COURT FILE NO.: FS-19-94149-00
DATE: 2019 12 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Prisca Rana
M.S. Uppal, Counsel for the Applicant
Applicant
- and -
Sean Rana
N. Khehra, Counsel for the Respondent
Respondent
HEARD: October 22 and November 22, 2019
REASONS FOR DECISION
LEMAY J
[1] The Respondent, Sean Rana, has brought a motion for unsupervised access to the children of the marriage, Alya and Ayden. The Applicant, Karen Rana opposes this motion on the basis that the Respondent cannot manage Ayden’s medical condition. The Applicant brings her own cross-motion seeking to have the Respondent’s access limited to supervised access as well as having the Respondent pay all of the costs of the supervised access.
[2] I have set out the relevant facts and made findings in terms of what is in the children’s best interests. I have made only those findings that are necessary to dispose of this matter on an interim basis, as I am cognizant that this matter is likely headed for trial and that, in a case like this, credibility issues cannot be resolved on the basis of Affidavits alone.
Background
a) The Family History
[3] The parties were married on January 9th, 2010. There are two children of the marriage. Alya, who is eight years old and Ayden, who is five years old.
[4] Ayden is on the autism spectrum. I understand from the materials that are filed that he has very limited vocabulary and generally does not speak in sentences. In addition, the parties are agreed that Ayden will require extensive therapies to assist in managing his autism.
[5] These observations are supported by the report from a psychologist that was filed as part of the motion materials. That report, prepared when Ayden was three, indicates that he meets the diagnostic criteria for an Autism Spectrum Disorder (“ASD”), and that the level of his ASD is such that he will require very substantial support. Having reviewed that report, I am of the view that Ayden will likely require that substantial support for the foreseeable future. Ayden currently attends therapy several times a week.
[6] The Applicant states that, in the fall of 2018 and the winter of 2019, he was working from home. The Respondent states that the Applicant was unemployed and refusing to get a job because he managed his mother’s money.
[7] The Respondent has worked in Qatar in the past. The Applicant has claimed that the Respondent threatened to take Alya to Qatar with him at some point in January of 2019. The Respondent was not, at the time of separation, working outside of the home. The Applicant is employed on a full-time basis. It is not necessary for me to resolve any of these issues and, as a result, I am not making any findings in this regard.
[8] The parties separated on November 1st, 2018, but continued to live separate and apart in the same house until after this Application was begun. I understand that the matrimonial home has since been sold.
b) The Application History
[9] The Applicant commenced this Application on January 28th, 2019. On January 29th, 2019, the Applicant brought an ex parte motion before McSweeney J. seeking interim sole custody, interim exclusive possession of the matrimonial home and a restraining Order. McSweeney J. determined that the test for an ex parte order was not met, and directed the Applicant to serve the materials on the Respondent.
[10] The motion, as a motion on notice, came back before Kumaranayke J. on February 21st, 2019. It was brought as an urgent motion, as the Applicant took the position that the issues had to be determined before a case conference, although it was adjourned on two occasions on consent. I should note that, during the course of argument, I referred in error to this decision being that of Petersen J.
[11] In her reasons dismissing the motion, Kumaranayke J. outlined the Applicant’s concerns as follows:
The applicant states her motion is urgent because of her concerns that: the Respondent might take the children; the child Ayden who is autistic might run from the home as she asserts that the Respondent does not keep the door properly latched; and the children might gain access to the Respondent’s marijuana.
The Respondent states that his marijuana is kept in the garage but the Applicant remains concerned that the children might gain access to it as she submits that the children go in and out of the garage and therefore there is a risk to the children.
The Applicant also argues urgency because of the tension between the parties as they continue to live separate and apart in the matrimonial home.
The sale of the matrimonial home is being closed on April 15, 2019 and the Applicant seeks exclusive possession of the home until then.
She argues that the children in particular Ayden need their routine and structure to continue until April 15, 2019 and that it is disruptive to the children when she has to take them to the maternal grandparents’ home.
She also argues and relies on police and CAS involvement in her claim of urgency.
The CAS became involved on February 13, 2019 and I am advised by counsel (and the parties confirmed) that CAS does not have an ongoing investigation or open file.
[12] Ultimately, Kumaranayke J. concluded that the motion was not urgent and should not be heard before a case conference. The case conference was scheduled for March 25th, 2019.
[13] On February 24th, 2019, the Respondent was criminally charged. I understand that these charges were laid as a result, at least in part, of information from the Applicant. The immediate result of these charges was that the Respondent had bail conditions that excluded him from the matrimonial home and prevented him from having access to the children. I understand that the criminal matter is set for trial on February 19th, 2020.
[14] At the case conference on March 25th, 2019, Price J. signed a detailed consent Order that addressed disclosure issues and asked the Office of the Children’s Lawyer (“OCL”) to become involved in this case. It also set out (but did not resolve) the concerns of each parent with respect to access.
[15] The OCL subsequently became involved in the file, and had completed their disclosure meeting. I do not have any independent information from the OCL about their conclusions in this matter. I will address that issue more fully below.
[16] The consent Order of Price J. granted the Applicant interim interim custody of the children and limited the Respondent to supervised access. The Order also stated that the access was to be reviewed after a period of four (4) weeks. By my calculations, a review of access was required after April 22nd, 2019. The supervised access notes and the correspondence reveal the access history, and I now turn to them.
c) The Supervised Access Visits
[17] As far as I am aware, the Respondent was not given access to the children between February 24th, 2019 and May 11th, 2019. In this period the Peel Children’s Aid Society (“CAS”) conducted an investigation into the family. It appears, although it is not clear, that this investigation was initiated at the behest of the Applicant. The claim as set out in the CAS’s correspondence was that the children were at risk of emotional harm as a result of partner violence. On April 12th, 2019, the CAS provided the parties with a letter that these concerns were not verified and that there were no ongoing child protection concerns. I did not have the complete CAS file in the materials before me.
[18] At the time that access was taking place, the Respondent was renting the main floor of a house. I understand that the landlady lived downstairs in the same house. The access visits started and finished at the Respondent’s residence.
[19] Access visits were supervised by Brayden Supervision Services (“Brayden”), and commenced on May 11th, 2019. I have reviewed the notes from the access visits between May 11th, 2019 and June 16th, 2019. Those notes reveal the following points:
a) There were issues with the landlady’s dog, in that Ayden could not interact appropriately with the dog.
b) There were a few occasions when Ayden would try and get away and/or have to be redirected.
[20] I will review the notes in more detail in my analysis of the issues. The access visits finished on June 16th, 2019 and (on the record I have) there were no further visits until counsel for the Respondent wrote to counsel for the Applicant in early July of 2019.
[21] One of the issues that was discussed between counsel was access to Alya on her birthday. On July 9th, 2019, counsel for the Respondent wrote asking for access for 1 to 2 hours on Alya’s birthday the following week. This letter also asked for the introduction of unsupervised access. No reply was received to this letter, so a follow up letter was sent by counsel for the Respondent on July 12th, 2019 asking for motion dates.
[22] Counsel for the Applicant responded to this letter on July 15th, 2019. All that was offered at this point was the resumption of supervised access as well as some time with Alya on her birthday. However, counsel for the Applicant also took the position that the Respondent’s counsel should have written to the Applicant’s counsel at least two months in advance to arrange access on Alya’s birthday. I have significant concerns with the position taken by counsel for the Applicant about the birthday visit. Parties should be able to manage access requests with less notice than two months.
[23] In any event, supervised access resumed and continued throughout the last part of July as well as August and September. Again, I have reviewed the access notes and will discuss them more fully below.
[24] On September 29th, 2019 there was an incident at the end of a supervised access visit when the Respondent was tending to Alya and Ayden escaped from the car. I will set out that interaction more fully below.
[25] The ultimate result of the September 29th, 2019 incident was that the Applicant wished to have a “safety plan” in place, and the Respondent decided that it was time to end supervised access. Each party brought the motion, and they were argued before me. The procedural history of the motion is both unusual and relevant to some of the issues I have to determine, so I will set it out now.
d) The Procedural History of this Motion
[26] On October 10th, 2019, the Respondent brought a motion seeking access to the children on an unsupervised basis. In the alternative, the motion sought supervised access in accordance with the parties’ agreement. The motion also sought additional disclosure.
[27] The Applicant brought a cross-motion seeking a declaration that the access be limited to two (2) hours of supervised access until further Order of the Court with restrictions as to where and how the access would take place. This motion also sought to require the Applicant to pay the costs of any additional supervised access.
[28] Both motions were returnable on a short motions day on October 22nd, 2019. When the matter came before me that morning, I encouraged the parties to agree to resolve some (or all) of the issues in dispute. The parties were able to agree on the payment of therapy for Ayden as well as the fact that there would be no dogs present during the access. They were unable to agree on the critical issue of access, which was argued before me.
[29] I had been intending to release a decision in the first full week of November. However, I received correspondence from counsel for the Applicant. This correspondence stated, in part:
I am writing to the Court today as there is new evidence that has arisen in the eight days after the motion was argued that is pertinent to the issues that were before the Court on October 22nd, 2019. There has been communication(s) from Bayden Supervised Access Services (Brayden) in regards to the access. This information is crucial, and should be before the Court prior to a decision being made.
The Court should also be aware that Counsel for Mr. Rana does not consent to me writing to the Court. It is for this reason that I have not included the communications in this letter. Mr. Khehra and I communicated by email on October 29, 2019 on the issue of writing to the Court. He was opposed to me writing. As an Officer of the Court, and given the nature of the issues that were in the Motion, this new evidence from Brayden must be brought to the Court’s attention notwithstanding the objection.
I am seeking Direction from the Court as to (a) whether that new should evidence should be before the Court, which I believe it should be, and (b) how that new evidence should be brought to the Court’s attention given that the motion was argued. I am happy to provide an affidavit in regards to this new evidence or as the Court so Directs. It would not be in the Interest of Justice in this case for the evidence to not be before the Court.
Additionally, Mr. Khehra is in India, as he left on October 22nd, 2019 because of a death in his family. However, Mr. Khehra, is available by email as he has been emailing from India, and replying to emails from India. He is expected back in or about mid-November, 2019.
I am including his email address in this letter, being khehralaw@gmail.com.
I thank the court for its prompt attention to this matter.
[30] I was concerned about this correspondence for reasons set out in my endorsement of November 4th, 2019. In summary, my concerns are twofold. First, the fact that the Applicant wanted to provide additional evidence on a motion that had been under reserve for less than two weeks was, in my view, indicative of a high conflict case. Second, permitting new evidence less than two weeks after a motion had been reserved could result in additional reply evidence, producing a situation where the submissions of the parties never ended and I could not provide a prompt decision.
[31] In spite of those concerns, I permitted the parties to file additional evidence because it was clear to me that, if I had not permitted additional evidence, the Applicant would have simply moved to vary any unfavourable decision that I made immediately after I released that decision. I also took the view that it was important for the Court to have a complete record.
[32] Unfortunately, the parties filed more material than was either necessary or appropriate. In my view, both parties took the Court’s reluctant invitation to file additional focused material as an opportunity to relitigate significant portions of the case.
[33] In the Respondent’s case, he filed photographs of the children that had been in the public record for some considerable time. Although I was advised that he did not have access to these photographs until after the motion was argued, I am concerned about the timing of the production of these additional images.
[34] In the Applicant’s case, her Affidavits not only contain the documents and evidence, but they are replete with argument and with restatements of the issues that were argued on October 22nd, 2019. For example, paragraphs 18 and 28 of the Applicant’s November 7th, 2019 Affidavit sets out her position and her justification for her conduct rather than providing new evidence. The Applicant also discusses concerns about the Respondent’s landlady’s dog which, as will be seen, has not been an issue since August.
[35] At this point, it is impossible to determine which party is more responsible for the over litigation of the custody and access. It is, however, crystal clear that both parties are engaged in a battle. I am not persuaded that either party understands the financial or emotional costs to them or their children of a continued battle.
[36] I also note that it is very difficult, on a motion like this, to make factual findings about the conduct of either parent and to assess responsibility. All I can do is determine what is in the best interests of the children, at least on a temporary basis. My decision should not be taken as anything more than an interim consideration as to the best interests of the children at this point and on the information that I have.
Issues
[37] The summary that I have set out above reveals the following three issues that have to be determined:
a) What portions of the evidence filed after October 22nd, 2019 should be considered by the Court?
b) What access schedule is in the best interests of the children?
c) What steps should be taken in this litigation going forward?
[38] I will address each issue in turn.
Issue #1- What Evidence Should be Considered?
[39] The test for adducing additional evidence after a Court has reserved its decision is very high. The test is set out in 671122 Ontario Ltd. v. Sagaz Industries Canada Ltd. (2001 SCC 59, [2001] 2 S.C.R. 983). In that case, the Court set out the following test:
a) Would the evidence have affected the outcome of the hearing?
b) If so, was the evidence discoverable prior to the hearing?
[40] As noted by Gray J. in Risorto v. State Farm Mutual Automobile Insurance Co. ((2009) 70 C.P.C. (6th) 390), this test is not new, and has been applied in both motions and in trials.
[41] The case before me concerns a motion for an interim order. It is always possible for a party to move to vary an interim order and adduce new evidence on that motion until the final order is issued. As a result, I am of the view that the test for adducing additional evidence on an interim order needs to be applied with an understanding of the dynamic nature of family litigation. That being said, the test remains the test.
[42] I reach that conclusion for two reasons. First, by their very nature interim orders are going to be subject to more variation than final Orders. The judges who make interim orders often do not have a complete picture of the case. As a result, there are often new facts that come to the attention of the parties that may result in a change of an Order that was previously viewed as appropriate.
[43] Second, a party can always move to vary an interim order, although Courts should be reluctant to change interim orders prior to a trial once they are made. As a result, it is often more efficient to simply consider additional information rather than deciding to release a decision and make a party adduce the additional information at either a new hearing or at the trial of the matter.
[44] That being said, the Court is still obligated to apply the test. There is a tension in the test between finality and the need to ensure that the Court makes decisions on a complete picture. This case brings those tensions squarely into focus.
[45] The additional evidence that the Applicant seeks to adduce is:
a) Correspondence between Brayden staff and the parties from and after October 22nd, 2019.
b) Visit reports prepared by Brayden staff from and after October 22nd, 2019.
c) Photographs from a trip in the summer of 2018. These are sought to be introduced in response to the Respondent’s materials.
[46] The additional evidence that the Respondent seeks to adduce is:
a) Photographs from a trip to India.
b) Additional information from Brayden that post-dates the argument of the motion on October 22nd, 2019.
[47] In my view, both parties are seeking to adduce additional evidence in order to obtain a litigation advantage. One example from each party will suffice.
[48] In the Respondent’s case, he has adduced photographs of the children with their mother on a trip to India. At first blush, one of the photographs shows Ayden sitting on the outer side of a boat with no one holding his hand. The Applicant’s Affidavit of November 21st, 2019 suggests that there is a window between Ayden and the outer side of the boat. If there was a window between Ayden and the ocean, then the Respondent’s “evidence” on this point is disingenuous at best.
[49] In the Applicant’s case, she is seeking to introduce significant evidence in response to the photographs that the Respondent introduced. For the purposes of this motion, it would have been sufficient for the Respondent to have adduced one or two pictures to make the point. I also reiterate the point that I set out at paragraph 34, above about argument in the Applicant’s Affidavit.
[50] In terms of the photographs, I have determined that they should be excluded on both sides. I am not persuaded that they were not available prior to the original hearing of the motion and, in any event, their admission would not change the result of the case.
[51] The information from Brayden that post-dates October 22nd, 2019 is relevant and will be considered on the motion. I reach that conclusion because the evidence could not have been ascertained prior to October 22nd, 2019 and because it has the potential to change the outcome of the case. I also note that this is an interim motion and, had I not considered this evidence, either party could have moved to vary my Order based on this new evidence.
[52] In terms of what I am considering from Brayden, I will review everything from them, including materials that were attached to the Affidavit of Ms. Uppal’s assistant, which was not permitted by my November 4th, 2019 endorsement.
[53] I am prepared to admit all of this evidence because of the fact that the Respondent provided an incomplete picture of the Brayden notes. Specifically, as the Applicant noted in her materials, the November 16th, 2019 e-mail from Brayden was available to the Respondent when his Affidavit was sworn, but it was not included in that Affidavit.
[54] As I have noted throughout this section, part of the reason for admitting this additional evidence was to ensure that the Court had as complete a record as possible in making its decision. In addition, however, it is important for the Court to ensure that the opportunities for the parties to come back to Court and re-litigate this issue are limited.
[55] The fact that the OCL is likely going to provide a report in this case may provide the parties with room to bring a further motion on custody and access. I expressed this as a concern to the parties at the hearing on October 22nd, 2019. However, the parties still proceeded to argue the motion, and I am persuaded that a decision at this point is appropriate. If and when a further access motion arises, it should be focused on the issues raised by the OCL. My decision is designed to deal with everything that is known to this point.
[56] As a final matter on this point, I note that the Applicant’s affidavit referred to information obtained in the disclosure meeting. However, in the absence of the actual report from the OCL, I am not prepared to put any weight on the Applicant’s evidence about the OCL report. For the report to be considered, the entire context is necessary.
Issue #2- What Access Schedule is in the Best Interests of the Children?
[57] The Applicant raises two main issues in support of her claim that the Respondent should be limited to supervised access. Those issues are:
a) Brayden’s supervisors have been acting as monitors instead of just supervisors, which is beyond their mandate.
b) The Respondent is unable to ensure Ayden’s safety when Ayden is in his care.
[58] I will deal with each issue in turn. I will begin, however, with a discussion of the law.
a) The Legal Principles
[59] There are two legal principles that apply to this case. First, all custody and access decisions must have at their heart the best interests of the children. Second, appellate courts have repeatedly emphasized that, to the extent possible, contact with both parents should be maximized.
[60] In the course of argument on October 22nd, 2019, I made it clear that the normal expectation in a case such as this was a move towards unsupervised access. The parties both acknowledged that this was the appropriate direction to take, and my decision takes that fact into account.
[61] The Applicant has not raised any real issues about Alya’s safety while she is in the care of the Respondent. In my view, the maximum contact principle applies to Alya. The only limitation to this principle is that fostering Alya’s relationship with her brother is an important factor that the Court must consider in fashioning an access order.
[62] This brings me to Ayden. In assessing Ayden’s best interests there are two considerations at play. First, there are real and current risks with Ayden’s safety on a short term basis. Whatever access is granted must ensure that Ayden’s safety is protected to the maximum extent possible.
[63] Second, there is the fact that Ayden will likely require support throughout his life. Certainly, a close review of the psychological report done when Ayden was 3 years old supports this conclusion, as does Ayden’s conduct during the access visits. It is also worth noting that the psychological report makes it clear that Ayden has formed good attachments with people he is already familiar with. As a result, fostering a relationship between Ayden and his father is going to be critical to his long term health and happiness.
[64] With these points in mind, I now turn to the two issues raised by the Applicant.
b) The Role of Brayden’s Supervisors
[65] In considering the role of Brayden’s supervisors, it is useful to divide the time into pre-September 29th, 2019 visits and post-September 29th, 2019 visits. In reading the notes, it is clear that circumstances changed at and after the September 29th, 2019 visit.
The Pre-September 29, 2019 Visits
[66] I have read the access notes for all of the visits. One of the themes that emerged from those notes in the time period between May and August was the fact that the downstairs neighbor in the Respondent’s house had a dog. Ayden would not play appropriately with the puppy and would hit and kick it.
[67] After some time, the access visits moved forward in a way that did not involve the dog. Ayden would sometimes indicate that he wanted to see the dog and the Respondent would redirect him. The Respondent took too long in deciding to eliminate his landlord’s dog from the access visits, and the Brayden notes reflect a substantial concern about the dog.
[68] However, as I have noted above, the Applicant is still focused on this issue in her most recent Affidavit in November, even though the dog has not appeared as a concern in the Brayden notes since August.
[69] These visits also involved regular outings to the mall, to the park or other outdoor areas. There were approximately thirteen outings off of the Respondent’s property. This meant that the Respondent took the children to the mall or a park on approximately two thirds of the access visits.
[70] On a few of these outings, Ayden managed to run ahead of the group. He also had a couple of incidents where he ran off and had to be chased down. These incidents are covered in the Brayden reports. However, on every occasion the Respondent was able to catch Ayden.
[71] I also noted a couple of safety issues in these visits. First, Ayden was attempting to drink from the puppy’s water bowl, and had to be redirected by the Brayden supervisor. Second, the Respondent and Ayden were swinging around on a ladder attached to the fence and it was suggested by the Brayden supervisor that this was unsafe.
[72] Finally, I counted approximately five statements from Brayden’s staff saying that they had intervened directly to assist in managing Ayden rather than merely supervising the visit. In counting these incidents, I do not include the transfers between parents, as Brayden staff held Ayden’s hand in virtually all of these transfers.
[73] I do not view these incidents as being particularly significant, especially when the nature of Ayden’s ASD is considered. I also note that, on the August 11th, 2019 visit there was an incident where Ayden wanted to run. The supervisor’s notes describe the incident as follows:
… Ayden wanted to run and protested when Mr. Rana held him or tried to contain his movements as they walked. The supervisor recommended to Mr. Rana to consider restricting or avoid walkaways that border streets that are busy with traffic during family walks with Ayden due to the unpredictable nature of his presentations. Mr. Rana explained to the supervisor that such avoidances would reduce Ayden advantages and opportunities to support his development.
On balance, Mr. Rana managed to redirect Ayden and restrained him when necessary. Mr. Rana also demonstrated an intuitive ability to read Ayden’s cues and seemed to understand Ayden’s articulations consisting of occasional words including “happy”, “race” and other incoherent sounds.
[74] From this description, it is clear to me that the Respondent has an understanding of Ayden, as well as an understanding of how to manage his ASD.
The September 29th, 2019 Access Visit
[75] This access visit represents a key point in the story. Therefore, it is worth beginning with the September 22nd, 2019 access visit as a point of comparison. On September 22nd, 2019 the children were off the property playing in the park. They had an interaction with a neighbour’s dog (not the landlady’s dog), and the Respondent controlled Ayden in such a way that he was able to have a positive interaction with the dog. There was no intervention required from the Brayden supervisor.
[76] The September 29th, 2019 visit went much the same way until the end. The Respondent and Alya and Ayden went to a park and played on the equipment in the park. They returned home without incident. Then, at the point of transfer to the Applicant, the notes describe the following:
10:58 a.m.: Mr. Rana had indicated to the supervisor that Mrs. Rana had arrived. Alya and Ayden spotted Mrs. Rana and removed their seat belts and waited for Mr. Rana to open the door that had a child lock. As the supervisor was coming out of the passenger’s seat in the front of the car, Mr. Rana opened the door and was stopped by Alya who spoke to him. Ayden ran out of the car before Mr. Rana could intercept him. The supervisor wakled over to where Ayden was and ushered him to the entrance of Mr. Rana’s residence without exciting him. Mr. Rana remained by his car as he talked to Alya. Mr. Rana looked up and saw Ayden; he then walked over to the entrance of his house to intercept Ayden. Ayden dodged him and ran back on the front lawn and stopped at the edge of the paved side walk. The supervisor indicated to Mr. Rana that he should intercept Ayden. Mr. Rana ran toward Ayden and remained silent in an attempt to avoid exciting Ayden. The supervisor managed to hold on to Ayden’s hand and escorted him and Alya to Mrs. Rana who had come out of her parked vehicle and stood waiting. Mrs. Rana told the supervisor that Ayden needs to be held by someone at all times and had concerns with Mr. Rana ability to do this.
[77] On the description provided by the Brayden supervisor, I see a somewhat concerning but momentary inattention on the part of the Respondent. However, in a letter dated October 2nd, 2019, the Applicant’s counsel described the interaction as follows:
My client has learned by Brayden today, that they no longer will conduct two visits per week given the extreme danger and safety concerns between your client and his ability to care for Ayden. Ayden has very high needs, and his must be a priority of care and safety. He cannot be left alone for a moment as he is a runner, and does not have the ability to manage his behaviour and his impulses. Braydon has also advised that the risk is very high and their supervisors are nor able to manage it. The Supervisor is not a caregiver and not a parent. Your client is responsible for the safety for the children. They are there to observe and it appears that your client is relying on them as caregivers, that is not their role. Braydon recommends that the access be on Sundays only, and be inside the home, and there be no parks or malls in particular.
[78] In my view, this passage describes a significantly different incident than the one that the Brayden notes describes. In addition, the letter indicates that Brayden recommended that access take place inside the home and only on Sundays.
[79] It is possible that Brayden made this recommendation. The only evidence I have of what Brayden’s position was is an e-mail from a woman named Sonia at Brayden that states:
We observed on many occasions your son running off. We have had to intervene and as you know that is not our role.
The other party has raised these concerns. I would suggest reaching out to your lawyer to discuss the other partys concerns
She has requested that the visit this week be in your home and not in the community
Please let me know if you are agreeable to that plan
She has just emailed me that request
[80] I would note that, as of September 29th, 2019, I saw nothing in the access notes that would support a recommendation that access take place only inside. I also saw very little in terms of any interventions on the part of supervisors provided by Brayden. Certainly, on my review of the notes, I saw nothing that would justify Sonia’s statements that “we observed on many occasions your son running off” and “that the supervisor Janet has had to intervene many times due to safety concerns.” Indeed, based on the September 22nd, 2019 visit and the bulk of the September 29th, 2019 visit, I would have concluded that unsupervised access was completely appropriate.
[81] I do not know what discussions were had between the Applicant and employees of Brayden. As a result, I do not know why the e-mail came from Sonia. I also do not know what Sonia’s role at Brayden is or what her direct knowledge of these events is. I am given to understand that she is an office administrator. As a result, I cannot put a great deal of reliance on Sonia’s e-mail at this stage in the proceeding.
[82] This is particularly true when the October 2nd, 2019 letter is read in conjunction with the e-mail from Sonia. These documents are certainly open to the interpretation that the Applicant is deciding what should happen at access.
[83] I am sure that, if this matter goes to trial, the Court will have considerable oral evidence from the Brayden supervisors. At this point, however, I only have their written notes. In that regard, I note that there are clearly errors and omissions in those notes, as I have a note for Sunday May 25th, 2019 as well as a note for Saturday May 25th, 2019. The notes describe different visits. One of the dates is clearly wrong. I raise this only to point out to both parties the limitations of these notes in the decision making process.
Post-September 29th, 2019 Visits
[84] There were three visits prior to the motion on October 22nd, 2019. I have reviewed the notes for all three visits. I see nothing in those notes to indicate any safety concerns. I also see nothing in those notes to indicate that, during the course of these visits, there were any significant interventions by a Brayden supervisor to address any safety concerns.
[85] As I have noted before, a Brayden staff person holding Ayden’s hand on the transfer between the Applicant and the Respondent or vice versa is not an “intervention”. Given Ayden’s ASD, it is a necessary part of the supervised access visit unless the parents are handing Ayden off directly to each other.
[86] On the afternoon of the motion, the Applicant wrote to Brayden and advised them that the parties had been in Court. There was then a flurry of correspondence in which Brayden required that a safety plan be submitted prior to any further visits taking place.
[87] I have reviewed this correspondence in detail. I do not intend to reproduce it in this decision. However, I note that there were disagreements between the parties about the visits, concerns that had been expressed by Brayden about safety issues, and concerns expressed by the Respondent about where in the Brayden notes safety issues were raised.
[88] Ultimately, there were two final visits, one on November 10th, 2019 and one on November 16th, 2019. There were problems in both of those visits. Specifically, Ayden hit the supervisor in both visits and attempted to bite her as well. On the November 10th, 2019 visit, it happened more than once. It is also of interest to note that Ayden attempted to bite the supervisor on the transition from the Applicant to the Respondent at the start of the visit. These facts suggest that Ayden’s biting and hitting is part of his ASD and it is not related to the access visit itself.
[89] I can understand that these incidents are a safety concern for Brayden, as it has obligations under the Occupational Health and Safety Act to keep its employees safe. Other than this biting, however, the only safety concerns that I saw in any of these four notes were:
a) On the November 10th, 2019 visit, Ayden wandered around with a curtain rod. It was one of the things that he attempted to hit the supervisor with. I will say that, other than the running (and the dog issues, previously dealt with), this was the most significant concern that I saw in the notes.
b) Ayden ran off down the street towards the end of the November 10th, 2019 visit. The Respondent chased him down approximately three houses away.
c) Ayden attempted to run off on the supervisor on one of the transfers back to the Applicant.
[90] On November 21st, 2019, Sonia from Brayden sent an e-mail to the parties that reads as follows:
To all parties
After careful review and discussion with our management team and supervisors, it is felt despite our best efforts the safety of the child in supervised access visits is not being met. As you are aware our top priority is safety.
Several highly skilled supervisors have indicated that they will not return to supervise these visits.
We have worked diligently to ensure safety of all and have expressed our concerns on multiple occasions. The supervisors observations notes clearly reflect the behavioural concerns throughout the visits. At this time, we must terminate supervised access visits.
Should the family require additional support in managing behaviours and supporting a child friendly, safe, successful visit, we are willing to look at designing and implement a support program specific to the needs of the child in collaboration with one of our supervisors with a specialty is ASD in hopes of transitioning back to supervised access.
Please advise.
[91] I clearly see the concerns about the safety of Brayden’s employees in the last two visits. However, as I stated at paragraph 80, above, I do not see how (or where) the concerns about safety are expressed on “multiple occasions”. I am also not persuaded that, except for the biting and hitting, there are any significant safety concerns beyond what would be expected with a child with significant ASD.
[92] In that respect, I note that Ayden’s tendency to run when not held is a concern that is going to exist regardless of whose care he is in and regardless of how carefully he is monitored. It is a real concern. However, it is one that appears to be a challenge for everyone, and it is being managed by both parties.
[93] Based on the content of the notes, I do not see the support for the Applicant’s position, supported by the e-mails from Brayden, that they are having to perform the role of a monitor rather than a supervisor. I reject the Applicant’s argument in this regard.
c) Can the Respondent Ensure Ayden’s Safety During Access?
[94] The Applicant argues that the Respondent cannot ensure Ayden’s safety during access and, as a result, must have supervised visits. Based on the evidence that I have before me, I reject that argument.
[95] I start by noting that, until February 24th, 2019, the Respondent had joint custody of the children and equal parenting time, as he was living in the matrimonial home, even though the parties had separated nearly four months previously. The Applicant argues that the Respondent had no significant role in the care of the children for a considerable time prior to separation. Indeed, her counsel says that it was an issue between the parties in the time leading up to the separation. That is a matter for a trial judge to determine after an assessment of credibility.
[96] The facts before me disclose that the Respondent was in the home with the children, and was not subject to any court imposed restrictions on his access to or control of the children. It is also clear that there were interactions between the Respondent and Ayden . For example, the report describes a ball rolling game that Ayden and the Respondent played.
[97] Since commencing the application, the Applicant has been advancing the view that she should have sole custody and that a restraining order against the Respondent should be provided by the Court. She advanced this position on an ex parte basis before McSweeney J., and on a contested basis before Kumaranayke J. She was unsuccessful in both motions, with the second one being dismissed on February 21st, 2019.
[98] On February 24th, 2019 the police charged the Respondent with various offences relating to an incident of alleged domestic violence. I do not have the details of this incident or of the precise charges in the record before me. The result of these charges was a restraining order and de facto exclusive possession of the matrimonial home. As the criminal charges are still pending in this matter, I make no further comment on the merits of the charges.
[99] The end result of all of these legal proceedings was an order for supervised access made at the case conference on March 25th, 2019, a month after the Respondent would have last seen the children. There was no access until May of 2019, which was nearly three months after the last time the Respondent would have seen the children.
[100] Based on my review of the consent Order, it appeared to have been the plan that there would be four weeks of supervised access and then a transition to unsupervised access if appropriate. Based on the first four weeks of visits, I could see some concerns.
[101] The specific concern that I note in this time period was the landlady’s puppy. As I have noted at paragraph 67 above, it took the Respondent too long to remove the puppy from the environment. This is clearly a problem when dealing with a child with significant ASD. However, the puppy was removed back in early August at the latest.
[102] This brings me to one of my main concerns with the Applicant’s position. In spite of the fact that the puppy was removed from the children’s environment in early August, the Applicant requested that the absence of the puppy be a part of the consent Court order when the parties were before me in October of 2019 and raised it again in her Affidavit of November, 2019.
[103] The other safety issue raised by the Applicant is the September 29th, 2019 visit. Again, based on this visit, the Applicant argued that visits should not take place off of the Respondent’s property until a safety plan was implemented.
[104] As I have already discussed, I do not share the Applicant’s view of the seriousness of this issue. I reach that conclusion in large part because of the discrepancies between the Applicant’s description of the incident and the description that is contained in the Brayden notes.
[105] This brings me to another concern that I discussed with the Applicant’s counsel on the hearing of this motion. Specifically, we have detailed supervisor’s notes about the time that is spent with the Respondent, but we have no notes about what happens when Ayden is with the Applicant and her parents.
[106] While I acknowledge that the Applicant lives with her parents and will have help with Ayden, I also note that the Applicant has Ayden for significantly longer periods, and has to do daily transitions with him to and from school. Given the information in the psychologist’s report, there are going to be risks associated with every transition.
[107] In response to concerns about a safety plan, the Respondent produced a detailed document outlining his plan of care for Ayden. While I acknowledge that this might not be a “safety plan” as it was envisioned by Brayden, it does address many of the care issues that are raised. It also addresses one of the key safety issues raised by the Applicant, which is ensuring that Ayden’s hand is held or he is carried when he is outside.
[108] I acknowledge, and share, the Applicant’s concern that the Respondent described Ayden as “diagnosed with Autism Spectrum but otherwise normal child.” I view this as a significant understatement of both the nature of Ayden’s condition and the challenges he faces. However, the plan that the Respondent has provided as well as other passages in his Affidavit suggest to me that he does understand both the nature of Ayden’s condition and how to deal with it. In this respect, particular regard should be had to the passage from the Brayden notes I have set out at paragraph 73 above.
[109] I also note that I have no safety plan from the Applicant, although she sets out some of the safety precautions that she takes in her Affidavit. I am concerned that the Applicant seeks to impose an obligation for the Respondent to have a safety plan while not having one herself. I can understand a desire to ensure that everyone who cares for Ayden is trained and able to deal with his needs. However, the Applicant’s insistence on asymmetrical requirements is troubling to me.
[110] I note that some of the safety precautions are the same between the Applicant’s plan and the Respondent’s document. In particular, the plan for handholding is the same.
[111] Finally, I have some concerns about the position that the Applicant has taken on some of the safety issues proposed by the Respondent. In her October 15th, 2019 Affidavit, the Applicant states that “I have learned to teach Alya to also help redirect Ayden.” Then, in her November 7th, 2019 Affidavit (at paragraph 31), the Applicant states “the [respondent’s] plan also appears to rely on Alya as someone who can read Ayden perfectly. That is not her job.”
[112] As I read these passages, the Applicant is prepared to use the assistance of Alya to manage Ayden’s needs. However, the Applicant is also critical of the Respondent for doing the same thing. I am concerned that these passages suggest both that the Applicant is holding the Respondent to different standards than she is applying to herself and that the Applicant is searching for barriers to access.
[113] For these reasons, I am persuaded that the Respondent is able to safely manage Ayden, at least to the same level of safety that others who provide care to him are able to manage him.
d) Conclusions
[114] For the foregoing reasons, I reject the Applicant’s position that Brayden has been acting as a monitor instead of just a supervisor. I also reject the Applicant’s position that the Respondent is unable to keep Ayden sufficiently safe during access visits.
[115] This brings me to the question of what is in Ayden’s best interests. First, and most importantly, Ayden will need support to manage his ASD throughout most of his life. It is clearly in his best interests that his support network be as wide as possible. As a result, he needs to have good relationships with both his parents and with his sister.
[116] In addition, as I said at the outset (and I said in Court), the ultimate goal of the parties should be unsupervised access. At this point, we have had a very lengthy period of supervised access.
[117] It is clear from the positions taken by the Respondent’s counsel that the Respondent might have been content to continue with supervised access as long as there were no restrictions placed on where the access could occur. However, that is no longer an option as a result of Brayden’s position.
[118] As a result, I am left with a choice between unsupervised access and no access at all. Given my conclusions about the safety and monitoring issues, no access at all is simply not justifiable on the facts of this case. While there are some concerns about safety, these are being dealt with. In addition, in their Order of October 22nd, 2019, the parties agreed to use the services of Stephen Cross for parenting issues. The presence of a parenting coordinator will assist in addressing any concerns that either party may have about safety.
[119] As a result, I am of the view that unsupervised access is in Ayden’s best interests. It ensures continued contact with his father, and allows Ayden to maintain his relationship with his father.
[120] In addition, I acknowledge the importance of both Ayden and Alya having a relationship with their father, both individually and as a pair. As a result, it is in the best interests of both children that the access schedule be the same for both children.
[121] As a result, I am ordering that unsupervised access for two (2) hours twice a week commence on December 7th, 2019. This is to be increased to three (3) hours twice a week within a month of this Order. The parties are also to discuss access over the Christmas holidays and ensure that a plan is in place for same by Monday December 9th, 2019.
[122] I am also ordering that, absent significant unforeseen circumstances, no further changes be made to the access schedule until the trial in May of 2020. Unless the OCL report contains specific recommendations with respect to access, I do not believe it is likely that the OCL report will amount to a “significant unforeseen circumstance”.
Issue #3- Next Steps
[123] As I indicated to the parties, this matter is to be placed on the trial list for the May 2020 trial blitz. It may not be removed, even on consent, without the approval of the Trial Management/Settlement Conference Judge or a case management judge if one is appointed.
[124] As I directed at the hearing in October, the parties are to book a Trial Management/Settlement Conference in January. They are expected to book dates promptly, and I retain jurisdiction to fix an available date if the parties cannot agree. The parties are to advise my judicial assistant within seven (7) calendar days of the release of these reasons as to the chosen date.
[125] Based on my review of the facts of this case, I am persuaded of two things. First, that this is a high conflict case. Second, as I indicated to the parties in Court on October 22nd, 2019, assisting Ayden and providing for his needs is a fifty (50) year project, and the parties are going to need to work cooperatively at that project. As a result, I am of the view that a case management judge should be appointed in this matter.
[126] I have no jurisdiction to appoint a case management judge. However, the parties are to write to Daley R.S.J. and ask for the appointment of a case management judge. In addition, the parties are to indicate whether they would take any objection if Daley R.S.J. assigned me as the case management judge.
[127] Until Daley R.S.J. makes a decision as to whether a case management judge may be appointed, the parties may not bring any motions of any nature without my leave.
Conclusion and Costs
[128] For the foregoing reasons, I order as follows:
a) Unsupervised access visits for two (2) hours twice a week are to begin effective Saturday, December 7th, 2019. Within a month the length of those access visits is to increase to three (3) hours.
b) Absent unforeseen circumstances, there are to be no further changes to the access schedule until the trial is held.
c) The parties are to discuss the issue of the Christmas access schedule by December 9th, 2019.
d) If there are any issues with respect to transitioning to unsupervised access or with respect to the Christmas access schedule, then the parties are to appear before me at 10:00 on Monday, December 9th, 2019 to address those issues. Those issues could include any matters relating to the Respondent’s bail conditions.
e) The Respondent is precluded from removing the children from Peel Region during the course of his access visits.
f) The matter is placed on the May, 2020 trial blitz list for six to eight days. It may not be removed from the trial list, even on consent, without leave of the Trial Management/Settlement Conference judge or a case management judge, if one is appointed.
g) The parties are to write to Daley R.S.J. and seek the appointment of a case-management judge.
h) Until Daley R.S.J. makes a decision as to whether a case management judge is to be appointed, neither party may bring any motions over any matter without my leave.
[129] Although the Respondent has been somewhat successful in this motion, I have been critical of the conduct of both parties. This has the potential to be a very high conflict case, which is why I am recommending the appointment of a case-management judge to assist the parties in litigation. It is also why I am disinclined to award costs of this matter to either party. I am also disinclined to award costs to either party at this stage because I suspect that the parties are both going to argue that the other party acted in bad faith and I do not have enough information to decide this issue. The parties are strongly encouraged to either agree on costs or, as they were prepared to do at the motion, agree to leave the question of costs to the trial judge.
[130] If there are offers to settle that I do not know about, or if either party is asking that I fix costs, they are to provide their costs submissions of no more than two (2) single-spaced pages (exclusive of bills of cost, offers to settle and case-law) within seven (7) calendar days of the release of these reasons. Any reply submissions of no more than one (1) page are due within seven (7) days thereafter. If no submissions are made, and no agreement confirmed in those timelines, then the costs will be left to the trial judge.
[131] Finally, I remind both parties that Ayden’s special needs are something that will require the support of both of his parents for the foreseeable future. Continuing to litigate this case in the way that the parties have been litigating it so far is both expensive and counterproductive to the long term relationship that they must have with each other. The money being spent on litigation would be better spent on therapies for Ayden. The energy being spent on litigation would be better spent on supporting Ayden and Alya.
LEMAY J
Released: December 5, 2019
COURT FILE NO.: FS-19-94149-00
DATE: 2019 12 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Prisca Rana
Applicant
- and -
Sean Rana
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: December 5, 2019