COURT FILE NO.: FC-17-2507 DATE: 2019/03/25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.L., Applicant -and- L.L., Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Karla Policelli, for the Applicant Daniel Nugent, for the Respondent

HEARD: March 21, 2019

Pursuant to the order of Sheard J. on December 7, 2017, a non-publication order was made under s. 70 (b) of the Children’s Law Reform Act, RSO. 1990, c. C. 12, as am, in which no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file.

Endorsement

[1] This is a motion brought by the Respondent L.L. for supervised access. For the reasons below, L.L.’s motion for supervised access is dismissed.

Background

[2] The parties are the parents of two children, twins, now age 9. They reside with their mother, the Applicant.

[3] The parties separated in July of 2014. L.L. exercised regular access after separation until November 23, 2017. He has not had any access since November 23, 2017.

[4] On November 23, 2017, L.L. was charged with possession and distribution of child pornography. He states that the distribution charge has been withdrawn. The possession charge is still outstanding although he has provided a letter from a social worker that states he “acknowledges that his crime (possession and distribution) was wrong.” L.L. has not provided evidence of when the criminal charges are expected to be resolved.

[5] A.L. commenced this Application on December 4, 2017. On December 12, 2017, on an urgent motion, Justice Doyle made a Temporary Order that A.L. have sole custody of the children, with no access to the Respondent pending further order of the Court. The Respondent had notice of this motion but did not participate or file responding material.

[6] L.L. filed his Answer on October 23, 2018. He required an extension of time to do so, which was first sought in court filings dated September 20, 2018. The first court filing signed by L.L. is his affidavit sworn September 19, 2018, in which he states that his delay in responding was due in part to his depression and that he could not deal with the criminal matters, the various treatment he was doing, and the family matter all at the same time. L.L.’s sworn affidavit includes that when he first retained counsel, he was “too emotionally overwhelmed to give or receive instructions properly”, and that he was “shutting down emotionally and mentally”.

[7] L.L. now seeks supervised access through the Supervised Access Centre. The Centre has a waiting list. Pending access at the Supervised Access Centre, L.L. seeks access supervised by his court outreach worker. L.L. states in his affidavit that if he is forced to wait for supervised access “[the] children and I may miss our opportunity to have access” which suggests that he is anticipating a period of incarceration as a result of the criminal charges.

[8] L.L. is also subject to a number of conditions of release under his Recognizance of Bail. These include not to be in the company of or communicate, directly or indirectly, by any physical, electronic or other means with males or females under the age of 16 years, unless in the direct presence of that young person’s parent or legal guardian. There is no exception to this prohibition for L.L. to have access to the children.

Positions of the Parties

[9] L.L’s position is that he should have supervised access to the children because:

• He exercised regular access to the children prior to November 23, 2017 and was a very involved parent;
• His criminal charges do not relate to the children; and
• Any potential risk to the children is safeguarded by the supervision provided through the court outreach worker, and then the Supervised Access Centre.

[10] With respect to the terms of his recognizance, L.L. states he is not seeking an order requiring A.L. to supervise the access. Given this, any access would need to be subject to L.L. first obtaining a variation of the terms of his recognizance.

[11] L.L. has not provided any statements in his affidavit material as to how or why such access is in the best interests of the children, including how to reintroduce his access to the children, or a plan for how the best interests of the children will be served going forward, in particular due to the uncertainty of the criminal proceedings.

[12] A.L. opposes any supervised access at this time. Her position is that the criminal charges against the Respondent raise significant areas of concern that impact on the children’s best interests. There are additional concerns due to the information L.L. has provided on his mental health. A.L. states that further disclosure is needed to assess these concerns, and that it is premature for supervised access to take place at this time.

Analysis and Disposition

[13] This Application is under the Divorce Act [1]. Section 16(2) of the Divorce Act provides that the court may make an interim order respecting custody of or the access to any or all children of the marriage pending determination of the application. The sole consideration is the best interests of the children of the marriage as determined by the conditions, means, needs and other circumstances of the child.

[14] I have also considered the provisions of s.16(9) and (10) of the Divorce Act.

[15] There is a significant basis for concern with respect to the Respondent’s access to the children. The children have not had any access to the Respondent since November 23, 2017. One child is dealing with some anxiety issues. No doubt, recent events have been stressful for all members of the family. I am concerned with how and when access should best be reintroduced, particularly given the uncertainty surrounding the Respondent’s current mental health and whether any renewed access would only be interrupted again if he is sentenced to a period of incarceration. Any reintroduction of the Respondent’s access to the children needs to be carefully tailored based on all of the relevant information being known so that a solid plan for access that is in the children’s best interests can be put in place. I am not prepared to order any interim access until this information is provided.

[16] I am also very concerned that I do not have any evidence before me on the views of the children. When I raised this, both parties advised that they would agree to an order requesting the involvement of the Office of the Children’s Lawyer, although L.L. did not want such involvement to delay him exercising supervised access. Given my decision on the access issue, I am making an order referring this matter to the Office of the Children’s Lawyer as set out below.

[17] I do want to be clear that the concerns with respect to the Respondent’s access include the risk posed by the Respondent to the children, given the nature of the charges against him and his past criminal conviction. I acknowledge that the Respondent’s charges do not relate to incidents involving his children, but the nature of these charges is very concerning. In addition, the records of the Children’s Aid Society of Ottawa which record that the children reported having secrets with their father, as well as other reports, further support adopting a cautious approach.

[18] At this time, there is also significant disclosure that is relevant to the best interest of the children that has not yet been produced, although it has been requested. This includes the records from the Children’s Aid Society of the District of Sudbury and Manitoulin that include records related to the Respondent’s prior conviction for sexually assaulting a minor. An order for the production of these records was made on January 9, 2019 but the Society objected to the wording of the order. At the hearing of this motion, L.L. stated he consented to a new order being granted for this disclosure, with the wording sought by A.L., and an order will issue as set out below for these records.

[19] Other disclosure that is relevant and which has not been produced includes disclosure relating to the Respondent’s current medical status, his progress with treatment and current mental health stability. The Respondent himself has raised that the reason why he was not able to participate in these proceedings before September 20, 2018 was because he suffered from severe depression, PTSD and severe anxiety. He states that he has been in treatment and is “in a better place emotionally and mentally to fight” for the children, but provides no particulars beyond this statement. At the same time, he states he continues to suffer from severe depression, PTSD and anxiety, and that he is unable to work due to these issues.

[20] There are other factors that support concerns regarding L.L.’s present state of health. For example, L.L. has not yet filed a financial statement in these proceedings. This statement should have been filed almost 14 months ago. He states he has been unable to do so because he has not been able to file his taxes, even though the Family Law Rules [2] provide mechanisms for filing financial statements even if tax returns are not available.

[21] L.L. has provided confirmation that he has been in treatment through the letter signed by the social worker. This letter, which is dated October 1, 2018, does not, however, provide any information on the Respondent’s diagnosis, prognosis, or his current health and status. The letter is also not a sworn affidavit, but simply a letter attached to L.L.’s own affidavit, which limits the weight it can carry and although the writer states at the end of the letter that in her professional opinion L.L. should have access to the children, this is not an admissible opinion. No information has been provided on the writer’s qualifications to provide such an opinion, nor the information upon which the opinion is based, nor is this opinion offered in a format available for cross examination. There is no indication if this opinion is purported to be in the best interests of the children or in the interests of L.L. L.L. has also refused to produce the underlying records relate to this opinion.

[22] L.L. states in his affidavit that the Children’s Aid Society of Ottawa has investigated the matter and “recommended that [L.L.] see [his] children in a supervised setting.” This misrepresents the content of the letter from the Society dated September 6, 2018, which mirrors the content of the previous letter provided to A.L. dated December 19, 2017. In the letter, the Society indicates that it is satisfied with the intervention of A.L. to protect the children, that due to the risk posed by L.L. it does not support unsupervised access, any access that does take place should be supervised, and that A.L. should not be the supervisor. This does not amount to the Society recommending supervised access.

[23] Lastly, L.L. has proffered his court outreach worker to act as an interim supervisor pending the availability of access through the Supervised Access Centre. While it is admirable that the worker is agreeable to acting in this capacity, no material has been provided demonstrating her qualifications or experience to act as a supervisor for access, let along in these complex circumstances.

[24] I also comment on the decision in S.M. v. N.J.M.T., [2017] O.J. No. 4719, upon which L.L. relies. That case is distinguishable on its facts in many ways from the case at bar, including that the Respondent had already been exercising supervised access to the child after being charged, there is no reference to the Respondent having a history of similar offences and mental health difficulties, and there is no reference to concerns about a child’s special needs. In any event, the sole consideration is the best interests of the children, as determined by the conditions, means, needs and other circumstances of the children. This involves a fact specific, evidence based analysis that is specific to the circumstances in this case, and the specific needs of the children in this case.

[25] I find, based on all of the evidence before me, that interim access at this time, even if it is supervised, is not in the children’s best interests.

Amended Answer

[26] L.L. seeks leave to amend his Answer within 30 days. L.L. has not provided a draft amended Answer. A.L. raises that depending on the nature of the amendments, she may seek costs.

[27] I will not deal with this motion at this time. If the parties are unable to agree on this issue, the question of whether L.L. should be given leave to amend his Answer and any prejudice or costs that may be payable as a result should be addressed on the same motion, once a draft Amended Answer has been provided.

Financial Statement

[28] L.L. seeks additional time to file his financial statement. There was some discussion on this issue, and why he has not been able to file a financial statement to date, as referenced above. L.L. states he will file his income tax returns and his sworn, complete financial statement within 30 days. This order is granted.

Disclosure

[29] A.L. has requested various disclosure from L.L. but to date this has not been provided. There is no motion before me for this disclosure. A.L. states she intends to bring a motion if the disclosure is not forthcoming, but did not have sufficient notice to do so at the hearing of this motion.

Form 35.1’s

[30] Affidavits in Support of Claims for Custody or Access (Form 35.1s) are required to be filed by both parties pursuant to the Family Law Rules [3]. Both parties have done so but both have deficiencies. In particular, the form requires answers be provided to all of the questions under Part A. Questions that are left blank, struck out, marked “n/a”, or “not applicable” are deficient and must be corrected. For example, the appropriate response may be to provide the requested particulars or stipulate “no”, or “none”. In addition, there are inconsistencies in how L.L. describes his previous criminal conviction in his Form 35.1 from the information in the Society’s records.

[31] Both parties are required to file new updated and complete Form 35.1s within 30 days.

Orders Made

[32] Accordingly, for the reasons set out above, I make the following orders:

1. L.L.’s motion for interim supervised access is dismissed.
2. There will be an order that this matter be referred to the Office of the Children’s Lawyer to provide such services under s.89(3.1) and s.112 of the Courts of Justice Act [4], as she deems appropriate.
3. There will be an order for the production of the records of the Children’s Aid Society of the District of Sudbury and Manitoulin in accordance with the draft approved by the Society and provided to L.L.’s counsel on February 8, 2019. A clean copy of this order to be provided to me through the Trial Coordinator for signing.
4. L.L. to complete his income tax return filings as soon as possible and no later than 30 days from today’s date.
5. L.L. to file his sworn, up-to-date and complete financial statement as soon as possible and no later than 30 days from today’s date.
6. Both parties are required to file new updated and complete Form 35.1s within 30 days.

Costs

[33] If the parties are unable to agree on costs of this motion, A.L. may file submissions with respect to costs on or before April 3, 2019. L.L. may file submissions with respect to costs on or before April 12, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs, and shall be spaced one point five spaces apart, with no less than 12 point font.

Date: March 25, 2019

Justice P. MacEachern

COURT FILE NO.: FC-17-2507 DATE: 2019/03/25 ONTARIO SUPERIOR COURT OF JUSTICE RE: A.L., Applicant -and- L.L., Respondent BEFORE: Justice P. MacEachern COUNSEL: Karla Policelli, for the Applicant Daniel Nugent, for the Respondent ENDORSEMENT Justice P. MacEachern

Released: March 25, 2019

[1] Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am.

[2] Family Law Rules, O.Reg. 114/99 as am. For example, a party may bring a procedural motion (Rule 14(10)) to seek an order permitting them to file their financial statement without the required income tax returns with an affidavit in support explaining the reason why this information is not available and an undertaking to take steps to ensure it is available, and filed, at the earliest opportunity.

[3] Family Law Rules, O.Reg. 114/99 as am., rule 35.1

[4] Courts of Justice Act, R.S.O. 1990, c.C.43, as am.