Court File and Parties
Court File No.: FC-16-1024-1 Date: 2019/07/23 Superior Court of Justice - Ontario
Re: Corey Michael David Demerse, Applicant And: Jennifer Colleen Aubry, Respondent
Before: Justice A. Doyle
Counsel: Stephane MonPremier, Counsel, for the Applicant Self-Represented
Heard: July 23, 2019
Endorsement
[1] The applicant father brings a motion to enforce the Final Order of Justice Engelking (Final Order) dated February 27, 2017 which provides parenting time with his daughter, Bre, born August 12, 2012 for 4 consecutive weeks each summer in Surrey B.C. where he resides.
[2] On July 16, 2019, Master Kaufman granted him permission to bring this motion on an emergency basis before a case conference was held, as he had been denied access by the mother upon his arrival in Ottawa on July 3, 2019.
[3] Bre resides with the respondent mother in Ottawa and the motion opposes this motion indicating that the child is at risk due to an incident that took place last summer in B.C. when the father allegedly threw the child on the bed. The mother has brought a motion requesting an Order that the father has supervised access which is to take place in Ottawa and that the father take anger management courses.
Background
[4] The Final Order which was on consent provided that the child would live with her mother in Ottawa and the father would have time with her at Christmas, March Break and 4 weeks in the summer. He also had contact with telephone or Skype contact.
[5] The father has had regular Skype with her three times per week and there has never been any mention of any concerns regarding his care of Bre until recently.
[6] In May 2019, the mother indicates that the child told her that she loved her father even though he hurt her. Bre alleged that the previous summer, her father threw her on the bed and she hurt her back or knee. The mother called the Children’s Aid Society (CAS) and the child did not disclose anything during an interview with the child at the home. Bre did disclose the incident in a subsequent meeting with the worker at the school.
[7] The father commenced a motion to change the Final Order on June 7, 2019 requesting, among other things, specifying March break time with Bre and obtaining information regarding the child from the mother. He had previously written to the mother’s counsel outlining his concerns regarding the mother not providing information regarding Bre and changing her school without notifying him.
[8] The motion to change was served on the mother on June 24, 2019.
[9] On June 25, 2019, the mother wrote to the father indicating that the CAS was investigating the matter of possible physical assault and that due her safety concerns, he would not have his time with Bre in B.C.
[10] The CAS sent an email dated June 28, 2019, indicating that since the alleged perpetrator lives in another jurisdiction, the CAS was not in a position to investigate and that they contacted the CAS in the father’s jurisdiction. In addition, they would be closing the file and that they would not be taking a position regarding the father’s time with Bre.
[11] The mother indicates that she was planning to commence her own motion to change but she was waiting for a letter from the CAS to support her position.
Legal Principles
[12] The determination of custody and access must be determined in accordance with the child’s best interests.
[13] The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz, [1996] 2 S.C.R. 27.
[14] In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks.
[15] As stated by Justice McDermot in Michener v. Carter, 2018 ONSC 2780, at para. 31: “The case law is clear that there is a positive obligation on a custodial parent to do all that he or she can to ensure that a reluctant child attend on an access visit.” He refers to the Ontario Court of Appeal decision of Godard v. Godard, 2015 ONCA 568 at para 28 where the Court states: “…once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child.”
Analysis
[16] For the reasons that follow, the child will travel to B.C. from Friday July 26, 2019 to Friday August 23, 2019. The mother’s motion is dismissed.
[17] Firstly, the Final Order is still in full force and effect and the mother is not in a position to arbitrarily to deny access. Despite her best efforts, she did not bring a motion to change nor bring an emergency motion to deal with her concerns. Until she does so, the Final Order must be complied with.
[18] Secondly, the Court is not prepared to deny access to the father or restrict his time with Bre, based on hearsay statements contained in the mother’s affidavit.
[19] The CAS has chosen not to investigate nor has the police decided to pursue an investigation.
[20] The full circumstances of the disclosure by the child to the mother have not been provided. The CAS has chosen not to become involved and have closed their file without any direction as to what father’s access to the child should be. The CAS says the CAS in BC should investigate, but the Court notes that the child resides here in Ottawa, and to that extent the CAS could take some action if the situation warranted it.
[21] It is not clear what the circumstances were when the child was allegedly thrown by the father on her bed and whether it was part of a playful activity or clearly an assault to injure the child. The father has not been charged nor has the CAS commenced an application.
[22] With respect to the risk to the child, the Court considers the Supreme court of Canada’s decision in Young v. Young, [1993] 4 S.C.R. 3:
139 [The] court must determine, based on a consideration of the evidence as a whole, the existence and the extent of any “risk of harm” to the child. It requires the court, regardless of whether the evidence meets the civil standard of proof, to consider all the evidence and circumstances to assess the existence and the degree of risk to the child of harm (whether because of alleged sexual abuse or some other alleged reason). The court’s determination of the existence and degree of risk of harm to the child will fall along a continuum from no risk to a certainty the risk will materialize. The court, where there is any possibility the risk may materialize, will also have to consider the degree of harm to the child if the risk materializes. Where this risk of harm falls along this continuum will determine the weight to be given to this factor. This is then only one factor in determining what is in the best interests of the child. The court must also go on to consider any other risks of harm (and the degree of those risks) to the child and any benefits (and the degree of those benefits) to the child of the proposed order with the ultimate goal being the determination of what order will be in the child’s best interests going forward.
[23] The Court finds that there have been ongoing issues between the parents since the Final Order and animosity has not subsided. Based on paragraph 31 of the affidavit of the father dated May 7, 2019 in support of his motion to change, he continues to face challenges in dealing with the mother in obtaining information, health card for visits and accommodating March break.
[24] While this litigation continues, the Final Order shall be respected until a further Order of this court. At this time, based on the evidence before me, I am not prepared to change the terms of the Final Order. It is in Bre’s best interests that she have her regular summer time with the father. Obviously as a result of the contact from the CAS in Ottawa, if the BC social services have concerns, then the matter can be returned to Court.
[25] Accordingly, the father will have his parenting time in B.C. for 4 weeks from Friday July 26, 2019 to Friday, August 23, 2019 and the mother shall deliver the child to the Ottawa airport as per the father’s email instructions regarding the flight times.
[26] Neither parent will discuss the current litigation with the child.
[27] In the event of a breach of this order, the matter may be brought back before the court on an urgent basis to contemplate the inclusion of a police enforcement clause.
[28] Costs of this motion and the travel costs incurred by the father are reserved to the trial Judge.