Court File and Parties

COURT FILE NO.: 5723/14 DATE: 20190318 CORRECTED DECISION RELEASED: 20190320

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CAMERON GUILLEMAUD Applicant – and – JENNIFER GEURTS Respondent

Self-represented Self-represented

HEARD: January 16, 2019

CORRECTED DECISION ON MOTION

CORRECTION: paragraph [54] 2(f) was added [54] 2(f) In the event that Anthony is not in school on a day that an access exchange is to take place at school, the parties shall arrange for the exchange to be at a similar time at the supervised access centre in New Liskeard or, if that is not available, at the Tim Horton’s on Highway 65/Armstrong Street, New Liskeard, Ontario.

WILCOX J.

Introduction

[1] This is a motion by the applicant father for increased access to the parties’ child, John Anthony Martinez Guillemaud (Anthony or John Anthony).

Background

[2] The parties met in 2011 while living and working in Inuvik, Northwest Territories and entered into a relationship. They never married. They moved to an apartment in Grand Prairie, Alberta, the respondent in April 2012 followed by the applicant in July 2012. Anthony was born on July 19, 2012. They moved in December 2012 to a house that the applicant owned in the County of Clear Hills, near Fairview, Alberta. The respondent moved out surreptitiously, taking Anthony, with the help of her parents, on March 11, 2013, while the applicant was at work, and moved to her parents’ home in the Haileybury area of Ontario.

[3] The applicant commenced legal action in the court of Queen’s Bench at Calgary, Alberta, in April, 2013, and obtained orders there. He then applied in Ontario in December, 2013, for the recognition for the purposes of enforcement of an Alberta court order requiring the child to be returned to and remain in Alberta, where the parties would share parenting time equally. After a trial of the issue, my decision of June 30, 2015 held that the Alberta court order would not be recognised in Ontario and that this court, the Ontario Superior Court of Justice, may exercise its jurisdiction to deal with the custody of and access to the child. The applicant’s amended Application of December, 2015 and the respondent’s Answer and Claim by Respondent of February, 2014 raised issues of custody and access.

[4] Due to the applicant’s conduct in his attempts to enforce the Alberta order in Ontario, which I would also describe as surreptitious, while the Alberta court file remained open and the orders in it remained in place, I was concerned about the possibility that, if the applicant had unsupervised access to Anthony, he might take the boy to Alberta and rely on the orders from there in an attempt to gain an improper advantage over the respondent. Consequently, I made an order on December 10, 2015, requiring the applicant to provide proof that the Alberta court proceedings had been terminated. The applicant’s affidavit of February 18, 2016, filed, includes a discontinuance of claim stamped “filed, February 4, 2016” in the Court of Queen’s Bench of Alberta. It states that the applicant discontinued his family claim against the respondent in full and that the specified orders are terminated. So, he has addressed my concern in that regard.

[5] There have been temporary orders for the applicant’s access in place in Ontario since August, 2014. The access is at a supervised access facility for a few hours at a time each month.

[6] The applicant brought a motion in December, 2017 seeking to change the access. In summary, he wanted his access to be in the community, not the supervised access facility, and to be of longer duration. He wanted to take the child to Alberta in the summer, 2018, to extend his regular access after August, 2018 to full weekends, to have frequent scheduled Skype calls with the child, to have Christmas access beginning in 2018, to have March break access beginning in 2019 and to have two, two week periods of access, including periods in Alberta, each starting in 2019.

[7] The respondent mother brought a cross-motion for interim and final orders for her sole custody of the child, with access to remain supervised at the supervised access facility or to be terminated. Both sides filed substantial amounts of documents in support of their respective positions. However, I had reservations about whether many of those were properly receivable by the court as evidence. Also, there had been no conferences held on the issues of custody and access. Furthermore, the parties were, in effect, attempting trial by motion, which was not appropriate. The court was being called upon to rule upon serious issues involving a young child on a final basis. Such decisions are to be made in the best interests of the child. Even if all the documents submitted by the parties were receivable in evidence, it would not be possible to resolve the conflicting allegations on a motion and ascertain the child’s best interests. That is what trials are for. Motions have their place. They are useful for resolving temporary matters or procedural points. They are not a substitute for trials where evidence can be tested to ascertain the facts. So, I declined to hear the parties’ respective motions at that time. Instead, the matter was adjourned to a case conference to be scheduled through the trial coordinator.

[8] I also took the uncommon step of obtaining the agreement of the Regional Senior Justice for the region to appoint a case management judge, to assist the parties with the case. Consequently, there has been case management by Tremblay J. since March, 2018.

[9] In the present motion the applicant sought:

1. a temporary order allowing unsupervised access to Anthony as follows: (a) alternate weekends with 2 hours on Saturday and with 2 hours on Sunday from 11:00 am to 1:00 pm for 1 month. (b) alternate weekends with 4 hours on Saturday and with 4 hours on Sunday from 11:00 am to 3:00 pm for 1 month. (c) alternate weekends with 6 hours on Saturday and with 6 hours on Sunday from 11:00 am to 5:00 pm, with these visits continuing until a trial decision. (d) Easter Sunday from 10:00 am to 2:00 pm. (e) Face time or Skype, twice a week on the off weeks of access. (f) exchanges at the Tim Horton's across from McDonald's in New Liskeard. (g) involvement at the child’s school, including in parent teacher interviews and any extracurricular activities. (h) updates on any health issues, doctors’ appointments and dental appointments, and be able to take the child to such appointments to show the child he is supported by both parents,
2. temporary financial relief due to a change of income and undue hardship.
3. a restraining order against the maternal grandfather (Marty Geurts) including an order that he not come within 500 meters of the applicant or any place where the applicant is known to be.
4. such further and other relief as this Honourable Court deems just;

[10] However, at the outset of the hearing, he advised that he would be limiting the motion to the issue of access.

Law

[11] Part III of the Children’s Law Reform Act [1] deals with custody, access and guardianship. Section 21 provides for applications to the court for orders for access. Section 24 sets out the considerations in making an access order:

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1) .

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 ; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2 .

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1) ; 2016, c. 23, s. 7 (2) .

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child. 2006, c. 1, s. 3 (1) ; 2016, c. 23, s. 7 (2, 3).

[12] Paragraph 28(1) sets out the powers of the court in making access orders:

28 (1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons; (b) by order may determine any aspect of the incidents of the right to custody or access; and (c) may make such additional order as the court considers necessary and proper in the circumstances, including an order, (i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child, (ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child, (iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court, (iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court, (v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify, (vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or (vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. R.S.O. 1990, c. C.12, s. 28 ; 2009, c. 11, s. 12 .

[13] Subsection 20(5) of the Children’s Law Reform Act states that the entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make enquiries and to be given information as to the health, education and welfare of the child.

[14] Section 29 directs that a court shall not make an order that varies an order with respect to 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.

[15] Section 36 provides for the enforcement of custody and access orders, including by using the police.

[16] There is a great number of reported court decisions about access. Some of the principles established by these cases are appropriate to note in the context of the present case:

1. Access is a child’s right to see the non-custodial parent, rather than the parent’s right to see the child. [2]
2. As a general rule, it is in the best interests of a child to develop and maintain a relationship with both parents. This is supported by social science research and literature. [3]
3. It has been held that there is a presumption that there should be access. [4]
4. There is a principle of law in Ontario that contact between separated parents and their children should be maximised, if it is consistent with the child’s best interests. [5]
5. The best interests of the child have been found to be met by having a loving relationship with both parents which relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. [6]
6. 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 a non-custodial parent and 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. [7]
7. A party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify their restriction. [8]
8. “Only in exceptional and convincing cases is a court justified in refusing custody or access to natural parents.” [9]
9. Access is not awarded or withheld to punish or reward behaviour. [10]
10. Supervised access is not intended to be a long term arrangement for a child. It is beneficial for children who require gradual re-introduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm. [11]
11. Custodial parents must not just accommodate access, they must facilitate it. [12]
12. A court is not likely to limit long term access based on unsubstantiated allegations of abuse. [13]

Applicant’s Position

[17] In submissions, the applicant indicated that he had relocated from Alberta to Haileybury for his son. After four years of positive interactions with him at the Supervised Access Centre (SAC), he sought access out in the community. He said that the requirements of the child had outgrown the SAC and that there were more physical activities and opportunities for the child’s development outside of it. In particular, he noted that the house that he had purchased had been chosen with the child in mind in that, for example, it was in an area where there were other children.

[18] He pointed out that both reports of the Office of the Children’s Lawyer (OCL) (which will be dealt with below) recommended unsupervised access.

[19] He returned to the topic of the historical allegations against him by the respondent, which he denied as being false. He produced documents provided in January, 2015 to his former counsel by the RCMP in response to his request for records. These were:

1. An occurrence report of 2013/01/22 when the respondent went to the RCMP in Alberta about remark that he “would fight to the death for child custody” if she tried to separate. The report explicitly states, “no violence in the relationship” and “no grounds for charges”.
2. An occurrence report of 2013/03/11 when the respondent requested to have police present in case the applicant came home when she separated from the applicant and left with 7 month old Anthony. The police refused because there had been no family violence or threats of violence.
3. An occurrence report of 2013/04/30 regarding the respondent’s complaint (made after separation) that the applicant sexually assaulted her in 2011 (before the 2015 separation). The police investigated and considered this as “unfounded”. The details of their findings appear to have been redacted from the report.
4. An occurrence report regarding an allegation the respondent made on 2013/06/25 that the applicant had inappropriately touched Anthony’s genitals. The police investigation resulted in the complaint being labelled “unfounded” and seemingly related to child custody.

I note that the OCL was made aware of these matters, by the applicant.

[20] The applicant pointed out the following passage in the second OCL report indicating that the respondent had repeated the allegation about the applicant touching Anthony’s genitals around the time that he brought his previous access motion:

December 19, 2017, CMHA staff reported information that Ms. Geurts stated in her counselling session, that when her son was an infant, her ex used to “touch him inappropriately on his genitals”. Initially Ms. Geurts stated that she did not report this information but then changed her story and stated that it had already been investigated by the RCMP in 2012. The OPP were also involved. Ms. Geurts “demonstrated some confusion in her story and disclosure of events, and could not give details”. It was unclear if Ms. Geurts was telling the truth.

This was one of the items in the OCL reports that the respondent disputed, which disputes are touched on below.

[21] In response to this allegation, the applicant obtained a psychosexual assessment by Dr. Robert Saltstone. In the report, dated June 20, 2016, Dr. Saltstone opines that the applicant is not a pedophile and does not exhibit the characteristics of incest offenders.

[22] The applicant expressed readiness, if Anthony has anxiety as the respondent indicates, to work with her on it, noting that he sees that Anthony has no anxiety with him, and that the OCL did not observe any.

The Respondent’s Position

[23] In her response to the applicant’s motion for increased and unsupervised access, the respondent filed her affidavit of December 21, 2018 with attachments. It sets out her position as follows:

Given the following,

• The increased level of anxiety for the child since the increased time and frequency of access;
• Ms. Guillemaud’s unwillingness to accept Anthony for who he is, anxiety and all instead of an image he wants him to be;
• The likelihood of increased psychological and emotional abuse in an unsupervised environment;
• The likelihood of more intense alienation of child from mother in an unsupervised environment;
• Ms. Guillemaud’s continued non-compliance of orders and instructions; and
• The probability of flight risk.

it is more sensible to either terminate the access or keep the access at the access centre where it is monitored or safer.

[24] If the access continues, she suggested a reduction in the frequency and duration of it.

[25] The respondent indicated that, after the applicant relocated from Alberta to Ontario in August or September, 2018, the access at the Supervised Access Centre increased from 6 to 8 hours per month and that the anxiety that Anthony is reported to suffer from “doubled”. The signs and symptoms of the anxiety, she said, present before and after access, in explanation of why others would not see them during the access. In submissions, the respondent attributed the good relationship Anthony had with the applicant at access to her preparation of the child for the visits.

[26] The respondent’s affidavit would go on to:

1. Refer in passing to the impact of the abuse suffered while living with Mr. Guillemaud.
2. Question the RCMP’s investigation of her complaint that the applicant had inappropriately touch Anthony’s genitalia. This would have been while changing a diaper prior to separation which occurred when Anthony was 7 months of age.
3. Allege that Dr. Saltsone’s phallometric testing is invalid for a reason that Dr. Saltstone addresses in his report before stating his conclusion and diagnosis.
4. Opine that the applicant is a flight risk because of his connection to Alberta, and also for some other reasons that are at best indirectly connected and appear to be stretching the point, and are not persuasive.
5. State that both OCL reports have been disputed, while failing to mention that in both cases the OCL had stood by its reports subject to some inconsequential corrections.

[27] In her submissions, the respondent again focused largely on Anthony’s anxiety and the alleged connection of an increase in it with access. She sought the termination of access or, if termination of access was impossible, the reduction of access time at the very least.

The Reports of the Office of the Children’s Lawyer (OCL)

[28] The OCL has submitted two reports.

[29] The first report, from October 31, 2016, was by clinician Holly Potello. It is now dated, but provides useful background information which helps in understanding the current situation.

[30] Its recommendations included:

1. Increased involvement of the applicant in the parenting of the child.
2. A gradual expansion of access, unsupervised, including overnights.
3. Seeing how Anthony tolerated the access.
4. The use of a parenting coordinator or similar professional to assist the parties and child.

[31] The second OCL report, dated August 20, 2018 was by clinician Catherine Bobula, R.N. It was requested by the case management judge, Tremblay J., as an update to the first report. It is very helpfully organised, setting out each party’s issues and concerns with respect to the child, and the other’s response, point by point. The report notes that the respondent does not want the child to have a relationship with his father, the applicant, does not believe that he needs his father, does not believe that visits between the father and child are of any benefit to the child, and does not want the father attending events at the child’s school.

[32] The concerns that the respondent and her parents express in opposition to the applicant’s access were explored, with important factual and logical errors being pointed out.

[33] Ms. Bobula reported that she interviewed each of the parties, observed the child’s interaction with the respondent at home and with the applicant during access, and interviewed the child alone. Information was also received from a variety of other identified sources. The information obtained tends to contradict that of the respondent mother and undermine her concerns with respect to the child having a relationship with the applicant. Indeed, the respondent’s own mental health concerns such as anxiety and behaviours consequent to it are identified as being behind some of her expressed reservations about access. However, the respondent is given credit for being proactive and getting resources and support for the child.

[34] Ms. Bobula reported positively on the applicant’s interaction with Anthony in access, and on the boy’s reaction to it. She described John Anthony as happy, engaged, affectionate and excited to be with his father, and said that Anthony started to cry at the end of access, not wanting his daddy to go.

[35] Ms. Bobula’s recommendations included joint custody, unsupervised access expanding in steps to week about after three months, and a sharing of the holidays.

[36] Tremblay J. sought on October 3, 2018 further OCL involvement in the matter. He noted that:

Both parties are self-represented, and I am concerned that, despite their best efforts, they may not be able to bring all the relevant evidence and issues to the attention of the trial judge on the issues of custody and access. The child’s lawyer would be of great assistance in this regard. The child’s lawyer would also have the ability to share the views of the child in an appropriate and objective manner in this high conflict case.

Unfortunately, the OCL declined on November, 2018 because it had not received intake forms from the parties. The parties are encouraged to rectify this and file their intake forms. The involvement of the OCL is very important in this case for the reasons set out by Tremblay J.

[37] The respondent sent a letter dated December 1, 2016 to the OCL disputing numerous points in the first OCL report. I have reviewed each of these. A substantial number are corrections of spelling, grammar and inconsequential facts, queries, or matters of opinion. None appear to be significant enough to detract from the overall thrust of the report. The OCL responded, agreeing to inconsequential corrections, but noting that there were no factual errors and that no additional information had been provided that would cause it to change its recommendations.

[38] The respondent filed a lengthy affidavit in response to the second OCL report. It goes beyond disputing the report to accusing the OCL of bias against her, dishonesty, negligence, a lack of integrity, manipulation of information, and failing to take the impact that has on children’s lives and well-being seriously! I cannot accept this as accurate. The OCL is seen as a valuable resource in part because it can provide an unbiased third party view of a family situation when there is conflict and possibly bias or self-serving information from the parents in a dispute over children. Furthermore, there is no explanation given as to why in this case or any case the OCL would choose to favour one side over the other and go to such lengths to do so. In response, the OCL agreed to some inconsequential corrections, and briefly responded to some of the respondent’s points. Again, it indicated that the report contain no further factual errors nor had additional information been put forward that would cause the OCL to change the contents or recommendations of the report.

Analysis

[39] There was no dispute by the respondent that the applicant’s relocation to the area was a material change in circumstances. The argument was about what access there should be in light of that.

[40] This is a high conflict case. The respondent mother left with the infant child without notice to the applicant father, alleging serious misconduct on his part. It would have been appropriate to deal with the matter in Alberta, where the parties and child had lived, but the respondent chose to leave there for Ontario. Some of the steps that the applicant father then took through the courts appeared surreptitious, as previously mentioned. These were commented on my decision that found that the case should be dealt with in Ontario, not in Alberta. Neither side has acted above reproach.

[41] The OCL’s Katherine Bobula addressed the conflict in the discussion section of her report, stating as follows:

Ms. Geurts is not supportive of John Anthony’s relationship with his father. She expressed that her preference would be that John Anthony have no contact whatsoever with his father, including phone calls, as she explains that this would only increase John Anthony's anxiety. She shared that John Anthony hides and his anxieties heighten. However, Mr. Guillemaud explained that he only had one call with John Anthony, which occurred a long time ago, after which the mother changed her phone number and no further telephone communications occurred between he (sic) and his son.

Ms. Geurts reported that John Anthony had to miss his activities, such as swimming and gymnastics, and blamed Mr. Guillemaud. However, in asking for an explanation, Ms. Geurts stated that because court was scheduled on a Thursday and Mr. Guillemaud would be in town to attend court, she didn’t want to chance seeing Mr. Guillemaud in town, so she kept John Anthony home. It appears that Ms. Geurts’ anxiety was the reason John Anthony did not attend his activities, which impacted the child and his scheduled activities, as opposed to Mr. Guillemaud.

[42] This impacted on her recommendations:

Joint custody is respectfully recommended, as sole custody would be problematic and not in the best interest of the child. There is a risk that the mother would exclude the father from John Anthony's life, which is what the mother wants and has been doing. Ms. Geurts is requesting the termination of the access visits between the father and the child, and minimizes the father's importance in John Anthony's life by referring to the father as the child's "playmate", and adds that "the child receives no substantial benefit from a playmate that gives presents each visit".

The father is willing to participate in his son's assessments and meet with those involved with his son in order to better understanding (sic) and support his son. The father appears capable of making decisions and is willing to communicate with the mother in a form that she is comfortable with for their son's best interests, such as talkingparents.com.

[43] In addition, the maternal grandparents, with whom the respondent and child live, are closely involved in the case. Unfortunately, there is evidence that they are not tempering the conflict. It is quite the opposite. Again, Ms. Bobula addressed this in her report, saying:

The maternal grandparents do not speak in positive terms of Mr. Guillemaud and shared that they may have spoken in negative terms of Mr. Guillemaud in the presence or within hearing distance of John Anthony and not realize it. Mr. Geurts has very strong views regarding Mr. Guillemaud and expressed that Mr. Guillemaud "is not a father" and that "we are not the problem, he is", referring to Mr. Guillemaud. There has been conflict between Mr. Geurts and Mr. Guillemaud to the extent that Mr. Geurts was issued a verbal "no trespass" in 2015 by the Ontario Provincial Police.

[44] Nevertheless, the matter has settled into the routine of supervised access to the applicant which has gone on since 2014. Two points stand out here. One is that the applicant never gave up. He continued to travel with some frequency and regularity from Alberta to Northern Ontario for short periods of access. The cost of that for items such as airfare, motor vehicles, accommodations and meals must have been enormous. I think that that shows an impressive dedication to his son.

[45] The other point is that supervised access is not intended to be a permanent solution to a perceived access problem in the vast majority of cases. It is, rather, a temporary solution from which a case moves on. It is highly unusual for access to continue at a supervised access centre for the length of time that it has in this case.

[46] It is clear that the respondent would prefer to terminate access. Her second choice would be to reduce it as much as possible. That approach is inconsistent with the law on access. Access, properly seen as the right of a child to have a relationship with a non-custodial parent, is to take place and is to be maximized unless it is not in the best interests of the child. The respondent has taken the position that Anthony’s interests would be best served by terminating or at least reducing the applicant’s access because, she says, it would reduce the child’s anxiety. However, there is insufficient evidence to support this position. Dr. Tashima, Anthony’s psychiatrist, was explicit in his report of October 6, 2018, that he was doing a clinical assessment of Anthony, not a custody and access one, and could not comment very specifically on these issues. He did write that he was hopeful that the applicant would recognise that Anthony has anxiety issues and that, if he had further contact with Anthony, he would support the child in separating with each of his parents in an appropriate manner.

[47] Both OCL reports considered the matter of Anthony’s anxiety along with other concerns expressed by the parties. Having done so, both recommended increasing amounts of unsupervised access, graduating to overnights in short times. As previously noted, the respondent disputed both, but the OCL basically stood by the reports. It is instructive that the reports were done about two years apart, in 2016 and 2018, respectively, by two different clinicians, but they came to similar conclusions. In that way, they appear to be mutually re-enforcing of their credibility and reliability. By law, they form part of the evidence in this case. As the parties themselves have not produced a lot of current information about the needs of the child and how to craft access to his benefit, the OCL’s reports have been very helpful.

[48] That Anthony experiences anxiety is a major theme in this matter. He was reportedly diagnosed with separation anxiety disorder by the above-mentioned Dr. Teshima, a child psychiatrist, in December, 2015, before he was 4 years old.

[49] The 2016 OCL report states that Anthony could not be interviewed independently by the clinician due to his inability to be away from the respondent or being left in a room with a stranger. In contrast, the clinician also reported on the happy and affectionate interaction Anthony and the applicant had during access.

[50] That report noted the respondent’s concern that the applicant did not understand or believe that Anthony had any issues. However, information about these issues had only been provided through court documents. The applicant had no other information about them to speak to the professionals involved about. Communication between the parties was said to be “non-existent”. It seems illogical to not to provide the applicant with the necessary information, but then criticize him for his ignorance on point. However, the report also notes that the respondent “is concerned about (the applicant’s) independent access to this information and questions if he will challenge the professionals or try to refute the information instead of working with the professionals to assist John Anthony”.

[51] This approach by the respondent both ignores the legal rights of the applicant as an access parent to make enquiries and to be given information as to the health, education and welfare of a child, and assumes that the applicant will not play a constructive role in Anthony’s life despite indications to the contrary.

[52] The author of the second OCL report also was aware of Anthony’s diagnosis of separation anxiety, but noted that he did not express anxiety about the access visits. To the contrary, she noted that, “… at the age of 6, John Anthony has developed into an articulate young boy, who gives eye contact, who can play alone or with others, welcomes new people, and had been observed to be able to be away from his mother during his visits with his father and when attending school for example. Dr. Teshima, who assessed John Anthony in 2015, adds “there does not appear to be any evidence that his interactions with his father during the supervised visits are significantly inappropriately (sic) or stressful”.

[53] She dealt at length with the topic of Anthony’s anxiety, using information from her own observations and from others such as the local child protection agency and Anthony’s school principal. She found that “the separation anxiety that John Anthony experiences is associated with his separation from his mother and not his father”, and that “(p)roviding John Anthony with time with his father may dissipate this anxiety”.

Final Order

[54] Applying the law to the facts of this case and taking into account the OCL’s recommendations, I make the following temporary order:

1. The child shall continue to have his principle residence with the respondent.
2. Commencing on the first weekend of April, 2019, access shall be as follows: (a) For the first month, Anthony shall have access to the applicant on alternate weekends with 6 hours on Saturday and 6 hours on Sunday from 11:00 a.m. until 5:00 p.m., with the exchanges to occur at the supervised access centre in New Liskeard. (b) For the second month, Anthony shall have access to the applicant on alternate weekends starting Saturday at 2:00 p.m. until Sunday at 3:00 p.m., with the exchanges to occur at the supervised access centre in New Liskeard. (c) For the third month and thereafter, Anthony shall have access to the applicant on alternate weekends starting on Fridays after school, with the applicant picking Anthony up at school, until Sunday at 6:00 p.m. with the drop off at the supervised access centre in New Liskeard. (d) Anthony shall spend Mother's Day with the respondent from 11:00 a.m. regardless of the access schedule, with the exchange to occur at the supervised access centre in New Liskeard. (e) Anthony shall spend Father's Day with the applicant from 11:00 a.m. until 6:00 p.m. regardless of the access schedule, with the transfer to occur at the supervised access centre in New Liskeard. (f) In the event that Anthony is not in school on a day that an access exchange is to take place at school, the parties shall arrange for the exchange to be at a similar time at the supervised access centre in New Liskeard or, if that is not available, at the Tim Horton’s on Highway 65/Armstrong Street, New Liskeard, Ontario.
3. The maternal grandfather, Martinus Geurts, is not to be present during any of the exchanges.
4. The respondent shall provide the applicant with Anthony's likes, dislikes, sensitivities, quirks, favorite foods, routine, behavioral challenges and how to support them, and any other information that will assist the applicant in supporting Anthony.
5. Both parties shall have the right to attend Anthony's activities at school and in the community.
6. The parents shall not involve Anthony in the adult conflict and shall not speak in negative terms of the other parent in the presence of the child or to the child, nor allow others to do so.
7. Anthony's identification cards such as his health card and his birth certificate shall go with him to his access visits.
8. Should Anthony require medical care, the other parent shall be notified as soon as possible.
9. The parties shall inform each other of all appointments and consultations involving Anthony within 24 hours of receiving notice of the appointment or consultation.
10. The applicant shall not remove the child from the District of Temiskaming without the written permission of the other party which shall not be unreasonably withheld, or without further order of this court.
11. The applicant has the right to make inquiries and to be given information as to the health, education and welfare of the child, including by direct communication with the relevant professionals and service providers.
12. The OPP or other police force having jurisdiction in any area where it appears that the child may be shall assist the parties to comply with the terms of this order, if necessary.
13. Both parties are to provide the other with their current contact information so that they can be reached at all times that it is reasonable to do so regarding the child.
14. When he is with one parent, Anthony shall be allowed to initiate reasonable contact with the other parent by telephone or other electronic means, with the assistance of the parent that he is with at the time.
15. The applicant shall be permitted to initiate contact with Anthony, limited to 10 minutes in duration at a time, by telephone or other electronic means, twice per week when Anthony is not in the applicant’s care.
16. The respondent shall be permitted to initiate contact with Anthony one time, limited to 10 minutes in duration, before Anthony’s bedtime on evenings when Anthony has overnight access to the applicant.

[55] It is recommended that the parties engage such parenting and other experts, participate in such counselling and employ such communication tools as will assist them in parenting their son and minimizing conflict.

The Honourable Justice James A. S. Wilcox Released: March 18, 2019 Corrected Decision Released: March 20, 2019

Footnotes

[1] R.S.O. 1990 c.C. 12 [2] McGyver v. Richards , [1995] O.J. No. 770 at para. 38 and Kagan v. Kagan 2010 ONSC 5965 , [2010] O.J. No. 4757 at par. 83 [3] Young v. Young , [1993] S.C.J. No. 112 (Supreme Court of Canada) ; Gordon v Goertz , [1996] 2 S.C.R. 27 (Supreme Court of Canada) and Woodhouse v. Woodhouse , [1996] O.J. No. 1975 (Ontario Court of Appeal) [4] S.M.H. v. J.M. [2000] N.S.J. No. 128 para. 27 [5] Gordon v Goertz , [1996] 2 S.C.R. 27 (Supreme Court of Canada) ; Woodhouse v. Woodhouse , [1996] O.J. No. 1975 (Ontario Court of Appeal) at par. 33 ; Kagan v. Kagan 2010 ONSC 5965 , [2010] O.J. No. 4757 at par. 77 [6] Pastway v. Pastway (1999) 49 R.F.L. (4 th ) 375 (Ont. General Division) [7] Jafari v. Dadar [1996] N.B.J. No. 38 (N.B.Q.B.) [8] M.A. v. J.D. , [2003] O.J. No. 2946 (OCJ) [9] Carroll v. Carroll [1992] N.B.J. No. 109 [10] Martin v. Martin (1998) , 42 R.F.L. (4 th ) 251 (N.L.F.D. CA) ; cited in Kagan v. Kagan 2010 ONSC 5965 , [2010] O.J. No. 4757 , para. 84 ; [11] Najjardizaji v. Mehrjerdi 2004 ONCJ 374 , [2004] O.J. No. 5472 (OCJ) [12] Scrivo v. Scrivo , 2012 ONSC 2727 , 2012 CarswellOnt. 5545 ; Tran v. Chen , 2012 ONSC 3994 , 2012 CarswellOnt. 8551 [13] Parks v. Parks [200] O.J. No. 2863 (S.C.)