Court File and Parties
Court File No.: FC-20-583 Date: 2020/05/13 Superior Court of Justice - Ontario
Re: Kyle Robert Michael Dehaan, Applicant And: Samantha Billings-Turner, Respondent
Before: Justice R. Ryan Bell
Counsel: Ceilidh Joan Henderson, for the Applicant Samantha Billings-Turner, Self-represented
Heard: May 11, 2020, by telephone
Endorsement
Overview
[1] The parties have two children who are five and a half and four years old. The urgent issue in dispute is the applicant father’s access to the children. [1]
[2] Mr. Dehaan brings this motion on the basis that contrary to the parties’ temporary parenting agreement, the respondent mother, Ms. Billings-Turner, has denied him access to the children since September 26, 2019. Mr. Dehaan was having regular access visits with his children prior to that date. Mr. Dehaan seeks to have his access restored to the three times per week schedule that existed under the parties’ temporary parenting agreement.
[3] Ms. Billings-Turner maintains that she has not denied access; instead, she has been seeking a “reasonable arrangement” for the children to have supervised access visits with their father. She says that supervised access visits are necessary given the children’s behaviour during and after the incident on September 26, 2019, and their behaviour following prior access visits. She proposes that Mr. Dehaan’s access to the children occur every second Saturday, on a supervised basis.
[4] For the following reasons, I find that it is in the best interests of the children for Mr. Dehaan to have access on Tuesday and Thursday evenings each week from 4 p.m. to 7 p.m., and on Saturdays from 11 a.m. to 5 p.m.
Background
[5] Mr. Dehaan and Ms. Billings-Turner began dating in 2014 and cohabiting in the summer of 2015. Their daughter was born in December 2014 and their son was born in May 2016.
[6] On December 3, 2018, the parties attended mediation and signed the temporary parenting agreement. At the time, the parties were living separate and apart in the same house. The agreement provided for Mr. Dehaan to have parenting time with the children on Saturdays, from 10 a.m. to 6 p.m., and on Tuesdays and Thursdays from 1 p.m. to 7 p.m. for their son, and from 3:30 p.m. to 7 p.m. for their daughter. The parties agreed to maintain flexibility with respect to the parenting schedule as a result of work schedules and transportation limitations.
[7] In January or February 2019 (the parties disagree on the date), Mr. Dehaan moved to his own residence.
[8] Until September 26, 2019, Mr. Dehaan had regular access visits with his children. Ms. Billings-Turner’s evidence is that Mr. Dehaan often picked the children up late and cancelled some visits due to his work schedule; she also says that Mr. Dehaan often returned the children “soiled” and unfed.
The September 26, 2019 Incident
[9] Mr. Dehaan’s evidence is that on Saturday, September 26, 2019, he arrived at Ms. Billings-Turner’s house to pick up the children. He waited in the rain for an hour and texted Ms. Billings-Turner, asking why she was late (again) in dropping the children off. He admits that he became frustrated. When Ms. Billings-Turner arrived home, she ignored him and went directly into the house with the children. The dining room window was open. Mr. Dehaan opened it wider and said in a forceful tone of voice, “let’s go, I am waiting.” Ms. Billings-Turner called her father (William Turner) to pick up the children and called the police, accusing Mr. Dehaan of breaking into her house. When he arrived, Mr. Turner told Mr. Dehaan that depending on how Ms. Billings-Turner felt, he, Mr. Turner, could drop the children off at a park later in the day. That did not occur.
[10] According to Ms. Billings-Turner, Mr. Dehaan arrived early to visit the children and she and the children returned to their house ten minutes before the appointed time. Mr. Dehaan appeared agitated and she told him to calm down, and took the children inside to get ready. Mr. Dehaan proceeded to yell, bang on the door, and ring the doorbell. She found Mr. Dehaan climbing through her front window. The children were screaming and crying. Her father persuaded her not to call the police.
[11] Ms. Billings-Turner stated in her affidavit that Mr. Dehaan was seen by a neighbour. I did not admit the neighbour’s affidavit into evidence. The affidavit was unsworn and the deponent did not participate in the telephone hearing to swear or affirm the affidavit.
[12] Ms. Billings-Turner also relied on the affidavit of her father, William Turner. Mr. Turner participated in the hearing and swore the affidavit at that time. Mr. Turner’s evidence is that while he was driving to his daughter’s home and on the phone with her, he could hear Mr. Dehaan “screaming” at Ms. Billings-Turner and the children crying in the background. The balance of Mr. Turner’s affidavit addresses matters and alleged behaviours that predate September 2019 by a number of years. I find that they are irrelevant to the present urgent motion to restore access.
[13] I did not admit the affidavit of Ms. Billings-Turner’s mother into evidence. The affidavit consisted of a single paragraph relating to an incident said to have occurred in July 2019. Access visits continued until September 26, 2019. Although the maternal grandmother was available to swear her affidavit, I excluded it on the basis that its contents were irrelevant to the present motion.
Analysis
[14] It has now been seven and a half months since Mr. Dehaan has had an access visit with his children. A few days after the September 26, 2019 incident, Mr. Dehaan (who had been represented by counsel only during the December mediation) was advised by counsel for Ms. Billings-Turner that until such time as Ms. Billings-Turner could be assured “that the children will be safe in your presence, visits will be temporarily suspended.” Counsel also advised that she had instructed Ms. Billings-Turner to contact the police if Mr. Dehaan attended her home without prior consent. Ms. Billings-Turner told Mr. Dehaan that there was a no contact order in place. In November 2019, counsel for Ms. Billings-Turner sent Mr. Dehaan a “Partial Interim Separation Agreement” which contemplated Mr. Dehaan having supervised access with the children for a minimum of two hours every other weekend. A second legal aid mediation on January 24, 2020 was unsuccessful. Mr. Dehaan’s notice of motion and affidavit in support of his urgent motion were served on March 12, 2020.
[15] Based on the record before me, I am satisfied that Mr. Dehaan has been attempting to see his children since September 26, 2019. I am also satisfied that Ms. Billings-Turner’s conduct since September 26, 2019 has amounted to a denial of access, contrary to the terms of the parties’ temporary parenting agreement.
[16] The paramount consideration of the court is the best interests of the children. I find that it is in the children’s best interests that they continue to have a relationship with both their parents and that Mr. Dehaan’s access be restored to the three times per week schedule that existed as at September 26, 2019.
[17] The parties have provided conflicting accounts of what occurred on September 26, 2019 at Ms. Billings-Turner’s house. Mr. Dehaan’s evidence that Mr. Turner effectively left the door open to access taking place later the same day was not denied or addressed by Mr. Turner in his affidavit. In any event, I need not decide between the competing versions of the incident. I am not persuaded by the evidence before me that the verbal altercation on September 26, 2019 warranted Ms. Billings-Turner denying access to Mr. Dehaan, nor am I persuaded that limited supervised access would be in the best interests of the children.
[18] In her affidavit, Ms. Billings-Turner raised two additional points. First, she proposed that supervised visitation should take place until after the COVID-19 pandemic passes “until it is established that it is safe for the Applicant to have unsupervised visitation.” I reject this submission. Ms. Billings-Turner has failed to provide specific evidence or examples of behaviour by Mr. Dehaan that are inconsistent with COVID-19 protocols and that would warrant an order for supervised access.
[19] Second, in her affidavit, Ms. Billings-Turner referred to the fact that Mr. Dehaan takes medication for epilepsy. She states that it “worries her” to leave the children with him without supervision. The fact that Mr. Dehaan is on medication is not new. He was taking medication in December 2018 when the parties negotiated the temporary parenting agreement, which provided for unsupervised access by Mr. Dehaan three times each week. There is a presumption that the existing parenting agreement reflects a determination that meaningful personal contact with both parties is in the best interests of the children. There is nothing in the evidence before me that warrants limiting Mr. Dehaan’s access to his children in the manner sought by Ms. Billings-Turner.
Conclusion
[20] Accordingly, I make the following temporary orders:
a. Mr. Dehaan shall have access to the children as follows: Tuesday evenings from 4 p.m. to 7 p.m., Thursday evenings from 4 p.m. to 7 p.m., and Saturdays from 11 a.m. to 5 p.m.;
b. Access shall be at Mr. Dehaan’s home, or at the home of one of Mr. Dehaan’s family members, or at a park during the COVID-19 pandemic; and
c. Access exchanges shall occur in the visitors’ parking lot at Ms. Billings-Turner’s home.
[21] At the close of the hearing, I asked for the parties’ positions on costs. As the successful party, Mr. Dehaan is presumptively entitled to his costs. Mr. Dehaan requested the amount of $500 – in my view, a modest amount for a motion of this nature. I order Ms. Billings-Turner to pay Mr. Dehaan his costs of the motion fixed in the amount of $500, inclusive of HST and disbursements. These costs are to be paid within 30 days.
Justice R. Ryan Bell
Date: May 13, 2020