COURT FILE NO.: 1052/10

DATE: 2018-03-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.A.L.

Self-Represent Applicant

Applicant

- and -

R.H.M.

Mr. Frank Lanza, for the Respondent

Respondent

HEARD: February 28, 2018, March 1, 2018

JUDGMENT

THE HONOURABLE MR. JUSTICE A. PAZARATZ

1. Like beauty – but more ominously – fear is in the eye of the beholder.

2. This was a motion by a father seeking to reinstate access to an almost eight year old son he hasn’t seen in six years. He also sought to terminate a permanent restraining order against him.

3. Although it was a motion to change a final order, it proceeded as a two-day trial with oral evidence, to deal with credibility determinations.

4. In addressing the threshold need to establish a material change in circumstances, the father basically argued that two things are now different:

   1. He’s taken steps to address and resolve any past personal issues.
   2. It is no longer reasonable for the mother to fear him.

5. The mother’s response was categorical:

   1. There’s no reason to have confidence the father has changed.
   2. She fears him today, just as much as she ever did.

6. All of this led to an underlying question: Who gets to decide how long fear can last?

   1. The perpetrator?
   2. Or the victim?

I will start by outlining the main participants in this story (NOTE: Throughout this judgment I have changed the names of all parties, children, and witnesses, primarily to protect children. For the same reason I have decided to initialize the file):

1. R.H.M. is the Respondent and moving party.  I will refer to him as “Robert”.
2. M.A.L. is the Applicant in this proceeding.  I will refer to her as “Mary”.
3. A.P.M. is the seven year old son of Robert and Mary.  I will refer to him as “Andrew”.
4. M.L.M. is now 15 years old.  She is another child of Robert’s.  I will refer to her as “Melinda”.
5. C.H. is Melinda’s mother.  I will refer to her as “Cathy”.

JAN 29, 2014 ORDER

7. This was Robert’s motion to change a final order of Justice D.J. Gordon dated January 29, 2014 which stated:

   1. The Order of Justice Mazza granted May 18, 2011 shall be changed so as to provide that Robert shall have no access to the child, Andrew.
   2. A permanent restraining Order shall issue prohibiting Robert from contacting or communicating with Mary or Andrew.

8. To address the threshold issue of whether there has been a material change in circumstances warranting a change with respect to the January 29, 2014 order, it is necessary to consider Justice Gordon’s very detailed 18 page judgment, which set out the applicable factual findings and considerations which formed the basis of the order.

9. The three day trial in 2014 related to two separate motions:

   1. A motion by Mary to terminate Robert’s access to their son Andrew (who was almost four when the judgment was issued).
   2. A motion by Cathy to terminate Robert’s access to their daughter Melinda (who was 12 when the judgment was issued).
   3. The parties had consented to combining the cases and proceeding by way of oral hearing.
   4. Both mothers represented themselves.
   5. Robert was represented by Frank Lanza (then and now).

10. At the completion of the 2014 trial, Justice Gordon ended up issuing an identical order against Robert in relation to Melinda: No access and a permanent restraining order against the father. Although the trial before me only dealt with the child Andrew, in determining whether there has been a material change in circumstances in relation to Robert, I have considered all of the 2014 findings in relation to his parenting skills, patterns of behaviour, and his personal situation.

11. Justice Gordon summarized the background as between Robert and Cathy:

    1. They cohabited for several years, separating in 2004. Melinda remained in Cathy’s care since birth.
    2. They had a high conflict relationship, separating after Robert physically assaulted Cathy. He was charged and convicted.
    3. The Children’s Aid Society of Hamilton (“CAS”) became involved as a result of that event. Protection concerns related to Melinda having witnessed the violence and purported use of cocaine by Robert.
    4. CAS required Robert’s access to Melinda to be supervised by his parents. CAS also requested drug testing and anti-violence counselling before it would consider a less intrusive form of access.
    5. Robert ended up breaching terms of his probation regarding no-contact with Cathy, resulting in incarceration.
    6. Robert commenced a family court application in 2005, which resulted in a May 26, 2006 consent order granting custody of Melinda to Cathy. Robert’s access was to be initially supervised by his parents, and was to become unsupervised when he completed an anger management program; and after he provided a three-month hair follicle test report confirming no cocaine use.
    7. Cathy brought a motion to change in 2007, resulting in an August 17, 2007 order allowing Robert to have access to Melinda on alternate weekends and other times including one week in the summer. Access was to occur at the residence of Robert’s mother for six months. Robert was also ordered to start paying child support.
    8. In 2010 Robert brought a motion to expand access. Cathy opposed the motion and requested a temporary suspension of access. An oral hearing took place, and on June 22, 2010 this court granted a temporary order continuing access pursuant to the prior order, but with the requirement that Robert arrange a referral to a psychiatrist, and for anger management counselling having regard to his mental health issues. Child support was suspended.
    9. On November 29, 2010 the parties appeared before this court and reported that the issues were resolved; they were communicating civilly; and access was going well. Access was directed to continue, but with additional terms. Robert was to ensure no person in his residence consumed alcohol during access, and that Melinda slept alone in her own bedroom. Both Cathy and Robert were prohibited from exposing the child to aggressive or confrontational behaviour.
    10. On April 11, 2012 Cathy brought a motion to change the November 29, 2010 consent order. An uncontested trial was directed when Robert failed to serve a response. But his motion for an extension was granted on June 22, 2012, at which time Justice McLaren directed that Robert’s existing access provisions in relation to Melinda were not to be enforced pending further order.

12. Justice Gordon summarized the background as between Robert and Mary:

    1. They cohabited from July 2009 to June 2010.
    2. This relationship was also one of high conflict.
    3. Mary commenced an application immediately following separation, said to be the result of abuse by Robert.
    4. On June 15, 2010 she was granted a restraining order against Robert. The order was extended from time to time. Robert was prohibited from contacting or communicating with Mary and Andrew.
    5. Both parties retained counsel and the parties participated in a motion, a case conference, and a settlement conference.
    6. Ultimately the parties signed Minutes of Settlement which came to be incorporated in the consent order of Justice Mazza on May 18, 2011. Mary was granted custody. Robert was granted access periods on Thursdays and Saturdays, to be supervised by his mother or another woman N.K. Unsupervised access was to commence July 9, 2011 and then on alternate weekends commencing August 26, 2011. Robert was prohibited from contacting or communicating with Mary during access exchanges. He was not to consume alcohol or illicit drugs during or 24 hours prior to any access period. Both parties were prohibited from exposing Andrew to profanity or violence. No child support was ordered.
    7. On March 12, 2012 Mary commenced a motion to change that order.
    8. On July 6, 2012 Justice McLaren granted a restraining order against Robert.

13. Justice Gordon summarized the evidence and findings in relation to an event in August 2011:

    1. Robert was to have a one week access period with Melinda. He returned the child to Cathy after several days. Robert then met up with some friends. They consumed cocaine. At the time Robert was also using morphine and oxycontin as prescribed by his physician for pain from prior injuries.
    2. As a result Robert suffered a drug induced seizure. He went to the detox centre and was directed to attend hospital for examination before continuing treatment and counselling. The program was for seven days. On release, Robert was to continue counselling at Wayside Place. He chose not to do so, saying he lacked the financial resources.
    3. On August 27, 2011 Robert delivered a text message to Cathy saying "had drug induced seizure last night." She inquired about the drugs used. On August 31, 2011 Robert replied "blow, morphine n oxy's." Robert did not report the event to Mary, despite saying the children's mothers had a right to know. He indicated a concern as to breaching the non-communication order.
    4. Cathy contacted Mary. Both reported the event to the Catholic Children's Aid Society ("CCAS") who had taken over responsibility for the two families. The CCAS directed future access was to be supervised at their premises given the obvious protection concerns for the children.

14. Justice Gordon summarized the evidence and findings in relation to an incident in February 2012:

    1. From September 2011 Robert was allowed weekly access visits at the CCAS premises. The visits were scheduled for two hours. Melinda and Andrew were brought to the CCAS facility. Robert's mother also participated in the visits.
    2. Prior to the February 8, 2012 visit Mary informed a CCAS worker that she would be picking Andrew up a half hour early as she had to attend a meeting. Robert received this information just before the visit. He was upset.
    3. Although there is some disagreement as to what later occurred, it is clear that Robert initiated a confrontation with Mary when she arrived at the CCAS facility. Robert left the access room, where the children and his mother remained, and approached Mary. He demanded an explanation. Mary indicated Robert was yelling, making threatening remarks and he pushed her against the wall.
    4. Despite denying this description of events Robert later pleaded guilty to uttering threats and disobeying a court order, contrary to sections 264.1(1) and 127 of the Criminal Code. He was sentenced to 70 days in custody, less 19 days for time served since his arrest; and two years' probation. The probation terms included a prohibition against consumption of illegal drugs and contacting Mary and Andrew. He was to attend counselling as directed by his probation officer.
    5. A clinical investigator with the Office of the Children's Lawyer ("OCL”) contacted the probation officer. As of June 9, 2013 it was reported that Robert had complied with the probation order. He completed an anti-violence program in December 2012 and a substance abuse program in May 2013. The probation officer also suggested Robert would benefit from focusing on his mental health issues. Justice Gordon noted there was no evidence to indicate he followed through with that suggestion. The probation period ended in April 2014.
    6. As a result of this incident and other concerns, CCAS cancelled the supervised access. In correspondence to Cathy and to Mary, workers expressed security concerns regarding Robert's recent behaviour. Reference was made to Robert's failure to address his anger management and drug issues.
    7. Both mothers initiated motions to change following this incident.
    8. Robert has not had access to Melinda or Andrew since February 8, 2012.

15. Justice Gordon’s judgment included the following information about Robert’s criminal record.

(i) November 7, 1997

Obstruct Police, Fail to Comply with Recognizance, Simple Possession;

(ii) January 18, 1998

Theft Under $5,000;

(iii) February 9, 2005

Assault, Fail to Comply with Undertaking;

(iv) August 20, 2005

Breach of Probation;

(v) November 1, 2005

Breach of Probation;

(vi) February 5, 2009

Assault and Fail to Comply with Undertaking;

(vii) February 10, 2009

Assault and Breach of Probation;

(viii) March 28, 2009

Assault;

(ix) April 15, 2009

Utter Threat to Cause Death or Bodily Harm;

(x) January 3, 2012

Possession of Cocaine; and

(xi) February 8, 2012

Utter Threat to Cause Death or Bodily Harm and Disobey Court Order.

1. Cathy and Mary both stated that not all incidents of abuse were reported to the police.
2. The OCL investigator reviewed other police incident reports. Police were involved on eleven occasions between September 2007 and May 2012 involving complaints pertaining to access exchanges, contraventions of court orders and other conflicts. No charges were laid.

16. Justice Gordon concluded there were obvious concerns regarding Robert's criminal conduct, namely:

    1. His propensity to use violence when dealing with conflict, particularly involving a spouse or former spouse;
    2. His inability to comply with court orders; and
    3. His continued use of cocaine.

17. Justice Gordon summarized the evidence and findings in relation to Robert’s efforts to obtain professional assistance for his various problems:

    1. Robert has completed numerous anger management and anti-violence programs, including in 2010 and 2012, if not before. Attending courses alone is insufficient. Behaviour has to change, using the information provided in these programs. As the OCL investigator noted, Robert does not take responsibility for his actions, blames others and has not been able to change his behaviour. This was clearly demonstrated in his confronting and threatening Mary on February 8, 2012.
    2. Robert also completed a six week program on alcohol and drug abuse in 2013. He has not pursued other programs as recommended by the CCAS. He has never provided a drug report.
    3. Robert did not arrange a referral to a psychiatrist as (this court) directed in its temporary order on June 22, 2010. The parties would later consent to a final order. Nevertheless, no evidence was presented as to how Robert is addressing mental health issues.
    4. The cause of his problems is undiagnosed. Robert, for example, made reference to a possible brain injury some years ago.
    5. Justice Gordon concluded: These matters are also of concern in addressing child related issues.

18. Justice Gordon addressed the involvement of the OCL in relation to the 2014 proceedings.

    1. The OCL was asked and agreed to prepare a section 112 report in relation to Melinda.
    2. The file was assigned to a male social worker and later – at Cathy’s request – reassigned to a female social worker Elly Fruend-Bell. She provided a report on August 13, 2013 and also testified at the 2014 trial. The investigation was not completed as an observation of Robert and Melinda could not be arranged.
    3. The OCL reported that Melinda stated a desire to see her father. The then 11 year old girl described him as aggressive and rude to other people but not towards her or Andrew. She also said "you would not want to get on his bad side."
    4. Despite Melinda’s expressed desire to have access, Freund-Bell said there remained serious questions as to whether Robert had made enough changes so that Melinda would no longer be at risk. She deferred to the CCAS in addressing that issue.
    5. Freund-Bell also indicated that while there had been no request for an OCL investigation in relation to Andrew’s situation, the social worker’s protection concerns relating to Melinda also applied to the younger child Andrew.

19. Justice Gordon described the involvement of CCAS:

    1. CAS was initially involved with Melinda in 2004 as a result of Robert's conduct. In July 2011, CCAS assumed responsibility for matters pertaining to Melinda and Andrew.
    2. CCAS continued to identify similar concerns as its sister agency had in the past. After the August 2011 event, access was supervised at the CCAS premises. Following the February 2012 incident, the program was discontinued.
    3. Two social workers from CCAS testified, Lesley Mabo and Lusine Unanyan.
    4. Mabo is a Child Protection/Family Support Worker. She became involved in October 2011. She met with Robert the following month. Mabo reported Robert to be resistant to working with the CCAS
    5. No direct parenting issues were identified at the access visits. Reference was made to Robert's attitude and language directed to CCAS staff.
    6. Mabo offered programs to Robert. She was concerned with his substance abuse and conflict with adults. Robert declined the services, advising Mabo he had his own solutions.
    7. The weekly two hour visits were the standard starting point. Mabo said the visits would have increased in length or frequency had Robert shown improvement and followed through on their recommendations. Such did not occur.
    8. As to adult conflict, Mabo said Robert had to resolve the problem as other adults would always be involved in the lives of his children.
    9. CCAS was contemplating changes to the access program as Robert was not co-operating and failed to demonstrate any progress. A decision as to whether the supervised access would continue was being discussed by CCAS staff; however, such a decision had not been made when the February 2012 event occurred.
    10. Mabo was unable to comment as to future involvement. A protection assessment, she said, would again be required.
    11. Child protection worker Unanyan was involved in the initial referral in July 2011, the file subsequently being assigned to Mabo.
    12. Unanyan was re-involved in August 2013, following a request from the court regarding an OCL observation visit. In her brief report, dated August 30, 2013, she identified the CCAS concerns as being Robert's drug use and anger and violence issues. Unanyan was aware that Robert had attended anger management programs but was not in a position to advise as to what benefits, if any, he gained from such participation or what changes were made to his behaviour. Unanyan commented that there was no information suggesting ongoing drug use but noted drug testing reports had never been provided by Robert.
    13. Justice Gordon noted the Society was aware that Melinda misses and wishes to see her father. Given the programming that Robert has completed, along with the child's wishes to see her father, there would be no child protection concerns should Robert have fully supervised access at YWCA. Given Robert's history of conflict with the mothers of his children, including Cathy, any supervised access between Robert and Melinda would have to ensure that there is no contact between the parents.
    14. Justice Gordon noted that supervised access at the YWCA could not be considered a long-term proposal, and in any event, the YWCA had declined the use of its premises for supervised access by Robert.

20. Justice Gordon described the evidence and findings in relation to the paternal grandmother (who I will refer to as “Larissa”):

    1. She testified that she is prepared to supervise the access with Melinda and Andrew.
    2. Larissa resides with her other adult son, Simon. Her spouse occupies the lower unit in the residence. They are separated. Robert used to reside with his mother. Such no longer occurs as, he said, they have issues with each impairment.
    3. Larissa is a retired psychiatric nurse who continues her employment on a part-time basis, usually two shifts per week. She had a good relationship with Melinda and Andrew but has not seen them for some time. She previously supervised the access visits, being approved by the CCAS for that purpose. Larissa participated in the visits at the CCAS.
    4. Larissa was asked to comment as to the description of her son as being aggressive. She reported such never occurred in the presence of his children. Larissa has observed her son "on edge" with his father, but not with her.
    5. The supervision plan would involve Larissa being present at all times. If any issue arose, she said she would deal with it by talking to her son or, if necessary, calling the police.
    6. The CCAS was not asked to comment on future supervision by Larissa.

21. Justice Gordon concluded his judgment with the following analysis:

71 The legislative authority for a motion to change an access order is section 29, Children's Law Reform Act, R.S.O. 1990, c.C.12, as amended. It provides as follows:

29. ORDER VARYING AN ORDER — 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.

72 The court is required to engage in a two stage inquiry:

(i) is there a material change in circumstances; and

(ii) if so, what is now in the best interests of the child.

See Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.); Bubis v. Jones (2000), 2000 CanLII 22571 (ON SC), 6 R.F.L. (5th) 83 (Ont. S.C.J.); and Papp v. Hunter (2004), 2004 CanLII 34336 (ON SC), 3 R.F.L. (6th) 164 (Ont. S.C.J.).

73 Robert has a lengthy history of anger management and substance abuse problems. Prior orders have attempted to address these matters by imposing supervision during access so as to protect the children from harm. There was a clear expectation that access would move into a more regularized regime once Robert addressed his personal issues and changed his behaviour. Such did not occur. Similar events as before the final orders continued to occur. A drug induced seizure and threats directed to one of the mothers are serious matters.

74 When the expectation for behavioural modification does not occur and the problems continue, I conclude a material change in circumstances has been established.

75 Assessment as to the best interests of a child must be undertaken as a fresh inquiry: see Gordon v. Goertz, supra. Both parties bear an evidentiary burden of demonstrating where the best interests of the child lie: see Rail v. Rail, 1999 BCCA 587 (B.C. C.A.). Evidence predating the original order may be relevant to the present inquiry: see Segal v. Segal (2002), 2002 CanLII 41960 (ON CA), 26 R.F.L. (5th) 433 (Ont. C.A.)

76 There is no dispute access, if it is reinstated, would have to be supervised. I am not persuaded that Robert has made any serious effort to address his personal issues. He has participated in numerous anger management and anti-violence programs, some being repeated. Yet adult conflict continued. There was no evidence as to what Robert has done to change his behaviour. Simply attending a course is not sufficient. He has not accepted the recommendations of the C.A.S. or the C.C.A.S. Indeed, it appears he lacks the insight as to his behavioural problems, accepts no responsibility for his actions and continues to blame others. There have been repeated requests for Robert to address mental health issues. He refuses to do so.

77 There is also a history of substance abuse that can only have a negative impact on existing behavioural problems. To his credit, Robert recognized his drug problem and voluntarily attended the detox centre in August 2011. Yet he did not follow up with recommended counselling on release. Participation in a substance abuse program occurred in 2013, but only because it was required by his probation officer.

78 Cocaine is well known to be highly addictive and use of it becomes a lifetime struggle to overcome. Robert has not fully addressed his substance abuse problem. I am not persuaded he even recognizes it to be of concern.

79 Anger management and substance abuse problems are of obvious concern when assessing a parent/child relationship. Parenting issues were not identified as being of concern in terms of the access visits. However, unresolved issues will ultimately have a negative impact on the children. This has already occurred, having regard to Melinda's comments as to her father's aggressive behaviour.

80 Robert expresses optimism and that he now understands the impact of his behaviour. There is no evidence to support his belief. He has not done anything in the past two years to demonstrate a basis for optimism.

81 These two families have long been involved with the C.A.S. and the C.C.A.S. solely as a result of Robert. There are no protection concerns regarding the parenting of Cathy and Mary. They are parenting their children in an exceptional manner despite the conflict created by Robert.

82 The C.C.A.S. will no longer supervise access involving Robert. The Y.M.C.A likewise refused to be involved. These decisions are troubling in that it is indicative of the seriousness of Robert's behavioural problems.

83 Larissa is the proposed supervisor. Although previously approved in that role by the C.A.S., no inquiry was requested in the present circumstances.

84 I am satisfied her intentions are honourable and that she has had a good relationship with Melinda and Andrew. I am not persuaded, however, that she has the ability to protect the children. There can be no dispute, Robert's unresolved problems will lead to further conflict and place the children at risk.

85 There are issues between Larissa and her son. I am not persuaded she can control his behaviour. Exposing the children to further conflict is not acceptable and is contrary to their best interests. Calling the police may be too late. Supervised access requires controls to be put in place beforehand yet no mention was made as to preventing problems. Larissa’s plan is also based on optimism. I am not satisfied she fully appreciates the behavioural problems of her son and how they can impact on the children.

86 Supervised access is intended to assist in overcoming parent issues and in re-establishing a parent/child relationship. Supervised access is normally the subject of a temporary order. It is not a proper arrangement on a permanent basis as it is conducted in an artificial atmosphere and, in reality, teaches children the wrong lessons regarding a parent's role.

87 The decision of Steinberg J. in Roach v. Kelly (2003), 2003 CanLII 1991 (ON SC), 49 R.F.L. (5th) 177 (Ont. S.C.J.) is instructive. Although the facts regarding father's violence was more extreme than in the case at bar, emotional and addiction problems were unresolved. Steinberg J., at paras. 20-22, comments on father's behaviour and how such would eventually affect mother's ability to care for her child. No access was allowed.

88 Melinda has reported a desire to see her father. Her comments regarding his behaviour are troubling and are indicative of his negative impact on her. Andrew is too young to express a view. Given his age, it is unlikely he would recognize Robert as his father.

89 The view and preferences of the children are one factor in the best interest test. I am not persuaded that Melinda's desire can be met in a manner that is safe for her. When continued contact has negative results, there is good reason to question the suitability of further access.

90 In all of the circumstances, I conclude that Robert's access must be terminated. This, in my view, is in the best interests of Melinda and Andrew on a long term basis. It is better the decision be made now so as to avoid further conflict and difficulty for the children.

91 Melinda and Andrew are doing well in the care of their mothers. Cathy and Mary have ensured the children have a sibling relationship. These families should not have to continue under the constant threat of further conflict caused by Robert's behaviour. The children must be protected.

92 In result, the two motions to change are granted. Final orders shall issue as follows:

(a) In File F-1021-05, the order of Pazaratz J., granted November 29, 2010, is changed so as to provide that Robert shall have no access to the child Melinda; and further, a permanent restraining order to issue prohibiting Robert from contacting or communicating with C.H. or Melinda; and

(b) In File F-1052-10, the order of Mazza J., granted May 18, 2011, is changed so as to provide that R.H.M. shall have no access to the child, A.P.M.; and further, a permanent restraining order to issue prohibiting R.H.M. from contacting or communicating with M.A.L. or A.P.M..

22. Using Justice Gordon’s order and detailed analysis of January 29, 2014 as the starting point, I considered the following evidence in determining whether there has been a material change in circumstances, and if so, how the issue of access should be determined:

WITNESS #1 M.B.

23. M.B. testified briefly on behalf of Robert. I will refer to her as “Margaret”. Mary did not cross-examine her.

24. Margaret and Robert dated briefly starting in about 2000. They never lived together. She testified about her 16 year old son (who I will refer to as “Oscar”) who has always lived with her.

    1. Robert is Oscar’s biological father, but until recently he has had nothing to do with his son.
    2. In about 2008 Margaret contacted Robert and arranged a meeting with Oscar. She did not however reveal to Oscar that Robert was his father. Nothing came of that meeting.
    3. A couple of years ago Oscar started asking about the identity of his father. Margaret revealed it was Robert. She arranged another contact between Robert and Oscar, and this time they hit it off.
    4. For the last couple of years Robert has been seeing Oscar, and Margaret says everything has gone fine.

25. Margaret testified she has seen an improvement in Robert:

    1. When they first met she didn’t think Robert was “in a good place”. He had no job, no ambition, and he was drinking and taking drugs.
    2. She feels he now has things under control. He has a steady job and appears to be in a stable relationship. He appears to be more mature.

26. Margaret gave no specific evidence about Mary or Andrew.

WITNESS #2 ROBERT (THE RESPONDENT)

27. The Respondent Robert testified and was cross-examined by Mary.

28. He acknowledged that he previously had many problems, but he insisted that he has fully addressed those problems and there is no reason why he shouldn’t be allowed access to his son.

29. He admitted he had a “pretty bad” substance abuse problem for many years.

    1. He was addicted.
    2. He said it was very easy to slip back into drugs when you get depressed or sad.

He said not seeing his children upset him greatly.

1. He admitted he had a drug induced seizure in August 2011.  He said he contacted Cathy for help, but later realized he had reached out to the wrong person because Cathy used the incident against him in obtaining the January 2014 order.
2. He said he stopped using drugs after he was released from jail in February 2012.  He hasn’t done drugs in six years and doesn’t want anything to do with drugs.
3. He said he had “wasted enough” of his life.
4. He said he now only takes prescription medications, which include hydromorphine and percocets for a chronic back problem.  He also has a prescription for medical marijuana.
5. He said he still has an occasional drink of alcohol – perhaps every three months.  He said his consumption of alcohol is not a problem.

30. He said he has taken drug testing which demonstrates that he is now clean and sober.

    1. He submitted five “clean” Lifelabs drug screening results, all within the first six months of 2016: January 18; February 17; March 17, April 18, and June 30.
    2. He provided no evidence of drug testing for the balance of 2014 (after Justice Gordon’s January 29, 2014 order) or 2015.
    3. He said he stopped taking tests in 2016 because there was no reason to continue.
    4. He said his current doctor still arranges periodic random drug testing and those tests have confirmed he’s not taking anything other than his prescribed medications.
    5. But he did not actually produce any drug tests for the 20 months immediately prior to the trial.

31. Given the extremely serious and long-standing nature of Robert’s substance abuse problems, it would have been much more reassuring had he provided a greater number of “clean” drug tests, covering a longer (and more recent) time-span.

32. Robert testified he no longer has a problem with adult conflict or anger control:

    1. He said he hasn’t had any altercations with adults, or any police involvement, since February 2012 when he was charged in relation to the incident at CCAS.
    2. He said he stays away from people who might create problems for him. He has matured and come to understand how to deal with anger and frustration.
    3. He said he has taken “multiple programs” to deal with anger issues. Now he is able to pause and think through the most appropriate reactions to difficult situations.
    4. He said the only thing that makes him angry is this court case and Mary’s relentless efforts to keep him away from Andrew. He is quite content with the rest of his life. He said as soon as he gets to see his son “it will be one of the happiest days in my life.”

33. Related to this, Robert also testified he has taken adequate steps to deal with any concerns about his mental health.

a. He denied ever having any serious mental health issues and insisted that currently none exist.

b. He admitted he engaged in cutting behaviour after Cathy curtailed his access to Melinda. But he hasn’t cut himself since 2002.

c. He started seeing social worker Barry Rosen in December 2014. He said Rosen was very helpful and referred him to various programs.

d. He also saw a succession of three psychiatrists through the East Region Mental Health facility.

e. He said for a while they put him on medications, but “none of them made any difference” so the doctors stopped prescribing drugs.

f. He said ultimately he was told he didn’t need to come in anymore because there was nothing more they could do for him, and he was just using up a slot they could give to other patients who needed help.

g. He did not call any of the professionals as witnesses. Rosen had been on his witness list, but Robert’s lawyer said Rosen had retired and would not be called.

34. In an effort to provide corroborating documentation to show that Robert has successfully resolved his various issues, the father’s lawyer referred to a number of documents named in a Request to Admit dated January 31, 2018 which Mary received and did not respond to.

    1. Lanza submitted Mary’s failure to respond meant that the court should accept the contents of the documents as true.
    2. Mary responded that she did not respond because she was not challenging the authenticity of the documents. However she was not acknowledging the accuracy of the information set out in the documents, because she didn’t know if the information was accurate or not.
    3. The Request to Admit was completed using the “Form 22: Request to Admit” form which includes one section requesting an admission regarding specified facts, and a second section seeking admission regarding the genuineness of certain documents.
    4. Notably, the Request to Admit served on Mary did not set out any “facts” to be acknowledged. That section was left blank.
    5. The Request to Admit simply listed a series of documents, requesting that Mary admit the genuineness of the document. And it would appear the genuineness of the documents – quite apart from the contents of the documents – was not contested by Mary.

35. Robert’s lawyer submitted that even if the contents of the documents were not deemed to be acknowledged, that Robert should still be able to rely on them at trial because they had all been served on Mary long ago (as exhibits attached to Robert’s original motion documents) and Mary had never raised an issue as to the accuracy of the information.

36. Mary did not strenuously oppose the court considering those documents. She described them as providing very limited helpful information, and I agree with that comment.

37. An October 14, 2014 letter from East Region Mental Health Services confirmed that Robert was starting nine weekly sessions of a “Mindfulness and Stress Reduction” group starting that day.

a. A December 2014 Certificate confirmed that he had completed his attendance in the group.

b. No evidence was submitted as to the nature of Robert’s participation in the group or what benefit he derived from that participation.

38. Justice Gordon noted in paragraph 76 of his January 29, 2014 judgment that during the previous trial Robert had similarly described participating in “numerous anger management and anti-violence programs,” without actually describing what his participation entailed, or how the programs changed him. In considering this same issue four years later, I echo Justice Gordon’s warning:

a. Simply attending a course is not sufficient.

b. “Fill in the Name” one-page certificates don’t tell us what we need to know.

c. Where children’s physical or emotional well-being is at stake, the court requires specific evidence of the nature and quality of a person’s participation in a program; details as to what issues were addressed; and at least some independent comment as to whether this individual’s participation has led to improved insight or behaviour.

39. A December 20, 2014 letter signed by Barry Rosen simply confirmed Robert attended with the social worker for two sessions in December 2014, and that a referral would be made to a psychiatrist.
40. A March 20, 2015 letter signed by Rosen confirmed Robert had been attending individual sessions at East Region Mental Health Services since December 4, 2014. It included:

a. “You have been compliant with treatment and you have been attending on a regular basis.”

b. Robert met with Dr. Tam (a psychiatrist) on one occasion, and is taking prescribed medication.

41. A February 3, 2015 assessment signed by Rosen and Tam included the following information:

a. Robert was quoted as saying “There is a big problem with how I speak to people. It sounds like I’m angry but I’m not. It’s unintentional”. Notably, during questioning at this trial Robert stated he couldn’t think of any action or behaviour on his part which would justify Mary having any fear of him.

b. The assessment went on to say that his mother has been giving him this feedback about sounding angry for years. However, during his mother’s testimony she said that while he would sometimes yell, her son “got along fine with other people.”

c. Robert told the health professionals he “feels stressed out and angry” about being denied access to his children, but he wants to work on reducing his anger.

d. Robert described his mood as “content” 90% of the time, but approximately 10% of the time he feels angry – when he thinks about his kids.

e. Robert told the health professionals that “he has never been violent.” This is inconsistent with his extensive criminal record which includes convictions for assaults and threats. Elsewhere in a section of the report where criminal history is to be outlined, there is reference only to a 2012 charge of uttering death threats – but no reference to the other charges.

f. The report described Robert as having “rapid mood changes and his mood can become dysregulated.”

g. The report concluded with the following clinical impression: “Robert is a 35 year old man who was seen previously by the rapid consult service. He has problems with angry feelings, especially with regard to the fact that he is not allowed to see his children. He also has difficulty with emotion dysregulation (sic). He has cut himself in the past for emotional release, but not recently…Length of treatment: To be determined.”

42. A June 13, 2016 letter from an intake co-ordinator at St. Joseph’s Healthcare to Robert’s previous physician Dr. J. Falleta included the following:

a. Dr. Faletta made a referral on May 25, 2016 requesting an assessment of Robert regarding his mental health and how it may impact on his parenting.

b. In response, the hospital did an intake assessment with Robert over the telephone.

c. “(Robert) is not currently presenting with any psychiatric symptoms and he states that the only problem is not having access to his children.”

d. Notes indicate Robert was doing well upon his discharge in September 2015.

e. They do not feel Robert needs an assessment to address his mental health.

f. They do not provide parenting assessments.

43. Robert provided a Criminal Record Vulnerable Sector check from Hamilton Police Services which actually sets out a more extensive criminal record than Justice Gordon listed in his January 29, 2014 judgment. The last entries on March 27, 2012 are convictions for uttering threats; disobeying a court order; and possession of a controlled substance.
44. So while Robert testified that he’s received all the counselling he needs for anger and mental health issues, the documents he produced provide little reassurance that these issues have been addressed in a meaningful way.

a. In his January 2014 judgment, Justice Gordon noted that Robert had previously attended numerous anger management and anti-violence programs, with no indication of any improvement in his behaviour.

b. Justice Gordon specifically identified that the court would require much more detailed and persuasive evidence that Robert has been diligent and conscientious in pursuing professional help – and that he’s actually derived some benefit from counselling.

c. Instead, Robert provided his professionals with completely misleading information about why he was there and what he needed help with. He told them he had “never been violent” and he only disclosed a fraction of his criminal record, omitting any reference to his various convictions for assaulting people.

d. It is difficult to accept his reassurance on the witness stand that “they told me they don’t need to see me anymore”, when in fact “they” apparently had no idea how serious his problems have been for the better part of two decades.

45. Even based on the sanitized version of events Robert provided to his doctors, they still concluded he needed more help. But there’s no indication that he got it.

a. The February 3, 2015 assessment concludes with the words: “Length of Treatment. To be determined.”

b. However, the next thing we know from the paper trail is that he was discharged from the program in September 2015.

c. We know Robert didn’t tell his doctors the truth when he started working with them.

d. We have no idea who decided to end his participation in September 2015, or why.

e. It would appear that any notion of Robert “no longer requiring professional help” is based entirely on his self-reporting (which his own evidence has shown to be inaccurate and self-serving).

46. Robert testified he is in a stable and supportive relationship with his fiancé (who I will refer to as “Connie”):

    1. They have been living together for five and a half years. They plan to marry in a few months.
    2. They have never had any breakups or significant arguments. There has never been any police involvement in their relationship. If they have a dispute, they settle it quickly and resume civil communication within minutes.
    3. He said Connie understands him and knows how to keep him calm. “She tells me when I’m stupid.”

47. Robert testified he has no feelings toward Mary.

    1. When she asked him during cross-examination whether he had any understanding of the impact his actions have had on her and her family, he quickly retorted: “What have I done to you?”
    2. He later added bitterly: “How you feel doesn’t concern me. How do you think it feels to be kept from your child for six years?”

48. Robert’s defiant and resentful attitude throughout his testimony demonstrated that there has been no improvement – no material change – with respect to his lack of understanding about why he has not been allowed to see his children. As Justice Gordon noted in paragraph 76 of his judgment: “Indeed, it appears he lacks the insight as to his behavioural problems, and accepts no responsibility for his actions and continues to blame others.”

49. In that context, it is disappointing that throughout his testimony at the trial before me, Robert continued to deny or minimize his past inappropriate behaviours:

a. He testified that he feels he has been treated unfairly.

b. He admitted during the years 2010 to 2012 there might have been reasons to be concerned about his lifestyle and behaviour.

c. But he said beyond that Mary has exaggerated or fabricated complaints about him in a deliberate effort to make him look bad and keep Andrew away from him.

d. He denied ever having done anything which would justify Mary being fearful of him. He admitted she presents herself as being fearful in front of judges, but he called her a “good actress.”

e. He denies threatening Mary in February 2012 even though he pleaded guilty to threatening her. He said he pleaded guilty to get the criminal matter over with and to avoid or reduce jail time.

f. He denied being violent, despite his previous convictions for assault and uttering threats.

g. He denied ever being a danger to Andrew in any way.

h. He denied that there was any basis for the January 2014 order which denied access to either of his children, and imposed an indefinite restraining order in relation to both Mary and Cathy.

i. He denied ever being abusive to an intimate partner, even though one of his assault convictions related to Cathy as the victim.

j. He said he understood it was a mother’s job to protect her child. But he said in this case Mary never had a legitimate reason to want to protect Andrew from him.

50. Robert testified that because he is no danger, he wants to terminate the restraining order which requires that he have no contact with Mary or Andrew. He gave an example of why he thinks Mary actually has no fear of him.

    1. He said a few weeks ago he attended a Bulldogs hockey game at the Copps Coliseum arena (now known as FirstOntario Centre), and at some point he noticed Mary, her boyfriend and Andrew sitting nearby.
    2. He said when he glanced over periodically it was clear to him that both Mary and her boyfriend had seen him. Her boyfriend appeared to be looking at him.
    3. He said Mary appeared quite calm and didn’t seem at all uncomfortable about being seated close by.
    4. He said he made no effort to get Andrew’s attention.

51. Robert testified he is no danger to any child.

a. He has been active coaching children’s sporting events, without any problems or complaints.

b. He has babysat friends’ children, with no problems or complaints.

52. Robert testified about his past and future relationship with Andrew.

a. He said when Andrew was very young they had a wonderful relationship and the infant was always happy to see him.

b. He said it is unfair that he hasn’t been allowed to see Andrew for the past six years.

c. He repeatedly stated “I want my son back.” He said he had been “biding his time” to get back into court.

d. He said he wants to be part of Andrew’s life. He doesn’t want Andrew growing up without knowing his father.

e. He said he has a lot to offer. He can help Andrew with things like school and sports. And he can show Andrew what not to do. “I’d like to guide him to not make the same mistakes I made.”

53. Robert explained his proposal for access to Andrew.

a. He said he realizes there would likely have to be a reintegration period.

b. But he doesn’t want to have access “where people with clipboards standing behind glass are watching me.”

c. He proposed that access should start at his mother’s home.

d. He would want it to expand quickly and significantly thereafter.

54. Robert testified about a separate motion he brought against Cathy, also to change the January 2014 order requesting access to Melinda.

    1. He said Melinda is now 15, and now living with Cathy’s former partner.
    2. He said the OCL became involved and Melinda’s lawyer advised that the child didn’t want anything to do with Robert. He accepted that and didn’t pursue the motion, on the basis that Melinda would have the option of contacting Robert through social media if she wished.
    3. He said he now has occasional written communication with Melinda through social media.

55. Robert testified he has a great relationship with Margaret’s son Oscar.

    1. He was somewhat vague about why it took him so long to become involved in the life of his 16 year old son.
    2. He said at first he didn’t know he was the father.
    3. But he acknowledged that even after he knew he was the father, he still allowed years to go by without pursuing access.

56. Speaking plainly, Robert’s testimony – even under timid cross-examination by Mary – did more to reinforce concerns, rather than allay them.

a. He was forceful. At times harsh. And aggressive.

b. His bullying tone and intimidating demeanor on the stand reminded me of the statement attributed to his daughter Melinda several years ago: “You would not want to get on his bad side."

c. He was angry and dismissive not only of Mary’s expressions of fear – but also of previous judicial findings.

d. He continued to portray himself as a victim, and kept insisting that no matter what he will never give up on his objective of getting his son back.

e. When confronted with obvious contradictions or inconsistencies, he was evasive and tried to re-direct the discussion to blaming others.

f. He spoke much less of Andrew’s needs, and much more about his own entitlements and expectations.

g. He conveyed no empathy for what life has been like for Andrew. He made it clear that he didn’t know – and he didn’t want to know – how Mary’s household (including Andrew) would be affected by Robert popping up in the child’s life as a complete stranger.

h. He was dismissive of counselling which he clearly regarded as perfunctory.

i. He appeared impatient and intolerant of supervision, if access were to resume.

j. While his motion is based on a “material change in circumstances”, he was hard-pressed to admit that anything needed changing.

WITNESS #3 S.B.

57. S.B. testified on behalf of Robert. I will refer to her as “Sarah”.

a. She is the partner of Robert’s childhood friend J.M. (I will call him “Jim”).

b. She knows Robert well.

c. She has seen him interacting with children. He has cared for her own children. She has no concerns about his parenting skills.

d. Robert appears to be in a stable and caring relationship with his fiancé Connie.

e. She described Robert as laid back.

f. She would have no concerns about him having access to a young child.

WITNESS #4 J.M.

58. J.M.’s (“Jim”) testimony on behalf of Robert mirrored that of his partner Sarah:

a. He has been a friend of Robert’s since childhood.

b. Although there was a period when they fell out of touch, they are now very close and see each other almost daily.

c. He is aware that Robert previously had a drug issue, but he does not believe Robert has a drug problem now.

d. He described Robert and Connie as a “really fun, happy couple.”

e. He was present with Robert at Copps Coliseum a few weeks ago. Robert pointed out Mary in the crowd. Jim felt Mary and the man she was with were looking over toward them.

f. Jim thinks it would be a great idea for Robert to have access to Andrew.

WITNESS #5 C.K.

59. Robert’s fiancé C.K. testified on his behalf. I will refer to her as “Connie”.

a. They have been living together for five and a half years. They plan to marry in three months.

b. She described their relationship as “fantastic”. She said they never fight.

c. She said when they met, Robert was doing drugs, but they both decided they didn’t want that kind of life. She said he hasn’t used drugs for about five years.

d. Connie said she doesn’t see Robert as an angry person. She said he’s sad about missing his kids.

e. She confirmed Robert’s evidence that they rarely consume alcohol.

f. She felt Robert should be allowed access to Andrew because “he’s been trying non-stop to better himself.” She said people don’t give Robert credit for everything that he has done.

WITNESS #6 L.M.

60. Robert’s mother L.M. (I will refer to her as “Larissa”) testified on his behalf:

a. She said her son used to have problems with drugs, alcohol and anger.

b. She said Robert and his brother would get into verbal fights, but she never saw Robert hurt or hit anybody.

c. She said her son is now happier; in a good relationship with Connie; dependable; and responsible.

d. She testified about an incident (confirmed by other witnesses as occurring in 2010) in which Mary spoke of wanting to kill herself, and Robert kept trying to calm her down. (Robert later testified that Mary hadn’t spoken of suicide but spoke about everybody being better off if she was dead. He also gave evidence that he tried to calm her down. Mary denied all of this).

e. Larissa is prepared to facilitate access by her son. She has not seen Andrew in six years.

f. She says Robert has a good relationship with other children in the family.

WITNESS #7 MARY (THE APPLICANT)

61. The Applicant Mary testified and was cross-examined by Robert’s lawyer.
62. Mary said she and Robert met and dated briefly in 2009. She became pregnant almost immediately, and soon afterward there were many problems between them. She said she tried to overlook the early warning signs because she had already divorced the father of her older child, and this time she wanted the relationship to work.
63. She spent a great deal of time talking about her fear of Robert. This raised an objection by Robert’s lawyer with respect to Mary testifying about events prior to the January 29, 2014 order:

a. In his lengthy judgment, Justice Gordon made factual determinations that Robert’s substance abuse, mental problems and physical aggression all justified fear by Mary (as well as by Cathy). I would have thought that this should have removed Mary’s “fear” as a contentious issue on this motion to change.

b. But during his testimony Robert insisted Mary never had any legitimate reason to be fearful of him, and her current expressions of fear were exaggerated – if not totally fabricated. That sounds like re-opening an issue already decided by Justice Gordon.

c. Robert’s lawyer didn’t go that far. He suggested Mary may indeed have been fearful when Justice Gordon issued the January 2014 order. But the lawyer submitted that since Robert hasn’t had any contact with Mary in the intervening period, it was unreasonable for Mary to claim that she was still fearful.

d. He suggested that there either has been – or should have been – an abatement of Mary’s fear by now, and that this constituted a material change in circumstances relevant to both access and the restraining order.

e. Like imputed income. Except imputed calmness.

64. This relates to the tortuous debate reflected in the case law regarding the test for when restraining orders should be issued in the first instance. In K. (F.) v. C. (M.) 2017 ONCJ 181 Justice Sherr summarized the considerations at paragraph 100:

100 The legal principles for the court to apply are as follows:

a) Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Nieweglowski, 2007 ONCJ 469 (Ont. C.J.).

b) It is not sufficient to argue that there would be no harm in granting the order. See: Purewal v. Prewal, 2004 ONCJ 195 (Ont. C.J.).

c) Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds for the person to fear for his or her own safety or for the safety of their child. See: McCall v. Res, 2013 ONCJ 254 (Ont. C.J.).

d) The person's fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. S.C.J.); McCall v. Res, supra.

e) A person's subjective fear can extend to both the person's physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.J.).

f) It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.

g) A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Prewal, 2004 ONCJ 195 (Ont. C.J.).

h) A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears. See: Fuda v. Fuda, supra.

i) Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: C. (D.) v. C. (M.T.), 2015 ONCJ 242 (Ont. C.J.).

j) In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: C. (D.) v. C. (M.T.), supra.

k) It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: C. (D.) v. C. (M.T.), supra.

65. As stated, those principles apply in the first instance, when the court must make the initial determination about whether a restraining order should be granted.

66. But once the balancing of those considerations has resulted in a final restraining order, the onus switches to the person seeking to change the restraining order, to establish a material change in circumstances justifying the lessening or removal of protection.

    1. It is trite law to say that final orders should not be changed unless the person proposing the change can establish a material change in circumstances.
    2. But it is doubly important that on motions to change restraining orders we must not lose sight of the unique, extremely sensitive and important subject matter.
    3. The court is not just dealing with abstract legal tests, or benign legal arguments. It’s not a painless exercise.
    4. We are dealing with real people who sometimes end up horribly injured – or dead – if our systems don’t vigilantly protect them from domestic violence.
    5. Where a court has already made a determination that someone is fearful and requires protection, that person shouldn’t be re-victimized by being arbitrarily dragged back to court – at the instance of the abuser – to “prove that they’re still afraid.”
    6. Where a court has already made a determination that someone is aggressive and dangerous, we mustn’t allow the bully to use the family court process to re-inflict psychological pain by re-litigating the same emotionally draining issues. What’s the point of judges telling victims we believe them, if we then require victims to come back and convince us again?
    7. And while on motions to change courts ordinarily only consider events arising since the date of the last order, emotional harm and distress can’t be so neatly compartmentalized. Fear is a consequence of accumulated human experiences. It would be doubly offensive for a perpetrator to be able to able to say: “Prove that you’re still afraid…but you can’t talk about the old stuff.”

67. Had Robert only brought a motion to terminate the restraining order, it wouldn’t have been necessary to debate whether Mary should be permitted to adduce evidence of events pre-dating the January 29, 2014 order.

    1. Justice Gordon’s finding that Mary has overwhelming reason to fear Robert would have been the starting point.
    2. The onus would have been entirely on Robert to establish that the permanent restraining order should now be rescinded.
    3. Robert could obviously adduce whatever evidence he deems appropriate in support of his claim that there is no longer a need for protection.
    4. But it wouldn’t have been appropriate to effectively turn this into a de novo hearing by requiring Mary to dredge up all the painful evidence and memories about why she has come to be so afraid.
    5. And it wouldn’t have been fair to put the domestic violence victim through the anxiety of worrying whether the same facts would lead to a different outcome at a second trial.
    6. On a motion to change, she doesn’t have to prove that she still needs a restraining order. He has to prove that she doesn’t need a restraining order.

68. But with Robert’s primary claim being a request for access, the court must consider all relevant evidence in relation to the sequential “material change” and “best interests of the child” tests.

    1. I allowed Robert to adduce whatever evidence he deemed appropriate in support of any aspect of his claim.
    2. And I allowed Mary to adduce whatever evidence she deemed appropriate on those same topics – irrespective of whether she was describing events before or after the January 29, 2014 order.
    3. It wouldn’t have been fair to allow Robert to say whatever he wants about why he thinks access should occur, but to impose restrictions on Mary’s evidence as to why she believes access should not occur.

69. Mary testified about a number of instances of aggressive and frightening behaviour by Robert, including an incident April 24, 2010. She said she remembers it well because it was the day she buried her mother; and it was two days before she gave birth to Andrew.

a. It was still early in her unsettled relationship with Robert. He had offered that her family could hold a “wake” after her mother’s funeral, at the residence of his mother Larissa. Mary was grateful for the offer.

b. However, during the funeral service they received a message that Robert’s brother Simon was at the residence where the wake was about to be held, and that he had become extremely intoxicated drinking much of the alcohol which had been assembled for guests.

c. Mary testified that when the funeral attendees returned to Larissa’s home for the wake, initially Simon kept to himself in his room. A couple of times Simon started to make noise, and Robert kept going in to tell him to be quiet.

d. She said as Simon kept making more and more noise, guests felt uncomfortable and started leaving the home. Robert became increasingly agitated about the problems Simon was creating.

e. Mary said finally Robert completely lost control, ran down the hall, kicked Simon’s door open, jumped on Simon and started beating him violently.

f. She said remaining occupants in the home – including children – were attracted by the commotion and gathered at the door, watching Robert viciously beating his brother. Mary pulled the children away to prevent them from witnessing the horrific scene. She said everyone was very upset.

g. She said her father and brother intervened to try to pull Robert off of his brother. She said at that point Robert’s father challenged her own father to a fight. Her father declined, and she and her family quickly left the house.

70. Under cross-examination she disputed the suggestion that Robert had acted appropriately by preventing his drunken brother from disrupting the wake.

a. She agreed it was appropriate for Robert to tell his brother to stop disturbing people, and respect the solemn occasion.

b. But if he was trying to show consideration for her family grieving after her mother’s funeral, creating such a violent commotion that guests had to hurriedly escape the house was not the way to do it.

c. She said his extreme and prolonged physical assault upon his brother was terrifying to witness, and remains a constant reminder to her of the extreme unpredictability and violence which Robert is capable of.

d. She said her fear came to be reinforced by subsequent aggressive behaviour by Robert, combined with her general knowledge of his lifestyle and criminal behaviour.

71. Mary testified about another incident at the home of the paternal grandmother, just weeks later, in May 2010.

a. She said it was the Victoria Day weekend. She had brought the new baby Andrew and her young daughter for a visit.

b. She said everyone had a nice time, but when she wanted to go home Robert became angry with her.

c. She testified that as she was trying to put Andrew into a car seat, Robert started struggling with her, grabbed the handle of the seat and tried to jerk it away from her.

d. She said he became angry and aggressive. He wouldn’t let her leave. She was frightened, having witnessed how quickly he could “snap” just weeks earlier.

e. Ultimately, she called some people she knew from her church and they came over to try to diffuse tensions.

f. Mary denied the allegation by the paternal grandmother that Robert had intervened because Mary had started speaking of self-harm. She said there was no mention of self-harm. She was simply tired after handling a newborn and a young child during the visit, and she wanted to go home.

72. Mary testified about yet another incident of aggression by Robert in June 2010. This would have been the third incident in three months.

a. She said Robert got drunk. He was being aggressive and intimidating toward her.

b. Mary said her three year old daughter became upset and stepped between them, in a child’s futile effort to protect her mother.

c. She said Robert roughly pushed her daughter away.

d. When she saw that he was capable of physically mistreating a young child, she called police. When the police arrived they requested that Robert leave the residence, and he complied.

e. Mary obtained a family court restraining order against Robert soon after.

73. Mary testified about the February 2012 incident at CCAS which resulted in Robert being charged (and pleading guilty to uttering a threat).

a. She said ordinarily she wouldn’t attend the supervised access facility because she was so fearful of having any contact with Robert. Someone else would usually drive Andrew. But on that occasion she had to pick Andrew up early because she had another commitment.

b. She said while she was at CCAS Robert approached her in a menacing fashion. He was angry and started shouting at her in a threatening tone.

c. She testified she was immediately afraid and started calling for help from a security guard, telling the guard that there was a restraining order and Robert wasn’t supposed to have contact with her.

d. She said Robert kept approaching and as she tried to get away he caused her to walk into a wall.

e. The security guard subsequently provided independent confirmation of Robert’s threatening behaviour and statements.

74. Mary described her current fear:

a. She said she remains terrified of Robert.

b. She has seen first-hand how he can suddenly escalate into a violent rage.

c. She fears for her safety. She fears for the safety of Andrew.

d. She feels panicked even being in a courtroom with him. She said on previous occasions people have had to intervene to keep Robert away from her, even in the Family Court building.

75. Mary openly acknowledged she has no confidence that Robert has actually changed, or that it would be safe for access to resume after six years.

a. She said Robert claims he’s made all sorts of changes and he’s taken programs. But he’s said these things before, only to exhibit the same troubling behaviour.

b. She said her years of experience with extreme violence and inappropriate behaviour by Robert – combined with his record of aggressive behaviour toward other persons – cause her to have ongoing fear and a complete lack of trust.

c. She said her fear is renewed and heightened by the fact that even as Robert now tries to portray himself as “better”, he does not actual acknowledge most of the reasons why access was denied in the first place.

d. She is skeptical of his claim that he has resolved his problems, when at the same time he’s denying ever having the problems which led to the “no access” and restraining orders.

76. Mary confirmed that a few weeks ago she, her fiancé and Andrew attended a Bulldogs hockey game. But she denied that anyone in her group saw or realized that Robert was also seated in the crowd. She said if she had seen him she would have left immediately.
77. Mary described Andrew:

a. He is a very well-adjusted, happy little boy.

b. He has a wonderful relationship with Mary’s fiancé who he calls by his first name (I will refer to the fiancé as “Mark”). Andrew has never been asked to call anyone “daddy”.

c. She said Andrew is a sensitive child, who gets nervous easily when dealing with new people and doesn’t do well with change.

d. She expressed concern that this could present challenges for someone unfamiliar with her son. Someone like Robert.

78. Mary was cross-examined about how much Andrew knows about his father and this court proceeding. She testified:

a. Andrew knows he has a father.

b. When he was five years old Andrew noticed Mary’s older child going for a visit with her father. Andrew asked if he had a father and if so, could he visit him.

c. Mary testified that she told Andrew he does have a father, but they can’t see one another right now because his father is sick.

d. She testified that Andrew accepted that explanation and left it at that.

79. During cross-examination Robert’s lawyer criticized Mary for “lying” to Andrew about Robert being sick. She disagreed that she had done anything wrong.

a. She said Robert suffered from mental health issues and alcoholism, and that these are in fact “illnesses.”

b. She rejected the suggestion that she should have told Andrew he has a loving father who is fighting to see him.

c. She said she would never tell her son anything bad about Robert. She would never discuss adult issues with a young child.

d. She said there have already been a number of court orders – including the final January 29, 2014 order – setting out the court’s determination that it is not in the best interests of Andrew for Robert to have any access. She said if a court ultimately orders access, she will comply with the order and convey an appropriate explanation to the child about what’s happening.

e. But she said in the meantime there was nothing to be gained by alerting her otherwise happy and carefree child to the possibility of access being ordered. It was unclear whether Robert would be successful in changing the “no access” order. There was no point disrupting Andrew by raising the topic of access, if there was a very real possibility that it wasn’t going to occur.

80. Mary was a very compelling and believable witness.

a. She was visibly nervous throughout. Robert characterized it as “acting” but I didn’t see it that way.

b. She was cooperative and responsive to questions.

c. She gave her evidence in a very efficient, straightforward manner, with a tendency toward understatement – only volunteering more provocative details after being challenged under cross-examination.

d. Her entire evidence was believable and internally consistent. There were no instances where her evidence was undermined by cross-examination. To the extent that external evidence was available on a controversial topic, the external evidence consistently corroborated Mary’s version of events rather than Robert’s competing version.

e. Her narrative was entirely child-focussed. While she was accused of being over-protective toward Andrew, in every respect she came across as a mother who is making reasonable and conscientious efforts to deal with a very difficult family situation.

f. I was impressed by the insight and sensitivity she displayed in explaining why she “lied” (as Robert’s lawyer put it) to Andrew about the child’s father being too “sick” to attend for visits. If there was any truth to Robert’s bald allegation that Mary is vindictive and malicious, surely Mary wouldn’t have worked so hard to shield Andrew from hearing anything bad about his father.

WITNESS #8 A.L.

81. Mary’s father A.L. testified on her behalf. I will refer to him as “Albert”. He mainly gave evidence corroborating Mary’s description of the unpleasantness and violence at her mother’s wake in April 2010:

a. He testified that after the funeral, guests were sitting around at the paternal grandmother’s home visiting with one another.

b. Suddenly he observed Robert to get up and start “screaming his head off.” Robert barged into his brother Simon’s room and started kicking his brother as he lay on the ground.

c. Soon after Robert’s father joined in and also started kicking Simon.

d. Under cross-examination Mary’s father was challenged as to how he could remember the incident in such detail, so many years later. He responded that Robert’s physical beating of his brother was so shocking and vicious that he could never forget what he saw.

e. He agreed that perhaps Robert had good reason to be upset with his drunken brother for disrupting a wake. He would have been justified if he had just tried to get his brother to calm down. “But he didn’t have to kick the hell out of him.”

f. He said when he saw how violent Robert could be, he warned him never to be violent with his daughter or grandchildren. He said in response Robert’s father threatened him, asking if he wanted a similar beating. He said no and immediately gathered his grandchildren and left the house.

82. Mary’s father testified about family life in his daughter’s home.

a. He said Andrew is a very happy child.

b. He said his daughter’s fiancé Mark is a very good person who gets along really well with Andrew.

83. I accept the evidence of this witness. I accept his explanation about why he so vividly recalls the horrific assault by Robert at the wake in April 2010. It adds legitimacy to Mary’s description of why witnessing the vicious beating of Robert’s brother many years ago still haunts her today.

WITNESS #9 M.C.

84. Mary’s fiancé M.C. testified on her behalf. I will refer to him as “Mark”.

a. He said he’s been seeing Mary for about two years. They plan to marry in August 2018. He said they have a very good relationship.

b. He said he has a wonderful relationship with Andrew. He described many mutually enjoyable things they do together.

c. He commented on the impact of this court case on Mary. He said they had been dating for about eight months prior to Mary being served with Robert’s motion to change. He described Mary as being a very happy person prior to receiving the court documents. He said after this court case was revived, Mary went through a “dark period”. She was anxious, timid, and had trouble showing affection. He said she’s only coming back slowly, but her fear of Robert has caused her extreme and ongoing upset.

d. He confirmed that Andrew has been told nothing about Robert other than that he is “sick.” He said Andrew knows his mother has to be in court for something, but the child has no idea what it’s about. He said Mary has gone to extraordinary lengths to keep Andrew shielded from any unpleasantness or adult issues.

e. He confirmed he was at Copps Coliseum a few weeks ago with Mary. But he said neither of them was aware Robert was in the crowd.

85. Mark was a very gentle and articulate witness – perhaps the exact opposite of Robert.
86. He showed good insight and sensitivity toward Mary and Andrew. His evidence was not undermined during very brief cross-examination.

RE-EXAMINATION OF ROBERT

87. Robert testified again briefly under re-examination:

a. With respect to the assault on his brother at the wake, he admitted dragging his drunken brother from the bed to the floor and beating him, but he denied kicking him. He said later Mary thanked him for dealing with the situation.

b. He said during the incident at the wake, Mary’s father grabbed him and pushed him against a refrigerator, and that’s why his own father interjected and challenged Mary’s father to a fight.

c. With respect to the incident in May 2010, he corrected his mother’s description that Mary had threatened suicide. He said as Mary was packing up Andrew she was upset and said she’d be better off dead. He admitted at that point he physically stopped her from leaving, because he was fearful for his son.

d. He denied being physically aggressive with Mary’s three year old daughter in June 2010. He said he had worked all night, stopped at a friend’s house to have some beers, and then came to Mary’s home and laid down on a couch around 10:00 to 11:00 a.m. He said without reason Mary suddenly called the police and made all sorts of unfounded complaints about him.

ANALYSIS

88. This was Robert’s motion to change the January 29, 2014 order in two respects:

a. Terminate the “no access” order, and commence an access regime.

b. Terminate the restraining order.

89. Most of the evidence focussed on the issue of access. In this respect, as Justice Gordon noted in his judgment, the court must engage in a two-stage sequential inquiry:

a. Has there been a material change in circumstances?

b. If so, what arrangement is now in the best interests of the child?

90. If the court determines that there has been no material change in circumstances, then we don’t proceed to the second stage of the analysis. At the first stage, the onus is on Robert to establish a material change.
91. I accept Robert’s evidence that after lengthy and troubling involvement with the criminal law, he has had no more criminal charges or convictions since February 2012.

a. That’s good, but it doesn’t constitute a “material change” sufficient to vary the existing order.

b. As of the January 24, 2014 his most recent conviction was almost two years old.

c. It is commendable that he has continued to stay out of trouble.

d. But it’s not determinative. According to his criminal record there have previously been gaps of up to seven years between convictions for serious criminal offences.

92. I accept the evidence of Robert, his fiancé, and his friends that Robert is now living a stable lifestyle, and there is no evidence of drug use or aggressive behaviour.

a. Robert’s mother didn’t seem to have much insight into her son’s horrific history. Even Robert contradicted some of her evidence.

b. But the rest of his witnesses were credible, and I accept their evidence that he is currently interacting with all of them in an uneventful manner.

c. Again, all of this is impressive but it doesn’t get to the heart of what this case is all about.

d. Robert has gone through previous periods of stability.

e. He’s even gone through previous periods where he was on civil terms with each of Cathy and Mary.

93. My concern is that – as noted by Justice Gordon at the earlier trial – Robert’s lifestyle and behavioural problems have been so extreme and ingrained that a few testimonials from friends and the passage of a bit of time don’t nearly address the deep-seated problems which the court must be concerned about.
94. Robert’s motion to change is founded on a superficial and self-serving analysis:

a. Even Robert acknowledges that in the past he’s had horrible, frightening problems with substance abuse, violence, and mental health issues.

b. As Justice Gordon noted in 2014, Robert has a history of participating in anger management and substance abuse programs – and claiming that he’s been “cured” of his problems – only to revert to his old, dangerous behaviours with serious consequences.

c. Clearly, Robert must have understood after reading Justice Gordon’s January 2014 judgment that if he had any hope of getting back into the lives of either Andrew or Melinda, he would have to acknowledge the full magnitude of his problems and take meaningful steps to address decades-old personal issues.

d. Clearly, Robert knew what was expected of him. Because he went out and got some drug tests. He went out and got some letters from social workers and doctors confirming in very general terms that he’s been “getting help.”

e. The cornerstone of his motion to change is his reliance on a handful of letters, reports, tests and certificates which he characterizes as establishing that he’s received all the professional help he needs, and the professionals say there’s nothing more to worry about.

f. Except he lied to the professionals. He didn’t tell them he was seeking assistance because multiple judges have expressed concern about his violence. To the contrary he told the professionals that he has never been violent. He hid most of his criminal record from them, including all of his assaults.

g. It is impossible to draw any favourable conclusion from vague professional reports based on deliberate deception by Robert.

h. He lied to his social worker and doctors. There is no evidence that any meaningful therapy or professional assistance resulted. How much “help” could they really have given him, when he made sure they had no idea about the nature and severity of his problems?

i. As well, Robert provided only six months of clean drug tests, with nothing recent. That’s not enough reassurance where a serious substance abuse problem has existed for many, many years.

95. It is overwhelmingly clear that Robert hasn’t actually taken meaningful steps to deal with his problems -- because he doesn’t really think he has any problems.

a. He doesn’t think he did anything wrong in viciously beating his brother in front of a house full of guests attending a wake for Mary’s mother. He minimized the incident, but I accept the chilling accounts by Mary and her father that witnessing the horrific beating was so chilling that it still haunts them today.

b. I accept the evidence of Mary concerning other incidents of aggression by Robert, including those in May and June 2010 as described above.

96. I found it curious that in this trial Robert denied any wrongdoing or aggression at the CCAS office in February 2012.

    1. He pleaded guilty to uttering a threat in relation to this incident.
    2. He testified that even though he pleaded guilty, he wasn’t really guilty. He said he only pleaded guilty to reduce his time in jail.
    3. We hear this transparently self-serving argument all the time. People admit misconduct to a criminal court judge and then deny the exact same conduct to a family court judge. If that sounds implausible, it usually is implausible.
    4. Courts can take judicial notice that people can plead guilty to criminal charges for a number of reasons.
    5. Some of those reasons – if true – might mitigate concerns (“I didn’t really do it, but I was denied bail and I didn’t want to sit in jail doing dead time awaiting my trial.”)
    6. Some of those reasons might actually increase concerns (“I pleaded guilty to a lesser charge, because if I went to trial the evidence was strong enough that I risked being convicted of a more serious charge”).
    7. Some of those reasons might amount to simple plea bargaining (“I pleaded guilty to one charge, in exchange for which the Crown dropped my other charges.”)
    8. While judges have to be open to all possibilities, the integrity of the administration of justice requires that we particularly scrutinize claims of innocence in the face of consent findings of guilt.
    9. To allow criminals to “wish away” their convictions by putting their own unverifiable spin on why they pleaded guilty, would invite the worst kind of mischief, and further erode the public’s confidence in the court system’s resolve to protect the community.

97. The fact that a person pleads guilty to a criminal offence is prima facie proof that he or she committed the offence. Zhao v. Yang 2015 ONCJ 408 (OCJ). It is always open for them to adduce specific evidence at their family court trial to try to explain why the criminal conviction doesn’t tell the whole of the story. But in that event they should present specific evidence about all of the relevant considerations which went into the decision to plead guilty despite innocence. This could include:

    1. Particulars of any prejudice they would face while awaiting a criminal trial.
    2. The strength or weakness of the Crown’s case.
    3. The nature and strength of any defence evidence.
    4. The likelihood of conviction (bearing in mind that the standard of proof is higher in criminal matters).
    5. The availability of legal counsel.
    6. Whether there was any inter-relationship or concurrence between the charge to which a guilty plea was entered, and the disposition of other charges.
    7. Any other relevant or pressing personal considerations.

98. In the absence of some specific, credible evidence to explain why “I’m guilty” shouldn’t be interpreted to mean “I’m guilty”, we do a disservice to victims of domestic violence if we let their abusers off the hook through flimsy, self-serving excuses.

99. Apart from Robert’s guilty plea with respect February 2012 incident at CCAS, I am convinced by the other evidence against him:

    1. Justice Gordon made a finding in the January 2014 judgment that Robert had behaved aggressively toward Mary at the CCAS office.
    2. Justice Gordon made a finding that Robert’s guilty plea really was an acknowledgement of guilt.
    3. The testimony of Mary in this trial was clear and overwhelmingly persuasive.
    4. Robert’s evidence on this topic was vague and dismissive.

100. If Robert keeps denying aggressive behaviour which has already been confirmed in so many different ways, what confidence can we have that he has any insight – or candor – on the topic of violence and anger management? When he lies to his doctors and denies the obvious, what confidence can we have about the truthfulness of any of what he is saying?

101. Robert doesn’t seem to understand – or care about – the fear his repeated actions have instilled in his victims.

a. I would have anticipated that on a motion to change a January 2014 order based on Justice Gordon’s numerous findings of violent and menacing behaviour, the best starting point would have been contrition and an acknowledgement of the magnitude of the challenge in rebuilding trust.

b. Instead, Robert took the stand and defiantly insisted Mary was never fearful. She was “acting”.

c. When Mary asked him if he had any empathy about the impact of his behaviour on Mary and her household, he quickly shot back “What have I done to you?” It was almost as if Robert had never read – or accepted – a word of Justice Gordon’s 18 page judgment.

102. On the threshold issue of whether Robert has established a material change in circumstances (with respect to any aspect of his motion) I have no hesitation in concluding that he has not.

1. The relatively short period during which his life has been “uneventful” does not significantly address or ameliorate the core concerns which formed the basis of the January 29, 2014 order.
2. He has failed to establish that there are any new facts or circumstances which – if they had existed at the time – would have resulted in a different order being made.  Willick v. Willick, [1994 CanLII 28 (SCC)](https://www.canlii.org/en/ca/scc/doc/1994/1994canlii28/1994canlii28.html); L.M.P. v. L.S., [2014 SCC 64 (SCC)](https://www.minicounsel.ca/scc/2014/64).

103. On this motion to change, I need not go behind or revisit Justice Gordon’s findings. But since Robert insisted he wanted to reopen the issues of harm and “fear”, my review of all of the evidence at this trial causes me to reach the same conclusion: Robert is a dangerous, frightening person, with no insight into his problems, or their impact on others.
104. I am not satisfied that there has been any change with respect to his anger management and related mental health issues. To the contrary, his continuing refusal to take responsibility for his actions; and his efforts to deceive the court by presenting medical reports based on deliberate misrepresentation, all cause me to conclude that in 2018 we have just as much reason to worry about him as in 2014.
105. Access is important.

1. On the one hand it should not be denied except in the most extreme and unavoidable circumstances.  
2. On the other hand a father’s biological connection to a child does not override the child’s best interests.  
3. In 2014 Justice Gordon carefully considered the complex balancing of objectives and priorities and concluded that access by Robert was not in Andrew’s best interests.
4. Based on the current facts and concerns, Justice Gordon’s analysis and the rationale for the January 29, 2014 order remains applicable.

106. The Respondent’s motion is dismissed in its entirety.
107. Speaking plainly, Robert never should have brought this motion.

1. It was based largely on misrepresentations to professionals as to the nature of his problems.  
2. This resulted in misrepresentations to the court as to the existence of any therapeutic benefit or improvement.
3. This was not merely a frustrated parent paying lip-service to participating in counselling.
4. This was no mistake or miscommunication.
5. This was a deliberate deception by a father who tried to fool his doctors so he could then fool the judge.
6. In the result, he needlessly (and perhaps maliciously) put the already victimized Mary through yet another round of emotionally draining litigation.

108. There’s an irony to all of this:

1. The whole point of the January 29, 2014 order was to keep Robert out of Mary’s life.
2. But by bringing this motion and forcing this trial, Robert got back in Mary’s life – in a big way.
3. Had he mailed her a bunch of papers demanding access to Andrew, the court system would have pounced on him for breaching his restraining order.
4. But by labelling his papers “Notice of Motion” and “Affidavit in Support of Motion”, his anxiety-producing messaging instantly attained legitimacy.

109. Clearly, everyone has a right to their day in court.

1. Parenting orders are often appropriately the subject of motions to change. 
2. The best interests of children may periodically require modifications to previous arrangements, based on new circumstances.
3. Neither parent should ever be dissuaded from pursuing legitimate, good faith claims in relation to the best interests of a child.

110. But legal theory aside, let’s get back to the reality of Mary’s situation. And Andrew’s situation.

1. She went through hell getting her January 29, 2014 order.
2. Now she’s had to go through hell keeping her January 29, 2014 order.
3. This court process has exposed her to precisely the harm Justice Gordon was trying to prevent:  Intimidation and harassment by Robert.  Fear for herself.  Fear for her child.  Uncertainty and anxiety.
4. And while I’m quite sure she’ll be relieved by my findings, I wonder if she can have any level of confidence that her nightmare is “over.”  Because she thought it was “over” four years ago.

111. Our court system has ways to reward “winners” and punish or sanction unsuccessful parties in litigation. But I doubt any of that will do Mary much good.

1. We can award “costs” (reimbursement for legal fees).
2. But Mary didn’t incur legal fees.  She earns too much to qualify for Legal Aid, but not enough to be able to afford a lawyer.  So she had to represent herself.  (She did a pretty good job, but this drawn-out episode clearly took a toll on her emotional health.)
3. Even a self-represented litigant can obtain some “costs” if they are successful.  Compensation for some of their time.  Perhaps some lost wages (Mary has had to take lots of time off work fighting this most recent motion).  
4. But even if we order costs against Robert, it likely won’t amount to much.  And it’s unclear if Mary would ever collect.  Robert’s finances appear to be poor.  He doesn’t pay child support (that issue was not before me on this motion).  Somehow he’s always able to afford a lawyer (if it’s through Legal Aid, it means taxpayers have helped create this uneven playing field).
5. So in many ways our system creates few impediments for abusive partners to keep coming back.  

112. Domestic violence takes many forms.

1. It’s more than just hitting and threatening.  
2. It’s also punishing and controlling.
3. It includes instilling feelings of fear, and anxiety, and vulnerability, and an overall sense that escape is impossible.
4. The physical hurts. 
5. The psychological is more insidious.

113. As I say, access to justice is important. There are very few situations in which it would be fair in advance to determine that a parent shouldn’t be entitled to pursue an issue in relation to their child.

1. But the fairness of our system hasn’t done much good for either Mary or Andrew.  
2. She’s a nervous wreck as a result of this most recent chapter.
3. And once a custodial parent comes to be stressed out by prolonged litigation, there can be little doubt that any child living in that environment will also be impacted by the encroachment on family resources, energy and time.

114. Family court cases create a huge drain, not only financially but emotionally. They sap the joy out of family life for every member of the household.

1. As Judges we must be mindful of the far reaching consequences of out-of-control or misguided litigation – on parents and on children.  
2. Litigation fatigue is not just an unavoidable by-product.  It can create real, palpable harm, often persisting long-after the courts and lawyers have closed their files.

115. Above all, we need to be vigilant to ensure that meritless court proceedings are not used as a weapon to perpetuate intimidation and harassment. Motions should not be allowed to form a neat exception to restraining orders.
116. To prevent the Respondent from causing any more harm with misguided or dubious motions, the Respondent may not commence any further motion or proceeding in relation to either access to Andrew or the restraining order, without leave of the court. Any request for leave shall be by motion on notice to the Applicant, with the narrative portion of the motion documents not exceeding two pages. No such motion may be brought within the next two years, and after that any request for leave should be returnable to my attention, to ensure that the issue is dealt with by a judge familiar with this case.
117. If either party wishes to address any clarification or remaining issue (other than costs), they should contact the trial co-ordinator to arrange a mutually convenient time.
118. If the only remaining issue is costs, written submissions should be provided on the following timelines.

1. The party seeking costs shall serve and file their written submissions within 21 days of the date of this judgment.
2. The other party shall serve and file their written submissions within 14 days of receiving the costs claimant’s submissions.
3. Any reply submissions shall be served and filed within 10 days of receiving the reply.
4. These timelines may not be extended by the parties.

Pazaratz, J.

Released: March 8, 2018

COURT FILE NO.: 1052/10

DATE: 2018-03-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.A.L.

Applicant

- and -

R.H.M.

Respondent

REASONS FOR JUDGMENT

The Honourable Mr. Justice A. Pazaratz

Released: March 8, 2018