Court File and Parties

COURT FILE NO.: 6445/16-02 DATE: 2020-04-14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: K.M., Applicant – and – T.S., Respondent

COUNSEL: Scott DeGroot, Counsel, for the Applicant Cornelius A. Brennan, Counsel, for the Respondent

HEARD: February 3, 4, 5, 6, 2020

JUDGMENT

THE HONOURABLE MADAM JUSTICE L. BALE

[1] This matter comes before the court as a viva voce Motion to Change the Final Order of the Honourable Mr. Justice R. J. Harper dated March 21, 2018, brought by the Respondent father.

BACKGROUND

[2] The parties began cohabiting in or around June 2002. They were married on June 15, 2013.

[3] There are two children of the marriage, namely L.G.S., born September 22, 2009 (age 10), and L.T.S., born October 25, 2012 (age 7).

[4] During the parties’ marriage, in September 2014, the Respondent father was seriously and permanently injured in a workplace accident. He has suffered physically and emotionally since that time, experiencing chronic pain, anxiety, and depression. Subsequent major surgery to the father’s neck and spine has only helped to a limited degree. He continues to suffer chronic pain and has permanent muscle and nerve damage.

[5] The parties separated on March 5, 2016 at which time the Applicant mother vacated the matrimonial home with the children. The children were approximately 5 and 2 years of age at the time of separation. The children have resided primarily with the Applicant mother since that time.

[6] Court proceedings were originally commenced in June 2016. The issues were resolved on consent and incorporated into the Final Order of the Honourable Mr. Justice D. Broad dated October 6, 2016. This order provided custody of L.G.S. and L.T.S. to the Applicant mother, and access to the father including alternate Wednesdays after school until Friday morning, and alternate weekends from Friday after school until Sunday evenings (i.e. two overnight access visits with the children each week). The access terms included a provision that the Respondent take the children to their scheduled activities during his access time. The matrimonial home was transferred to the Respondent father and he continues to reside in that home.

[7] The post-separation co-parenting relationship between the Applicant and Respondent did not proceed smoothly.

[8] In or around June 2017 the Applicant mother commenced a Motion to Change the Final Order of the Honourable Mr. Justice Broad. The Respondent father was served with the Motion to Change but did not file a Response nor attend court to address the issues raised.

[9] On March 21, 2018 the Motion to Change proceeded to (uncontested) trial before the Honourable Mr. Justice R. J. Harper. Notwithstanding the father’s failure to respond to the originating process he was given notice of the hearing and served with a copy of the mother’s supporting Affidavit. The father did not attend. After reviewing the motion materials filed and receiving supplementary evidence from the mother, Justice Harper granted a Final Order on the following terms:

1. The Order for access to the Respondent, T.S., in the Final Order of Justice Broad dated October 6, 2016 is vacated.
2. THIS COURT FURTHER ORDERS that the Respondent’s access to the children L.G.S., born September 22, 2009 and L.T.S., born October 25, 2012 is terminated.
3. THIS COURT FURTHER ORDERS that there shall be no access to the Respondent unless he brings an Application for access and provides the court with satisfactory evidence that he has dealt with his mental health issues.
4. THIS COURT FURTHER ORDERS to dispense with the Respondent’s consent to obtaining a passport for the children and dispense with any consent for the children to travel with the Applicant.

[10] Oral reasons for judgment were given by Justice Harper in relation to his decision. His reasons highlighted the following concerns:

a. The court is concerned with the best interest, safety and wellbeing of these children; b. There is a constant berating of the children’s mother that has moved into extreme harassment and emotional abuse; c. The abuse has had an impact on her, and therefore an impact on the children; d. At times the children have been so emotionally distraught that they are described as faking crying and trying to console themselves, and have been found lying in the closet in a fetal position, crying, as a result of the emotional abuse by the father; e. There has been a chronic course of such conduct on the part of the Respondent father over a year, following the Final Order of Justice Broad; f. The conduct includes a constant barrage of derogatory and vile commentary directed at the mother; and g. There are examples of this extreme derogation taking place in the presence of the children.

[11] Justice Harper ruled that, in the circumstances of the case, it would not be appropriate to order access to the father in the discretion of the mother, but rather to decide the issue of access on the facts before the court. Specifically, he ruled that:

“There shall be no access to the Respondent unless he brings an Application for access and provides the court with sufficient evidence that he has dealt with his issues in order to place himself in a position that he is able to see the needs of his children and meet them in their best interests” … and has evidenced that he has “dealt with his mental health issues that manifest themselves in anger and rage”.

[12] The Respondent father has not had any access to the children since the Order of Justice Harper.

[13] The Applicant mother and Respondent father have had no contact or communication with each other since the Order of Justice Harper.

[14] The Respondent father did not appeal the Order of Harper J., nor did he move to set it aside. Instead, on April 3, 2018, approximately two weeks after the Final Order was made, the Respondent father commenced the Motion to Change upon which this court is asked to rule.

[15] The parties were divorced in March 2017 and the Applicant mother thereafter remarried. She resides with her new spouse and the children.

POSITION OF THE PARTIES

[16] The father’s Motion to Change materials were prepared as a self-represented party. He did not cite any material change in circumstance within those materials, which is unsurprising given that only two weeks had passed since the making of the Final Order. The essence of the father’s position within the materials filed is that (a) his alternating weekend access should be reinstated, because (b) it is not healthy for the children not to have a relationship with their father. He maintained this position at trial but argued that an alternative Order might include graduated access supervised by a specified family member.

[17] The mother’s Response to Motion to Change asserts that there has been no material change in circumstances since the Final Order of Justice Harper, and the Respondent has not taken adequate steps to address his mental health issues. Accordingly, the Motion to Change must be dismissed. The Applicant mother seeks an Order that the father be prohibited from bringing further court proceedings without leave of the court.

THE LAW

A. Variation Generally

[18] Section 17 of the Divorce Act governs the variation of Court Orders pertaining to custody and access. The relevant portions are as follows:

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or (b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

Maximum contact

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

[19] The Supreme Court of Canada in Gordon v. Goertz established the two-stage process for determining a motion to change custody or access:

a. First, the parent applying for a change in the custody or access must meet the threshold requirement of demonstrating a material change in circumstances affecting the child. b. Second, if the threshold is met, the court must embark upon a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them: , [1996] 2 S.C.R. 27 at para. 49.

B. Material Change in Circumstance

[20] Before entering into the merits of an application to vary a custody order the judge must be satisfied of:

a. A change in the condition, means, needs or circumstance of the child and/or the ability of the parents to meet the needs of the child; b. Which materially affects the child; and c. Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 13.

[21] The party seeking the variation must establish that there has been a material change in the circumstances of the affected child that has altered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Brown v. Lloyd, 2015 ONCA 46 at para. 7.

[22] The change must be substantial and continuing and if it were “known at the time, would likely have resulted in a different order”: L.M.L.P. v. L.S., 2011 SCC 64.

[23] Courts should be reluctant to change Final Orders that are made on consent, particularly where such a change is sought only a short time after the original Order was made: Telfer v. Alexander, 2013 ONSC 6838 at para. 3.

[24] In a somewhat factually similar case to the matter before this court, the trial judge ruled that in that abusive situation, the benefits of starting access were outweighed by the potential detriment to the child. No access was ordered. The court provided guidance to the father as to steps that should be taken so as to demonstrate constructive change but noted that it was not in the child’s best interests to “experiment with access” without such changes taking place: I.A. v. M.Z., 2016 ONCJ 616 at paras. 88-91. Three years later, in the same case, before the same highly respected judge, on a motion to change, the father was able to satisfy the court that he had met the material change in circumstances threshold by demonstrating some level of positive change. The court commented that “the expectation in the first trial decision was for the father to make reasonable progress – the standard wasn’t perfection”: I.A. v. M.Z., 2019 ONSC 5515 at para. 28. This court has considered and been guided by the very helpful review of the relevant law and its application, as outlined by Sherr J. in this case.

[25] The Applicant mother also urges the court to consider the factual similarities found within the case of J.B. v. R.H. wherein the motions judge declined to order access on a motion to change on the basis that the father failed to satisfy the material change threshold. Specifically, the court noted that he did not obtain counselling to explore and develop coping strategies to deal with his anger and failed relationships; his failure to appreciate the significance of inappropriate text communications with his former partner; and, his failure to demonstrate a motivation to change: J.B. v. R.H., 2018 ONCJ 187.

[26] Likewise, the Applicant mother relies upon the case of Vodden v. Furgoch, wherein the court commented upon the father’s verbal and emotionally abusive conduct towards the mother, and the significance of same in relation to access as follows:

The risks associated with the children’s exposure to Mr. Furgoch’s aggressive and inappropriate behaviour are real, and they are significant. Mr. Furgoch’s lack of insight into how harmful his behaviour is on the children’s emotional well-being, which results in an inability on his part to change that behaviour, is greatly concerning. In order for me to increase Mr. Furgoch’s access to the children at this time, I would need to see an established and longstanding pattern of positive communications from Mr. Furgoch, as well as an understanding and awareness on his part that his behaviour was not acceptable and was detrimental to his children. I would need to be confident that Mr. Furgoch has been able to keep his emotional regulation in check for a lasting amount of time, not only in terms of his behaviour towards Ms. Vodden and other adults, but also in terms of his interactions with the children.

The court declined to increase the father’s access: 2019 ONSC 953 at para. 96.

[27] Finally, the Applicant mother references the series of cases arising from Martin v. Huff and LaRouche v. Martin 2014 ONSC 521. In the first motion to change the motions judge found that the father’s completion of numerous anger management/anti-violence courses was insufficient wherein the his behaviour had not changed using the information provided in the programs: That is, “simply attending a course is not sufficient”. In that case the father was found not to have taken responsibility for his actions, blamed others, lacked insight, and had not changed his behaviours. No evidence was presented as to how the father was addressing his mental health issues on an ongoing basis. The father’s request to reinstate access was denied: Martin v. Huff and LaRouche v. Martin. On further motion to change with respect to one of the children four years later, the court found that it “could not draw any favourable conclusion from vague professional reports” filed based on deliberate deception by the father: “How much help could they really have given him, when he made sure they had no idea about the nature and severity of his problems”. The court opined that it was overwhelmingly clear that the father hadn’t actually taken any meaningful steps to deal with his problems – “because he doesn’t really think he has any problems”. The court again declined to grant access to the father and prohibited him from bringing any further motions to change without leave of the court: M.A.L. v. R.H.M., 2018 ONSC 1597 at para. 94.

C. Best Interests

[28] Once a material change in circumstances is established, both parties bear the evidentiary onus of demonstrating where the best interests of the child lie: there is no legal presumption in favour of maintaining the existing access arrangements: Persaud v. Garcia-Persaud, 2009 ONCA 782.

The best interests of a child on Motion to Change are determined by reference to s. 24 of the Children’s Law Reform Act:

s. 24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (d) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (e) the permanence and stability of the family unit with which it is proposed that the child will live; (f) the ability of each person applying for custody of or access to the child to act as a parent; and (g) any familial relationship between the child and each person who is a party to the application.

[29] An assessment of the “best interests of a child” must consider all of the relevant circumstances pertaining to the child’s needs and the ability of the parents to meet those needs. The emphasis is on the best interests of the child – not the interests or the rights of the parents: Gordon v. Goertz.

[30] It is normally in the interests of children to continue and to encourage their relationships with both parents following separation of their parents. The ultimate goal is to establish, maintain and promote relationships which are of significance and support for a child: Young v. Young, [1993] 4 S.C.R. 3. Children generally benefit from maximum contact with both parents, provided that it is consistent with their best interests: Gordon v. Goertz.

[31] The Respondent father relies upon the following jurisprudence, which I have reviewed and considered:

1. Cataldo v. Cataldo: For the following proposition: “It is the policy of our law to facilitate the maximum contact between a child and both of his or her parents on a basis which is commensurate with the child’s interests”: 2014 ONSC 6344 at para. 26;
2. N.G. v. J.T.W.: For the following finding: The motions judge appropriately focussed on the best interests of the child and carefully and comprehensively reviewed the appellant’s mental health and increasingly bizarre behaviour by specifically considering the effect, actual and potential, on the child. There was no error in the motion judge’s approach, analysis, or conclusion: 2013 ONCA 4 at para. 7;
3. Bonnah v. Kreller: For the factual similarities to the case at bar: A serious injury to the father caused the father to engage in erratic and rude behaviour towards the mother and the children. The court opined that re-establishing a positive relationship with the father was in the best interests of the children, but to achieve this goal the father would have to be patient and be prepared to follow the advice of a competent counsellor or therapist. The father’s therapy to date had proved promising. The court did not order specified access terms, but rather ordered therapeutic services for the family on a temporary basis: 2010 ONSC 5627.

D. Termination and/or Supervision of Access

[32] There is no standard criteria for termination of access within the best interests test and “it is not a question of what standard should be used to deprive a parent of access, it is a question of what standard should be used in deciding what form of access, if any, should be ordered”: M.(B.P.) v. B.(B.L.D.E.) at para. 81, V.S.J., v. L.J.G. at paras. 128-131.

[33] Termination of a parent’s access to a child is an extreme remedy which should only be ordered in the most exceptional of circumstances. An order for supervised access also requires evidence of exceptional circumstances as it is just one small step away from a complete termination of the parent-child relationship: V.S.J. v. L.J.G. ONSC, at para. 1.

[34] In Worthington v. Worthington, in assessing a request for access by the father, the trial judge noted that a non-custodial parent does not have an absolute right to access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child: that is too low a threshold. In Worthington the father argued that having access to the children would assist the father in making positive changes, and that depriving him of access would have a deleterious effect on his progress. Quinn J. very correctly pointed out that “children are not to be used as therapeutic tools by their parents. The needs or desires of the access parents are secondary to the best interests of their children”: , [2000] O.J. No. 4853 (Ont. Sup. Ct. Jus.) at paras. 51-55.

EVIDENCE AND ANALYSIS

[35] The starting point of this analysis is a recognition that the Final Order of the Honourable Mr. Justice Harper is presumptively correct. While it was tempting for the Respondent father to attempt to lead historical evidence to argue that Justice Harper got it wrong, and for the Applicant mother to reiterate for the court the historical evidence that would confirm that Justice Harper got it right – this is simply not the issue before the court. This is not a motion to set aside the Order, nor is it an appeal. The conduct of this motion is strictly governed by s. 17 of the Divorce Act which requires this court to be satisfied that there has been a change in the condition, means, needs or other circumstances of the children since the making of the Order in March 2018, before embarking upon any analysis as to the best interests of L.G.S. and L.T.S..

[36] It is therefore important for this court to continuously pose the question:

“What has changed, and is that change material to the interests of the children?”

1. Communications and Contact Between the Parties

[37] Text messages between the Applicant and Respondent were produced for the court’s review in this proceeding spanning the period between the Final Order of Justice Broad (October 2016) and Justice Harper (March 2018). These communications, and more, were presented to Justice Harper for his consideration at the uncontested trial. A review of the Affidavit for Uncontested Trial of the Applicant mother dated March 8, 2018, as contained within the father’s Document Brief filed at trial, is stomach-turning. The content of the text communications from the father to the mother need not be reproduced, but can easily be classified as vile, abusive, threatening, and deluded. Not all communications were private: the father also posted defamatory comments on the mother’s work Facebook account in a further effort to harass and intimidate her. The communications are all of such an extreme nature that it is easy to conclude that the father harboured an anger towards and hatred for the mother so profound that she was in very real danger of harm. She was stalked, harassed, and berated on a routine basis. She feared for the safety of herself and her children – to the point that she had a security system installed in her home. I have no doubt that the high-octane toxicity of the father’s feelings towards the mother was obvious to the children. Those were the circumstances that existed at the time of the Final Order.

[38] “What has changed?”: There has been no contact or communication between the parties since March 2018. The text messages have stopped. However, I find that this change is due to the mother’s decision to change her telephone numbers. Because of her decision to change her contact information we know that the father could not send vile, abusive, threatening, and deluded text messages to her; we do not know that he would not have sent those messages.

[39] “Is this change material to the children?”: The complete cessation of a barrage of constant abusive attacks on the mother’s character has no doubt had a positive and material impact on her mental health and her ability to parent the children of the marriage. The mother’s relief from the chronic stress and anxiety that accompanied her exposure to the father’s abusive conduct now allows her to focus on the day to day needs of the children. She can focus on the children’s homework, and hockey, and typical pre-teen angst, rather than worrying that either she or the children will be physically or emotionally harmed by an individual without control of his emotions. This is a positive and material change in the lives of the children. But this is not a material change that has arisen since the making of the Final Order. Rather, this is a material change that results as a direct consequence of the Final Order. In my view, this is not a change in circumstance in the condition, means, needs or other circumstances of L.G.S. and L.T.S. which would warrant a review of the Respondent’s access.

2. Communications with Extended Family Members

[40] This court was also provided with text communications between the Respondent father and the Applicant’s mother (the maternal grandmother), and text communications between the Respondent father and his sister (the paternal aunt).

[41] The text exchanges produced between the Respondent father and the maternal grandmother also predate the Order of Justice Harper. They too are unsolicited, aggressive attacks of a vulgar nature against an innocent party. These messages are equally disturbing in tone and content as the text messages sent to the mother; a reflection of an unbalanced individual with little insight into the cause or target of his anger. This court heard that the maternal grandmother also changed her telephone number as a result of the father’s harassment, and therefore there have likewise been no further abusive communications.

[42] The text messages which were produced to the court between the Respondent father and his sister warrant special scrutiny. They were sent on September 13, 2018 and March 26, 2019, both dates following the Final Order of Justice Harper, and spaced approximately six months apart.

a. On September 13, 2018 the Respondent father sent a series of threatening text messages to his sister because she ‘liked’ a photo on the Applicant mother’s Facebook account. The angry messages included such statements as: i. “You go on K.M. s fb and like photos ….of the kids shehas taken from me u giv her likes and still use her look the fuck out……. After I help you and everythging you do thos dumb shit.”; ii. “I think ur gonna find out the hard way I sick of see n and hear n ur dumb shit….” iii. “Sick of hear n my own family doing this…. My friends are appalled u continue to use and support her taling my kids….. So I will show u…. Told till blue in the face and u just keep disrespecting me and I hav finally fuk n had ENOUGH”; iv. “… so watch wht I can do; v. How u think u be if I just called the cops last time… Think about tht long and fuk n hard…. No job no license… wht hur the most no kids…

b. On March 26, 2019 the Respondent father engaged in a further text message assault upon his sister. On this occasion he was angered to see her name on the witness list of the Applicant’s Trial Scheduling Endorsement Form. He sent his sister a photograph of her name in this court document and made statements such as: i. “Ya u just move on cause you still hav ur kids…. So ya its nothing I helped u out with fuk it… Ur really something else….”; ii. “I called cas for you…. Explain your story to them please….”; iii. “Cas has documented evidence states you may not be most creditable wittness for child custody witnesses… you not my family after this move”; iv. “you made rite choice stabbing me in the back…” v. “Cas be calling you… its ok…. I know”.

[43] In cross-examination the father denied that he was angry at his sister when he sent these texts. I do not accept this evidence as credible. I adopt a common understanding of the word ‘anger’ to mean a strong feeling of annoyance, or displeasure, or hostility. This strong feeling is certainly reflected in the tone of the father’s communications. The Respondent father acknowledged that he thereafter called the Children’s Aid Society on his sister with respect to a historical child protection concern when he realized she was listed as a witness for the mother. He testified that he did so, so that she would not be seen as a credible witness at trial. The father did not see any problem with filing a complaint to the CAS for this reason.

[44] “What has changed?”: The father’s anger towards the mother extends to people who are ‘friends’ with her or who are supportive of her position. At the time of the Final Order there was evidence that the father misdirected his rage towards the maternal grandmother. Following the Final Order this perspective had not changed: his sister became a target of abuse and personal vendetta because she chose to remain Facebook friends with the Applicant, and was listed as a potential witness at trial. This does not support a finding that the father’s animosity towards the mother has lessened, or that he has gained insight into the cause of his emotions or improved upon his ability to control them.

3. Mental Health Treatment

a. Pre-March 2018 Final Order

[45] The Respondent father, in his evidence, expressed that he felt that Justice Harper was incorrect in identifying that he had anger management issues.

[46] The Respondent’s medical records were filed and relied upon in these proceedings by both parties. The medical records in combination with cross-examination of the Respondent evidence revealed that anger has been a prevalent theme in the Respondent’s mental health and wellness for many years, even pre-dating his workplace accident. Specifically:

a. September 2013: Community Addiction and Mental Health Services of Haldimand & Norfolk: Psychiatric Consultation Note of Dr. R Chauhan (Psychiatrist): The Respondent father self-reported being sensitive to belittling comments of others which leads to feelings of anger. When angry he made effort to escape the situation due to fear that he would act out in anger. He reported receiving anger management in school, but says that it was not helpful and made him feel more angry. He denied current episodes of violence, but reported that he was avoiding almost all social situations as a result of fear that he would respond in anger when he felt anxious. The Psychiatrist formed the impression that complicating factors in his treatment would include the history of difficulties managing anger and the combination of anxiety and depression. She opined that the Respondent required Cognitive Behavioural Therapy by a skilled therapist to address his social anxiety, and difficulties with anger and depression. b. March 2014: Altum Health – Toronto Western Hospital: Concurrent Mood and Anxiety Assessment Report of Dr. T. Melnyk (Psychiatrist): The Respondent father was noted as having a longstanding history of mood and anxiety issues. He was demonstrating symptoms of anxiety and anger at the time. His anxiety symptoms, though on the surface, seemed socially motivated and were found to be occurring within the context of significant and substantial childhood physical and emotional abuse. Uncontrollable anger was noted to be the father’s response to situations where he felt put down in any way. His issues were opined to be chronic and longstanding, as noted in his developmental history. He was diagnosed with Major Depressive Disorder with associated symptoms of anxiety and anger. c. July 2015: Michael G. DeGroote Pain Clinic – Hamilton Health Sciences: Interdisciplinary Initial Assessment Report of K. Gallagher (Occupational Therapist), Dr. L. Hatcher (Pain Specialist), and Dr. E. Hapidou (Psychologist): The Respondent father was reported as having very little contact with his family (mother, father, two brothers, and two sisters) and limited contact with friends. Since his injury he experienced obsessive thinking and compulsive behaviours, such as twitching. He was noted as detached and estranged from others and was prone to irritability and outbursts of anger. He fulfilled the criteria of PTSD, and his alcohol and cannabis intake was noted to have increased. The Respondent reported that some of his friends think he is “crazy” – and that they would describe as such because he gets “so mad and irritated”. The Respondent viewed his support system as his kids. The Respondent scored in the extreme and above average range for severe depressive symptomology, and above average for clinical anxiety. Past medical reports reviewed noted that “he is extremely angry and may be, at times, volatile”. It was recommended that the Respondent required ongoing psychological therapy to address his depression and PTSD. d. October 2015: Michael G. DeGroote Pain Clinic – Hamilton Health Sciences: Psychological Discharge Report of T. Cebrat (Psychotherapist) and Dr. E. Hapidou (Psychologist) and accompanying Discharge note: The Respondent participated in a 4-week pain clinic through Hamilton Health Sciences between August and October of 2015. A recommendation within the report advises the Respondent to engage in specialized individual counselling with a psychologist, combined with involvement in community services re: dealing with his anger and alcohol issues. During the four-week treatment program, the Respondent felt challenged by a taxi driver and by things happening at the hotel which appeared to “make him very angry” and “he appeared to struggle with managing his anger about these situations”. In the program he made it a goal to work on managing his anger. Strategies with respect to controlling his anger were discussed. On discharge his depressive mood had improved but still had a score indicative of clinical depression. The Respondent reported feeling less angry and felt that he had made much progress. Mood and anxiety were noted as ongoing barriers to the Respondent’s recovery “for which he would require continuation of psychological therapy”. Continuation of reality and problem-focused cognitive-behavioural therapy, through individual counselling, was recommended. e. March 2017, July 2017: Michael G. DeGroote Pain Clinic – Hamilton Health Sciences: Psychological Progress Reports of Dr. E. Hapidou (Psychologist): Eight individual psychological therapy sessions between the Respondent and Dr. Hapidou were held in 2017. The goal of these sessions was noted to include keeping him from “losing it and going off the handle” as his marriage had dissolved in 2016. The Respondent’s mood was noted to be “extremely depressed and angry at every session”. A combination of Cognitive Behavioural Therapy and Dialectical Behaviour Therapy and crisis intervention strategies were employed. His results appeared “much worse” than the ones he received upon discharge from the four-week program and it was noted that he had not maintained his benefits from the program. i. In April 2017 the Respondent was urged by the therapist to consider the deleterious effect of his fight against his ex-wife on the children. He advised that he did not give consent for the therapist to speak to the Children’s Aid Society and did not provide the CAS with her contact information; ii. In June 2017 sessions the Respondent complained to the therapist about the Children’s “Abuse” Society, complaining about the ‘one-sided’ management of his file. He provided much detail about his complaints regarding the Applicant, the Children’s Aid Society, and the legal system; and iii. In a July 2017 session, in discussing his ex-wife “he expressed anger about his overall situation and threatened he will snap”… “he sees himself going insane and would have snapped a long time ago”. He was reminded “that he needed to be calm and collected in order to be able to be with his children” and that the therapist “could not stress enough how important it was for him to take care of himself and keep his cool”.

At the conclusion of the individual therapy sessions (i.e. when the father’s authorization from WSIB for funded sessions expired) the therapist advised the Respondent that he needed to deal with his anger and to find someone in his area to help him with that issue. The therapist noted that: “With a few exceptions of minimal positive change (such as anxiety and acceptance), most of the above psychometric results appear to be much worse than the ones he had obtained upon admission in individual therapy sessions and from the ones he had obtained at discharge from the four-week pain management Program. It would be an understatement to say that T.S. has not maintained his benefits from the Program. Even though he was generally satisfied with the sessions here, he has not improved objectively in his individual therapy”.

[47] In cross-examination the Respondent father acknowledged that he did not share any of the abusive text message he was sending to the mother throughout the time of his individual therapy sessions with Dr. Hapidou.

[48] These medical records were not before Justice Harper but are certainly consistent with the opinion that he formed that the Respondent required ongoing mental health treatment.

b. Post-March 2018 Final Order

[49] According to the father’s medical records, on August 9, 2018 the Respondent attended at the office of his family physician for the first time in two years. The Respondent reported to Dr. Edwards that he was no longer seeing a psychologist. He was discharged because ‘he felt he was doing well’. He was noted as currently ‘very distressed’ over custody problems, which stemmed from an argument with is ex-wife over the children’s passports. He missed a court date - specifically, he “says he was not notified” - and lost custody and visitation rights. A referral appears to have been made to Dr. Book, a Psychiatrist, at this time.

[50] The Respondent attended a consultation appointment with Dr. W. Book (Psychiatrist) on September 19, 2018. A Psychiatric Consultation Report dated September 25, 2018 authored by Dr. Book was filed as an Exhibit in these proceedings. The report indicates that the Respondent was referred to Dr. Book for “a review of possible depressive and anxiety symptoms.” The Report concludes that there is “no evidence of a diagnosis of generalized anxiety, panic OCD or social phobia” and “no evidence of any diagnosis of PTSD.” Current psychosocial stressors included dealing with custody and access issues, financial stressors, and court proceedings. The Report concludes that Dr. Book “could find no evidence of any significant psychiatric difficulties that would prevent [the father] from effectively parenting his children.”

[51] Dr. Book was called by the Respondent as a participant expert at trial. The essence of the evidence of Dr. Book in his examination in chief was that the Respondent was referred to him for an assessment of possible anxiety and depression, and that it was the opinion of Dr. Book that the Respondent father was not suffering from any psychiatric impairments at the time of his consultations. In addition to the consultation appointment, Dr. Book saw the Respondent on three more occasions, for a total treatment time of 1 ½ hours and wrote two additional notes which indicated that:

a. I have no evidence that this patient has any rage issues (September 28, 2018); and, b. Nothing has changed from my previous correspondence (October 31, 2018).

[52] During cross-examination a number of features of the Respondent’s sessions with Dr. Book were revealed which caused the court concern:

1. The Respondent was ordered on multiple occasions within the case management context of this file to provide Dr. Book with a copy of the Applicant mother’s Affidavit for Uncontested Trial, so that the circumstances which resulted in the termination of the Respondent’s access to L.G.S. and L.T.S. could be properly conveyed to Dr. Book. The Respondent testified that he provided Dr. Book with a copy of the Affidavit, and that together he and Dr. Book discussed some of the text messages he sent during his psychiatric sessions. At trial, Dr. Book testified that he had never before seen the Affidavit, nor any of the text messages; he was reviewing the content for the first time as it was presented to him in the witness stand. I prefer the evidence of Dr. Book over the Respondent on this issue. It was obvious to the court that Dr. Book was not familiar with the materials presented to him in cross-examination from within the Applicant’s Affidavit for Uncontested Trial. Dr. Book’s evidence - that he had not been provided with these materials during the Respondent’s therapy sessions - is supported by multiple case management endorsements wherein the Respondent is repeatedly ordered to take these steps. I find that the first time the Applicant’s Affidavit for Uncontested Trial was delivered to Dr. Book, was subsequent to the completion of the Respondent’s treatment at Dr. Book’s office, when served on Dr. Book by the Respondent’s counsel on October 4, 2019 in anticipation of trial.
2. The Respondent was referred to Dr. Book for “a review of possible depressive and anxiety symptoms.” Dr. Book was not provided with the historical records of the Respondent’s past mental health treatment, as summarized above, in which the Respondent’s anger is a recurrent theme. The Respondent did not identify to Dr. Book that issues surrounding his anger-management and rage were important issues requiring investigation and treatment. Dr. Book’s September 28, 2018 one-line note indicating “I have no evidence that this patient has any rage issues” is true but unhelpful. There is an abundance of evidence of the Respondent’s anger issues which existed at the time of treatment – for example, the Respondent sent a text message to his sister telling her to ‘look the fuck out’ because she liked a photo on the Applicant’s Facebook page, six days prior to his first appointment with Dr. Book. Such information would have been helpful in the Respondent’s diagnosis and prescribed treatment, however, it was simply not presented to Dr. Book. He could not opine upon nor treat symptoms which were hidden from him.
3. The Respondent was not truthful with Dr. Book in providing other relevant historical information on request. For example, the Respondent provided background information to Dr. Book that was inconsistent with background information provided to previous mental health care providers regarding the history of abuse in his family of origin, and his past issues of abusing alcohol.
4. When examples of the Respondent’s abusive conduct towards the Applicant were put to Dr. Book in cross-examination, he confirmed that in his view the communications were very angry and would cause him concern. He agreed that ongoing anger therapy by a qualified professional might be in order, although diagnostically his opinion on the topics of anxiety and depression remained unchanged.

[53] At trial the Respondent father testified that in his view, he did not have anger management issues when he commenced his sessions with Dr. Book, and he does not have any anger management issues now. In the Respondent’s opinion, he does not require any further therapy of any kind.

[54] “What has changed”: Since March 2018 the Respondent has had four psychiatric counselling sessions, totalling approximately 1 ½ hours with a Psychiatrist.

[55] “Is this change material to the children?”: In hindsight, the mental health opinions of Dr. Hapidou as provided in 2017, proved particularly adept. Dr. Hapidou stressed the need for the Respondent to seek help in addressing his anger. The Respondent did not follow this recommendation and his behaviours continued to the point that his access to his children was terminated in March 2018. In the two years that have followed that termination of his access to L.G.S. and L.T.S., the Respondent has engaged in a total of 1 ½ hours of treatment by a mental health professional. I cannot accept that during these minimal sessions the Respondent has sufficiently addressed the concerns of Justice Harper. It is clear to this court that the predominant issue of the mental health issues that ‘manifest themselves in anger and rage’ were not addressed in the Respondent’s sessions with Dr. Book. The Respondent did not advise Dr. Book of his extreme harassment and emotional abuse of the mother. They were therefore unable to discuss the impact of these behaviours on the life of the Respondent and his family. In my view, these critical issues were hidden from the Psychiatrist and therefore no material progress has been made which would impact his ability to parent L.G.S. and L.T.S. I cannot accept that the treatment sought by the Respondent to date “provides the court with sufficient evidence that he has dealt with his issues in order to place himself in a position that he is able to see the needs of his children and meet them in their best interests”, as required by Justice Harper. The treatment of the Respondent by Dr. Book does not constitute a material change in circumstances.

4. Anger Management

[56] The father testified that he enrolled in anger management counselling through the Salvation Army. This course consisted of two-hour individual classes per week for a span of eight weeks. The Respondent completed the program on May 22, 2019

[57] The father testified in his examination-in-chief that through the anger management course he learned different tactics as to how to control his anger and rage. He felt that he did very well in the course and noted that it was refreshing to learn that “it’s not me – this anger and rage is not there.”

[58] In cross-examination the father explained that he was not suffering from anger management issues when he went to the Salvation Army. When questioned as to “why” he took the course, if that was his view, he explained to counsel for the Applicant that “you are the one who wanted them. It’s your demand” – referencing counsel directly. The Respondent explained that he “shared ideas” with the course providers but that they did not believe he needed anger management. The father asserted that he “only did it to prove it to you [counsel] that I have suited all aspects that you were looking for.” This stated perspective is consistent with the anger management course registration form, filed as an exhibit in this proceeding, wherein under the query of what the Respondent hoped to ‘learn form this course’ the notation included: “trying to show a lawyer that he is doing everything he can to show he is a responsible parent. Can show the lawyer the anger management document.” The registration form provides no indication that the Respondent believes he needs anger management instruction, but rather it notes that he “wants to get ahead of the false allegation by his ex-wife.” This form was completed with the father in April 2019.

[59] The course instructor for the Respondent’s anger-management course was called as a witness at trial by the father. In examination-in-chief she testified that the Respondent presented as an active, willing, and respectful participant in the anger management course. However, cross-examination of this witness revealed that:

a. During the course the Respondent did not acknowledge having any anger management issues: He reported that “before” the course his anger was a 4/10 (below “occasionally angry, but controlled”), and “now” his anger was 1/10 (“totally laid back”); b. During the course the Respondent did not acknowledge or discuss his past conduct towards his former spouse or the impact of his behaviour upon L.T.S. and L.G.S.; c. The Respondent’s Anger Log and Student Notes, which were also filed as Exhibits in this proceeding, were devoid of any reference to his own wrongdoing. For example, the father’s own handwritten notes indicate: i. “it is just never ending and becoming so much to handle when knowing I have done nothing wrong”; ii. “doing nothing wrong and having my children suffering in wait”; iii. “stay strong and never stoop as low as the culprit”; iv. “pray for a fix so no other children or parents have to suffer from such wrongful court actions”; v. “how can another parent do this to such innocent harmless children – keeping my kids away from me – no explanation”. d. The Respondent’s primary focus throughout the course remained on the deficiencies of the court system. His materials were replete with negative commentary of this nature: i. ‘what a tragic failure of a court system and judges’; ii. ‘family courts lack of common judgment’ iii. ‘irrational place of hurt and horror to innocent children’; iv. ‘hurt, lie, and cause such illness to people all in for the might dollar’; v. ‘taking a beyond broken system in stride and just keep jumping through the hoops to get the lost pieces of my heart back’; vi. “an illicit court 3 ring circus”; vii. ‘bias and one-sided affair heard before courts’; viii. ‘facts and truths not ill wants and crazy lawyers’; ix. ‘lawyers ill play to hurt children and prolong further alienation’; x. ‘family court system is run by lawyers ill wants and money to bribe system’.

[60] “What has changed”: Since March 2018 the Respondent has completed an eight-week anger management course.

[61] “Is this change material to the children?”: I do not accept that the Respondent’s completion of an eight-week educational program establishes that he has made any material progress in the management of his anger which would have an impact upon the best interests of L.G.S. and L.T.S.. In my view, the evidence provided in relation to the Respondent’s completion of the course simply confirms that the Respondent still does not acknowledge having any anger management issues, and that he continues to blame others for his current situation. The course did not appear to assist the Respondent in gaining any insight as to his negative behaviour: the causes of his negative behaviour, how his behaviour impacted his relationship with the Applicant and the children, how his behaviour impacted the health and well-being of L.G.S. and L.T.S. and his ability to properly parent them. While the course content might normally assist an individual in understanding anger and identifying tools and methods for managing that anger, in the circumstances of this case, it appears that very little was gained by the Respondent. He believes that ‘his’ issues are not the problem. In this case, a certificate of completion does not demonstrate that the Respondent has “dealt with his mental health issues that manifest themselves in anger and rage” as identified by Justice Harper. I cannot accept that the Respondent’s completion of the Conflict and Anger Management Course constitutes a material change in circumstances which impacts the condition, means, needs or circumstance of L.G.S. and L.T.S., or the ability of the Respondent to meet their needs. The Respondent’s mental health are clearly complex. Quite simply, they are not going to be resolved through a 12-week self-study course in anger management.

5. Children’s Aid Society Involvement

[62] The Respondent father called Ms. Lynda Curry, Family Services Worker at the Children’s Aid Society of Haldimand & Norfolk, as a witness at trial. The post-March 2018 child protection records of the Society were produced and filed as an exhibit at trial. The father specifically submitted and relied upon the following documents:

a. June 27, 2017: Correspondence of CAS of Haldimand and Norfolk which confirmed concerns pertaining to the children’s exposure to conflict and adult issues. Specifically: a. The mother allowed one of the children to read an inappropriate text message; b. The child L.G.S. was told by the father not to tell the mother about an ATV accident wherein she hurt her back and head because the CAS would take away the children and they would not be permitted to see the Respondent again; c. The Respondent engaged in inappropriate conversations with the children about the mother.

The parties were warned of the emotional impact of such conflict and exposure on children.

b. July 19, 2018: Correspondence of CAS of Haldimand and Norfolk closing the child protection file and specifically noting that: a. The Society had no further child protection concerns with respect to the Respondent as an access parent that would warrant their continued involvement; b. The children reported enjoying time with the Respondent; c. That the father possesses many parenting strengths and a great love of his children; and d. That should the father’s access be reinstated at any point that the Respondent has assured the CAS that he will not expose the children to any adult conflict.

c. October 12, 2018: Correspondence of CAS of Haldimand and Norfolk to the Respondent confirming that:

“ The Children’s Aid Society of Haldimand and Norfolk has no child welfare concerns that would prevent you from resuming access with your children. It is our assessment that you have had positive access visits with your children prior to your access being terminated by way of a court order. The Society was involved due to concerns regarding exposure of the children to postseparation conflict. There were no verified concerns with respect to your care of the children.”

d. March 26, 2019: Correspondence of CAS Haldimand and Norfolk stating that: a. The Society maintains that the Respondent’s access does not require supervision; b. If the court required supervision of the Respondent’s access, the CAS would approve C.V.P. and T.V.P. as supervisors; and c. Neither of the proposed supervisors have any child welfare history on record.

[63] Ms. Curry advised the court that a CAS file pertaining to this family was open from June 2016 to July 2018. Ms. Curry’s involvement began in October 2017. She was the fourth worker to be assigned to the family. In her examination-in-chief Ms. Curry advised the court that the position of the CAS has been relatively consistent: while it is not accurate to state that the Society has “no worries” about the Respondent’s access moving forward, their concerns did not rise to the child protection threshold which would prompt the agency to seek a termination of the father’s access. Ms. Curry testified that the CAS does not become involved in access proceedings under the Children’s Law Reform Act. She described that despite the closure of the child protection file, the Respondent continued to contact the CAS on a regular basis with respect to CLRA file. The message that was repeated to him (“over 100 times”) was that “the Society is not in a position to make any changes to access; we have to abide with the court order; the responsibility rests on him”.

[64] Cross-examination of Ms. Curry revealed the following:

a. Prior to her testimony in court Ms. Curry had never been privy to the text communications from the Respondent father to the Applicant mother which had been presented to Justice Harper; b. Ms. Curry agreed that had she been privy to these text communications she would have viewed them as “very problematic”, they would “absolutely” have been concerned by the communications, and the Society would likely have continued to open child protection files if presented with such information. Further, such text message communications, if known to the CAS, would have heightened their concerns with respect to the Respondent’s mental health; c. The Affidavit for Uncontested Trial of the Applicant mother only came into the possession of the Society recently, in contemplation of these trial proceedings. Ms. Curry had never reviewed that Affidavit; d. The communications between the Respondent and the Society, following March 2018 would sometimes occur multiple times per day, and often contained a wide range of emotions from calm to escalated, upset, and angry. Sometimes the Respondent would hang up on Ms. Curry. Sometimes he would call back, teary, and apologize; e. The Respondent’s post-March 2018 communications with the Society continued to assert his view that the Applicant mother was “vindictive, spiteful and malicious”, trying to get back at him by hurting the children; f. The Respondent repeatedly referred to the CAS as the “Children’s Abuse Society”, in “cahoots” with the Applicant and the legal system in general, contributing to a “biased landslide” against him. He threatened complaints about Ms. Curry personally and threatened false complaints about the Applicant to force the CAS to re-open their child protection file; g. Ms. Curry could not recall the Respondent ever accepting any responsibility for his predicament; he was “always more blameful of others”; and h. The Society does not have an open file at present and is unwilling to supervise access visits as a result.

[65] The court’s attention was drawn to multiple examples of text communications from the Respondent to Ms. Curry within the CAS records, following the March 2018 decision of Justice Harper. I find the communications to be concerning for several reasons: (i) many of the communications appear distorted - often of rambling and of a nonsensical nature; (ii) the communications are consistently accusatory in tone as against the Applicant, the Society, the lawyers, and the court. Nowhere within the materials filed is there any acknowledgement of wrongdoing on the part of the Respondent; (iii) any and all references to the Applicant mother are negative. In one such message the Respondent threatens that “I will be bacl whn ( sic ) my kids are old enough o hear truth of there ( sic ) toxic mom… done”. The herculean efforts of the Society worker to redirect the Respondent towards productive steps to advance his case proved unsuccessful. In one of the final communications from the Respondent to the Society, he sent screen shots of articles on parental alienation to the worker followed by the following text:

“How is your society so far behind…. Or just to ( sic ) scared to advocate against such a horrible crime…. Pass these along please…. You are all responsible for the destruction of my children… To ( sic ) sad….enjoy your family day..”

[66] “What has changed”: From a child protection perspective, since March 2018:

1. The Society’s child protection file has been closed.
2. The Society’s position with respect to the father’s access remains relatively unchanged. That is, the Society remains supportive of access to the father, but also continues to have concerns about his mental health. I note that these concerns appear to have been further heightened by the presentation of additional evidence to the worker during cross-examination. In re-examination, the worker was specifically asked whether her position remained the same after cross-examination, to which she answered “that is a difficult question for me to answer given some of the things that I learned today; I certainly do have concerns.”

[67] “Are these changes material to the children?”: In the court’s view:

1. The closure of the CAS file may have had a material impact upon the parties and the children in three ways: a. The closure of the file has put an end to meetings between the children and Society workers. While the cessation of meetings has likely resulted in reduced stress to the children to some degree (i.e. permitting them to go about their day to day lives without regular reminder of a very stressful time in their lives), this change may be material to the children in that they no longer have a trained and neutral third-party with whom to discuss the complex issues to which they were exposed. This change however, is not material to the Respondent’s access to the children, but rather to the services which are available to the children. This change does not necessitate any change to the Final Order of Justice Harper, however, a recommendation for counselling for the children may be in order as a result, as discussed in more detail below. b. To some extent, while the CAS file remained open the Respondent father had a line of communication through which to receive information about the children. Since the closure of the CAS file the father has had no ability to receive communications as to the health and well-being of the children. Likewise, there is no longer a conduit for information sharing as to the Respondent’s progress to the Applicant, or any opportunity for information flow at all from the Respondent to the children – such as in the form of birthday cards or wishes, etc. if deemed appropriate. It is not clear that this was the intention of Justice Harper, who at the time of the Order was aware that the CAS had an open and active file for the family. In my view, this change is not material to the Respondent’s physical access to the children but necessitates a minor addition to the Order of Justice Harper to permit information exchange. This issue too is addressed more fulsomely below. c. Further, it is obvious that any heightened concerns on the part of the Society, resulting from new information presented to the Society worker in the witness box at trial, would not constitute a material change in circumstance warranting consideration of a relaxation of access terms.

[68] It is the conclusion of the court that the evidence offered by the CAS does support a finding of a material change in circumstances which would impact the Respondent’s ability to understand and meet the needs of the children.

6. Insight and Attitude of the Respondent Father

[69] The father offered little to explanation for his past behaviours towards the mother in his examination-in-chief. He was unapologetic and did not appear to acknowledge any errors in his conduct. The sole rationale that the father appeared to provide for his behaviour was his dissatisfaction with the number of activities the children were enrolled in by the mother. He appeared to be of the belief that his reactions were justified.

[70] Under cross-examination, the father first agreed that he sent the text messages to the mother because he was angry. He then stated that he had not lost control of his anger when sending the messages: he intentionally chose to “let it out” – to “let her know this isn’t right.” Later in his cross-examination the Respondent seemingly retracted that he had in any way acted out in anger; asserting instead that he was not “angry” with the mother, but rather “disheartened.” The father stated that his children were “taken away” from him, but he would not acknowledge that his anger put them in this position or even that it was a contributing factor.

[71] “What has changed?”: When this fundamental question was posed to the Respondent by his own counsel, he answered “the difference is that I’ve missed two of each of my children’s birthdays and Christmases. I have learned the most severe lessons ever. It has cost me the dearest lesson to be learned in life.” In short, the Respondent has learned that the court has the authority to revoke the privilege of his access to L.G.S. and L.T.S. He has not learned that his conduct was the catalyst to this change.

[72] Domestic violence is not confined to physical assaults within a marriage or cohabitation: it includes situations such as this, where a former spouse engages in a pattern of psychological attack against a former spouse. In this case, the father engaged in a continued course of verbal aggression, intimidation, harassment, stalking, belittling, humiliating and threatening conduct towards the Applicant and her family. The children were witness to many of these events, and by that role, they too are victims of abuse.

[73] The Respondent does not seem to understand that he is a perpetrator of domestic violence. He does not seem to understand that children who are subject to domestic violence are at risk of future problems of their own. The Respondent does not seem to understand that his behaviours were squarely placing L.G.S. and L.T.S. at risk of harm. The court heard nothing in the evidence of the Respondent that would suggest he has any understanding of why his access was terminated. The Respondent chooses to believe that the termination of his access was a reflection of the vindictive nature of the mother, the failures of the Children’s Aid Society, or a flawed judicial system rather than the very real consequences of his own behaviours. Put simply, he offered no apology and no indication of an understanding that his behaviour was wrong. This court cannot accept that a material change in circumstances has occurred in relation to the Respondent’s insight as to his own behaviours and/or the implications of those behaviours on his children.

7. L.G.S. and L.T.S.

[74] In March 2018, Justice Harper was advised of additional concerning information with respect to the Respondent and the impact of same on the children, including but not limited to the following:

a. The Respondent demonstrated an inconsistent desire and ability to spend time with the children, frequently missing his scheduled access visits; b. The Respondent was unwilling to take the children to their scheduled extracurricular activities, despite the court order obliging him to do so on his access time; c. The Respondent often did not respond to offers to spend time with the children on holidays and special occasions; d. The Respondent became enraged with the mother and the grandmother, in the presence of the children, on multiple occasions - yelling and swearing at them in view of the children; e. The Respondent, on occasion, refused to return the children after access in accordance with the existing court order (requiring CAS and police intervention); f. The Respondent would sometimes call the children incessantly (e.g. twelve times in one day), and other times not at all; g. The Respondent told the children that the mother is a liar, that she is only with the children’s step-father for his money, that the children should call her “dummy mommy”, that they should kick their step-father in the penis, that the children should tell the mother and their step-father that they hate them; h. The children cried frequently before and after access visits. They were reluctant to talk about their feelings; i. The Respondent instructed the children not to tell the Applicant about an accident during an access visit in which a quad bike rolled over onto L.G.S., pinning her underneath. They were advised by the Respondent that if they shared this secret they would never be allowed to see him again; j. At one access exchange after a visit, both children and the father were observed to be crying – the children revealed that the father told them while saying goodbye that this would be the last time he would ever see them; k. The Respondent threatened to remove the children from school, despite a warning from the police to the contrary; l. After receiving an ‘urgent’ voice mail from the Respondent during an access visit, the mother attended at the father’s home to be told to “get the fuck off his property.”. This statement was made in the presence of the children; m. The Respondent screamed at and berated the mother over the telephone when L.T.S. broke his arm, within earshot of L.T.S.; n. The Respondent was angered by L.G.S. (age 8) having a ‘boyfriend’, and blamed the mother for this allegation, calling her ‘sick’ and ‘dirty’ and threatening to call the CAS. L.G.S. obviously did not have a ‘boyfriend’.

[75] Such was the family environment in which L.G.S. and L.T.S. lived at the time of the Final Order of Justice Harper in March 2018.

[76] L.G.S. and L.T.S. have had no contact with the Respondent father since March of 2018. Information as to the current circumstances of the children was provided solely by the Applicant mother. In summary, the court heard the following:

a. The children are less emotional now; b. They have no knowledge of any ongoing court proceedings; c. Developmentally the children are doing very well – they are very active in school, sports, activities, with friends, etc.; d. The children are cautious in divulging their thoughts about the Respondent to anyone; e. L.G.S. has divulged to her teacher that she feels anxious, and sometimes has a hard time sleeping because she is worrying about ‘what going back to her dad’s house will look like’; f. L.T.S. is doing better in school – he struggles less with behavioural regulation in class than in earlier years; g. L.G.S., in particular, appears to be struggling with unresolved feelings about the Respondent – she appears to be more affected than L.T.S.; and h. The mother believes that the children would benefit from counselling and/or discussing issues about their father with a neutral adult that they could trust.

[77] The mother advised the court that the children, and in particular L.G.S., wonder if their father is okay. They are under the impression that his neck injury is what is preventing him from spending time with them at present. The Applicant has reassured the children that the father is taking care of himself and that he continues to love them.

[78] The mother testified that she would like L.G.S. and L.T.S. to have a positive relationship with their father. She hopes for the Respondent to become healthy, so that he can offer a safe and child-friendly environment in which to spend time with their children. But at this time she continues to have reservations. The mother offered the court with compelling and heartfelt narrative of the uncertainty she lived with while the children were in the father’s care during access visits. She described the feeling of dread she experienced on one occasion when the children did not exit the Respondent’s home after a visit (as per the usual norm): she approached the house and looked in the front window fearful of what she was going find. This was the sole occasion during the mother’s testimony that she struggled to contain her emotions. To the court’s observation the mother was not being melodramatic in the recount of her fear – it was reasonable and justified in the circumstances given the erratic and unstable communications she was receiving at the time.

[79] The mother wants the children to have a relationship with their father, but she wants it to be safe. Further, she wants the children to be secure in the knowledge that they are safe. The mother worries about how a reinstatement of access would impact L.G.S. and L.T.S. at present without a clear plan. She is concerned about the negative impact on the children if the reintegration of access is not successful, and the instability in their lives that will re-emerge as a result. These are legitimate and important concerns.

[80] The Applicant mother is uncomfortable in the Respondent’s presence. In past she has offered to communicate with the Respondent by way of online platform, such as Our Family Wizard, but the Respondent has declined. The Applicant does not want any involvement with the Respondent at all, but she assures the court she will honour any court order deemed necessary in the best interests of L.G.S. and L.T.S.

[81] “What has changed?”: As stated, there has been no contact or communication between the Respondent and the Applicant, or the Respondent and the children since March 2018. The children’s opportunity to witness and be subject to domestic conflict has been terminated. But again, the cessation of exposure to abuse occurred because access was stopped, not because the father made a decision to stop his inappropriate behaviour.

[82] “Is this change material to the children?”: The termination of the children’s exposure to domestic violence has no doubt had a positive and material impact on their well-being. The evidence suggests that L.G.S. and L.T.S. now have a stable home environment, a routine, and an element of normalcy in their lives. According to the mother, L.G.S. and L.T.S. feel safe and secure and appear to be slowly working through their issues arising from the previous turmoil in their lives. The children can now focus on their school, their friendships, their extracurricular activities instead of the pervasive conflict they previously experienced. Again, this is a positive a change in the lives of the children. But once more, this is not a material change that has arisen since the making of the Final Order. Rather, this is a material change that results as a direct consequence of the Final Order. In my view, this is not a change in circumstance in the condition, means, needs or other circumstances of L.G.S. and L.T.S. which would warrant a review of the Respondent’s access.

[83] However, this court is concerned that the children have been left is a state of flux – they do not know if or when their father will re-emerge in their lives. They appear to have unresolved issues and questions about their relationship with him. This court agrees with the mother that the children are likely in need of counselling to address some of these issues. This court is hopeful that the Respondent’s access will be reinstated in future, and it is unfair to the children not to prepare them for this possibility. Therapeutic intervention is required to assist with how to best approach reintegration - when the father is found to be in a position to both understand and meet the emotional needs of the children in a safe and healthy way.

Supervised Access

[84] The Respondent father advances, as an alternative position, that his access should be reinstated under the supervision of C.V.P. and his spouse. C.V.P. testified at trial. He advised that he is the Respondent father’s uncle and has known him since birth. C.V.P. is familiar to L.G.S. and L.T.S. and is a stable and reputable member of his community. In examination-in-chief C.V.P. was asked whether he was aware of the angry text communications sent by the Respondent father to the mother. C.V.P.’s response was that “I have never seen or heard bad comments while the children were there”, which did not directly answer the question posed. He did not elaborate.

[85] In cross-examination C.V.P. indicated that he had never seen the Respondent father angry. When challenged with a previous Affidavit wherein he affirmed that at the time of separation the Respondent was “angry” with his wife, the witness argued with counsel about the definition of the word. C.V.P. expressed that he had no specific concerns about the Respondent or the Respondent’s ability to parent the children. He advised that he was under the impression that the father’s access was terminated because he did not attend court to address an issue pertaining to the children’s passports. The witness refused to opine on the need for supervision of the father’s access: only that he was willing to act in this role if the court saw fit. C.V.P. admitted that he had never seen the communications from the father which caused the court concern, although he advised he was made aware of them “through others.” He was unaware of any mental health issues pertaining to the Respondent, preferring instead the terminology “I would suspect that he suffers from some form of not being totally happy.” He reiterated his belief that the Respondent misses the children terribly and concluded his evidence by opining that he does not believe that the Respondent has any anger issues that would affect his relationship with his children.

[86] This court was concerned with parts of C.V.P.’s evidence. His testimony was at times evasive and argumentative. He attempted to avoid providing answers that might be construed as unfavourable to the Respondent father. It is unclear as to whether the witness’ apparent lack of concern for the father’s mental stability and ability to parent as at March of 2018 and at trial stem from (i) inaccurate or incomplete information presented by the father, (ii) family loyalty to the father, or (iii) a lack of appreciation of the harmful impacts of domestic abuse and conflict on children, but regardless of the cause this court was left with significant concern about C.V.P.’s ability to supervise interactions between the father and the children from an emotional and psychological perspective.

Credibility of the Parties

[87] The Respondent father’s evidence was not reliable. Where his evidence conflicted with the evidence of other witnesses in this proceeding on material issues, I reject his evidence.

[88] The lack of reliability was not necessarily due to an intent to deceive on the part of the Respondent, but rather sometimes through lack of insight and inability to process information accurately, and as a result - an inability to provide reliable recall. By way of example, the Respondent was questioned as to what steps (or lack thereof) that he had taken to address the concerns of Justice Harper in the two-week period from the date of the Final Order to the date he commenced his Motion to Change. The Respondent testified that he did not know that he was directed to address his mental health issues because “I wasn’t there”. The Respondent attached a copy of the Order of Justice Harper to his Motion to Change materials, which specifically states “THIS COURT FURTHER ORDERS that there shall be no access to the Respondent unless he brings an Application for access and provides the court with satisfactory evidence that he has dealt with his mental health issues.” The Respondent did not appear to appreciate the inherent contradiction in his evidence on this point.

[89] The Respondent’s evidence was often inconsistent not only within his own evidence, but also with the evidence of his own witnesses and the notes and records he relied upon in support of his case. For example, the Respondent told his family physician that he did not attend court on March 21, 2018 because he was not given notice. In his examination in chief, he testified that he didn’t respond to the court proceedings because he “thought it was fake”, and later because the Applicant’s materials would not warrant such drastic relief. Affidavits of Service within the Respondent’s document brief confirmed that, in addition to the Motion to Change documents previously served upon him, on March 12, 2018 a copy of the Affidavit for Uncontested Trial dated March 8, 2018 was served personally upon the Respondent father prior to the hearing. The evidence of the Society worker and the historical medical records produced by the Respondent also made reference to and support a finding that the Respondent was aware of the court proceedings which resulted in the Final Order terminating his access. He simply failed to respond. The Respondent’s uncle advised the court that the Respondent did not attend the court proceeding because it only pertained to a simple matter regarding the children’s passports. The Respondent’s reasons for not attending the hearing before Justice Harper in March 2018 varied significantly.

[90] Some of the contradictory evidence observed by the court was vastly disparate. For example, the Respondent self-reported to the Michael G. DeGroote Pain Clinic in 2015 that, for approximately six months he had been consuming approximately 150 alcoholic beverages per week, at times, up to 30 bottles of beer in a day. Three years later he denied any past or present abuse of alcohol to Dr. Book in his initial psychiatric consultation session. Similar discrepancies, as noted above, were apparent in relation to the Respondent’s self-reporting of history of abuse in his family or origin.

[91] These examples are only a few of the many aspects of the Respondent’s evidence which caused this court concern in relation to reliability. The Respondent noted to the court that as a result of his injury he struggled to retain dates and other information. His answers often changed as his evidence progressed. The court was left with the impression that, in addition to times that the Respondent provided sanitized versions of the truth to advance his position, he also appeared to struggle with a form of cognitive impairment which made it difficult for him to accurately understand and answer the questions posed.

[92] As such, the Respondent’s evidence was at times untrustworthy and was viewed and assessed by the court with caution.

[93] With respect to the Applicant mother, I do not accept the aspersions cast against her character by the Respondent as accurate. The mother was, in my view, a highly credible witness. Her testimony appeared balanced and thoughtful. For example, the mother was able to acknowledge some positive attributes of the father: when asked how L.G.S. and L.T.S. felt about their access time with the Respondent she testified that “Sometimes they would have a great time. They enjoyed playing with him. They enjoyed the beach and playing with the neighbours. And sometimes they would come home and were emotional and upset. Sometimes we could deflect the feelings and emotions quickly and other times it would take a few days to get them back to themselves.” Despite the heinous treatment she was subjected to, the mother was able to find some positive attributes in the father. She also readily admitted her own shortcomings. She appeared genuinely remorseful in recounting an occasion wherein she inappropriately advised L.G.S. that she would show her a text message from the Respondent. She expressed regret, learned from her mistake, and did not repeat her error. The mother’s evidence and actions did not appear to be fueled by animosity towards the father, but rather out of genuine concern for L.G.S. and L.T.S. She was articulate and responsive to the questions posed. Her ability to recall was not challenged. Where the evidence of the mother and father is in conflict on any material issue, I prefer and accept the evidence of the mother.

CONCLUSION

[94] After a lengthy review of the circumstances which existed at the time of the Final Order of Justice Harper on March 21, 2018 - which resulted in the termination of the Respondent’s access to L.G.S. and L.T.S., as compared to the circumstances in existence at the time of trial - it is the conclusion of this court that very little has changed. There has been no material change in circumstances with respect to either the needs of the children or the ability of the Respondent father to meet those needs which would warrant a reinstatement of his physical access to the children at this time. I have considered the unique factual circumstances of this case, both individually and collectively, in reaching this decision. I am also mindful that the threshold test of change does not demand perfection on the part of the father, however on the facts this case, insufficient positive change has occurred.

[95] It is the priority of the court to protect L.G.S. and L.T.S. from both physical and emotional harm, as identified by Justice Harper. While I have no doubt that the Respondent loves and misses L.G.S. and L.T.S. dearly, the focus of this court must remain on the best interests of the children and not on the rights of the parents. I am not satisfied that a reinstatement of the Respondent’s access at this time would be both physically and emotionally safe for the children on either an unsupervised or supervised basis. With respect to the father’s alternative proposal that his access could be supervised by C.V.P., while I am satisfied that the children would be physically safe under his supervision, I am not satisfied that the supervisor is equipped, at present, to shield the children from the risk of emotional harm that a resumption of access would entail. I have considered the impact of the father’s behaviour, both actual and potential, in reaching this conclusion.

[96] This court is not prepared to conduct an experiment to determine whether or not the father’s behaviour and perspective has changed by opening up access to the children; to test whether or not he has actually learned and altered anything significant about himself or his actions since the Final Order of Justice Harper. The burden fell to him at trial to establish that a material change in circumstances has occurred, and in my opinion, he has failed to do so. Prudence must outweigh optimism where the safety and wellbeing of children is at stake.

Guidance for Father

[97] While it is not appropriate at this time to reinstate access between the Respondent father and the children, it is incumbent on this court to provide further direction to the father as to how he may work towards this goal. To date, he does not appear to understand or accept the court’s concerns. Because of this disconnect, he has been unable to explain to health care professionals what is expected of him, and the health professionals have been unable to help. He requires help in understanding how he may satisfy the material change threshold in future and demonstrate to the court that he:

a. “is able to see the needs of his children and meet them in their best interests”; and b. “has dealt with his mental health issues that manifest themselves in anger and rage”

as initially identified by the ruling of Justice Harper and as endorsed by this court.

[98] It is the view of this court that in order to meet the material change threshold in this matter, the father will likely need to address the following:

a. He will need to engage in ongoing and meaningful therapy with a psychologist or other skilled therapist(s) for at least one year; b. The therapy sessions will likely need to occur regularly, potentially once per week; c. The selected therapist, or combination of therapists, should have experience in addressing such issues as (i) domestic violence, (ii) the impact of domestic violence on children, (iii) high conflict parenting and the impact on children, (iii) communication and parenting techniques, and (iv) anger management; d. The therapist must be provided with a copy of this judgment, the judgment of Justice Harper, and the Affidavit of the Applicant mother dated March 10, 2018; e. The therapist should be encouraged to receive information from the Applicant mother and/or any therapists retained on behalf of the children; f. The father will need to develop an understanding of his anger and animosity towards the Applicant mother and learn coping strategies for dealing with this underlying issue; g. The father will need to demonstrate an understanding that his behaviour and conduct toward the mother was wrong and harmful to his children; h. He will need to demonstrate an ability to communicate with the Applicant mother and her family in a child-focused and respectful manner; i. The father should also consider enrolling in and completing a PAR (Partner Assault Response) program; and j. The father should continue to consult regularly with his Physician in relation to ongoing assessment and management of his anxiety and depression.

[99] While these recommendations are not an exhaustive list, and are not binding upon a judge presiding over any future Motion to Change in this file, in this court’s view the Respondent father would be unsuccessful in any such action without addressing the above.

[100] The Respondent’s therapy will only be successful if he is honest in his presentation to his selected therapist. His approach needs to change from denying and concealing his struggles, and attempting to prove that everyone else is wrong, to an open and honest dialogue with people who can help him change. If he refuses or is unable to do so, he risks not having any future relationship with L.G.S. and L.T.S. The father should consider providing a copy of this judgment, or at minimum this section of the judgment, to his family physician for help in securing the appropriate person(s) for therapy.

[101] The father is urged to shift his focus from why Justice Harper (and now this court) may have ‘gotten it wrong’ but rather, what he can do to ‘make it right’. Only the actions of the Respondent from this point forward will determine whether he is able to have a relationship with L.G.S. and L.T.S.

Counselling for Children

[102] Counsel for the father submits that the children are ‘basically left in the dark’ as to what happened to their father and that stating that ‘he is sick’ will cease to make sense after a while. Counsel submits that the children will in future have to deal with the fact that they have a father. I agree. It is the opinion of the court that the children do require some therapeutic assistance. The mother shares this opinion, and as the custodial parent - a demonstrably capable one at that - she can be trusted to address this issue moving forward. It is the recommendation of the court, but not an order of the court, that the mother engage a therapist on L.G.S. and L.T.S.’ behalf to counsel the children. The pacing, frequency and duration of such counselling sessions should be solely in the discretion of the mother, in consultation with her chosen mental health professional. It is hoped that the topics covered with the children in counselling will include, inter alia:

a. Understanding and coping with the current absence of the Respondent father from their lives; b. Understanding their past exposure to domestic violence and adult conflict and the importance of healthy relationships; c. Discussing the possibility of future resumption of their access with the Respondent, and providing them with a safe environment for dialogue about their thoughts and feelings, anxieties and fears, preferences and objections, and hopes and concerns in relation thereto.

[103] This court is hopeful that the same court materials referenced with respect to the father’s therapy will be shared with the children’s therapist as well. In the event that a reintegration of the father’s access to the children is contemplated in future, with or without a formal Motion to Change, it is hoped that the views and preferences of the children could be considered and communicated by such a professional. The complex dynamics of this family will no doubt require professional opinion as to any future steps toward reintegration and it is far preferable that this analysis take place in a therapeutic setting rather than a courtroom if at all possible.

Information Exchange

[104] The Order of Justice Harper does not specifically prevent contact between the Applicant and Respondent. The Applicant, with good reason, does not wish to again subject herself or her family to the barrage of abuse that accompanied personal and text communications with the Respondent. However, without any form of communication between the parties, little progress can be made in assessing and addressing this family’s issues. In my view, the complete cessation of information exchange since the closure of the Children’s Aid Society file in the summer of 2018 constitutes a material change in circumstance only to the extent that provision should be made to allow for and encourage a structured flow of information between the Applicant, Respondent, and potentially the children.

[105] The Applicant mother’s offer to engage in communication with the father through the online platform ‘Our Family Wizard’, or other like program, is the only viable option at this time. Through this platform it is expected that:

a. The mother will share important information about the children to the father. For example, she may post the children’s report cards, attach school photographs, provide updates as to important medical issues or injuries, etc.; b. The father may communicate with the mother in writing on this platform. His communications will be polite and child-focused. His communications will not be excessive, nor will they be derogatory. If he does not comply with these parameters, the mother need not respond to his posts; and c. The father may post communications directed to L.G.S. and L.T.S. Those communications will be of an age-appropriate nature. Again, the communications will not be excessive or derogatory in nature and the Applicant mother shall retain the sole discretion as to whether or not to share the Respondent’s messages with the children. The mother may wish to consult with a therapist engaged on behalf of the children with respect to the content of the messages and the sharing of same. Likewise, the mother in her sole discretion may post messages to the father which are authored by L.G.S. or L.T.S.

[106] In my view, the expansion of communications between the parties by way of online platform is in keeping with the principle of maximum contact. This form of information sharing and potential communication between the father and L.G.S. and L.T.S. is as much contact as is in the best interests of the children at this time.

[107] Further, providing a structured environment for such communications will provide the Respondent with an opportunity to prove that he can parent with the Applicant mother in a positive and meaningful way. The ultimate goal is to re-establish and promote a positive and meaningful relationship between the father and the children. Commencing dialogue through Our Family Wizard is the opening step in moving towards that goal. Despite his prior opposition to engaging such a platform, he is strongly encouraged to do all things necessary to participate fully in this opportunity. To this end, if there is any dispute about the administrative cost of obtaining an Our Family Wizard (or alternative) account, the cost of same shall be shared equally between the parties.

Timeline re: Return to Court

[108] The Applicant seeks an Order that the Respondent be prevented from commencing further court proceedings without first obtaining leave of the court, and that leave shall only be granted if the father provides evidence that he has engaged in, and completed counselling to address his anger, rage, impulse control, and/or other mental health issues.

[109] The father commenced his Motion to Change proceedings only 12 days after the Final Order of Justice Harper was made. It is obvious to this court that no material change in circumstances on the facts of this case could possibly have occurred within those 12 days. There are no statutory restrictions under the Divorce Act with respect to any period of time which should elapse between a Final Order and the commencement of a Motion to Change. However, in my view, based upon the substantive reasons outlined above, I do not believe that the Respondent father will be able to demonstrate a material change without a solid record of regular and consistent therapy which addresses all of the court’s concerns. If he again waits only 12 days to commence another Motion to Change following the release of this judgment, absent extraordinary circumstances, his actions constitute an abuse of the court process.

[110] It is appropriate in the circumstances of this case that the court take steps to prevent this file from becoming a revolving door of litigation. I have provided a blueprint for the father to follow as to the type of evidence that another court would likely require before making a finding that he has met the threshold test of a material change in circumstances. It is hoped that he will accept and honour those recommendations in his own best interests. However, in the event that he does not, it would be unfair to the Applicant mother and to the children, to require her to defend against another round of litigation with similar result. It is therefore appropriate that the Respondent father be prevented from bringing another Application for variation within 15 months following the release of this decision, unless he first obtains leave of the court.

ORDER

[111] In accordance with the above, there shall be a Final Order to go on the following terms:

1. The Respondent father’s Motion to Change dated April 3, 2018 is dismissed.
2. The Final Order of the Honourable Mr. Justice R. J. Harper shall remain in full force and effect, save and except that the parties shall be bound by the following additional terms: a. The parties shall communicate with one another with respect to sharing information about the children of the marriage, namely L.G.S., born September 22, 2009, and L.T.S., born October 25, 2012, via Our Family Wizard (“OFW”) or other similar online platform. Specifically: i. The Applicant mother will share important information about the children with the father via OFW, including but not limited to such items as the children’s report cards, school photographs, and updates as to important medical issues and injuries, significant educational or extracurricular achievements or issues, etc.; ii. The Respondent father may also communicate with the Applicant mother in writing via OFW. His communications shall at all times remain child focused and polite; iii. The Respondent father’s written communications to the mother via OFW shall not be excessive in quantity. She shall respond to reasonable and relevant requests for information about the children; iv. The Respondent father may send communications to the Applicant mother via OFW intended for L.G.S. and/or L.T.S. These communications shall be of an age-appropriate nature and shall not be excessive in quantity. The Applicant mother shall retain sole discretion as to whether or not to share these communications with the children; v. The Applicant mother may, in her sole discretion, send communications to the Respondent father via OFW which are authored by L.G.S. and/or L.T.S.; vi. There shall be no further or other form of communication between the parties unless otherwise agreed to in writing in advance by both parties; and vii. In the event of a dispute with respect to funding the cost of an OFW account, the parties shall share equally in this expense.
3. The Respondent father shall not bring an application for variation of the terms of this order within 15 months of the release of this judgment, except with leave of the court.
4. If costs are in issue, the parties may make submissions as follows: a. The party seeking costs shall serve and file written submissions not exceeding two pages in length plus bill of costs on or before June 5, 2020; b. The party responding to the request for costs shall serve and file responding submissions not exceeding two pages in length plus bill of costs on or before June 26, 2020; c. Reply submissions, if any, shall be limited to one page in length and shall be served and filed on or before July 3, 2020; d. If no cost submissions are filed on or before June 5, 2020, the issue of costs shall be deemed to have been settled.

Released: April 14, 2020 Bale, J.

COURT FILE NO.: 6445/16-02

DATE: 2020-04-14 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

K.M., Applicant

- and -

T.S., Respondent

REASONS FOR JUDGMENT

Bale J. Released: April 14, 2020