COURT FILE NO.: FC-17-2470
DATE: 2019/09/12
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Raheman Jassani, Applicant
AND
Jennifer Jacob, Respondent
BEFORE: D. Summers J.
COUNSEL: Martin Reesink, for the Applicant
Tanya Davies, for the Respondent
Deborah Bennett, for the Office of the Children’s Lawyer
HEARD: June 20, 2019
ENDORSEMENT
Overview
[1] The applicant father brings this interim motion for access under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). He seeks a gradually increasing schedule over a three-month period. Specifically, he asks that access start with telephone or Skype time at least once a week for one month and increase to in-person visits twice a month, with one being an overnight stay. At the three-month point, he asks that access take place on alternate weekends without supervision.
[2] The respondent mother is opposed to access. She says the father has serious mental health issues that to her knowledge remain undiagnosed and untreated despite past hospitalizations. She says the children are afraid of their father’s behaviour and want him to get well before they see him again. In addition, the respondent seeks the applicant’s compliance with Justice Mackinnon’s order of March 23, 2018 for disclosure of his psychiatric records.
[3] The respondent also had a cross-motion before the court that was adjourned to a date to be fixed. Insufficient time was scheduled to deal with the relief sought.
[4] The Office of the Children’s Lawyer (OCL) is also opposed to access. The OCL says the children do not want to see their father at this time.
[5] For the reasons that follow, I dismiss the applicant father’s motion without prejudice to his right to renew his motion for access before me once he complies with Justice Mackinnon’s order. I further order that the applicant comply with the terms of Justice Mackinnon’s order dated March 23, 2018 and provide proof to the respondent’s counsel within 14 days that he has made a formal request for his psychiatric records and family physician’s records.
Background
[6] The parties cohabited for approximately 14 years. They married on November 1, 2003 and separated August 1, 2017.
[7] Their two children, Xavier and Sara, were born on July 16, 2004 and January 16, 2008. They are presently 15 and 11 years old, respectively.
[8] The children live with their mother and have done so since separation. This application was issued in November 2017 and proceeded to a case conference on March 23, 2018. There, Mackinnon J. made an order, on consent, that the children would remain in the temporary custody of their mother and have their primary residence with her. Access was to be supervised and in the community, as arranged between the parties. That was not sufficient for the father and permission was given for this motion.
[9] The children have not seen their father since May 2018. Their last telephone call was on Father’s Day that year.
[10] Mackinnon J. also ordered the applicant to obtain his psychiatric records from the St. Catherines Hospital, the Ottawa Civic Hospital and the Montfort Hospital, from 2014 to the date of her order. He was to deliver the records to the respondent’s counsel unless there were parts that he objected to disclosing in which case he was to identify those parts and state the reason for his objection. Permission was granted for a “Ryan” motion to resolve any disclosure dispute. No such motion took place.
[11] There was also an order requesting the assistance of the Office of the Children’s Lawyer. Ms. Bennett was appointed as counsel for the children
The Psychiatric Records
[12] The applicant produced only two consultation reports and one discharge summary although there were at least four known hospital admissions covered by Mackinnon J’s order. The applicant, nevertheless, takes the position that he has fulfilled his obligations under the order. As I will explain, I find that the applicant has not complied.
[13] The only record produced from the St. Catherines Hospital is a consultation report dated August 30, 2014. It indicates the applicant was taken to the ER, admitted on a Form 1 and given anti-psychotic medication. The reported behaviour included an inability to recognize his wife or his daughter as well as mute and robotic-like actions. The consultation report indicates that the applicant did not answer questions and largely ignored the doctor’s presence in the room. The report states the diagnosis “is fairly wide and includes acute psychosis, but the differential includes a manic episode, a drug induced state, or even early onset primary psychotic illness.” This and subsequent reports refer to a history of mental illness in the applicant’s family. Two of his siblings suffer from schizophrenia and live in group homes. A third sibling suffers from depression.
[14] The applicant did not provide any records in relation to his next hospitalization on September 8, 2014 at the Ottawa Hospital, Civic Campus where he spent 5 days for possible bipolar disorder. The only evidence of this inpatient period is found in the psychiatric consultation report done 10 days later on September 18, 2014 when the applicant was again admitted on a Form 1.
[15] On this date, the police brought the applicant to the Civic Hospital after receiving a call from the respondent. She reported that he was not sleeping, was easily angered, was breaking things, was driving erratically, was talking to himself and said he was hearing voices. The police had also been contacted by the school principal to report that the applicant was speaking nonsensically when he picked up his daughter from school. Out of concern for the safety of his family, the applicant was admitted and prescribed medication. The consultation report was the only document produced by the respondent in relation to his September 18 hospitalization.
[16] The applicant was hospitalized again in Fredericton in August 2017 while there with the respondent and the children. According to the respondent, this event precipitated their separation. Although the applicant was not specifically ordered to produce his psychiatric records from the Fredericton Hospital, he would have been wise to do so voluntarily. Considering the access that he seeks and the concerns raised regarding the children’s bests interests, the information is clearly relevant.
[17] From the Montfort Hospital, where the applicant was taken by the police following a call from his father, he produced only the discharge summary dated January 31, 2018. This report referenced strange behaviour that included driving erratically and walking barefoot outside. The discharge report states that the applicant was started on olanzapine and released on day three of his Form 1 admission. The applicant agreed to continue olanzapine and follow-up with his family physician. No evidence was produced to confirm whether the applicant continued the medication or followed up, as he said he would.
[18] The applicant was also ordered to produce notes and records from his family physician related to the care he claims to have received before and after his employment was terminated in 2018. There is no evidence that the applicant complied with this aspect of Mackinnon J.’s order.
[19] I am not persuaded that the applicant has produced all of his psychiatric records as ordered. He provided only three documents totaling 6 pages. He did not provide emergency room notes, nurses’ notes, admission records, or discharge summaries for each hospital stay. Most of these records, if not all, must exist.
[20] It should not be necessary to make an order requiring compliance with a prior order. Nevertheless, I order the applicant to comply with the terms of Justice Mackinnon’s order dated March 23, 2018 and underscore the often-repeated phrase that “court orders are not suggestions.” Compliance in the first instance is not just expected, it is required. The applicant is further ordered to provide the respondent’s counsel with proof that his physician’s records and his psychiatric records have been ordered within 14 days.
Access
[21] The applicant submits that the children will benefit from parenting time with him and denies suffering from a mental illness that might put them in harm’s way. His explanation for prior behaviour is sleep deprivation and work-related stress. He argues that his past should not be seen as an indicator of future behavior and suggests that those who believe otherwise are wrong.
[22] The respondent mother says she wants the children to have a relationship with their father but not until she is satisfied that it is safe and in their best interests. The respondent argues that the children have seen a lot of unnerving behaviour from their father over the years and they are afraid of him. She says he needs to prove that he sought help, has the good health that he claims to have, and begin to regain their trust gradually.
[23] The OCL reports that Xavier and Sara are very clear. They do not wish to see their father and ask the court not to order access.
Analysis
[24] Determining access requires the court to give effect to the principle that children should have as much contact with each parent as is consistent with their best interests. See the Divorce Act, s.16 (10). I must also bear in mind that the maximum contact principle is mandatory but not absolute. Access must still be consistent with the best interests of the children. See Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52. For the reasons that follow, I find that an order for no access is in the children’s best interest, at this time.
[25] The applicant says that he has been physically and mentally healthy since August 2018. The last hospitalization known to the respondent was January 2018. The applicant does not say what happened between those two dates to explain why he says he has been healthy since August 2018. Nor does he say what, if anything, he did to get well.
[26] This applicant also claims his doctor told him that he does not have a mental illness but rather experienced “brief, transitory episodes of mental disorders stemming from lack of sleep and work-related stress”. The applicant does not provide any corroborative medical evidence from his physician to support this characterization. His assertion is hearsay and I attached no weight to it.
[27] In support of his request for access, the applicant relies heavily on a one-line letter from his family physician, Dr. Lapointe, dated March 27, 2019. The letter simply says, “I have reviewed this patient’s case and I have no concerns with him seeing his children.” In these circumstances, I find Dr. Lapointe’s letter is wholly insufficient to address the concerns raised regarding the applicant’s health. For instance, he does not say what information or reports he reviewed, when he last saw the applicant, whether the applicant followed up with him after his release from the Montfort Hospital as he said he would, whether the applicant is compliant with the medication prescribed at the hospital or other medications prescribed, whether a mental health diagnosis was ever made, or what if anything the applicant may have done to address his mental health symptoms. In short, Dr. Lapointe says nothing about the applicant’s health. He offers no context or explanation for his statement that he is not concerned about the applicant having access. Given the nature of the other medical evidence before the court and the brevity of Dr. Lapointe’s letter, I put no weight on it when considering the children’s best interests.
[28] The respondent claims that the applicant’s behaviour frightened her and frightened the children. She says without an assessment by a mental health professional, she is unable to accept that he does not pose a risk to the children. The respondent does not believe that the applicant’s behaviour was simply the result of fatigue and work-related stress, as he alleges.
[29] The applicant contends that the children think he is ill because the respondent has labelled him so. He says that is why the children tell their lawyer that he needs to get better before they are willing to see him. I am not persuaded that is the case here. Both the respondent and the OCL say that the children witnessed a great deal of strange behaviour by their father. They experienced it first-hand, but nowhere in the evidence does he acknowledge that or how it may have impacted them. The applicant also appears to minimize his past health concerns. He refers to the breakdowns suffered in 2014 in southwestern Ontario and in Ottawa as “momentary”.
[30] The applicant filed two letters written by work colleagues saying he is a good friend and a good person with character and integrity. In my view, these characteristics are not necessarily inconsistent with the often-unpredictable nature of mental illness. In any event, this evidence is unsworn, and I attach no weight to it.
[31] The applicant also submits a certificate from the John Howard Society dated July 26, 2018 that he completed their eight-session aggression prevention workshop. There is no evidence to indicate what led him to that program in the first place.
[32] The respondent alleges that the applicant verbally abused the children in May 2018. He denies this allegation and insists that they had a nice time together over a meal. The children have refused to see him since. When asked by their lawyer, the children did not agree with their father’s statement. According to the OCL, they told him that day that they did not wish to see him again.
[33] The OCL met with each of Xavier and Sara four times. The last meeting was the day before the motion. She submits that their views and preferences are strong, consistent and independent. She describes them as lovely children who are bright, articulate and high functioning. They hold strong opinions about spending time with their father that appears to be the result of their experience with him. She says they do not want to see him and, on their behalf, asks the court not to order access. At 15 and 11 years of age, their views are entitled to considerable respect and weight.
[34] The respondent and the children want to see more information and commitment from the applicant. The respondent is entitled to the production of his psychiatric and family physicians records as ordered by Mackinnon J. Those documents must be disclosed. She wants assurance that it will be safe for the children to spend time with their father in the future and wishes that he would undergo some form of mental health assessment and treatment, if necessary. Similarly, the OCL says the children would benefit from answers to help them understand their father’s behaviour. Based on the medical records before the court, I accept that their concerns are real. The applicant has not persuaded me that access is in the best interest of the children at this time and I dismiss his motion.
[35] It is within the applicant’s control to take steps and obtain additional evidence to address the concerns held by the respondent, the children and the court. If he does so and complies with Mackinnon J.’s disclosure order, he may renew his motion for access before me.
[36] Finally, I agree with the OCL’s submission that this case would benefit from clinical intervention. This is a family of limited financial means. A private custody and access assessment is out of reach. For that reason, I urge the Office of the Children’s Lawyer to consider an investigation under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C 43.
[37] The respondent is entitled to her costs. If the parties cannot resolve this issue between them, the applicant shall deliver his costs submission within 14 days of the release of these reasons. The respondent shall deliver her costs submissions within the next 14 days. Submissions shall not exceed 2 pages exclusive of offers to settle and Bills of Costs.
Justice D. Summers
Date: September 12, 2019
COURT FILE NO.: FC-17-2470
DATE: 2019/09/12
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Raheman Jassani, Applicant
AND
Jennifer Jacobs, Respondent
BEFORE: D. Summers J.
COUNSEL: Martin Reesink, for the Applicant,
Tanya Davies, for the Respondent
Deborah Bennett for the Office of the Children’s Lawyer
ENDORSEMENT
D. Summers J.
Released: September 12, 2019