Court File and Parties

Court File No.: 2737/14 Date: 2018-11-22 Superior Court of Justice - Ontario

Re: N.M., Applicant And: M.M., Respondent

Before: The Honourable Madam Justice L. Madsen

Counsel: Jennifer L. Swan, Counsel for the Applicant Denita Cunningham, Counsel for the Respondent

Heard: November 20, 2018

A limited publication ban was ordered on November 20, 2018 pursuant to my discretion under s. 70 of the Children’s Law Reform Act. No person shall publish or make public any information that has or could have the effect of identifying the parties, the non-parties, or the children. Any person who has gained, or gains in the future, access to the court file is prohibited from communicating to any other person the identity of the parties, the non-parties, the children, or any information that has the effect or could have the effect of identifying the parties, non-parties, or the children.

Endorsement

[1] This is the Endorsement in relation to a request by the Respondent father, M.M., for an interim order varying the access provisions of the final order of Justice Hambly dated November 24, 2015 and January 18, 2016 [“the final order”].

[2] By separate Endorsement released November 20, 2018 (2018 ONSC 6939), this court granted a publication ban and initialization, while dismissing a request to have the file sealed. The father’s motion for contempt was withdrawn on November 20, 2018.

Brief Background

[3] Below, I repeat part of the background set out in the November 20, 2018 Endorsement and provide additional context:

[4] The father brought a Motion to Change the final order of Justice Hambly dated November 24, 2015 and January 18, 2016. Before that matter could be determined, he was charged under the Criminal Code with the following offenses:

a. Sexual Assault, contrary to section 271 (two counts); b. Make Explicit Sexual Material Available, contrary to section 171(1)(a); and c. Sexual Interference contrary to section 151 (two counts).

[5] In this court, the mother requested and was granted the right to view the transcript of the bail hearing which took place on August 30, 2018, and which is subject to a publication ban in the criminal proceeding.

[6] Those transcripts provide alleged factual background regarding the criminal allegations against the father. The charges arise from the father’s alleged conduct while in a position of trust with children attending summer programming. In summary, the alleged conduct involves the following:

a. Deliberately putting his hand on the inner thigh of a person under sixteen during a card game (sexual interference and sexual assault charge); b. Lying on the ground beside a person under sixteen and thrusting his body against that person’s body three times (sexual interference and sexual assault charge); and, c. Showing a sexually explicit video on his cell phone to a person under 18 (make sexually explicit material available to a person under 18).

[7] There is also an allegation that the father, without consent, photographed a 16 year-old lifeguard in a bathing suit, from behind, later offering that youth marijuana. This did not result in a charge.

[8] The father was released on bail on August 30, 2018 subject to the terms including: residing with a surety each night (who is not his wife); not associating directly or indirectly with the complainants; and not to be in the direct company of a person under the age of 16 unless in the company of an adult person who is aware of the charges.

[9] There is no evidence that the father has been charged with a breach of any of those conditions.

[10] The final order which the father seeks to change provides that the he is to have access as follows:

a. Every other weekend from Friday at 6:00 p.m. until Sunday at 7:00 p.m.; and b. Every Tuesday and Thursday from 6:00 p.m. to 8:00 p.m.

[11] Since the charges were laid on August 30, 2018, the father has not had any access to the parties’ child.

[12] The father is married to S.M., with whom he has a child. S.M has two children from a previous relationship. The child in this case therefore has three siblings. Because the parties reside in two separate jurisdictions, two child protection agencies have become involved: the Children’s Aid Society of Haldimand and Norfolk [“the CAS H-N”], and the Catholic Children’s Aid Society in Hamilton [“the CCAS”]. Both child protection agencies have been apprised of the charges but it does not appear that either is aware of the specific factual allegations leading to the charges.

[13] The CAS H-N has approved S.M. as a supervisor for all four children including the parties’ child. The CCAS has also approved of S.M. as a supervisor for the father’s access with the child in this case, on certain terms:

a. That the child not be left alone with the father; b. That the father not expose the child to any sexual material; and c. That the father not discuss the allegations or criminal charges with the child during access.

[14] S.M has filed an undertaking stating that she will follow those terms. The undertaking is witnessed but does not appear to be properly sworn.

[15] Access has been taking place between the father and this child’s three siblings. The court is not aware of any access between this child and his siblings since the charges occurred.

Positions of the Parties

[16] The father recognizes that in light of the charges, the access in the final order of Justice Hambly must be changed. He seeks access in Hamilton each Thursday evening from 6:00 p.m. to 8:00 p.m., in addition to access on alternate Sundays from 9:00 a.m. to 7:00 p.m. in the location where he resides. He suggests that his current wife, S.M., be the supervisor for his access. He has also proposed any of eighteen other potential supervisors for his access. He notes that the drive between Hamilton and his home is an hour each way, and that the longer block of time on the Sundays will allow the child to spend time with his siblings. The father proposed that access transitions be in a neutral location such as a police station.

[17] Although the mother agreed for the purpose of the motion that there should be some supervised access, it was clear that it was difficult for her to do so. She proposes two hours of access on alternate Sundays, in Hamilton, supervised by Brayden Supervision Services, for a total of four supervised hours per month. The mother rejected all of the alternative supervisors proposed by the father. She stated that on the basis of their letters attached to the father’s affidavit (rather than sworn statements), those proposed supervisors appeared generally to not take the charges seriously or to believe that he could be guilty of the charges. The mother was unable to propose any non-agency supervisors who could assist with access.

[18] The parties agree that there must be supervision. They also agree that at a minimum, some access on alternate Sundays is appropriate. They disagree on where the access should take place, who should supervise the access, on how much access there should be, and whether, in addition, there should be week-day access.

Law and Analysis

Interim Variation

[19] As a preliminary matter, this case involves the interim variation of a final order under the Divorce Act, as the parties are divorced.

[20] Section 17 of the Divorce Act does not provide authority for the interim variation of a final order. Interim orders are only explicitly provided for under Section 15 of that Act.

[21] However, cases have held that there may be “urgent” circumstances that compel the court to use its parens patriae jurisdiction to make an interim order. To do so requires that there be an exceptional circumstance. See Traverse v. Murin, 2010 ONSC 1509 at para. 24. See also the recent case of Lonsdale v. Smart, 2018 ONSC 3991 in the context of a variation under the Children’s Law Reform Act, where the court held that if a change to a final order is to be made on an interim motion, “the court should rely upon evidence that is largely uncontested; a court cannot rely upon conflicting affidavits or evidence requiring a finding of credibility.”

[22] In this case, it is appropriate to vary a final order on an interim basis. The circumstances are such that the access provisions of the final order cannot continue, and without a change to the order there would be no access between the child and his father. There has been a material change of circumstances which is “exceptional”. Further the parties largely agree on the key facts: that criminal charges prevent the implementation of the access terms of the final order and that supervision is now appropriate and indeed required.

Restrictions on Access

[23] Custody and access for divorced parents is governed by the Divorce Act, which provides at section 17 that once a material change of circumstances has been established, the court is to be guided only by the best interests of the child as determined in reference to the material change.

[24] Section 17(6) provides that in making an order under section 17, the court must not take into account any conduct which could not have been considered when the original order was made. Section 16(9) provides that such conduct includes only conduct relevant to the ability of the person to act as a parent to the child.

[25] The Divorce Act does not specifically advert to the question of how violence or alleged violence is to be regarded when considering whether conduct is relevant to parenting. In that regard it is helpful to consider section 24 of the Children’s Law Reform Act which specifically provides at section 24(4) that violence against a spouse, child, or member of the person’s household is relevant to parenting.

[26] Section 17(9) of the Divorce Act provides that in making an order varying a final order, the court must give effect to the principle that the child should have as much contact with either former spouse as is consistent with the best interests of the child.

[27] Restrictions on access are the exception, not the norm. As Justice Blishen set out in Jennings v. Garrett, 2004 CarswellOnt 2159 at 128:

There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with the non-custodial parent, to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort.

[28] Factors that might lead to termination of access include: long-term harassment of the custodial parent; a history of violence; extreme parental alienation; ongoing severe denigration of the other parent; lack of relationship between the non-custodial parent and the child; neglect; or the wishes of older children to terminate access. As noted by Justice Blishen in Jennings, supra, most of these factors would also be relevant to a consideration of supervision of access. See paras. 135 - 137.

[29] Supervised access may be appropriate where the child requires protection from abuse, where a child is being reintroduced to a parent; where there are substance abuse issues; or where there are clinical issues involving an access parent. See Miller v. Miller 2005 CarswellNS 420.

[30] Supervised access has been upheld where used as a precautionary measure, even where a father’s risk of reoffending was low. See P.(B.) v. T.(A.), 2014 NBCA 51 at para. 20. The court must not take abuse allegations lightly. A.(D.W.) v. B.(B.L.), 2014 SKQB 19 at para. 19. See also Ifraimov v. Ifraimov, 2013 ONSC 2762 in which the court ordered a period of supervised access where eleven criminal charges had been laid, one involving alleged sexual assault. In that case Justice McDermot stated at paras. 10 and 11:

Supervised access is usually a last resort where there is a risk to children that cannot be addressed in any other satisfactory way. It is not to be ordered lightly; neither is it a lasting or satisfactory solution to problems regarding access. However, in the present case, I cannot see any other alternative at present.

[31] In determining the appropriate arrangements in this case, I have balanced factors in the evidence including but not necessarily limited to the following:

a. The allegations in this case are serious and sexual in nature; b. The allegations involve children; c. The allegation is that the father was in a position of trust in relation to those children; d. At the same time, the allegations are presently unproven; the father has not been convicted of any crime; e. The father has no previous criminal record; f. The father had alternate weekend and mid-week access to the parties’ son under Justice Hambly’s order for almost two and a half years. Apart from allegations that he did not regularly exercise his Tuesday night access, the mother did not suggest that there were issues with access more generally; g. There is no suggestion in the materials that the father has ever in any way harmed the parties’ child, whether physically, sexually, or emotionally; h. The father’s wife has been approved by the CCAS to be a supervisor for day time access (the father resides elsewhere with a surety at night). She has signed a document stating that she will not leave the child alone with the father, that she will ensure that the father does not expose the child to any sexual material; and that she will ensure that he does not discuss the criminal allegations with the child. In that document she also states that she will report any questionable behaviour or any breach to the police and to the CCAS. While the document is not in affidavit form, S.M. has had the document witnessed; i. The mother raises a concern about the ability of the father’s wife to supervise, given that there are three other children and their home is on a 1.6 acre rural property. S.N. has supervised the father’s access with the child’s siblings and there is no evidence in the record suggesting concerns by the CAS H-N about the quality of that supervision. The court was not made aware of any breach charges since the charges were laid on August 30, 2018; j. The parents live about an hour apart by car. Neither party drives. The father’s wife drives and is prepared to transport him for access; k. The mother raises concern about the father’s participation, with his wife, in derbys for children (as well as attending adult derbys). She saw photos on Facebook of the father at one or more derbys where there are children but no adults in the background. (Other photos show many adults in the background spectating on bleachers.) The father explained that he had no contact with the children, and that three adults including his wife were with him at all times, supervising him. He stated that he is never alone at the fairs and even ensured that he was escorted to the washroom. l. The mother would like access to be supervised by a professional supervision service. She proposed Brayden Supervision Services which will supervise in the community. The mother emphasizes that this agency is neutral and that notes of the father’s visits would be prepared. This, she says, would assist both parties in knowing how access is going. Brayden Supervision Services costs $55 per hour. In my view this service is not required in this case given the availability of S.M., her ability and willingness to supervise, and the approval of the CCAS. Professional services are also not a realistic possibility in this case given the parents’ means. The father’s income from ODSP is $14,400 per year. There is a real possibility that access would not be possible at all if a paid service were required. m. The mother acknowledges that this has been difficult for the child and has thrown his life upside down. At this time he has not seen his father for almost three months. Currently the child does not have access with his siblings either.

[32] The court acknowledges the worries and concerns of the mother and sees that she is acting protectively for the parties’ son. It is clear, and quite understandable, that she is upset and disturbed by the charges. At the same time, the level of restrictions on access must be proportional to the level of risk in any given case. The most severe restrictions on access must be reserved for the cases with the highest risk. Here, based on all of the factors set out above, a less restrictive approach than that sought by the mother is appropriate.

[33] Based on my review of the facts as set out in the affidavits, the submissions of counsel, and the law, the child shall have the following temporary supervised access to his father:

a. Alternate Sundays, commencing Sunday, November 25, 2018, from 11:00 a.m. to 5:00 p.m.; b. Every Thursday evening, from 6:00 p.m. to 8:00 p.m.; c. All access shall be supervised by the father’s wife, S.M., or by such other proposed supervisor as may be approved by the CCAS and upon which the parties agree, or as the court may order on further motion; d. The father shall ensure that the supervisor of access under paragraph 33(c) signs a document before a witness in which he or she commits to the following terms, and a copy of that document shall be provided to the mother’s counsel before such supervision begins: i. That he or she ensure that the child is not left alone with the father; ii. That he or she will ensure that the father does not expose the child to any sexual material; iii. That he or she will ensure that the father does not discuss the allegations or criminal charges with the child during access; and iv. That he or she will promptly report any breach to the CCAS and the police. e. Pick ups and drop offs shall be at the Tim Hortons at 505 Rymal Rd E, Hamilton, Ontario; f. In addition to the access set out in paragraph (a) and (b) above, that father shall have access to the child on December 26, 2018 from 11:00 a.m. to 5:00 p.m.

[34] On consent, this matter is set to a Settlement Conference on January 24, 2019 at 12:15 p.m.;

[35] If the parties cannot agree on costs, the court will accept brief written submissions from both parties, with a bill of costs, by December 14, 2018 with any responding submissions due on December 21, 2018. Costs submissions may address costs in relation to the issues including the publication ban and sealing order, the withdrawn contempt motion, and the access issue addressed herein. If costs submissions are not received on this timeline, costs shall be deemed to be settled. The timeline may be extended only through an an appearance before me.

Madsen J. Date: November 22, 2018