SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-17-636-1
DATE: 2019/08/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tamara Marie Alexandra McAlpine
Applicant
– and –
Michael Joseph McAlpine
Respondent/Moving party
Self-represented
Teshebaeva, A., for the Respondent/Moving party
HEARD: August 8, 2019
endorsement
Madam Justice H. J. WilliamS
Background
[1] This is a motion by a father for a temporary order for unsupervised and overnight access to the parties’ two children, Matiah, born October 24, 2012 and Therion, born July 18, 2014.
[2] The father also requests an order to amend his notice of application to include a request for access to two other children who are the children of the mother and whom he describes as his stepchildren. The motion for leave to amend is opposed by the mother.
Background
[3] The parties separated when the father robbed a bank. The father pointed a firearm during the robbery. He used the family’s car to commit the robbery. The father was incarcerated. He was released to a halfway house but was incarcerated again for breaching a condition of his release.
[4] In an interim and without prejudice order dated January 28, 2019, Master Kaufman ordered supervised access every other Sunday from 11 a.m. to 6:30 p.m. for four visits followed by supervised access every Sunday. The father’s sister and brother were to supervise.
[5] The father is now seeking phased-in increased access that would eventually result in access every second weekend from Thursday after school until Sunday at 7 p.m.
The mother’s position
[6] The mother opposes the father’s requests. The mother submits that it is not in the best interests of the children for them to have either greater or unsupervised access to the father. The mother argues that the father’s access should be reduced. The mother would also like access to take place at an independent access centre.
[7] To her credit, the mother acknowledges that the two children love their father and that they have a great time when they are with him. She says that she has no problem with the concept of overnight or unsupervised access; she says that her other two children, who have a different father, regularly spend time with their father on an unsupervised basis.
[8] The mother raises the following arguments in support of her position that what the father is seeking would not be in the children’s best interests:
• The mother says she does not believe that the father is mentally stable or that he is at a low-risk to commit another crime; she says that a parole officer who said in a letter that the father does not present a risk to the children and is unlikely to re-offend was expressing an opinion beyond her area of expertise;
• The mother says that the father is unreliable. She says that since the date of Master Kaufman’s order, the father has canceled access visits. The mother says that the father is unable to commit to a schedule. She also says that he rarely uses all of his access time, typically dropping off the children before the scheduled end of the visit at 6:30;
• The mother worries about changes to the children’s routine;
• The mother says that the father does not live close to the children’s school and that the schedule he has proposed would be logistically difficult or impossible to adhere to once school starts in the fall;
• The mother says that there is nowhere for the children to sleep at the father’s mother’s apartment, where the father is currently living;
• The mother says that the father cannot remain civil or control his temper and that she believes that he is psychologically harming the children; and
• The mother says that the father must earn her trust before she would agree to increased or unsupervised access.
[9] Further, there is obviously a great deal of tension not only between the mother and the father but also between the mother and the father’s mother. The mother argued that the grandmother does not have the best interests of the children at heart and says that the grandmother would not be a suitable supervisor for the children’s visits. The mother questions the grandmother’s mental stability.
Analysis
[10] That the mother would be reluctant to allow her children to spend more time with a man who betrayed both her and the community’s trust by committing an armed robbery is understandable. There is also evidence that the father’s access to date has not been without its problems and that he has difficulty controlling anger.
[11] That said, I find the position taken by the mother to be somewhat contradictory; she says that because the father had planned the bank robbery for several week in advance, she does not accept his evidence that he did it because he was having a mental breakdown. At the same time, the mother says that she is concerned that the father may have a mental breakdown when the children are with him.
[12] There is a presumption that regular access by a non-custodial parent is in the best interests of children and the right of children to visit with a non-custodial parent and to know and maintain or form an attachment to a non-custodial parent is a fundamental right. (Montgomery v. Montgomery (1992), 1992 CanLII 8642 (ON CA), 59 O.A.C. 19, 97 D.L.R. (4th) 437, 42 R.F.L. (3d) 349, [1992] O.J. No. 2299, 1992 CarswellOnt 295 (C.A.))
[13] There are good reasons to increase this father’s access to the children. The father was very involved in the upbringing of the children before he was incarcerated. For a time, he was at home with the children while the mother worked. The father has submitted evidence that he is now gainfully employed and that his mood has been stable. The father is living with his mother at present, which means that if the children were to have increased access to him, they would frequently also have increased access to a member of their extended family; they would also have twice the amount of adult attention.
[14] There was no evidence before me to support the mother’s submission that the grandmother has mental health issues that would affect her ability to spend time with and help care for the children.
[15] I acknowledge that there is an unfortunate level of animosity between the mother and the grandmother. The father’s crime divided camps, damaged relationships and took a heavy toll on those around him. It does not mean, however, that his children should be deprived of the opportunity to spend more meaningful time with him.
[16] I am also not concerned that appropriate space could not be found in a two-bedroom apartment for two young children to sleep overnight.
[17] The mother expressed concern about overnight access visits on school nights, given the distance between the children’s school and the grandmother’s home. There was no evidence before me about the distance between the school and the home but so as not to set up an access schedule for potential failure, overnight access on school nights will be avoided at this time.
[18] I make the following orders, on a temporary and without prejudice basis:
• Beginning immediately, the father shall have unsupervised visits with the two children every Sunday for four consecutive weeks. The mother shall drop off the children at the father’s residence at 11 a.m. and the father shall return the children to the mother’s residence no later than 6:30 p.m.
• On the fifth week and thereafter every second week, the father shall also have unsupervised overnight access with the children on Saturdays. The mother shall drop off the children at the father’s residence at 5 p.m. on the Saturday and the father shall return the children to the mother’s residence no later than 6:30 p.m. on the Sunday. On the alternating weeks that the father does not have overnight access on Saturdays, he shall have access on Sundays from 11 a.m. to 6:30 p.m., with the mother dropping off the children at his residence at 11 a.m. and the father returning the children to the mother’s residence no later than 6:30 p.m.
• The father shall have a telephone call with the children every Tuesday evening at 6 p.m.
• The father shall have leave to amend his application as requested. Rule 11(3) of the Family Law Rules says that the court shall give permission to a party to amend an application unless the amendment would disadvantage another party in a way for which costs of an adjournment could not compensate. There was no evidence before me that the amendment would disadvantage the mother in a manner for which she could not be compensated.
[19] For increased access to be successful, the father will need to be diligent. One of the mother’s primary concerns about increasing access appeared to be what she described as the father’s unreliability and his inability or refusal to follow a consistent schedule. The father will need to be mindful at all times of the importance to young children of reliability and consistency, both in terms of ensuring that scheduled access visits take place and that they take place on time. The father will also need to be civil to and respectful of the mother at all times and unfailingly so in the presence of the children.
Costs
[20] If the parties cannot agree on the costs of this motion,
• The father may deliver written submissions of no more than three pages in length within 14 days of the date of this decision;
• The mother may deliver written submissions in response of no more than three pages in length within 14 days of the date of receipt of the father’s submissions; and
• The father may deliver any reply submissions of no more than three pages in length within seven days of the date of receipt of the mother’s submissions.
[21] The costs submissions may filed by sending them to me, care of the trial coordinator.
Justice H. J. Williams
Released: August 13, 2019
COURT FILE NO.: FC-17-636-1
DATE: 2019/08/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tamara Marie Alexandra McAlpine
Applicant
– and –
Michael Joseph McAlpine
Respondent/Moving party
endorsement
Madam Justice H. J. Williams
Released: August 13, 2019