Court File and Parties

COURT FILE NO.: FC-20-00000051-0000 DATE: 2020-12-04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R.W., Applicant AND: J.B., Respondent

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: M. Modell, Counsel for Respondent/Moving Party V. Younger, Counsel for the Applicant/Responding Party

HEARD: November 24, 2020

Corrected decision: The correction was made on January 13, 2021. The reference to “HEARD: October …” has been corrected to read “HEARD: November…”

REASONS FOR DECISION

[1] In his amended motion, J.B., the respondent father, seeks an order for access with the child, J.B.-W., on alternate weekends, and related relief. R.W., the applicant mother opposes this request. She asks for an order for no access, with a possible future review and then only on a graduated basis ought access occur.

Background

[2] The parties met in 2010 and commenced a relationship in September of that year, ending in June 2012. Subsequently, R.W. discovered she was pregnant. J.B.-W. was born in early 2013. J.B. was present. The parties resumed their relationship in late 2012, lasting until 2014. They never cohabited.

[3] J.B.-W. has been in the care of R.W. since birth. J.B. had access with the child until January 2020. Although there is some dispute as to the details or extent of his access, it appears that such was occurring at least on alternate weekends.

[4] On January 9, 2020, R.W. delivered a text message to J.B. saying, “I am no longer able to facilitate access due to legal issues”.

[5] It appears there has been conflict between the parties for some time. Reference was made in various affidavits to numerous reports to the police and the Children’s Aid Society.

[6] On January 4, 2020, J.B. contacted the police to report an allegation, said to have come from the child, regarding the child’s stepfather, spouse of R.W. The police referred the matter to the Children’s Aid Society. Five days later, R.W. terminated the access of J.B.

[7] Both parties are in new relationships. Each has married with children born to these relationships.

Litigation History

[8] Litigation followed shortly after the termination of access. The application was issued on January 14, 2020. R.W. seeks an order for custody of J.B.-W., supervised access to J.B. on terms and “when safety is not a concern”, permission to travel, permission to re-locate, police enforcement, a restraining order, child support and other relief.

[9] Of some interest, R.W. also presented a motion without notice seeking an order for custody of the child, no access to J.B. and other relief. This motion was considered by MacLeod J. on January 14, 2020. He denied the request and directed service of the motion on J.B. and, also, to schedule an urgent case conference. This motion was never pursued.

[10] The answer is dated February 24, 2020 and amended on March 12, 2020. J.B. agreed to child support (not in issue on this motion) and opposed all other claims of R.W. He seeks an order for joint custody, unsupervised access on alternate weekends, permission to travel, a restraining order and other relief.

[11] The reply is dated May 11, 2020. R.W. opposes the claims presented by J.B.

[12] A case conference was held with Piccoli J. on February 27, 2020. In her endorsement, Piccoli J. indicated motions may proceed and scheduled a settlement conference for May 22, 2020. Relevant to the present motion, Piccoli J. also wrote “CAS records motion will be brought by the applicant on consent of the respondent by 14B”. This motion was never presented.

[13] The motion herein, dated March 12, 2020, was first returnable on March 25, 2020. The event did not occur due to COVID-19. It was ultimately scheduled for regular motions court, by Zoom videoconference on August 19, 2020. It was adjourned to be heard as a long motion.

Relevant Principles

[14] While there is much discussion in the caselaw, it is clear there is only one relevant principle with regards to claims for custody or access, namely the best interests of the child. Indeed, as said in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, it is the only test. Such is codified in section 24, Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am., and section16, Divorce Act, R.S.C. 1985, c.3, as am.

Discussion and Analysis

[15] The following affidavits were served and filed for this motion:

(i) J.B., sworn March 12, 2020 (Vol. 1, Tab 13);

(ii) K.B., spouse of J.B., sworn August 6, 2020 (Vol. 2, Tab 1);

(iii) C.B., mother of J.B., sworn August 6, 2020 (Vol. 2, Tab 2);

(iv) N.B., sister of J.B., sworn August 6, 2020 (Vol. 2, Tab 3);

(v) D.B., brother of J.B., sworn August 6, 2020 (Vol. 2, Tab 4);

(vi) J.B., sworn August 6, 2020 (Vol. 2, Tab 5);

(vii) R.W., sworn March 18, 2020 (Vol. 2, Tab 7);

(viii) C.H., mother of R.W., sworn March 16, 2020 (Vol. 2, Tab 8);

(ix) J.H., father of R.W., sworn March 16, 2020 (Vol. 2, Tab 9);

(x) O.H., brother of R.W., sworn February 19, 2020 (Vol. 2, Tab 10); and

(xi) R.W., sworn August 13, 2020 (Vol. 2, Tab 11).

[16] Attached as exhibits to some of the affidavits are photographs, text messages, some police reports, other reports and correspondence. Correspondence, in general, is problematic as the author cannot be challenged in cross-examination. Little weight, if any, can be given. The usual rule is for best evidence, that is, by affidavit.

[17] There are significant allegations in the affidavits regarding alleged conduct, violence, abuse and mental health issues. Some is historical and of lesser importance. For the most part, little detail is provided. Even less is independent.

[18] What is of concern is the absence of evidence. Given the nature of the complaints, I would have expected to see records from the police, Children’s Aid Society and physicians and other health care providers. Third party records ought to have been obtained, either on consent or by court order. Indeed, this was addressed, in part, at the case conference on February 27, 2020. Yet, no motion has been served. Second, the Children’s Lawyer should have been invited to provide services to the child long before now. Presumably, it was discussed at the case conference. It was recommended by a worker at the Children’s Aid Society in a letter to the parties, dated June 10, 2020. A consent 14B motion should have been presented.

[19] In result, I am left to decide this motion on conflicting affidavits of the parties and members of their immediate families. There is limited independent evidence.

[20] It is clear, this has become a high conflict case. Reference was made to many calls to the police and the Children’s Aid Society.

[21] It is also clear, J.B. had regular access with J.B.-W. from her birth and until January 2020. Such access was unilaterally terminated by R.W. on January 9, 2020, following a complaint made to the police by J.B. regarding her spouse. In these circumstances, the evidentiary onus of proof is on R.W.

[22] The affidavits presented the following:

(a) A significant component of the affidavits of R.W., and her family, is simply bold allegation, belief or conclusion without supporting evidence. Statements such as the “violent, erratic behaviour” of J.B. or that the “child is deeply traumatized by her father’s physical and emotional abuse” are not helpful nor proper evidence.

(b) Most deponents reference comments attributed to the child. Such is often presented but difficult to assess given the contradiction between what is presented. The child has been interviewed by a Children’s Aid Society worker yet there was no independent evidence to verify what the child has said or reported. It appears the Children’s Aid Society has not taken any action regarding this family.

(c) R.W. refers to the details of the child’s trauma by providing a report from Carijon, dated February 8, 2020; however, this is actually mother’s subjective report, not the child’s.

(d) R.W. also refers to many instances of police involvement pertaining to the conduct of J.B. While she often refers to police file or report numbers, she does not provide copies of police records. Of some interest, J.B. provided a copy of a police report, dated February 4 and 5, 2017. This appears to be a complaint made by R.W. concerning an incident occurring on January 29, 2017. She was to attend the police station to provide a statement. Such did not happen. R.W. later called the police to say she had changed her mind. The officer wrote in the report “Police believe that [R.W.] was “fishing” for an opportunity to contact police in order to help her custody order”.

(e) R.W. specifically refers to a “no contact order” issued by a police officer on January 19, 2020 and that J.B. breached that order. Police officers do not grant orders. No document was tendered in evidence.

(f) R.W. alleges the child was bedwetting and relates that problem to past access visits with J.B. J.B. says the child tended to hold her urine and did urinate on herself, such being typical of a child of her age. There are no medical records for the child regarding any urination or trauma issues. This matter is unclear.

(g) R.W. says the child’s voice has been silenced and ignored by the Children’s Aid Society due to “systematic protocol”. This complaint appears to be made against the agency, not J.B., yet it is clear R.W. has contacted them on many occasions.

(h) R.W. reports the first sexual event with J.B., apparently in 2010, was non-consensual. J.B. denies the allegation. The relationship continued until 2014. This matter is unclear.

(i) R.W. reports J.B. strangling J.B.-W. in the summer of 2019, reported by the child to her months later. J.B. says he lifted up the child who was on top of her younger brother. J.B. provides more detail. I am not persuaded, on the evidence tendered, that any strangulation took place.

(j) R.W. makes significant allegations as to J.B. having mental health issues. She even attempts to provide an opinion or diagnosis, as a mental health worker, of “disorganized attachment relationship with others”. R.W. is not qualified to express an opinion. As a result of these allegations, J.B. consulted a psychologist, requesting an assessment. Such occurred, with a report delivered by Dr. Pilowsky, dated May 26, 2020. R.W. refers to this report as a “biased perspective based on inaccurate, incomplete information provided by [J.B.] to exonerate himself”. In submissions, counsel for R.W. questioned the timing of the report. In my view, given the serious allegations of R.W., it was quite proper, indeed necessary, to address R.W.’s complaints with medical evidence. The psychologist conducted the assessment on May 13, 2020. Some of the process involved self reporting by J.B. Several psychological tests were conducted. Dr. Pilowsky wrote “It is my clinical impression that [J.B.] is psychologically well-balanced and functioning at a high level, in spite of various stressors that remain present in his life, including custody arrangement … [J.B.] does not meet for any clinical diagnoses, nor were there any concerning or functionally impairing behaviours or personality traits that surfaced from observation, self-report, or testing”. In my view, this is helpful and independent evidence. R.W.’s assertion of mental health issues of J.B. is rejected.

(k) R.W. claims the child does not want to see J.B. and that she has improved significantly since access was terminated. It is difficult to assess evidence said to come from a child, particularly when presented by a party. I am concerned there is no independent report, particularly given the involvement of the Children’s Aid Society. I am not persuaded the evidence of R.W. is accurate, having regards to the interaction with the Children’s Aid Society in May and June 2020, as hereafter discussed.

[23] There are certain factors that are clear from the evidence:

(i) there is a great deal of conflict between the parties and the two families;

(ii) many reports or complaints have been made to the police and the Children’s Aid Society, but no action was taken by those agencies;

(iii) of significant importance, J.B. exercised regular access with J.B.-W., as was arranged by the parties, until January 2020;

(iv) access was unilaterally terminated by R.W. on January 9, 2020, following a complaint made to the police by J.B. regarding her spouse;

(v) J.B. has not seen or spoken to his daughter since January 4, 2020;

(vi) the Children’s Aid Society was involved in May and June 2020 regarding the spouse of R.W., apparently regarding his medications. It is unclear who reported the matter to the Children’s Aid Society. Of interest here, is the report from the Society worker dated June 10, 2020. In conversation with the child, the worker recorded “… she wished all of her parents could get along”. This, in my view, is an expression from the child indicating a desire to see her father; and

(vii) there are no police or Children’s Aid Society reports indicating any criticism of the conduct of J.B.

Conclusion

[24] On the limited evidence tendered, I conclude it is in the best interests of J.B.-W. that she have access with her father. Indeed, I am of the view the termination of such access by R.W. in January 2020 was improper and vindictive and contrary to the child’s best interests.

[25] In this regard, I am satisfied the child has had a relationship with her father and that there are love, affection and emotional times between them. I am unaware of child’s views and preferences but mother’s purported evidence that the child does not wish to see her father is rejected. I am not persuaded there are legitimate concerns for the child’s safety.

[26] It has now been eleven months since the last access visit. I am concerned as to what the child has been told about her father or other family dynamics. In result, there needs to be a brief introductory period before resuming the alternate weekend access regime.

[27] In result, a temporary order is granted on the following terms:

(i) commencing December 12, 2020, J.B. shall have access with J.B.-W. on alternate Sundays from 8:00 a.m. to 7:00 p.m. (including December 26, 2020, otherwise known as Boxing Day);

(ii) commencing March 5, 2021, J.B. shall have access with J.B.-W. on alternate weekends from Friday at 6:00 p.m. to Sunday at 7:00 p.m.;

(iii) the access exchange shall occur at a neutral site, as arranged by the parties; failing agreement, at the Waterloo Regional Police Station closest to the residence of R.W.;

(iv) J.B. is also permitted to have telephone access with J.B.-W. every Wednesday from 7:00 p.m. to 7:30 p.m., commencing December 9, 2020;

(v) both parties are prohibited from making negative or disparaging remarks about the other to or in the presence of J.B.-W. and they will ensure that members of their families follow the same direction;

(vi) a police enforcement provision in the usual terms, pursuant to section 36, Children’s Law Reform Act, until further order; and

(vii) neither party shall remove or travel with the child outside of Ontario without the express agreement of the other, in writing, or by court order, until further order.

[28] If the parties are unable to resolve the issue of costs, counsel are directed to exchange brief written submissions and deliver same to my chambers in Kitchener within 30 days. Cost submissions may be sent to my attention by email, care of Kitchener.SCJJA@ontario.ca. If submissions are not received in that timeframe, it will be presumed the issue of costs was resolved.

[29] It is important this case move forward without further delay. Any motions, as referred to in these reasons, should occur quickly and a date for a settlement conference scheduled.

D.J. Gordon J.

Released: December 4, 2020