Court File and Parties

Court File No.: FC-13-1371-01 Date: 2018-07-19 Ontario Superior Court of Justice

Between: Sherri Van de Hoef, Plaintiff – and – Guy Lafond, Defendant

Counsel: Katherine Cooligan, for the Plaintiff Self-represented, for the Defendant

Heard: June 28, 2018

Reasons for Decision

Audet J.

[1] The main issues in this Motion, brought by the applicant, Mrs. van de Hoef (“the mother”), are her request for an order suspending the supervised access of the respondent, Mr. Lafond (“the father”), to the parties’ 12-year-old daughter pursuant to the Final Order of Justice Labrosse dated December 8, 2015, and for an order that the father be required to pay security for costs.

[2] While this was a temporary motion brought in the context of a Motion to Change filed by the father, events which occurred since the filing of this Motion prompted the mother to seek final orders instead, as claimed in her Response to Motion to Change. To understand this request, an explanation of the history of this case is necessary.

Background and History of Proceedings

[3] The parties married on June 27, 2003, separated on September 29, 2012, and were divorced on January 8, 2016. They are the biological parents of Naomi who is presently 12 years of age. Naomi has been in her mother’s primary care since the parties’ separation.

The Original Application and Justice Labrosse’s Orders dated December 8, 2015 and May 2, 2016

[4] The original Application between these parties was filed in 2013. A lengthy trial took place before Justice Labrosse in December 2014 and June 2015, following which the mother was granted sole custody of Naomi and the father was granted supervised access only twice a week; 3 and 8 hours respectively. The father was also granted reasonable telephone access to Naomi, in accordance with a strict schedule. In his Decision dated October 23, 2015, Justice Labrosse stated:

… [the Respondent] has been in conflict with virtually all persons involved in these proceedings who do not share his views. The father has demonstrated that he is both unwilling and unable to put his child’s needs before his own by engaging in conflict and often disturbing and threatening behaviour (par. 4).

The father proposed as a precondition for the termination of supervised access that he provide a psychological report indicating that his symptoms of paranoia and narcissism have resolved. I am unable to agree that the issue of supervision can be dealt with so simply. The father’s behaviour during the trial, both inside and outside the courtroom, raises many questions as to the father’s mental health… (par. 36)

I accept the mother’s evidence that before the father can have unsupervised access, he must demonstrate that he is under the care of a physician and that the treatment is sustained over an extended period of time unless he can otherwise satisfy the court that this is not required (par. 37).

[5] The trial judge also imposed a restraining order on the father in favour of the mother, and awarded costs of $61,815.88 to the mother, in addition to outstanding costs of $6,052.91 resulting from a temporary motion brought within the trial. Justice Labrosse also ordered that the parties participate in a case conference before him within six months in order to review, among other things, the need for access between the father and the child to be supervised.

Case conference before Justice Labrosse and his May 2, 2016 Order

[6] A case conference proceeded before Justice Labrosse on April 4, 2016 as ordered. At that time, the father provided the court with a written document setting out his position, but he refused to participate in the conference and left. On record, Justice Labrosse met with the father in the absence of the mother to advise him of the consequences of not participating in the case conference and to find out the motives of his decision not to participate. The father confirmed that he no longer wished to participate in the court process and to be subjected to what he referred to as “courts’ rules.” As a result, the provisions of his previous order providing for supervised visits were confirmed by Justice Labrosse.

Access and criminal charges against the father

[7] Following the May 2, 2016 order, the father’s supervised access with Naomi varied from 3 to 8 hour visits, and included the occasional overnight. The visits progressively became shorter towards July 2016, and according to the mother’s evidence from that date the father did not request access to Naomi and none occurred until the events of November 2016. Following a series of events which took place between September and November 2016, the father was arrested and criminally charged with harassment, in breach of existing orders. He was released on strict bail conditions which included terms restraining him from contacting the mother, her new spouse (Mr. Roc Pilon) or Naomi, and from coming within 500 meters of their home or any other place where he knows them to be, and requiring him to obtain psychological support and a report on this support within two weeks. The criminal trial is set to proceed in December 2018. The mother and Naomi will be called as witnesses for the Crown.

[8] Following these charges, the father has had no access to Naomi at all, with the exception of a brief Skype call which took place on November 4, 2017, in accordance with a consent order made in the context of these variation proceedings. The father has also written letters to Naomi, the nature of which will be described in further details below.

The present motion to change

[9] In April 2017, the father served the mother with a Motion to Change dated March 29, 2017 seeking conflicting relief. His Motion to Change requested the enforcement of the access provisions contained in Justice Labrosse’s Divorce Order, but his Change of Information Form requested unsupervised access to Naomi. In addition, he failed to provide any information with respect to a material change which would support a request to vary the supervised access arrangements. Following discussions between counsel (he was represented at the time), the father confirmed that he was seeking unsupervised visits with Naomi although no amended pleadings were filed at the time. On June 2, 2017, the mother served and filed her Response to Motion to Change requesting that the orders of Justice Labrosse be varied as follows:

a) suspending the father’s supervised access to Naomi, including his telephone and video conferencing access; b) restraining the father from communicating or coming within a set distance of the mother and of Naomi; c) requiring the father to pay security for costs; and d) requiring the father to pay the costs awards imposed by Justice Labrosse ($67,868.79) which remain unpaid, immediately.

[10] In her Endorsement made in the context of a case conference held on October 12, 2017, Master Champagne (as she then was) confirmed that the father’s access had been terminated by the mother for reasons she (the mother) felt were justifiable, but that no motion had been brought by her to terminate access. She observed that the father’s Motion to Change only sought that access pursuant to Justice Labrosse’s orders be reinstated or enforced. Master Champagne confirmed that the father would need to amend his Motion to Change if he sought to change Justice Labrosse’s orders. The father was given 15 days to serve his Amended Motion to Change, and the mother was given 30 days thereafter to serve and file an amended response.

[11] The parties were also given leave to bring a motion regarding access and/or security for costs, in accordance with a very strict timetable. Once a party served and filed his or her motion, the responding party was to serve his or her responding materials within 21 days, and the moving party was to have 10 days to serve any material in reply. Factums were ordered to be filed by both parties and questioning was allowed no later than 30 days before the motion hearing.

[12] The following statement contained in Master Champagne’s Endorsement is noteworthy:

I note, for the record, that the respondent has behaved rather aggressively and belligerently toward the court and toward opposing counsel today and I asked for security to assist the applicant and her counsel to leave the courthouse. Should the applicant feel it is necessary she may ask security to be present for the next court appearance.

[13] The father did not deliver an Amended Motion to Change at any point in time following the October 2017 case conference. As an exhibit to his Responding Affidavit filed for the purpose of this Motion, he submitted an Amended Motion to Change which he claims he instructed his lawyer to serve and file after the Case Conference. The mother denies that she was ever served with this document, and the father was unable to provide an affidavit of service or any other evidence confirming that it was served. It was never filed in the Continuing Record.

[14] The father became self-represented on December 5, 2017.

[15] The mother’s motion for the suspension of the father’s supervised access and for the payment of security for costs was served on the father on January 29, 2018 by mail as well as by an electronic document exchange. Despite Master Champagne’s clear order which would have required responding materials to be filed within 21 days, the father only served his materials on June 20, 2018, four months too late, and days before the motion hearing.

Procedural Orders Sought by the Mother

[16] In light of the above, counsel for the mother, at the outset of the motion, objected to the father’s affidavit being filed with, or considered by, the Court on the basis that it had not been served within the strict timelines set out in the Order of Master Champagne. She further sought an order that the father’s Motion to Change be struck on the basis that it was improper as it only sought orders which had already been made by the court.

[17] Since the only motion before the court was a motion in which the mother sought essentially the same relief as claimed in her Response to Motion to Change, albeit on a temporary basis, she asked the court to consider making a final order in the context of the Motion to Change. She argued that no further steps in this case were required, not even questioning, to allow for a final determination to be made by the court based on the affidavit materials filed.

Consideration of the father’s responding affidavit

[18] While it is entirely open to me to disregard the father’s Responding Affidavit as a result of his failure to abide by Master Champagne’s strict timetable, on the specific facts of this case and after much consideration, I have decided to allow the father’s evidence. What is at stake here is the best interests of a 12-year-old child whose already limited contact with her father may be terminated indefinitely.

[19] In Jennings v. Garrett, 2004 ONSC 17126, 2004 O.J. No. 2238, Justice Blishen opined that the termination of access is considered to be “the most extreme remedy to be ordered in only the most exceptional circumstances.” Since this is the relief sought by the mother, I feel that it is extremely important, in the context of assessing this young child’s best interests, for the court to consider the father’s evidence even though I realize that, by accepting the father’s evidence, I am undermining Master Champagne’s very clear order. The father’s failure to follow Master Champagne’s Order, however, can be addressed in the context of assessing costs.

Striking the father’s motion to change

[20] Rule 1 of the Family Law Rules, O. Reg. 114/99 provides the court with the authority to strike pleadings to address a party’s failure to obey orders (rule 1(8)) or to follow the Rules (rule 1(8.1)). Rule 1(8.2) further states:

The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.

[21] Rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 also allows a court to strike pleadings in the following circumstances:

25.11 the court may strike out or expunge all or part of the pleading or other document, with or without leave to amend, on the ground that the pleading or other documents,

(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.

[22] As stated before, the father’s Motion to Change as it currently stands simply seeks an order that his access pursuant to Justice Labrosse’s orders remain in place. Until varied by further order of the court, Justice Labrosse’s orders do stand and remain in full force and effect. Therefore, the father’s Motion to Change, as it is presently drafted, does not seek any relief that this Court has not already given him. As such, his Motion to Change as currently drafted is useless.

[23] Despite being given the opportunity by Master Champagne to do so, the father has failed to serve and file an Amended Motion to Change within the timeline provided. He could have also filed a contempt motion, which would have been the proper way to deal with the mother’s failure to follow Justice Labrosse’s orders, but he did not.

[24] It is improper for the father to seek orders which have already been granted to him in the context of prior court proceedings and which continue to be in full force and effect. I am of the view that the father’s Motion to Change, therefore, is a waste of time and an abuse of the court’s process. On that basis, the father’s Motion to Change is hereby struck.

Request for a Final Order

[25] As a result, the only matters left before the court are the claims advanced by the mother in her Response to Motion to Change. Those claims are:

• termination of access;
• a restraining order against the father in favour of the mother and Naomi;
• the immediate payment of the cost awards owing by the father;
• security for costs.

[26] The claims made by the mother in her motion for temporary relief are:

• termination of access;
• security for costs.

[27] Rule 1(8.4) of the Family Law Rules sets out the consequences of striking out a party’s pleading. Among other things, that party is not entitled to any further notice of steps in the case or to participate, the matter can be dealt with in that party’s absence and a date may be set for an uncontested trial of the case, unless the court orders otherwise.

[28] In the particular circumstances of this case, I have allowed the father’s Responding Affidavit to be filed, and I have given it due consideration. I have also allowed the father a full opportunity to present his oral arguments during the course of the motion hearing.

[29] Pursuant to Rule 15 of the Family Law Rules, a motion to change is to be dealt with on the basis of affidavit material, in the context of a motion hearing. Rule 15(26) allows the court to order that the matter be determined by way of a trial if the court is of the opinion that a motion, whether proceeding on consent or not, cannot be properly dealt with because of the material filed, because of the matters in dispute or for any other reason.

[30] Further, pursuant to rule 2(4) of the Family Law Rules, the court is required to apply the rules of procedure to promote the primary objective of those rules, which is to deal with cases justly. Dealing with cases justly includes an obligation to ensure that the procedure is fair to all parties, to save expense and time, to deal with the case in ways that are appropriate to its importance and complexity, and to give appropriate court resources to the case while taking account of the need to give resources to other cases.

[31] I find in the circumstances of this case that it is wholly appropriate to deal with the claims made by the mother in her Response to Motion to Change on a final basis, in the context of this motion hearing. With the exception of the claim made by the mother for a restraining order extending to Naomi (one already exists against the father in her favour), the mother’s main claim for relief in her January 29, 2018 Notice of Motion is the same as the one found in her Response to Motion to Change, namely, her claim for the termination of supervised access between Naomi and her father. To the extent that a final order is made in that regard, the mother’s claim for security for costs is moot. Further, the mother’s claim for a restraining order in favour of the child is, in my view, incidental to the Court’s decision with respect to whether or not access should continue or be terminated. The parties’ evidence with regards to the main issue before me, access, is the same as the evidence relevant to whether or not this Court should grant a restraining order against the father with regards to Naomi.

[32] The father has had ample opportunity to respond to the mother’s claims contained in both her temporary motion and her Response to Motion to Change, and he has. He had ample opportunity to question her on her affidavit material, or on any other matter relevant to this case and he chose not to. Counsel for the mother confirmed that she does not intend to question the father on his Affidavit. The evidence before me, at this time, is the same evidence that would be presented to another judge for the purpose of a final adjudication of the case. No purpose would be served delaying this matter by requiring that the parties re-appear before the court a second time to re-argue what was argued before me, based on the same evidence.

[33] As a result, the mother’s request that the issues raised in her Response to Motion to Change be dealt with on a final basis is hereby granted.

Suspension of the Father’s Access

[34] It is important to note that, while the mother sought an order terminating the father’s access to Naomi during her oral arguments, in her Response to Motion to Change and Notice of Motion, she sought the suspension of his access. I do not believe that the legal effect of using one term over the other is different, since access can always be reinstated at a later date upon the occurrence of a material change in circumstances, but the word “termination” certainly suggests a more definite state of affairs than a suspension does. Since the suspension of access is what was sought by the mother in her pleadings, this is what I will now be considering.

[35] The legal principles applicable to a variation of a parenting order are set out in s. 17 of the Divorce Act, 1985, c. 3 (2nd Supp.):

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or (b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Terms and conditions

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

Maximum contact

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

[36] The test for a “material change”, as confirmed by the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64, 3 S.C.R. 775, is a change that is substantial, continuing and that “if known at the time, would likely have resulted in a different order.” This test was further explained in Dedes v. Dedes, 2015 BCCA 194, where the British Columbia Court of Appeal stated:

As articulated in L.M.P., the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is to prevent parties from re-litigating issues that were already considered and rejected; in such cases an application to vary would amount to an appeal of the original order.

[37] The mother argues that the events which occurred between September and November 2016, and which led to criminal charges being laid against the father, as well as the events that followed constitute a material change in circumstances sufficient to form the basis of a variation application. I agree.

Events leading up to, and following the November 2016 incident

[38] The mother provided detailed evidence as to the events which took place from September to November 2016, and which led to criminal accusations being laid against the father. In his Responding Affidavit, the father did not address those events at all. I find, based on the evidence before me that the following occurred.

[39] The father’s conduct became increasingly disturbing and harassing in September 2016. This appears to coincide with the father finding out that the mother had a new boyfriend (Mr. Pilon). In addition to several harassing and threatening messages sent to the mother, her family and Naomi by mail, email, and on the parties’ parenting application 2houses.com, the father also engaged in alarming interactions with the mother, her boyfriend and Naomi.

[40] Among other things, in letters and emails sent to Naomi, the father discussed the mother meeting a man and suggested to Naomi that she could move and live with him; he told to her that he could no longer pay for her RRSP’s, that he may have to move, and blamed the mother for his actions; he told Naomi that Justice Labrosse had taken his visitation rights away; he told her to be careful and that a lot of men might be angry because a female president may be elected in the United States; he told Naomi that neighbours had previously called the police on him and explained that he only gets angry when someone does something bad to her or to the mother; he asked Naomi to ask her mother why she had not repaired the dent on her car and asked her to pass on to her an article about sexually transmitted diseases. The list goes on.

[41] In October 2016, the father showed up unannounced at Naomi’s school. The school staff kept Naomi inside during recess that day as a precaution and for her safety. In October 2016, and again in November 2016, the father left his business card on the driver’s side window of Mr. Pilon’s car, which was parked in front of the mother’s home. He then sent the mother a message on 2houses.com asking for the CV, name and picture of the owner of the car parked in front of her home. He threatened to pay the mother’s family a visit if she did not provide the information within a week. He attached pictures of Mr. Pilon’s and the mother’s cars parked in front and behind her home, and copied the mother’s father and sister with his messages. He threatened to take a sledgehammer to Mr. Pilon’s car and included links to videos of people damaging expensive cars with sledgehammers and axes.

[42] In the morning of November 18, 2016, the father crouched next to Mr. Pilon’s car while it was parked in front of the mother’s home. When asked to leave by Mr. Pilon, the father refused to leave. He was hostile and aggressive; he called Mr. Pilon names and sought personal information from him. When warned that the police would be called, the father gave Mr. Pilon his business card and walked away. Naomi was in the house at the time. The father’s erratic and aggressive behaviour continued on that day with him sending inappropriate emails to his family and the mother’s family, to the Ottawa police chief and the mother’s friends in the neighbourhood, including pictures of him half naked.

[43] The father’s intimidating and threatening behaviour continued in the days that followed. On November 24, 2016, early in the morning, the mother and her spouse noticed a half-eaten banana on the roof of Mr. Pilon’s car. An hour or so later, Mr. Pilon went outside to take a photo of the banana and clear the snow off the car so they could drive Naomi to school. Naomi and the mother were headed outside and saw the father come around the corner of the house. Aggressively, the father pulled out a camera and started taking pictures of Mr. Pilon while calling him names. Naomi immediately ran into the house and hid in the entryway closet. Mr. Pilon asked the father to leave while the mother locked the door and called the police.

[44] Following those events, the father was charged with four counts of criminal harassment including one count of harassment of repeated communication with the mother; two counts of criminal harassment by watching and besetting, and; one count of harassment by threatening conduct to another person.

[45] Pursuant to the terms of his bail conditions, the father lives in Montréal with his mother. His bail conditions were revised in October 2017 to permit him to work in Ottawa from Monday to Friday, but at all other times, he is to reside with his mother in Montréal. Other bail conditions include that he is not to communicate with the applicant, Mr. Pilon or Naomi and that he is not to come within 500 m of the mother’s or Mr. Pilon’s home, their places of employment or any other place that he is aware they may frequent.

[46] Despite his clear bail conditions, the father has sent emails to the mother, her friends, as well as to parents of Naomi’s friends regarding supervised access arrangements. When they did not respond, he began harassing them as well. The father often resorted to social media to air his feelings about the mother, Naomi and the judicial system which led Master Champagne to make an order refraining either party to post anything on social media which discussed these family proceedings or the name of the child. Despite this clear order, the father continued to write posts on Twitter about Naomi, his denied access rights, and his discontent with the court process.

[47] The father’s actions led to him being charged with nine counts of disobeying court orders, in addition to one count of failing to appear in court in July 2017. As stated before, the father’s criminal trial is set to proceed in December 2018. The mother, Mr. Pilon and Naomi will appear as witnesses for the Crown.

Impact on the child

[48] Since January 2017, Naomi has been working with Tiffany Peterson, a social worker at the Ottawa Centre for resilience, to address anxiety associated with traumatic experiences. Naomi has expressed concerns for her mother’s safety and fear of her father. In February 2017, Naomi was evaluated by a psychologist at CHEO, Dr. Margaret Flintoff. In her report dated March 3, 2017, she confirms Naomi’s diagnostic of generalized anxiety disorder and post-traumatic stress disorder stemming from the November 2016 incident. She states:

Naomi’s own report and the history provided by her mother today are consistent with a provisional diagnosis of generalized anxiety disorder for approximately the past two years that includes many worries and sleep disturbances. At times, Naomi is overwhelmed and hits herself, or she completely shuts down from stress.

[49] As a result of the father’s repeated demands, including from his former counsel, a copy of Dr. Flintoff’s report was provided to him. Counsel for the mother explained that she and the mother were hesitant to provide the father with this report given how he had reacted to medical and non-medical issues involving Naomi in the past. She explains how many of the professionals involved in Naomi’s or the mother’s lives have been threatened, accused, and bullied by the father, including by the filing of numerous complaints to their professional bodies. This included Naomi’s daycare provider and her husband, her dentist, the mother’s former and current counsel, as well as Naomi’s school. In fact, the father was previously banned from attending Naomi’s school. The father also previously engaged in conflict with the mother’s former landlord, Dr. Beaudoin (the father’s former psychologist), and the previous owner of the parties’ matrimonial home.

[50] Having read in Dr. Flintoff’s report that Naomi had frequent nightmares and symptoms associated with increased anxiety after witnessing an incident involving her father and her mother’s boyfriend, the father said to Naomi to “think of him when she has trouble failing asleep at night.” This was conveyed to Naomi by the father during their Skype call on November 4, 2017 (pursuant to Master Champagne’s Order), his first contact with her since July 2016. He further said to her that he was close by protecting her, that he was back in town for work, and that she should not be surprised if she saw him around.

[51] During the summer of 2017, Naomi also saw a psychiatrist, Dr. Marjorie Robb, through the CHEO mental health outpatient services to assist her with her difficulties sleeping and her high anxiety levels. Dr. Robb confirmed that Naomi suffers from an anxiety disorder and made recommendations for strategies to help Naomi cope with stress and anxiety. She now has an individualized learning plan at her school to support her anxiety and lingering PTSD symptoms.

[52] As a result of the events of November 2016, Naomi will have to testify in the context of her father’s criminal trial. There is no doubt in my mind that this prospect is causing her significant anxiety.

Material Change

[53] The onus on an application to vary custody or access is on the parent seeking the variation to establish that:

1. there has been a change in the condition, means, needs or circumstances of the child and/or in the ability of the parents to meet the child’s needs;
2. This change materially affected the child, and;
3. The change was unforeseen or could not have been reasonably anticipated by the court in making the original order. Gordon v. Goertz, 1996 SCC 191, 1996 2 S.C.R. 27 at paras. 49-50.

[54] It is clear, based on the above, that the events leading to and including of November 24, 2016, and the impact that those events have had on Naomi, constitute changes that are material and which, if known at the time of Justice Labrosse’s orders, would likely have resulted in a different order.

Best Interests

[55] Having found material changes in circumstances allowing this Court to entertain a variation of the Final Orders of Justice Labrosse, I must now determine whether or not it would be in Naomi’s best interests that her access with her father be suspended. I find that it is.

[56] Justice Blishen in Jennings v. Garrett (2004 ONSC 17126, 2004 CarswellOnt 2159) summarized the factors which considered by the courts over the years when assessing whether to terminate access between a parent and a child. After an extensive review of the jurisprudence, she said:

135 In considering these cases and others, the factors most commonly considered by the courts in terminating access are the following:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M. (B.P.) v. M. (B.L.D.E.), supra; Stewart v. Bachan, [2003] O.J. No. 433 (Ont. C.J.); Studley v. O’Laughlin, [2000] N.S.J. No. 210 (N.S. Fam. Ct.); Dixon v. Hinsley, 2001 ONCJ 38986, [2001] O.J. No. 3707 (Ont. C.J.).
2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child’s safety and well-being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B. Q.B.); Abdo v. Abdo (1993), 1993 NSCA 3124, 126 N.S.R. (2d) 1 (N.S. C.A.); Studley v. O’Laughlin, supra.
3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay (1987), 1987 ABQB 147, 10 R.F.L. (3d) 166 (Alta. Q.B.); Reeves v. Reeves, [2001] O.J. No. 308 (Ont. S.C.J.).
4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man. Q.B.); Gorgichuk v. Gorgichuk, supra.
5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O’Laughlin, supra; M. (B.P.) v. M. (B.L.D.E.), supra.
6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.
7. Older children’s wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Ont. C.J.).

136 None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child.

137 Most of the factors listed above would also be relevant to a consideration of supervised access. As the termination of access is the most extreme remedy to be ordered in only the most exceptional circumstances, the court must carefully consider the option of supervision prior to termination. It is possible through a supervision order to do the following: protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.

[57] Later, she adds:

Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the access parent continually misses visits or is inappropriate during the access then termination must be considered.

[58] Naomi has had to deal with her father’s harassing and erratic behaviour for several years now, as detailed in Justice Labrosse’s prior decisions in this matter. Her father’s conduct leading to and including the events of November 24, 2016, have caused her significant harm. It has resulted in a diagnosis of generalized anxiety and PTSD for her, which requires ongoing counselling and the intervention of a psychiatrist. The father’s obsession with the mother, Naomi, Naomi’s support network, the mother’s boyfriend, along with the family law proceedings is clear based on the evidence before me, including the evidence submitted by the father himself.

[59] In his submissions the father, who was self-represented, was unable to present any compelling evidence or rational argument in support of continued supervised access between him and his daughter. His evidence and submissions were dedicated to trying to convince the court that Justice Labrosse’s previous orders were wrongly decided, and that the mother’s parenting skills were completely deficient. When prompted to focus on his daughter’s well-being and how continued access between them would be in her best interest, his discourse was at times belligerent, confusing, and completely incongruous. As an example of the father’s strange behaviour in court, I note his request that the court ignore the fact that he was criminally charged with various offences since the police is unworthy of belief, as evidenced by the fact that the Montréal’s police chief is currently being investigated for potential wrongful actions.

[60] During his Skype call with Naomi in November 2017, which was his first and only contact with her since July 2016, the father used cue cards and referred to himself in the third person. He raised subjects which were inappropriate including access, stating that he was close by and protecting her, talking about finances and telling Naomi that he was contributing financially. The mother’s evidence, which I accept, is that the interaction with her father was very stressful to Naomi.

[61] Other than bald assertions to the effect that he loves his daughter, that his daughter loves him, and that he is a great father, the father’s affidavit contains no evidence that would help satisfy the court that continued access between him and Naomi, at this time, would be beneficial or meaningful to her. On the contrary, his evidence reinforces the court’s belief that the father has no insight whatsoever into his harassing, threatening and disturbing behaviour and how this impacts his daughter’s well-being, and suggests that he does in fact suffer from mental health issues.

[62] According to a psychological report prepared by Dr. François Beaudoin on November 20, 2014, and which formed part of the Trial Record before Justice Labrosse, it was found that the father was always on the edge of exploding, and that he suffered from a personality disorder causing unusual, bizarre and harassing behaviour to those around him. Although his bail conditions provide that the father must obtain psychological support and a report on this support to the police, the mother’s evidence is that he has not done so.

[63] In assessing whether or not I should suspend the father’s access to Naomi instead of imposing a more restrictive supervision order, I have reviewed the various factors set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 as it relates to the current needs and circumstances of this young child and the parents’ ability to meet her needs.

[64] While I find that there was love, affection and an emotional tie between Naomi and her father at some point in the past, I find that it has been significantly altered by the father’s harassing and threatening behaviour since September 2016. I find that the father’s behaviour towards the mother, her boyfriend and towards Naomi herself, and in particular the inappropriate content of his letters, emails and conversations with her, is causing her emotional and psychological harm. Supervised access has not fulfilled its purpose of protecting Naomi from this harm, and the father’s demonstrated lack of insight into how his behaviour is adversely impacting his daughter’s well-being gives the court very little hope that a more restrictive supervision order would achieve the goal of fully protecting Naomi in the present circumstances.

[65] As a result, I make the following order;

1. Access between the father and the child, including video conferencing and telephone access, is hereby suspended until further order of the court or consent of the parties.
2. The father, or any third party on his behalf, shall be restrained from communicating directly or indirectly with the mother and/or with the child, including any communication through any friend or family member relating to the mother and/or the child.
3. The father, or any third party on his behalf, shall be restrained from posting anything on social media which discusses these family law proceedings, including past family law proceedings between the parties and/or which names the mother or the child.
4. The father shall be precluded from bringing any further motions to change his access with the child until such time as: a. he has obtained and provided the mother with a comprehensive mental health assessment report completed by a psychiatrist pre-approved by the mother. The father shall be solely responsible for the costs associated with the completion of this report, and; b. he has obtained leave of the court by way of motion with notice to the mother.

Costs

[66] Since I have made a final order in the context of this motion hearing, the mother’s request for security for costs is now moot. However, rule 1(8)(e) of the Family Law Rules allows the court to order that a party who is in breach of court orders is not entitled to any further order from the court until the court orders otherwise.

[67] As requested by the mother’s counsel during oral arguments, and in light of the father’s failure to pay existing cost awards made against him in the context of the trial between these parties, I am of the view that it is entirely appropriate in the particular circumstances of this case to make an order that the father is also precluded from bringing any further motions, including motions to change his access with Naomi, until the father has fully paid the two cost awards made against him by Justice Labrosse, on December 8, 2015 and February 18, 2016, totalling $67,868.79, as well as any cost award that I may make as a result of the within proceedings.

[68] The mother is clearly the successful party in this case. If the parties cannot agree on costs, I will accept written submissions from the parties not exceeding three pages (exclusive of Bills of Costs and Offers to Settle). The applicant mother will have 20 days from the date of this Decision to provide her submissions and the respondent father will have 20 days thereafter to do the same. The mother will be allowed a brief reply if deemed necessary, not exceeding one page, which shall be provided within 10 days from receipt of the father’s responding submissions.

Madam Justice Julie Audet Released: July 19, 2018