CITATION: Hallock v. Wakely, 2017 ONSC 7347
COURT FILE NO.: FC-14-1251
DATE: 2017/12/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Crissy Lynn Hallock, Applicant
AND:
Steven B. Wakely, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Leighann Burns, counsel for the Applicant
Steven B. Wakely, in person, Respondent
HEARD: December 1 & December 4 – 7, 2017
REASONS FOR JUDGMENT
[1] This matter came on for trial on December 1, 2017. At issue is the care and support for three children. The children are fortunate to have parents, grandparents and other family members who care deeply about their well-being. Sadly, their young lives have been marred by conflict between the parents both before and after separation. In particular, actions by the respondent have resulted in the current restrictions on his access rights and in his conviction for criminal harassment.
[2] The primary focus of the trial was whether it is in the best interests of the children to loosen these restrictions and increase the time spent by the respondent in parenting his sons. A significant concern is whether this can be done in a manner that is safe for the applicant who has primary responsibility for the children. The arrangements must also respect the terms of his probation order. While much was said at the trial concerning parental rights, in cases such as this, the question is what parenting arrangement will best protect the children from the impact of toxic conflict and parental misconduct.
[3] As discussed below, it is inadequate to say there is a very low risk of physical harm to the children. The court is equally concerned with the corrosive effects of verbal and emotional abuse by one parent against the other even if it is not directed at the children. There is evidence that at least one of the children is suffering acute mental health issues.
[4] Although in his pleadings the respondent is seeking joint custody he has learned that custody as such is not particularly important. He is content to have the major decisions made by the applicant. Furthermore, the respondent is astute enough to understand that equal parenting time is unlikely to be ordered in the current circumstances. For now he is seeking a loosening of restrictions so that he may enjoy additional time with the children in an unsupervised setting.
[5] I believe that a loosening of access conditions is warranted providing the respondent continues to comply with reasonable conditions and refrains from the behaviour that resulted in his criminal conviction. The respondent dreams of a day when the parents will share parenting time equally but it is important that he understand there is no guarantee this will occur. In fact I have significant concern about feeding into an obsession with shared parenting. What is important is to restore the quality of the relationship. The value of the parent child relationship will be measured in its richness and not in minutes and hours. Enhancing the respondent’s role as a parent should be regarded as an end in itself and not simply a basis for making future demands.
[6] For these reasons, I have determined that this is a case which should be followed by the court. There will be an expansion of access including an opportunity for tightly scripted unsupervised access but this will be reviewed by the court at regular intervals to ensure that benchmarks have been attained and the expanded access is working as visualized. Expansion of access beyond that point will require the court to be satisfied that the best interests of the children are served by further changes to the parenting schedule.
Background
[7] A great deal of evidence was directed towards the questions of conflict, employment history and behaviour during the relationship. I am not going to wade deeply into that evidence because except where it is directly relevant to the question before the court, little is to be gained by allocating fault for the failure of the relationship. Suffice to say that the parties had a lengthy tumultuous period of co-habitation interrupted by at least one significant period of separation. In the course of the relationship, they had three children.
[8] The applicant was a working mother. Primarily she worked as a server in a restaurant but she was also working towards completion of a university degree when time permitted. Post separation she has completed her degree and now has full time employment with the federal government.
[9] The respondent worked on and off at various jobs. He has experience as a welder and that has been his primary occupation but he has held other jobs in construction and related fields. He held countless jobs during the course of the relationship but apparently he either left his employment or was terminated on a regular basis. He does have a business building docks which he has pursued intermittently.
[10] Marijuana use was a feature of the relationship. It is clear from the evidence that both parties indulged but the evidence supports a finding that the respondent’s use of marijuana was a significant source of conflict and concern. The applicant states that the respondent was habitually spending $200 - $300 per month despite their low income and that he frequently stayed up late smoking pot with friends and occasionally missing work the next day. Finances, failure to find steady employment, drug use, sharing of household chores, vehicles and the quality of meals for the children were all points of friction.
[11] The parties had regular arguments. While the respondent stated that the arguments were rare, that both parties were equally to blame and that they were seldom physical, he is significantly downplaying how serious this was. The applicant’s evidence is that the respondent frequently yelled at her, belittled her, became violently angry and destroyed her property. He broke doors and punched holes in the wall, cut up her clothes, broke her hair dryer, attacked her car and threw things at her. Both parties used profanity. Many of these incidents took place in front of the children. Both parties agree that the relationship was unhealthy. They agreed to separate shortly after the birth of their third child and did so in February of 2014.
[12] When the parties first separated, it appears they had both expected they would be co-operative parents. The applicant took the children to Sudbury to live with her parents. The respondent did not object to this. It was expected the respondent would have regular access by Skype and in person. It was always the intention of the applicant to return to Ottawa for the beginning of the school year.
[13] Matters took a significant turn for the worse at the time of a return to Ottawa approximately three weeks later. The applicant had brought her father with her to collect the rest of her belongings from the home she had shared with the respondent. At that time the youngest child was a baby and it was agreed the baby would stay with her while the two older boys would visit with the respondent and his parents at their cottage in Norway Bay. Norway Bay is a cottage area in the municipality of Bristol on the Quebec side of the Ottawa River across from Arnprior. During the relationship the children spent considerable time at Norway Bay and the parties had lived there for an entire summer.
[14] It is not clear precisely how matters unfolded during that visit but clearly it was a watershed. During the course of the visit, each of the parents became suspicious that the other might take the children and not return them. A triggering event appeared to be the car seats. The respondent asked the applicant to leave the car seats with him when she dropped off the children. She and her father refused to do this. During the course of the discussion they became worried the respondent planned to take the children somewhere and would not return them. In any event if they gave up the car seats they could not return to Sudbury with the children in the car. For his part, the respondent regarded the applicant’s refusal to leave the car seats as evidence she was intending to be difficult.
[15] Trouble erupted at the end of the weekend when the applicant arrived at Norway Bay to collect the children. According to the applicant’s evidence, when she arrived at the cottage, the respondent took the baby and then refused to return the baby or let her have the two older children until she signed an agreement in which she would agree to joint custody, equal time sharing and no child support. It is her evidence that she was terrified the respondent would keep the children and she realized she was in another province. The respondent apparently told her she had no rights, that he could take the children any time he wanted. He said he was not giving them back unless she signed the paper.
[16] It is clear that a long yelling match broke out between the applicant and the respondent. The applicant also testified that the respondent shoved her while they were upstairs and he was holding the baby. This was in the respondent’s parents’ home and his mother and father were present downstairs but did not intervene to prevent the argument. Eventually the applicant’s father intervened. While there was contradictory evidence as to how aggressive the applicant’s father was during this event, it seems clear that he spoke disparagingly to the respondent. The respondent’s parents feared that blows would be exchanged. It was an ugly scene. Ultimately the applicant and her father left with the children while the respondent threatened to call the Quebec police.
[17] The applicant then returned to Sudbury for the rest of the summer. The respondent was provided with Skype access from time to time but no physical access was arranged. On one occasion, the respondent contacted the applicant and said that he and his father wanted to come to Sudbury to see the children. They were advised that they were not welcome at the maternal grandparents’ home and if they did attend, the police would be called.
[18] While the applicant was on the way to Sudbury and while the applicant was in Sudbury, the respondent began a campaign of harassment. He would phone incessantly and text incessantly. He made threats to falsely accuse her of fraud in connection with her brother’s estate. The applicant and her parents eventually chose to stop answering the phone. There were long angry messages on the answering machine and occasional arguments on the telephone between the respondent and the applicant’s father.
[19] Despite this, the applicant returned to Ottawa as planned. Access was arranged and between September of 2014 and the fall of 2016 the respondent had the children every second weekend. In 2015 this was interrupted when the respondent went to Alberta for four months but it resumed when he returned. Much of his access time was spent with his parents at Norway Bay or with his sister and her children.
[20] Access was discontinued when the respondent resumed his campaign of harassment including hundreds of text messages. These contained vague threats, coded threats and specific threats that the respondent would set himself on fire in front of the court house or in front of the children. Ultimately he began texting a daily countdown to the date of self immolation. He told the applicant that he hated her and hoped she would die. He showed up at her work place. It was at this point that the police intervened and the respondent found himself charged with criminal harassment.
[21] Although the respondent at first attempted to justify these threats as a desperate response to not seeing his children, this is not accurate. His family members who testified also seemed to believe this was the case. While his father and his sister stated that they did not justify these text messages, they both implied that they were understandable because his access had been cut off. That is not what occurred.
[22] The respondent was having access every second weekend as he had before and after he went to Alberta. The access was not supervised. The applicant requested the respondent to take one of the children to an event at the school. This led to a weekend in which the respondent and the applicant spent time together with the children. There may have been thoughts of reconciliation but the following week the applicant returned to a more business like tone and the respondent became despondent and upset. His response included the deluge of text messages and threats.
[23] The text message campaign was found by the criminal court to be criminal harassment and consequently the respondent now finds himself on strict terms of probation. These terms include no contact with the applicant and also include no contact with the children except under an order of this court. Consequently, when the children are visiting with the respondent’s parents or his sister as they still do frequently, his parents and sister are obliged to ensure the respondent is not present. The only access the respondent has currently is access at the supervised access centre. The applicant remains on reasonably good terms with the paternal grandparents and the respondent’s sister. She believes it is important for the children to have contact with their grandparents and cousins.
[24] To be clear, the applicant testified that she also believes it is important for the children to have a relationship with their father. She is afraid to relax the restrictions because the communication leading up to the criminal charges was intolerable and reminiscent of the situation when she was in Sudbury. She believes she needs the security of the probation order and a restraining order because the respondent did not moderate his behaviour until these restrictions were in place.
[25] On several occasions in his evidence, the respondent expressed the view that if he could just speak to the applicant directly, they would work out a deal. Like many litigants, he appears to demonize the opposing party’s counsel. He views the applicant’s lawyer as an impediment to negotiating a more natural parenting regime. It is clear that if he is permitted to do so, he will continue to pressure the applicant to agree to joint parenting and equal time sharing. As indicated above, this is cause for concern.
[26] It may be that future events will make such an arrangement practical and perhaps there will be a day when it is in the best interests of the children. That is not the case at the moment. The first step is to increase access and to pilot reduced supervision but if the court moves in that direction, it will be necessary to keep safeguards in place and to provide a mechanism for review. This should not be viewed as a first step towards a different parenting regime. It should be viewed as a means to restore the relationship and to make the time more fulfilling by removing it from the somewhat artificial environment of the supervised access centre.
[27] The Office of the Children’s Lawyer appointed a clinical investigator who prepared a report. That report is before the court. Neither party called the investigator. The report with its recommendations is admissible and is uncontradicted. It is somewhat dated because it is over a year old. Accordingly, it is unknown what recommendation the investigator might have made now that supervised access has continued for some time. The investigator recommended the applicant have custody with the respondent to have supervised access every second weekend. She also made a series of recommendations that the respondent pursue a parenting course, attend counseling, undergo an addictions assessment and participate in anger management. At the time of the trial, he had only completed a parenting course (which he found useful) but not the other recommendations although he advised that he intends to take the anger management program.
[28] Apart from the report of the clinical investigator, there was remarkably little evidence regarding the wellbeing of the children and how they are affected by the current arrangements. The middle child, Emmerson appears to have been very affected by the parental conflict. Both parties testified that Emmerson had been emulating them when they were living together and arguing with each other. He has been violent at school and has had to leave the regular classroom program. There is no expert assessment of the root of Emmerson’s difficulty but the applicant believes it relates to the conflict between his parents. There may be undiagnosed mental health issues. His older brother was diagnosed with ADHD. I should note that in his pleading, the respondent also claims to have ADHD although he did not lead evidence on this point.
[29] Turning briefly to support, the respondent has never voluntarily paid child support. He was ordered to do so but because he changes employment frequently, the interim support order can only be sporadically enforced. He is therefore in significant arrears.
[30] In his testimony, the respondent acknowledged that he is working delivering pizzas and that he hopes to return to work as a welder and to his business building docks. It is clear from his answers to questions that he does not believe he should be paying child support unless he gets what he wants on access. In fact he seems to regard the motives of the applicant in restricting his access as just a ploy to get child support and not really to reflect her concern for the best interests of the children. It is notable that in his answer he stated he and the applicant make approximately equal amounts of money and proposes they have 50 / 50 parenting time with no child support. The reluctance and unwillingness of the respondent to pay support came through clearly in his evidence and it causes concern for his capacity to be governed by court orders.
Analysis
[31] There is no doubt that the respondent loves his children. As noted, the children are also much loved by both sets of grandparents and by the applicant. The respondent feels that the current limited access is very unfair. His parents and sister share this sense of unfairness and believe the respondent has been treated unjustly. All parties including the respondent acknowledge that the applicant is a good mother who cares for the children. She has gone to great lengths to ensure they continue to have a relationship with the respondent’s extended family. All of the witnesses referred to her as a good mother. The respondent’s family however believe she has overreacted and is being vindictive when it comes to the criminal charges and the criminal consequences.
[32] As noted, the respondent has failed to pay support despite being ordered to do so. His response to questions indicated that in his mind support is the main objective for the applicant and why she wants to restrict his access. He failed to recognize that it is the right of the children to be supported by both parents and part of his responsibility as a parent to pay it. His attitude towards his support obligations is a dereliction of parental responsibility.
[33] During the trial, the respondent tried hard to demonstrate a level of self awareness in relation to his behaviour including his harassment of the applicant. He indicated that the criminal conviction was a real wake up call for him. Nevertheless, he downplayed the gravity of the situation. He seemed to believe that the applicant was not really scared of these text messages because she would not have believed he was really going to set himself on fire. In fact he said he had threatened self-harm previously and indicated that this was sometimes the only way to get her attention.
[34] This wildly inappropriate and manipulative manner of communication scarcely bears comment. What comes through clearly is not that the respondent was driven to desperate lengths by being unable to see his children. He was seeing the children regularly. What the repeated text messages and threats reveal is rather a man having a tantrum because the applicant was not giving him what he wanted. It was particularly cruel because the applicant’s brother had committed suicide in the context of a marital breakdown and the respondent knew that. In addition, the sheer number of texts, the countdown and the threats to do something horrific in front of the children were combined with watching the applicant and the children, stalking her and eventually coming to her work place. The respondent repeatedly told the applicant he wished she was dead.
[35] That he knew she would be afraid of this communication or was reckless as to whether or not she was afraid has been decided in the criminal court. I would have reached the same conclusion. His behaviour was irrational and the applicant would not have known what he was capable of doing. Quite apart from the criminal nature of the communication, it was hateful, spiteful, manipulative and immature. It was not demonstrative of qualities one would hope for in a role model for children.
[36] Despite downplaying the nature of this behaviour, the respondent did show contrition in court. He did express an understanding of the effects of conflict on the children. He did express a willingness to take further parenting education and he did agree that the applicant was a good parent. Ultimately he advised the court that he agreed the applicant should have custody. He also indicated an understanding that increased parenting time would have to be phased in.
[37] The respondent father who appeared in court at the end of the trial was a man who wanted to play a significant role in the life of his children and a man who appeared ready to demonstrate he could be trusted with unsupervised access. That man deserves an opportunity to do so. The man who wrote the hateful text messages is another matter. That is the man who broke through the bathroom door, punched holes in the wall, damaged property, damaged the car and assaulted the applicant without regard for how this behaviour towards their mother would affect the children.
[38] It is for this reason that I am cautious. I agree that having access permanently supervised may not be in the best interests of the children because it interferes with their ability to have a natural relationship with their father. I am also encouraged by the fact that the respondent’s extended family care deeply about the children and they have demonstrated responsibility in recognizing the legal restrictions which prevent the respondent being present while the children are with them. They recognize that the security of the applicant is important to the children and to the continuity of their own relationship with them.
[39] The situation where the children visit their grandparents but they have to ensure their father does not visit at the same time is particularly artificial and difficult for the whole family. I am prepared to increase the access and to move towards unsupervised access but I am building in certain milestones that must be met and I am building in an automatic review.
[40] The evidence does not support joint custody or equal time with each parent. A major step in the right direction was the concession by the respondent that the applicant should have custody, his willingness to continue to take counselling and parental education, and his recognition that increased privileges would have to be phased in. Trust must be rebuilt and must be earned. The order I have arrived at provides a framework for that to occur.
[41] On the question of support, the respondent has not made full and accurate disclosure of his income and there is reason to believe he is under employed. The court is in no better position today than it was when the temporary order was made in 2015. At that time the court made a temporary order based on his then admitted income of $38,400.00. No evidence was led by either party to establish a level of income different from this amount. I see no reason to relieve the respondent from his arrears of support under the temporary order and I am simply continuing support at the level set out in the temporary order. Due to amendments to the support tables that came into effect on November 22, 2017, however, the amount of child support for three children based on that income has changed slightly and will be $776.80 instead of $740.00. The respondent will be required to make annual disclosure of his actual income and in future years the support may have to be adjusted.
Conclusion and Order
[42] In conclusion an order will go as follows:
a. The applicant shall have custody of the children. She will have the right to make decisions regarding the health and education of the children but shall ensure that the respondent has access to all significant information from schools, physicians or counsellors.
b. The parties shall enroll in a web based service such as “My Family Wizard”, “2 Houses”, or similar service selected by the applicant. This service shall be used for the exchange of information in relation to the children and for arranging time with the children. Except in an emergency where one of the children is injured or ill and it is necessary to communicate immediately and directly with the applicant, the respondent will not contact the applicant directly and all communication between the parties shall be recorded on the service.
c. The applicant shall ensure that all report cards, and all significant school information and medical or dental information are posted to the electronic service where they may be accessed by the respondent.
d. A restraining order will be made permanently restraining the respondent from harassing the applicant or being within 500 m of her home or workplace. The respondent may communicate with the applicant only through the electronic service or by relaying messages through his parents and only for the purpose of arranging access or obtaining information about the children.
e. The respondent shall be entitled to access as follows:
i. Beginning with the scheduled visit of the children with their grandparents in January of 2018, the respondent may be present when the children are visiting with the paternal grandparents or with the respondent’s sister.
ii. Until further order or agreement, the respondent shall not take the children out of the care of his parents or his sister during such visits except to the extent that his scheduled access falls during the visit.
iii. Beginning in January of 2018, the respondent may exercise unsupervised access from 10:00 a.m. until 4:00 p.m. every second Saturday or Sunday with pick up and drop off to take place at the supervised access centre or, with the consent of the applicant, at his parent’s house.
iv. After the completion of six access visits, assuming they have proceeded without incident, and the respondent has complied with the conditions set out below, the respondent’s access will be increased to overnight access every second weekend from Saturday at 1:00 p.m. until Sunday afternoon at 4:00 p.m. or such other times as the parties may agree upon.
v. In order for the access to increase to overnight access, the respondent must provide proof that he has completed the following:
He has enrolled and completed an anger management program;
He has completed a drug / alcohol assessment and provided the results to counsel for the applicant;
He has engaged in individual counselling to address the end of the relationship, the relationship with the children and his previous threats of self-harm.
He has otherwise complied with the terms of this order and exercised the scheduled unsupervised access without serious incident.
He must have suitable accommodation for the three children and shall advise the applicant’s counsel where that is located and who else will be there.
vi. The access will be reviewed by the court in June of 2018. I will remain seized of the issue. A court hearing will be scheduled for the purpose, unless the parties advise the court it is unnecessary because they have reached an agreement for the summer and for the 2018 – 2019 school year.
vii. In addition to the access times listed above, the respondent may exercise access at times and in locations approved in advance by the applicant in writing.
f. The Office of the Children’s Lawyer is requested to update the report of the clinical investigator in time for the June review of the access schedule.
g. The respondent shall pay support at the rate of $776.80 per month commencing December 15, 2017, based on the Child Support Guidelines for three children on his stated income of $38,400, unless the support order is subsequently varied. The respondent shall provide a copy of his income tax return for the previous year and a copy of his notice of assessment for each year by July 1st of each year commencing with proof of his 2017 income by July 1st of 2018.
h. I will consider written submissions regarding the costs of the trial. The applicant’s submissions are to be delivered by January 15th, 2018 and the respondent’s submissions are to be delivered by January 30th, 2018. Submissions are not to exceed 3 pages each (plus any offers to settle and a costs outline).
Mr. Justice Calum MacLeod
Released: December 20, 2017
CITATION: Hallock v. Wakely, 2017 ONSC 7347
COURT FILE NO.: FC-14-1251
DATE: 2017/12/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Crissy Lynn Hallock, Applicant
AND:
Steven B. Wakely, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Leighann Burns, for the Applicant
Steven B. Wakely, in person, for the Respondent
reasons for judgment
Mr. Justice Calum MacLeod
Released: December 20, 2017