.
24The need for supervised access contained in the final order is no longer necessary. The child, who was age two at the time of the final order, is now age five. No child-focussed reason would be served by continuing with supervised access visits until trial. It is noted that the settlement conference has been scheduled for April 2018. Even assuming that the settlement conference could be rearranged to an earlier date, currently the next available trial sittings are in May 2018, with no guarantee that any given case placed on the May trial sittings will be reached during those sittings.
25Importantly, there was no evidence on the motion pointing to any issues or difficulties with the supervised access visits that have taken place at Merrymount.
26The child’s best interests require that, on an interim basis, the access should now change to unsupervised access in a structured and gradual process. This approach, in addition to continuing to promote the child’s relationship with his father, will also assist the trial judge (should this case not settle) by providing evidence as to the progress of unsupervised access.
27The seven visits, verified by Merrymount, ranged from one hour to two hours each, with most of the visits being either two hours or close to two hours. In totality, the time spent by the child with the respondent during those visits was less than 14 hours. The access expansion must reflect the somewhat limited time that the child, until now, has spent with the respondent. At this time, visits to the United States would involve a significant change in the child’s routine and are not in his best interests.
28The order below promotes the child’s best interests by implementing unsupervised access on a graduated basis, requiring the access to take place in London, Ontario and containing a provision for a review of the interim access order.
29The order made below allows the respondent to bring family members to an access visit. The applicant deposed that she is not opposed to the respondent’s family members visiting the child.
30The principle underlying the order below is that if the expanded access proceeds well and is positive for the child, then the child’s best interests will be consistent with finalizing an access schedule that includes access being exercised by the respondent in the United States.
ORDER
31I make the following interim order:
- Commencing immediately, the respondent shall have access to the child:
(a) once each month starting October 2017 on two consecutive days for four hours each day;
(b) after two visits, as described in subparagraph (a), the access visits shall be once each month on two consecutive days for seven hours each day, but only four hours if the day is a school day;
(c) after 3 visits, as described in subparagraph (b), the access visits shall be once each month for a period of 28 consecutive hours, which will include an overnight; this access, where possible, shall be arranged to take place on a weekend, but if the access includes school days, it shall be the respondent’s responsibility to ensure that the child attends school during any portion of the access visit falling on a school day including, where necessary, taking the child to, or picking the child up from, school;
(d) unless the parties agree otherwise, the beginning of an access visit shall not start prior to 8:30 a.m. and the end of an access visit shall not go past 6:00 p.m. and this subparagraph takes priority over the duration of access set out in subparagraphs (a), (b) and (c); and
(e) where possible, depending on the access time, the parties shall use the services of Merrymount for access exchanges; if the access visits do not correspond to times when Merrymount is open for supervised access exchanges, the parties shall agree on an access exchange location and, failing agreement, the access exchanges shall occur outside and in front of the London Police Services at 601 Dundas Street, London, Ontario.
The child shall not be removed from London, Ontario during access visits.
The respondent may bring family members with him to any access visits so long as the respondent advises the applicant in writing as to who is coming.
For all access visits, the respondent shall carry with him a mobile device to facilitate communication with the applicant, including allowing the applicant to communicate at any time during the access with the respondent.
Except for the months of October and November 2017, the respondent shall provide at least 30 days written notice to the applicant via electronic communication as to the dates and times of his proposed access visits and this shall include the names of any family members who are coming to the visits; in setting the access times, the respondent shall act reasonably to accommodate any suggestions made by the applicant as to access times.
For the month of October 2017, the notice period is reduced to five days, and for the month of November 2017, the notice period is reduced to ten days.
Prior to his arrival for the access visit, the respondent shall provide to the applicant, via electronic communication, a brief itinerary as to the anticipated activities with the child and, for an overnight visit, the itinerary shall include the location where the respondent is staying with the child.
After three overnight visits, if the parties cannot agree on an expansion of access, including the ability of the respondent to take the child to the United States, then either party is at liberty to bring a further motion for an interim order.
Paragraph 4 of the final order of Marshman J. dated December 5, 2014 is suspended on an interim basis, but otherwise that final order remains in full force and effect.
This interim order is made pursuant to the Children's Law Reform Act.
The respondent’s counsel, within 14 days, shall comply with the order of Korpan J. dated October 3, 2017 by filing all court documents relating to the motion to change in a separate continuing record, and the clerk shall amend the court file number to “F1147/14-01.”
If the parties cannot agree on costs, then the parties are at liberty to make written submissions on costs to be filed with the trial coordinator within 30 days; the written costs submissions are limited to two typed pages, double-spaced, plus copies of any time dockets, bills of costs or authorities.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: October 13, 2017