Court File and Parties
COURT FILE NO.: 18-272 DATE: March 21, 2019
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Henderson v Davis
BETWEEN: Kathryn Jean Henderson, Applicant AND: Jesse Gordon Floyd Davis, Respondent
BEFORE: Honourable Mr Justice Martin James
COUNSEL: Mike Conroy for the Applicant Susan Galarneau for the Respondent
DATE HEARD: March 15, 2019
Endorsement
James J
The following motions are before the court today:
(i) by Ms. Henderson a) an order that Mr. Davis comply with the access schedule b) an order appointing the OCL
(ii) by Mr. Davis a) leave to amend pleadings b) an order striking certain evidence from the court record c) an order that the parties’ son Hunter have no contact with Christopher Henderson, Ms. Henderson’s spouse
[1] Hunter is 10 years old. The parties have joint custody. Following a trial in 2015 Mr. Davis has been the primary parent with regular weekend access with Ms. Henderson who lives east of Ottawa. Mr. Davis resides in Petawawa, Ontario.
[2] Ms. Henderson has been married to Christopher Henderson since about December, 2012. He is a former member of the Canadian Forces and is now enrolled at Algonquin College in a social work program. Mr. Henderson suffers from multiple psychological ailments that include a history of substance abuse and severe PTSD. He has been treated by Dr. Genevieve Bouchard, a psychologist, since August 2017. She reports he has made good progress and does not display any symptoms or behaviours that pose a risk to himself or his family.
[3] Since about 2017, the child protection authorities in the area where Ms. Henderson resides (“Valoris”) have been involved with the Hendersons due to allegations of parental conflict and the risk of self-harm on the part of Mr. Henderson.
[4] Mr. Davies was not aware of the full extent of their involvement with Ms. Henderson’s family until recently when Valoris was ordered to provide him with a copy of their file.
[5] Ms. Henderson says that she and Mr. Henderson separated recently but he continues to reside at their home. She says he will be moving out in May.
[6] The Hendersons have had a tumultuous relationship, with several separations and reconciliations. Hunter reported to a Valoris worker that Mr. Henderson assaulted Ms. Henderson in his presence in 2017.
[7] Mr. Davis is concerned about Hunter’s well-being now that the full extent of the Valoris involvement has been disclosed. Ms. Henderson was unsuccessful in her opposition to the release of the Valoris file to Mr. Davis, underplaying the ongoing nature of their involvement in her submissions to the court in January of this year.
Interim Access Condition for No-Contact with Mr. Henderson
[8] The latest information is that Mr. Henderson is moving out sometime in May but the Hendersons have reconciled more than once in the past. Valoris does not have any child protection concerns at this time. Mr. Henderson’s psychologist has provided a positive report. I am not prepared to add a condition to Ms. Henderson’s access that there should be no contact between Hunter and Mr. Henderson but agree that on a temporary basis, Hunter cannot be left alone with Mr. Henderson.
[9] A hearing on the issue of Ms. Henderson’s motion to change the parenting arrangements is scheduled to proceed in April, 2019. Subject to the new condition, access is to resume immediately. The parties agree that a police enforcement clause is not necessary and probably wouldn’t be granted on these facts in any event. It may be prudent to require an update regarding Mr. Henderson’s residential arrangements after May 2019 as this may be relevant to the terms of Ms. Henderson’s parenting/access time with Hunter.
Amending Pleadings
[10] On consent, Mr. Davis shall be permitted to amend his pleadings as set out in paragraph 2 of the Notice of Motion. The amendment shall be completed by March 29 and Ms. Henderson shall have until April 5, 2019 to deliver a reply.
Should the Hearing Be Adjourned?
[11] Ms. Henderson recently retained Mr. Conroy as her legal counsel. He requests that if the pleadings are going to be amended, the hearing date currently set for April 15 should be adjourned. In my view there is greater prejudice in delaying the completion of this matter. Mr. Conroy has been aware of the request to amend pleadings for a sufficient amount of time to have considered how he wishes to respond and to put a reply in place comfortably in advance of the hearing date.
[12] Another factor is that with the Unified Family Court designation coming to this county in about 8 weeks, a unified family court calendar is not yet in place and at this time it is difficult to assess how long it would take to reschedule the motion to change if it got adjourned.
[13] It is desirable that the question of the parenting arrangements be resolved sooner rather than later. The request to adjourn the hearing is dismissed.
Ms. Henderson’s Request for the Appointment of the Children’s Lawyer
[14] While Ms. Henderson says that the involvement of the Children’s Lawyer would provide helpful evidence, Mr. Davis is opposed. His counsel, Ms. Galarneau, candidly acknowledges that if asked, Hunter might well say he is in favour of spending more time with his mother but the requirement of demonstrating a material change in circumstances and an assessment of what is in Hunter’s best interests are important factors as well. The situation is more complicated than simply determining Hunter’s views and preferences.
[15] I am not prepared to make an order appointing the Children’s Lawyer at this stage of the proceeding for the following reasons:
a) It is uncertain whether the OCL would choose to become involved as they only accept a portion of the total requests made; b) The hearing would have to be delayed without knowing that the OCL would come on board, and c) At an earlier stage of the proceeding, the parties agreed that a Voice of the Child report would not be requested.
Deletion of Paragraph 43, Henderson Affidavit sworn February 28, 2019
[16] On consent, para. 43 and Ex. Q contained in Ms. Henderson’s affidavit of February 28, 2019 shall be struck out.
Costs
[17] On a preliminary basis and without having heard from the parties, due to the split success on the motions, a no costs order may well be appropriate but if either party wishes to advance a claim for costs, they may do so within 15 days and the responding party shall have 15 days to reply.