COURT FILE NO.: F04/10

DATE: 2020-01-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

James Andrew Mullin

Self-represented

Applicant

• and -

Jane Alison Foley

Patricia Lucas, for the Respondent

Respondent

HEARD at Welland, Ontario: January 9, 2020

The Honourable Justice T. Maddalena

ENDORSEMENT ON MOTION

Procedural Issues

1There were three motions before the court at the hearing on January 9, 2020. Firstly, there was a motion brought by the respondent mother, Ms. Foley, originally returnable November 22, 2019 seeking a stay of the applicant’s motion to change dated February 22, 2019 as well as other relief in the alternative.¹

2Secondly, there was a motion brought by the applicant father, Mr. Mullin, originally returnable December 6, 2019 seeking unsupervised access to the child Ryleigh Jane Foley-Mullin, born October 5, 2008. Other relief was also sought which was not in his originating motion to change.²

3This motion seeks the same relief as the motion to change and is, therefore, dismissed. The motion to change has been set for five to seven days of trial commencing the June 15, 2020 sittings of this court.

4The request for additional relief is also dismissed as this relief was not requested by the applicant in his originating motion to change.

5Thirdly, there was an amended notice of motion brought by the applicant, Mr. Mullin, which was returnable January 9, 2020. This motion sought 21 paragraphs of relief, of which only paragraph 1 was requested in his originating motion to change.

6For the same reasons referenced above, this motion is also dismissed.

7Paragraph 1 references the exact same relief as requested in the originating motion to change. This has been set for trial as already indicated above.

8The balance of the paragraphs in the amended motion reference relief not requested in the motion to change and therefore cannot proceed. For these reasons, the amended notice of motion of the applicant father is also dismissed.

Position of Ms. Foley

9The only motion for adjudication is the motion of Ms. Foley seeking a stay of the applicant’s motion to change. Ms. Foley submits the stay must be granted due to Mr. Mullin’s failure to satisfy certain conditions outlined in the order of Justice Starr dated October 10, 2017.

10Secondly, Ms. Foley submits the stay must be granted since Mr. Mullin has not yet satisfied the costs order of Justice Starr dated November 24, 2017.

11In the alternative, Ms. Foley seeks security for costs, and if the matter is to proceed, the involvement of the Office of the Children’s Lawyer (“OCL”).

The Position of Mr. Mullin

12The applicant Mr. Mullin submits that he has satisfied all conditions outlined in the order of Justice Starr and therefore he should now be able to automatically exercise unsupervised access to Ryleigh.

13Further, Mr. Mullin submits he has entered into a monthly payment agreement to pay the costs of $1,500 of which he has currently paid $800 to the date of this motion.

14Towards the end of the motion’s submission, Mr. Mullin stated he was withdrawing his motion and expressed an intent to “start over again”. It was suggested by the court that he obtain legal advice.

15It is unclear to the court what he actually intended by “withdrawing his application and starting over”. Further, during the same time, Mr. Mullin referenced a contempt motion against Ms. Foley. However, he was reminded that no such motion was before the court.

16Ultimately, I am proceeding to deal with the matter as it was argued before me.

The Order of Justice Starr of October 10, 2017

17The order of Justice Wolder dated July 21, 2011 granted Ms. Foley custody of Ryleigh. This custody was reaffirmed by the order of Justice Starr dated October 10, 2017. After a three-week high conflict and very acrimonious trial in the Ontario Court of Justice before Justice Starr, Mr. Mullin was granted access to Ryleigh once a week, for up to three hours supervised at Pathstone Mental Health Supervised Access Centre. (See paragraph 33 of the order of Justice Starr dated October 10, 2017)

18In addition to the aforementioned, Mr. Mullin was permitted one telephone call per week.

19Paragraph 59 of the order of Starr J. dated October 10, 2017 is at issue in this motion.

20For greater clarity, paragraph 59 of the order states as follows:

59. The Applicant father may only bring a motion to change his access from supervised to unsupervised when he has fulfilled these expectations of the court:

(a) Attended the 8 week parenting program called Triple P Positive Parenting, and completed the entire program;

(b) Attended and completed the entire Caring Dad’s program;

(c) Attended and completed an anger management program recommended by FACS;

(d) Attended and completed any other program recommended by FACS;

(e) If he misses a class in any particular program, he must make it up the next time the program is offered;

(f) As soon as he completes a program he is to send a copy of his certificate of completion or attendance to FACS and the Respondent mother;

(g) Participated in individual therapy / counselling for at least 6 months, through a community organization approved of by FACS, in advance, to support him in, at minimum, such things as:

(i.) Recognizing and separating Ryleigh’s needs from his own, so that he can put her needs first;

(ii.) Recognizing the negative impact his conflict with the Respondent mother, has on Ryleigh;

(iii.) Recognize the role he plays in the conflict with the Respondent mother;

(iv.) Learn strategies to minimize the role he plays in the conflict with the Respondent mother;

(v.) Recognize the negative impact his negative emotions such as anger, sadness, frustration, and corresponding behaviours such as crying, yelling, swearing, calling people and Ryleigh names, has on Ryleigh and others;

(vi.) Learn new strategies to help him deal with situations that are difficult for him so as to keep Ryleigh’s exposure to those emotions and behaviours to a minimum;

(vii.) Recognize the flaws in his communication style and learn new and more positive and effective ways to communicate with the Respondent mother;

(viii.) Gain perspective on his relationship with the Respondent mother and how to disengage;

(h) Provide a copy of this decision to his therapist at the outset of his or her engagement and as well to Larry Hart if he is going to continue to work with the Applicant father to support him spiritually, so that they have a greater understanding of the court’s point of view and of what the court wants him to work on;

(i) Produce a letter from his therapist or counsellor, confirming that he or she was provided with a copy of this judgment and reviewed it; outlining the nature of the work (i.e. which of the forgoing issues have been worked on), the frequency and duration of their appointments, Applicant father’s attendance record, which of the items above have been worked on and discussing both his level of commitment and effort to change and degree of insight shown. A copy of the therapist’s CV must be attached.

(j) Followed the directions of Christine Stark and the various supervisors of his visits, consistently, without incident for at least 6 months.

(k) Followed the communication and behaviour protocols and other terms of this and Justice Wolder’s order, consistently, without incident for at least 6 months.

(l) Continued to attend at his visits with Ryleigh, consistently, without incident for at least 6 months.

(m) Stop crying and venting at supervised access visits for a period of at least 6 months.

(n) Complied with the terms of this order; and,

(o) Scheduled and attended an appointment with Dr. Visbal or Ryleigh’s asthma doctor with a view to learning about Ryleigh’s asthma, the risks his smoking practice poses to her health, and ways in which he can reduce such risks.

Analysis

21Ms. Foley submits that Mr. Mullin has not complied with all the preconditions imposed by the court and, more specifically, as follows: paragraphs 59(a), (c), (d), (f), (g), (i), (n) and (o).

22Ms. Foley further submits that, once the preconditions are fully met, Mr. Mullin must then move to show that it is in the child’s best interests for access to move from the supervised access centre to unsupervised access.

23I agree with the submission that there is a two-part test for Mr. Mullin to meet. For clarity, firstly, Mr. Mullin must show that he has met all the conditions imposed upon him by the order of Justice Starr and, secondly, that it is in the child’s best interests to move from supervised visitation to unsupervised visitation.

24I shall deal with each of the preconditions individually.

25Paragraph 59(a) of the order of Justice Starr, dated October 10, 2017, required Mr. Mullin to attend an eight-week parenting program called “Triple P Positive Parenting” and to complete the entire program.

26The evidence at this motion is clear that Mr. Mullin did not qualify for this program as he did not have sufficient access. Therefore, he did not attend such program.

27Notwithstanding, Ms. Foley submits that in the spirit of the court provision, he should have registered for a parenting program for which he was eligible and completed that program.

28I agree that the spirit of this provision is that Mr. Mullin take an extensive and comprehensive parenting course.

29Mr. Mullin’s evidence at the motion is that he has taken a “Triple P Parenting” seminar in a classroom for one and one-half hours. This is clearly not sufficient. He should have enrolled in some comparable eight-week parenting program and provided evidence of completion by way of a certificate.

30In paragraph 59(c) Mr. Mullin was required to attend and complete an anger management program recommended by FACS. There is no evidence that Mr. Mullin has complied with this provision. There is correspondence in evidence dated August 12, 2019 from the Family Counselling Centre Niagara that Mr. Mullin has participated in counselling sessions related to anger management. This is not in compliance with the order.

31The court requires that Mr. Mullin participate in an anger management program recommended by FACS as ordered by Justice Starr.

32During this motion Mr. Mullin raised his voice at opposing counsel when she was making her submission. He interrupted and subjected the opposing counsel to some name-calling. The court called security into the courtroom and Mr. Mullin was warned about his inappropriate behaviour.

33Mr. Mullin, prior to the completion of the motion, later apologized. However, this behaviour, even in the courtroom when he knows he is under scrutiny and most people are on their best behaviour, is a clear indication of his need for an anger management program as ordered by Justice Starr.

34While he was clearly frustrated at not seeing his daughter unsupervised, his angry, aggressive reaction in the courtroom continues to be problematic and of great concern to the court.

35In paragraph 59(d) Mr. Mullin was ordered to attend and complete any other program recommended by FACS. As evidence, Mr. Mullin has submitted a few emails directed by him to FCAS and some responses by FCAS representative Dyan Pariak concerning this requirement of the court.³

36However, there is no specific evidence that causes this court to be satisfied that this prerequisite has been fulfilled by Mr. Mullin.

37In paragraph 59(f) Mr. Mullin was ordered that as soon as he completes the program he is to forward a copy of his certificate of completion or attendance to FACS and the respondent mother.

38According to the evidence presented at this motion, the only certificates provided by Mr. Mullin are as follows:

1. Caring Dads Program certificate, dated November 8, 2018;

2. Niagara Regional Public Health Triple P Seminar – 1.5 hour classroom seminar dated June 9, 2018.

3. Pathstone Mental Health certificate of participation in New Beginnings; Let’s Do it Right, dated March 11, 2017. (Note that this certificate predates the order of Justice Starr dated October 10, 2017.⁴)

39Paragraph 59(g) requires Mr. Mullin to participate in therapy / counselling for at least six months through a community organization approved by FACS, and further, 59(i) requires him to produce correspondence from therapists or counselling confirming that Mr. Mullin has complied with the provisions of item (g). The correspondence from the Family Counselling Center, dated November 11, 2018, does not identify timelines for counselling and does not identify all items required in paragraph 59 (i) of the order.

40The correspondence references six counselling sessions with a therapist by the name of Ms. Timmers. If further references an additional three sessions of counselling with a counsellor by the name Mr. Williams. Finally, it identifies 10 sessions of counselling with Mr. McLaughlin.⁵

41Paragraph 59(n) requires Mr. Mullin to show that he has complied with all terms of the order of October 10, 2017.

42Ms. Foley submits that the Pathstone notes confirm Mr. Mullin continues to involve Ryleigh in the litigation and to express to Ryleigh his dissatisfaction with the current parenting plan.

43An example referenced in the evidence are the Pathstone notes from the supervised visit of Mr. Mullin dated March 16, 2019.⁶ Extracts of the notes indicate as follows:

VP (visiting parent) opens his arms wide and says what about coming home. As staff intervenes child says to VP that she doesn’t want to get him into trouble and she just wants to have a good visit and have fun …

44Further, the Pathstone notes for the visit of March 16, 2019 indicate:

Child comes out saying she just wants him to play … VP stops suddenly and says “You know what I want to see? I want to wake up with you one morning with you across the breakfast table eating cereal …”

45These are clear, inappropriate comments by Mr. Mullin to the child. Mr. Mullin clearly knew at this time that his access is only supervised and both comments were inappropriate to Ryleigh. Involvement of the child in the ongoing parental conflict remains a concern for the court.

46Paragraph 59(o) required Mr. Mullin to schedule and attend an appointment with Dr. Visbal or Ryleigh’s asthma doctor with a view to learning about Ryleigh’s asthma, the risks his smoking practice poses to her health, and ways in which he can reduce such risks. While the evidence filed by Mr. Mullin clearly indicates Dr. Visbal is retired to Colombia, the evidence does not identify when he retired nor when Mr. Mullin made efforts to contact him.

47There are two emails presented in evidence by Mr. Mullin dated January 23, 2019. The court wonders whether this is the first attempted contact by Mr. Mullin to the doctor’s office given that the order of Justice Starr was made October 10, 2017.⁷

48I conclude this condition is substantially uncompleted.

The Issue of Unpaid Court Costs

49The costs order of Justice Starr is dated November 24, 2017. Mr. Mullin was ordered to pay Ms. Foley $1,500 all-inclusive in costs and payable within 30 days.

50It is undisputed that full costs are not yet paid. Ms. Foley has received to the date of the motion $800.

51Mr. Mullin brought post-dated cheques to cover the balance of the costs. If all post-dated cheques clear, the $1,500 will have been paid by April 3, 2020.

52I note this order was made November 24, 2017. The issue of unpaid costs on its own is not sufficient grounds to stay the motion to change. However, parties should keep in mind that a costs order is still an order of the court and, as such, must be followed and requires strict compliance.

Conclusions

53Section 106 of the Courts of Justice Act R.S.O. 1990, Chapter C.43 states as follows:

A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.

54The order of Justice Starr dated October 10, 2017, paragraph 59 therein, (a) through (o) inclusive, clearly stipulated all the items therein as preconditions to, firstly, permitting Mr. Mullin to file a motion to change. Therefore, the first part of the threshold test for Mr. Mullin is to satisfy all preconditions in the order of Justice Starr.

55The second part of the threshold test for Mr. Mullin would require him, on the balance of probabilities, to establish that it would be in the child’s best interests for access to change from supervised at Pathstone to unsupervised.

56Mr. Mullin must understand that any such motion by him requires him meeting the two-part test.

57It is clear that he has not completed a number of the mandatory requirements set by the order of Justice Starr in paragraph 59. These are all set by the court and require strict compliance.

58I conclude that Mr. Mullin has not strictly complied with paragraphs 59(a), (c), (d), (f), (g), (i), (n) and (o) of the order of Justice Starr dated October 10, 2017. As such, he is not permitted to bring his motion to change seeking unsupervised access. His motion to change is, therefore, stayed.

59In coming to this conclusion, I place very little or no weight on the fact that the costs order remains partially unpaid, although he has had more than ample opportunity and time to pay this costs order.

Summary of Orders Made

60The following orders are made:

1. The motion to change brought by the applicant Mr. Mullin dated February 22, 2019 is hereby stayed.

2. The trial set for five to seven days for the sittings of this court commencing June 15, 2020 is hereby vacated.

3. The notice of motion of Mr. Mullin originally returnable December 6, 2019 and dated November 19, 2019 is hereby dismissed.

4. The amended notice of motion of Mr. Mullin returnable January 9, 2020 and dated December 13, 2019 is hereby dismissed.

Costs

61Submissions on costs may be made in writing, limited to two pages, double-spaced, together with a bill of costs. Submissions on behalf of Ms. Foley shall be served and filed by January 31, 2020. Submissions on behalf of Mr. Mullin shall be served and filed by February 7, 2020. No reply is permitted. If submissions are not received by the date requested, they will not be considered.

Maddalena J.

Footnotes

1. 1Continuing Record, Volume IV, tab 9
2. 2Continuing Record, Volume IV, tab 11
3. 3See the affidavit of Mr. Mullin, sworn November 28, 2019, Volume IV, tab 12, tab 4 Continuing Record.
4. 4The 3 certificates are found at Continuing Record, Volume IV, affidavit of Mr. Mullin sworn November 28, 2019, tab 12 – followed by tabs 1 and 2.
5. 5Continuing Record, Volume IV, tab 12 – see tab 1 for the correspondence.
6. 6Affidavit of Mr. Mullin, sworn November 28, 2019 at Volume IV of the Continuing Record, tab 12, tab 3.
7. 7Continuing Record, Volume IV, affidavit of Mr. Mullin sworn November 28, 2019, tab 12 at tab 5.