Court File and Parties
COURT FILE NO.: FC-16-1805-1 DATE: 2019-07-22 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: KEVIN ANTHONY TRACY, Applicant AND JENNIFER LEE TRACY, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Deborah E. Bennett, for the Applicant Leighann Burns, for the Respondent
HEARD: In writing
Costs Endorsement
[1] On January 15, 2019, Justice Minnema granted the applicant father access to his two daughters, Aurora Eire Tracy (born on November 24, 2003) and Trinity Jennifer Tracy (born on August 31, 2007). The applicant has not seen the children since separation, July 13, 2016, three years ago.
[2] The order provided that steps would be taken to initiate that access. These steps included permitting the applicant to write letters to the children, permitting him to communicate with the children by text message and then proceeding to one hour supervised visit by the Joy, Health and Research Centre. Subsequent to that reintroduction, the order provided for further supervised visits with the children twice a month. The order then granted leave to the parties to bring a motion with respect to the implementation of that order. It also provided that the applicant could bring a motion after four months, to seek additional access.
[3] Despite that order, the applicant was not reintroduced to his daughters. He accordingly brought a motion for an assessment and for directions. That motion was filed in April 2019 but was not heard until June 27, 2019.
[4] Mr. Tracy sought the following relief: a) an order that the parties undergo a parenting assessment to be completed by Ms. Chantal Bourgeois with payment of the assessment being shared equally between the parties and withdrawn from the funds currently held in trust; b) an order that the supervised access visits, as set out in the order of Justice Minnema, commence on an immediate basis; c) costs of the motion on a full indemnity basis based on the conduct of the respondent.
[5] The respondent brought a cross-motion wherein she sought: a) a restraining order; b) an updated OCL report; and c) a Voice of the Child report.
[6] At the outset of the motion, I advised the parties that I would not order an assessment nor would I order and updated OCL report or a Voice of the Child report. This matter is scheduled for trial for the sittings commencing September 23, 2019. Further assessments or reports would only delay the trial and it would not be in the best interests of the parties, particularly the children, to delay this matter any further.
[7] I dismissed the respondent’s motion for a restraining order as there was no evidence to support that request. I did order relief in the form of directions to the parties in order to give effect to the order of Justice Minnema. I conclude that the applicant experienced some success on the motion.
[8] The applicant father blames the respondent for frustrating Justice Minnema’s order. The respondent maintains that she was only taking reasonable steps given her concerns for her daughters and the abuse they have suffered at the hands of their father.
Disposition
[9] I am satisfied on the extensive record before me that the applicant has accepted responsibility for his mistakes. He has sought help. He is remorseful and is desperate to have a relationship with his daughters. The right of the children and parents to be in a relationship with each other is a foundational element of the Divorce Act, and specifically, the maximum contact principle. In light of the circumstances of this case, the applicant has taken a very reasonable approach to being reintroduced to his children.
[10] In the context of sending the initial letters to the children as contemplated in Justice Minnema’s order, the applicant contacted Aurora’s counsellor, Ms. Guevara. He viewed this as a child-friendly approach. In response, the respondent reported him to the police.
[11] According to the respondent, this contact was a breach of his probation order. She also reported that Ms. Guevara spoke to Aurora and, as a result, Aurora ended her relationship with Ms. Guevara and returned to her mother’s counsellor. There was no evidence from Ms. Guevara on this point.
[12] Arrangements for the first visit were further frustrated. Respondent’s new counsel sent a letter directly to the court approved access supervisor, without copying the applicant. The letter contained a list of 25 questions inquiring about the qualifications of the Centre. The Joy Health and Research Centre had already been approved as the access supervisor by Justice Minnema.
[13] In granting an order requesting that the OCL conduct a clinical investigation on October 24, 2017, Justice James noted the respondent’s preference for a no-contact regime. In her report, the clinical investigator, Darlene Bennett, noted that Aurora wanted to see her father for at least one visit and eventually more frequent contact. While Trinity did not want to see her father, she would consider doing so if she was assured by everyone that he is no longer violent. In their personal interviews, Aurora and Trinity expressed affection for their father. The investigator did not proceed with an observation visit between the applicant and his daughters. I leave that issue to the trial judge.
[14] I am satisfied on the evidence before me that the respondent is not willing to accept that the applicant may have changed. The respondent she has adopted an overly cautious approach to any possible strategy that could lead to the re-integration of the applicant into his daughters’ lives.
[15] This issue is of utmost importance to the applicant. Some access is necessary before the applicant father can proceed to trial where he is likely to be representing himself. While he did not enjoy complete success, I am satisfied that he is entitled to costs in any event of the cause which I fix in the amount of $2000. These costs will be paid after trial and from proceeds of sale of the matrimonial home being held in trust.