CITATION: Tracy v Tracy, 2017 ONSC 6792
COURT FILE NO.: FC-16-1805
DATE: November 14, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tracy v Tracy
BETWEEN: Kevin Anthony Tracy, Applicant and Jennifer Lee Tracy, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Mimi Marello for the Applicant
Susan B. Arlitt for the Respondent
DATE HEARD: October 24, 2017
ENDORSEMENT
[1] The applicant brings an access motion as set out at Tab 13, Volume 1 of the Continuing Record. The motion was initiated in May, 2017 and indicated a return date of October 24, 2017. The applicant’s affidavit in support of the relief sought was sworn October 18, 2017.
[2] The respondent brings a motion at Tab 2, Volume 2 of the Continuing Record for an order appointing the OCL and requests that the issue of the applicant’s access be dismissed pending receipt of the recommendations of the OCL “in consultation with the children’s counsellor Christina Guevara”. The respondent’s cross-motion and the affidavit in support is dated October 19, 2017. She also requests the release of funds held in trust following the sale of the matrimonial home. This latter issue was resolved by Partial Minutes of Settlement.
[3] It is not clear to me why the exchange of affidavit evidence was delayed until shortly before the hearing date. Obviously, when circumstances permit, it is much more desirable to have evidence tendered in a more timely manner.
[4] The children in this care are Aurora born 24 November 2003 and Trinity born 31 August 2007. They live with the respondent. The parties separated in or about July, 2016 when the applicant was charged with the following offences:
i. assault with a weapon (Aurora & Trinity);
ii. uttering threats (Aurora and Trinity;
iii. assault (Trinity).
[5] He entered pleas of guilt to threatening Aurora and assaulting Trinity with a clothes hanger on February 13, 2017. He was granted a conditional discharge and sentenced to probation for 3 years. Under the current probation order, the applicant can have contact with his daughters if allowed pursuant to a Family Court order. No such order currently exists to my knowledge. This means that the applicant has not seen his daughters for nearly a year and a half.
[6] The applicant has pursued numerous programs directed at improving his parenting skills and is attending counselling.
[7] The applicant’s contention that he has an extraordinarily close relationship with his daughters appears to gloss over and minimize the evidence of his deficient parenting skills. While the applicant implies the difficulties in the household followed on the heels of a very difficult and protracted convalescence from a serious leg fracture in 2015, the respondent points to incidents prior to the accident which suggest inappropriate, even abusive, behaviour by the applicant for years.
[8] The respondent has arranged for psychotherapy services for the girls from Ms. C. Guevara who appears to have adopted a sort of advocacy role on their behalf in the field of psychoeducation on emotional abuse.
[9] The applicant proposes retaining Kafui Sawyer, a psychotherapist, as a neutral person to make inquiries to determine if the girls want to re-establish contact with their father. Her services initially would be to make inquiries to obtain their views and preferences and if they respond positively, to pursue re-unification counseling.
[10] The respondent’s view is there should be no contact with the applicant pending an OCL investigation and this view is supported by Ms. Guevara.
[11] I have the impression from the respondent’s material and her counsel’s submissions that the respondent prefers the present no-contact regime but it is unknown whether Aurora and Trinity share their mother’s view. They may very well be missing their father and hope to re-establish contact with him in some fashion. Their views and preferences should be ascertained and, if circumstances warrant, some sort of rapprochement be implemented.
[12] The applicant is opposed to the OCL option because of the delay inherent in obtaining their services.
[13] Of the two options, either engaging the OCL or authorizing the involvement of Ms. Sawyer, I prefer to proceed with a request to the OCL first. I acknowledge that there is a risk that the OCL may not accept and in any event, there will be some delay. However, as a practical matter, there may be an advantage to pursuing this option in that the respondent’s resistance may be less if the OCL is involved. I am aware that the OCL declined to participate on an earlier occasion but the problem then was the no-contact requirement.
[14] The no-contact order shall be modified in all respects necessary to accommodate the involvement of the OCL. In particular, the no-contact order shall not prevent the parties from attending an OCL disclosure meeting so long as their respective counsel are present.
[15] Both parties shall promptly complete the necessary intake forms and cooperate with the OCL.
[16] In the event that the OCL is unable or unwilling to become involved, the services of Ms. Sawyer shall be engaged as proposed by the applicant. The parties shall cooperate with Ms. Sawyer in the fulfilment of her mandate. The cost of her services shall be borne by the applicant initially without prejudice to a request at some point that these costs be shared.
[17] As in the case of the OCL, the no-contact order shall be modified to the extent necessary to accommodate the services to be provided by Ms. Sawyer.
[18] If necessary, an order containing specific terms respecting the manner and frequency of contact may be requested or obtained on consent.
[19] On the issue of legal costs, both sides have submitted bills of costs that are fairly comparable. There is room for both sides to argue for a costs order but at bottom, I am not satisfied that a costs order ought to be imposed on either side. I am prepared to reserve costs so that either side can advance a claim for the costs of this motion and cross-motion at a later date if appropriate, but otherwise there shall be no order respecting costs.
James, J.
DATE: November 14, 2017
CITATION: Tracy v Tracy, 2017 ONSC 6792
COURT FILE NO.: FC-16-1805
DATE: November 1, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tracy and Tracey
BETWEEN: Kevin Anthony Tracy, Applicant and Jennifer Lee Tracy, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Mimi Marello for the Applicant
Susan B. Arlitt for the Respondent
ENDORSEMENT
James, J.
DATE: November 1, 2017