Court File and Parties

COURT FILE NO.: FC-17-2043 DATE: 2019/03/07 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Michael Andrew Sealey, Applicant -and- Cherie Nicole Hoyte, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: John Guest, for the Applicant Respondent, Self-Represented Beverley Johnston, Children’s Lawyer

HEARD: February 21, 2019

Endorsement

[1] This is a motion by the Applicant, Mr. Sealey, seeking interim unsupervised access to the parties’ 10 year old child, L.V.

[2] For the reasons set out below, I grant Mr. Sealey’s request for interim unsupervised access.

Background

[3] The parties have one child, L.V., born […], 2008.

[4] The parties were not married. This is an application under the Children’s Law Reform Act.

[5] The parties first separated in 2009. They subsequently reconciled and separated for the final time in December of 2011.

[6] After separation, Mr. Sealey had reasonable access to the child, typically on alternate weekends. This lasted until August of 2013.

[7] In August 2013, the Respondent, Ms. Hoyte, reported allegations that Mr. Sealey had abused the child. These allegations were investigated by the Children’s Aid Society, the police, and the local children’s hospital. The allegations were not substantiated. After the allegations, however, Ms. Hoyte only permitted Mr. Sealey to have access “supervised” by herself.

[8] Mr. Sealey commenced this Application on September 28, 2017. Mr. Sealey seeks significantly expanded access on weekends and during the week, and that this access be unsupervised.

[9] After this Application was commenced, Mr. Sealey’s access was restricted further until the order made on November 22, 2017, being the first case conference. That order provides for temporary without prejudice supervised access through the Supervised Access Centre operated by Family Services Ottawa. Due to waiting lists at the Centre, Mr. Sealey’s supervised access did not commence until August 25, 2018. Since that time, due to availability at the Centre, he has only had supervised access for two hours every second weekend.

[10] On March 2, 2018, an order was made requesting the involvement of the Office of the Children’s Lawyer. That Office agreed to be involved in this matter and appointed a lawyer, Ms. Johnston, to represent the interests of the child.

[11] The March 2, 2018 order also provided for Mr. Sealey to bring an interim motion for access, and set out a timeline for filing material on that motion. This is that motion.

[12] Both parties attended this motion, as did Ms. Johnston. Ms. Hoyte, however, did not file any material in response to the motion. Pursuant to the timeline under the March 2, 2018 order, Ms. Hoyte’s material was due by November 28, 2018. Counsel for Mr. Sealey agreed to extend this timeline to January 4, 2019, and then again to January 20, 2019. Ms. Hoyte has not met any of these extensions.

[13] At the outset of the motion, Ms. Hoyte requested an adjournment of the motion to allow her to serve and file responding material. This was opposed by Mr. Sealey and the Children’s Lawyer. For reasons provided orally, I declined Ms. Hoyte’s request for an adjournment. I did allow Ms. Hoyte to file a copy of the transcript from her questioning of Mr. Sealey. A transcript from the questioning of Ms. Hoyte was filed as part of Mr. Sealey’s material.

The Applicant’s, Mr. Sealey’s Position

[14] Mr. Sealey seeks expanded unsupervised access. Mr. Sealey denies any abuse of the child or other basis for requiring supervision. Mr. Sealey states that he was a very involved parent prior to separation. He “backed off” after Ms. Hoyte made allegations of abuse in August 2013 in the hope that matters would de-escalate. They did, to the extent that he continued to have regular access with the child but Ms. Hoyte insisted that such access always be supervised by her. Mr. Sealey’s view was that Ms. Hoyte wished to reconcile with him and used the access as a means to attempt to do so, as well as to gain his assistance with various activities, errands, and chores. Mr. Sealey states that the situation deteriorated after he became involved in a new relationship. Ms. Hoyte began to impose more restrictions on his access, resulting in this Application.

[15] Mr. Sealey has consistently exercised supervised access at the Supervised Access Centre since August 25, 2018. He reports these visit as positive. This characterization of the visits is supported by the notes from the visits made by the Centre as well as the expressed views of the child.

[16] Mr. Sealey seeks fairly extensive interim access on this motion, being from Friday after school to Monday morning and alternate midweek access from Wednesday after school to Friday at 6 p.m. When questioned how to address concerns that this is a significant change from the current access schedule, Mr. Sealey proposed a graduated schedule that begins with unsupervised access every Saturday for three hours, increasing in duration over six weeks when it would extend to include overnights, and then increasing again to eventually include access every weekend, alternating between a Saturday only access visit, to a Saturday morning to Sunday evening access visit.

[17] Mr. Sealey also seeks extended access for the period around June 29, 2019, which is when he plans to marry.

Position of the Children’s Lawyer

[18] Ms. Johnston’s position is that, on an interim basis, Mr. Sealey’s access should be unsupervised. She does not have any basis for concerns of a risk of harm to the child while in Mr. Sealey’s care. Ms. Johnston does not have a position from the child on the duration of such access, but she suggested access visits start at four to five hours in duration to start. Ms. Johnston did note that Mr. Sealey’s home is approximately 25 to 30 minutes from the Supervised Access Centre, which the parties agree should continue to be used for access exchanges if available.

[19] Ms. Johnston had a disclosure meeting with the parties in October of 2018 to report on her meetings with the child. The parties agreed that on this motion, Ms. Johnson would provide the court with an oral report of the child’s wishes. Ms. Johnston intends to seek the appointment of a clinician to provide evidence of the child’s wishes at trial.

[20] Ms. Johnston has met with the child on three occasions. She reported that the child has been forthcoming and outspoken during these meetings, with the exception of a change at the last meeting that took place on January 30, 2019. The child was clear and consistent in each of the first two visits that she wanted unsupervised access. On the last visit, which took place after the disclosure meeting with the parties, the child’s behavior changed. Ms. Johnston reported that at the last meeting, although the child reported that the supervised visits were going well, when she was questioned about having unsupervised visits, the child’s response raised historical incidents and concerns that were at odds with the child’s age at the time of these events, were inconsistent with her previous views, and appeared to have been improperly influenced by a third party.

The Respondent’s, Ms. Hoyte’s Position

[21] Ms. Hoyte opposes any change to the existing access. Her position is that access should continue to be supervised in order to protect the child. Her position is that the child is at risk of harm in Mr. Sealey’s care, due to his past conduct of abuse, abandonment, neglect of the child, and his history of substance abuse (all of which Mr. Sealey denies).

Analysis and Disposition

[22] This is a motion for interim access under the Children’s Law Reform Act. The test for determining interim access is what order is in the best interests of the child.

[23] I have reviewed the affidavits of the parties, including the reports from the August 2013 investigations by the child protection authorities, police and local children’s hospital, the transcripts of the questioning of both parties and the other affidavits filed in support of Mr. Sealey. I do not find there is a basis on the evidence before me that there is a risk of harm to the child that warrants the continuation of supervised access.

[24] I find that it is in the child’s best interest to have unsupervised access to Mr. Sealey at this time. This finding is based on a consideration of all of the “best interest” factors set out in subsection 24(2) of the Children’s Law Reform Act, as well as all other relevant considerations. In particular, this includes:

• the evidence that Mr. Sealey’s existing supervised access visits are very positive for the child;
• the child’s consistent expressed wish, up until the last visit with Ms. Johnston, that access visits be unsupervised;
• that the child’s wishes at the last visit with Ms. Johnston do not take away from her previous expressed wishes, due the appearance of adult influence;
• the allegations raised by Ms. Hoyte in August of 2013 were investigated by the child protection authorities, the police, and the local hospital, and were not substantiated. They do not give rise to ongoing concerns that present a risk of harm to the child. The allegations are based on statements made by the child that have an innocent explanation, which I find is more reasonable than the one put forward by Ms. Hoyte.
• based on a review of the transcripts from questioning of both parties, I find Mr. Sealey’s evidence more credible than Ms. Hoyte’s.

[25] I agree with the Children’s Lawyer that given the child has not had normalized access to Mr. Sealey for some time, interim access should continue to be limited and there should be a gradual adjustment to such access. At this time, I find that this means that interim unsupervised access should be as follows:

• on the first Saturday after the Children’s Lawyer has met with the child to explain the change in access, for a period of three hours, from 11:30 a.m. to 2:30 p.m.;
• on the following Saturday (the second Saturday), for period of four hours, from 11:30 a.m. to 3:30 p.m.;
• on the third Saturday, for period of five hours, from 11:00 a.m. to 4:00 p.m.;
• on the fourth Saturday, for a period of six hours, from 10:00 a.m. to 4:00 p.m.; and
• continuing thereafter on each Saturday from 9:30 a.m. to 4:00 p.m.

[26] In addition, Mr. Sealey will have access to the child on June 29, 2019 from 9:30 a.m. to 7:00 p.m. (or such other time if the parties may agree, in writing, to adjust these times) to attend Mr. Sealey’s wedding.

[27] Ms. Johnston raised a concern regarding how this change in Mr. Sealey’s access will be communicated to the child, in particular given the concerns of adult influence. The parties agreed that Ms. Johnston shall be the one to meet with the child, as soon as possible, to explain this change in access to her, and that neither parent shall speak to the child about what took place in court, or the outcome of the motion, until after Ms. Johnston has done so. Once Ms. Johnston has spoken to the child, neither parent shall initiate any conversations with the child regarding this court proceeding. If the conversation is initiated by the child, each party shall follow Ms. Johnston’s recommendations regarding how best to respond. Each parent shall facilitate and encourage the child’s relationship with the other parent, including the access as set out in this order, and shall not disparage the other parent in any way in the presence of the child or allow other third parties to do so.

[28] I am not prepared to order overnight access at this time as this is a significant change from the access that the child has had with Mr. Sealey since August 25, 2018, and prior to that dating back to August of 2013. Although it may be that ultimately more normalized alternate weekend access is in the child’s best interests, this should be determined after the child has had an opportunity to adjust to the changes set out in this order, and/or after a trial where a full adjudication of the issues in dispute will take place.

[29] The parties shall continue to use the Supervised Exchange Program with Family Services Ottawa for access exchanges, if available. In the event that the Supervised Exchange Program is not available for any exchanges, the exchanges shall take place inside the McDonalds located at 4416 Innes Road, Orleans.

[30] This access arrangement is made on an interim basis only. This matter needs to move forward towards a final resolution. I will case manage this file in order to do so. I also order this matter to be added to the trial sittings that are set to commence in Ottawa for three weeks beginning on September 23, 2019. Ms. Johnston advises that she is not available on October 8, 2019 for eight days due to another trial. The Trial Coordinator will be advised of these dates.

[31] A trial management conference will be scheduled by the Trial Coordinator for a date before myself. In advance of this conference, the parties shall file their completed Trial Scheduling Endorsement Forms and updated sworn financial statements.

[32] Mr. Sealey seeks an order for police enforcement. I decline to make this order at this time, in the absence of evidence that such an order is needed nor of what assistance the police may provide. This court has a number of powers to ensure compliance with court orders. Relief may be sought under these powers if there are compliance issues. In the event that there are compliance issues with the access ordered herein, either party may seek an expedited motion before me by writing to the Trial Coordinator. This should be done by providing a brief letter to the Trial Coordinator advising why they believe an expedited motion is needed, which will be copied to the other party or counsel and the other party or counsel will then have a brief opportunity to provide a response. I will then determine if an expedited motion is needed and the parties will then be advised of the schedule for any such motion.

Summary of Orders

[33] Accordingly, the following interim orders are made:

1. Mr. Sealey shall have interim unsupervised access to the child L.V. as follows: i. on the first Saturday after the Children’s Lawyer has met with the child to explain the change in access, for a period of three hours, from 11:30 a.m. to 2:30 p.m.; ii. on the following Saturday (the second Saturday), for period of four hours, from 11:30 a.m. to 3:30 p.m.; iii. on the third Saturday, for period of five hours, from 11:00 a.m. to 4:00 p.m.; iv. on the fourth Saturday, for a period of six hours, from 10:00 a.m. to 4:00 p.m.; and v. continuing thereafter on each Saturday from 9:30 a.m. to 4:00 p.m.
2. In addition, Mr. Sealey will have access to the child on June 29, 2019 from 9:30 a.m. to 7:00 p.m. (or such other time if the parties may agree, in writing, to adjust these times) to attend Mr. Sealey’s wedding.
3. Ms. Johnston shall meet with the child, as soon as possible, to explain this change in access to her. Neither parent shall speak to the child about what took place in court, or the outcome of the motion, until after Ms. Johnston has done so. Once Ms. Johnston has spoken to the child, neither parent shall initiate any conversations with the child regarding this court proceeding. If the conversation is initiated by the child, each party shall follow Ms. Johnston’s recommendations regarding how best to respond. Each parent shall facilitate and encourage the child’s relationship with the other parent, including the access as set out in this order, and shall not disparage the other parent in any way in the presence of the child or allow other third parties to do so.
4. The parties shall continue to use the Supervised Exchange Program with Family Services Ottawa for access exchanges, if available. In the event that the Supervised Exchange Program is not available for any exchanges, the exchanges shall take place inside the McDonalds located at 4416 Innes Road, Orleans.
5. This file shall be case managed by myself.
6. This file is added to the trial sittings that are set to commence in Ottawa for three weeks beginning on September 23, 2019. Ms. Johnston advises that she is not available on October 8, 2019 for eight days due to another trial. The Trial Coordinator will be advised of these dates.
7. A trial management conference will be scheduled by the Trial Coordinator for a date before myself. In advance of this conference, the parties shall file their completed Trial Scheduling Endorsement Forms and updated sworn financial statements.
8. In the event that there are compliance issues with the access ordered herein, either party may seek an expedited motion before me by writing to the Trial Coordinator. This should be done by providing a brief letter to the Trial Coordinator advising why they believe an expedited motion is needed, which will be copied to the other party or counsel and the other party or counsel will then have a brief opportunity to provide a response. I will then determine if an expedited motion is needed and the parties will then be advised of the schedule for any such motion.

Costs

[34] If the parties are unable to agree on costs of this motion, Mr. Sealey and the Children’s Lawyer may file submissions with respect to costs on or before March 22, 2019. Ms. Hoyte may file submissions with respect to costs on or before April 5, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any attachments (i.e. previous offers, bills of costs,) and shall be spaced one point five spaces apart, with no less than 12 point font.

Justice P. MacEachern Date: March 7, 2019