S.E. v. S.S., 2017 ONSC 861

S.E. v. S.S., 2017 ONSC 861

CITATION: S.E. v. S.S., 2017 ONSC 861

KINGSTON COURT FILE NO.: 535/05

DATE: 20170203

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S.E. (paternal grandmother), Applicant

AND

M.J.W. (father - in default) and S.S. (mother), Respondents

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Linda Smith, for the Applicant

Douglas R. Haunts, for the Respondent

HEARD: January 24, 2017

ENDORSEMENT ON MOTION TO CHANGE

MINNEMA, J.

1This was a Motion to Change by the respondent mother S.S. seeking a variation of the access order of Justice Trousdale made on consent on February 22, 2011. That order provided a formula, with the assistance and participation of a psychologist, to implement unsupervised access between the mother and the female child S.K.D.S.W. currently 11 years old. The applicant S.E., responding party on this motion, is the child’s paternal grandmother (“PGM”) who has had care and custody of her since birth.

Background Facts

2S.K.D.S.W. is the fourth of five children of the mother. All others have been made Crown wards without access. The mother’s access was supervised after the child’s birth in 2005 until late 2011 when it became unsupervised.

3For the next several years the access was expanded by the PGM, although it was not without problems. The mother would say and do inappropriate things such as exercising access inconsistently, exposing the child to second hand smoke, undertaking thefts at a golf course when the child was in her care, and telling the child at age seven what would happen if the PGM were to die and that she was a “sexy girl”. Notwithstanding these concerns by September of 2013 the schedule increased to its highest level of an hour and a half four days a week and every other weekend.

4Soon afterwards that frequency began to erode. The mother stopped one of the weekday times citing a need for more time to herself. She then saw herself being used as a babysitter by the PGM and indicated that she would no longer pick the child up after school unless she was paid. In January 2014, the PGM learned that the mother had been giving the child Tylenol and Gravol each night before bed. Upon consultation with the Children’s Aid Society the PGM ended the overnight visits. As a result, in early 2014 the scheduled access was every Wednesday after school and every other Saturday and Sunday (not overnight) from 10 a.m. to 7 p.m. The mother continued to challenge the PGM’s decision making authority.

5In April of 2015, the PGM felt that the return times for access were not working for the child’s bedtime routine and she adjusted them to start and end earlier. Around that time the mother brought this Motion to Change seeking custody. While she has withdrawn that prayer for relief, she is still seeking expanded access.

6By an interim consent order dated September 8, 2015, the current access schedule is Saturday and Sunday from 9 a.m. to 6 p.m. each day. That same interim order provided for the appointment of the Office of the Children’s Lawyer. Its clinician Sandra Kapasky prepared a report in evidence dated March 11, 2016.

Law

7The legal tests for custody and access variation are found in the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended. Section 29 indicates that I cannot vary Trousdale J.’s order unless I first find that there has been a material change in circumstances that affects or is likely to affect the best interests of the child. If I make that finding, s. 24(1) directs me to determine this proceeding on the basis of the child’s best interests in accordance with ss. 24(2), (3) and (4). The child's best interests is the overarching consideration: see s. 29 and Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 50.

8Subsection 24(2) directs me to consider all the children’s needs and circumstances. Eight items are specifically mentioned, but that list is not exhaustive. I have also considered the circumstances listed by the Supreme Court of Canada in Gordon v. Goertz, at para. 49. Not all of these apply to access deliberations.

Issues/Positions

9The parties agree that there has been a material change in circumstances, and I am prepared to make that finding. The existing order relied on the input and help of a psychologist who is no longer involved. The parties need an access schedule. The access has changed materially since the last final order was made.

10The main issue is therefore the schedule. The PGM seeks an order in keeping with Ms. Kapasky’s recommendations, namely that the access to the mother occur every other Saturday from 9 a.m. to 6 p.m. unsupervised, a reduction from the current interim order. The mother in turn seeks overnight weekend access and holiday periods.

11The PGM raises a secondary issue in that she is requesting that the mother’s ability to bring further motions be restricted by requiring leave from the court.

Analysis

12In looking at the ability of the mother to act as an access parent, Ms. Kapasky indicated “[i]t is notable that the involved professional collaterals including the Society worker, Pathways Counsellor and Family doctor, have concerns about [S.K.D.S.W.] even having the present access to her mother.” These concerns arise from the mother’s inability to stop talking to the child about the litigation, otherwise drawing the child into the conflict between the adults, and her being inconsistent in exercising access. The Pathways Counsellor has reported that these behaviours cause the child heightened anxiety which is often manifested in her acting out so much that it impacts her everyday life. The counsellor observed that when there have been periods of no access or when it has been consistent and structured the child responded with less anxiety and fewer issues.

13In assessing the child’s views and preferences as reported to Ms. Kapasky, she wished she did not have to visit with her mother at all. She complained that they do not do anything and that the mother is focussed on her boyfriends and not her.

14There are safety issues related to the mother’s plan for overnight access and related to her access generally. The obvious ones are the mother’s social media postings indicating alcohol and drug use in the home, and, as touched on already, her refusal to take direction from PGM. There is another eclipsing safety concern. The mother is intellectually delayed. The Family Court Clinic assessment of 2003, the last of several, indicated that she is therefore vulnerable to abuse from others and has a limited ability to evaluate a potential partner’s appropriateness for her and the child. Yet the mother has had two partners in succession living with her and therefore present during access. She has refused to provide the criminal record checks requested by the PGM or to even divulge their last names. Compounding this concern is that the child has disclosed to the PGM that she was not fond of the previous boyfriend and that her mother has asked her to keep secrets.

15The refusal to address this valid safety concern does not strike me as particularly child focussed. Neither does the mother wanting to be paid for looking after her own child. In a similar vein, the mother complained because she believed the PGM sent the child for access when sick. Instead of wanting to attend to her ill child, she was concerned about getting sick herself as it would cause her to miss her boxing classes.

16I note that the PGM asserts that the child has not been sick when sent to the mother. Rather she returns with allergic symptoms and is known to have allergies. The mother’s newest partner Brian brought two dogs and a cat with him. Even though the PGM is the child’s life-time custodial parent and life-time primary caregiver, the mother refuses to accept her word about allergies.

17In my view the evidence does not support the mother’s position that increased and overnight access would be in the child’s best interests. To the contrary, it raises serious questions about her suitability as an access parent generally. Access should be beneficial to the child (Worthington v. Worthington, 2000 CanLII 22469 (ON SC), [2000] O.J. No. 4853 (S.C.J.) at para. 51) and there is little evidence of that here beyond maintaining the relationship. In my view the best interests of the child requires an access schedule that substantially reflects the PGM’s request and that mirrors Ms. Kapasky’s recommendations. I also accept Ms. Kapasky’s recommendation that the mother should be entitled to educational and medical records, however that is already a term of the February 22, 2011 order (paragraph 1(j)).

18I am not prepared to curtail the mother’s access to the courts. I understand the reasons for the PGM’s request. The mother has already indicated that she will bring another Motion to Change in seven months when the child turns 12, for no other reason than that the child is 12. The PGM also fears that the mother will not stop lobbying the child to spend more time with her if she feels she can bring another variation proceeding at any time at no cost to her and with no impediments. I caution the mother that a further curtailment or possibly even a termination of her access could follow if such behaviours continue, given that they cause serious stress for the child. However, upon review of the record I cannot see at this stage how the mother’s Motions to Change can be characterized as an abuse of the litigation process or how she can be described as a ‘serial litigator’. The custody order to the PGM was made in 2005, soon after the child’s birth. The first Motion to Change was brought in May of 2009 and completed in 2011. This Motion to Change was brought in 2015. Both Motions to Change resulted in orders designed to address the child’s best interests. I fail to see a multiplicity of vexatious proceedings. That said, I do echo Ms. Kapasky’s recommendation that, provided there is evidence to support a material change in circumstances, the parties seek out all other measures of dispute resolution before returning to court and exposing the child to further litigation or assessments.

Decision

19For the reasons stated above the order dated February 22, 2011 is varied by deleting sub-paragraphs 1 (a) to (e), (g) to (i), and (l), and paragraph 2 and replacing them with the following:

1. S.S. shall have access every other Saturday from 9 a.m. to 6 p.m. Further access shall only be as agreed to by the parties in writing.

2. S.S. shall not leave the child unattended with anyone, including a partner or boyfriend, unless she has introduced the person to S.E. and obtained her written approval. S.E. may request a last name or a police Vulnerable Sector Report before giving her approval.

3. On consent, S.S. shall not consume alcohol or illegal drugs during or twelve hours prior to the start of her access.

20I am hopeful that the parties, given their very limited means, can agree on costs. If not, I will accept brief written submissions from each provided that they are received within twenty days.