Vekeman v. Vekeman, 2020 ONSC 823

COURT FILE NO.: FC-19-45-0

DATE: 2020/02/06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robyn Eileen Vekeman Applicant

-and-

Ryan Edmund Vekeman Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Catherine Calvert for the Applicant

Any Mayer for the Respondent

HEARD: January 14, 2020

E N D O R S E M E N T

1. This is my endorsement regarding the issue of interim access, argued before me on January 14, 2020, and after allowing for further written submission in response to the Respondent’s Memorandum of Law.
2. The parties consented to Minutes of Settlement that provide for various orders to be made on an interim basis. These orders include an Order for the disclosure of various records from child protection and police authorities. The parties also agreed to adjourn the remaining issues, except for interim access and costs, to allow for further disclosure, discussion, and possibly questioning. This motion has been adjourned to February 20, 2020, at 2 p.m.
3. The parties were not able to agree on interim access.

Background

4. The parties have three children, now ages 10, 8 and 5. The issue in dispute is the Respondent's father’s interim access to the two younger children.
5. The parties separated on April 6, 2018. The father moved to Toronto in December of 2018 for employment. The mother resides in Ottawa with the children. Before July 14, 2019, the father saw the children for regular access in Ottawa and Toronto, including alternate weekend access from Friday evening to Sunday evening, plus holiday access.
6. On July 14, 2019, the Applicant mother advised the father that she denied him access due to allegations that he, and his mother, had physically assaulted the oldest child. The allegations against both the father and his mother are remarkably similar. The allegations are that the father and his mother each assaulted the oldest child by grabbing her throat – the father is alleged to have done so on July 13, 2019, and his mother is alleged to have done so on July 14, 2019.
7. On August 31, 2019, the father was criminally charged concerning the July 13, 2019 incident. His conditions of release restrict his contact with the mother and oldest child. Although he denies the allegations, the father is not seeking access to the oldest child at this time, due to the criminal charges.
8. Since July 14, 2019, the father has not had any access to the children due to delays in having his bail conditions changed to allow such access. His bail conditions were changed on October 20, 2019. There were other delays in access due to the child protection file being transferred to Family and Children’s Services of Lanark, Leeds and Grenville (FCSLLG) due to a conflict with the Children’s Aid Society of Ottawa. The parties have not been able to agree on terms for the father’s access to the two youngest children to be reinstated.
9. All of the children are now attending counselling.

Analysis

10. The mother’s position is that the father’s access to the two younger children should be supervised through a supervised access service. The mother relies on the “verified” allegation of abuse against the oldest child and takes the position that it would be confusing to the oldest child if the two younger children had access to their father. The mother also argues that it is premature to allow anything but supervised access as the parties do not yet have disclosure of the child protection and police records and the child protection authorities are still “investigating” a safety plan.
11. The mother places significant reliance on the letter from the FCSLLG dated December 23, 2019. This letter states that the worker has completed her investigation and has verified the allegation of physical harm to the oldest child. The letter goes on to state that the allegations for the two younger children are inconclusive and that the Service will continue to investigate the concern. The worker states she will be transferring the file to ongoing services, which will allow the Service to work with the children and parents to determine an adequate safety plan for the children.
12. The mother’s position is that this letter constitutes clear evidence that the allegations against the father have been verified. While I accept that the child protection worker has determined that the allegations made by the older child have been “verified,” this does not equate to the allegations being verified by a court of law. There is an evidentiary basis for concern regarding the mother’s influence respecting the allegations. It is also difficult to reconcile the remarkable similarity between the allegations made against the father, and the paternal grandmother, allegedly in separate incidents, taking place one day apart. Whether a court of law will verify the allegations concerning the oldest child is not a question, however, that I am determining at this time.
13. The letter from FCSLLG does not include any statements regarding the father’s access to any of the children, other than that the file is being transferred to ongoing services, which will allow them to determine an adequate safety plan.
14. I am not prepared to delay the father’s access to the two younger children pending receipt of further information from FCSLLG. The parties have provided different, hearsay, evidence regarding what the FCSLLG’s position is on access. The father says that the FCSLLG is surprised he has not had any access. The mother says that the FCSLLG is concerned about the father having access. The FCSLLG has not provided a letter clarifying its position, although there is evidence before me that clarification has been requested. Given the FCSLLG’s mandate, I am assuming that if it took the position that the two younger children were at risk in the father’s care, they would take action. Giving all of the evidence before me, and looking at all of the circumstances, I am not prepared to proceed based on various hypotheticals regarding the meaning of the FCSLLG’s failure to provide a clarifying letter on the issue of the father’s access
15. There is no evidence before me that there are any current restrictions imposed by the police, criminal process, or the child protection authorities on the father’s access to the two younger children, including unsupervised access.
16. The allegations regarding conduct with the oldest child do not involve the two youngest children. There are no similar allegations involving the two youngest children, either before separation or after separation by before July 14, 2019. The mother did not raise any previous concerns regarding the father’s parenting, including in her original pleadings, form 35.1, or at the case that took place on March 4, 2019.
17. The mother has not raised any specific concerns regarding the father's access to the two younger children, other than the mother’s concern that if the two younger children have access to the father, the oldest child will be confused. Respectfully, while this may be an issue, the answer is not to restrain the two younger children’s access to their father, but to address the oldest child’s difficulties directly. Also, this issue will not be avoided by requiring the father’s access to the two younger children to be supervised. I do not accept that the oldest child will be confused by the father having unsupervised access to the two younger children but not confused if the father has supervised access to the two younger children.
18. The evidence before me supports that there is a genuine issue that the mother has been unduly restrictive and controlling of the children’s access to their father, particularly the two younger children. I am not making this finding at this time, but it is a factor in weighing all of the evidence before me and how to proceed in a manner that is in the children’s best interests.
19. I find that it has not been in the children’s best interests and continues not to be in the two younger children’s best interests, to respond to this situation in the manner that the mother has responded, by cutting off the father’s regular access, except very limited telephone access (limited to one call per week).
20. I do not find that the evidence before me supports that there is a risk of harm to the two younger children if they have unsupervised access with the father.
21. The father is agreeable to the graduated reinstatement of his access to the two younger children.
22. While the father advises that he is concerned about new allegations, such that he may privately retain someone to be present at some of his access visits, for the reasons above, I am not ordering him to do so. He may, however, have other persons present at his access if he wishes.
23. For the above reasons, I do not find that there is a basis to require the father’s interim access to be supervised; I do not find that it is in the two younger children’s best interests to require their access be supervised; I make the order as set out below.

Disposition

24. Given the above, I make the following interim orders:

    1. The father shall have interim access to the two younger children as follows:

       i. Unless otherwise agreed, for four hours, from 11 a.m. to 3 p.m., to take place on the Saturday following the release of this decision, in Ottawa;

       ii. Unless otherwise agreed, on the Saturday following the above visit, the father shall have access to the younger children from 10 a.m. to 5 p.m.;

       iii. Unless otherwise agreed, after that, the father shall have access to the two younger children every alternate weekend from Friday at 5:30 p.m. to Sunday at 5 p.m.;

       iv. The parties shall make arrangements for pick-up and drop-off at a neutral location, in a manner that complies with the father’s current conditions of release. If there are issues in determining the pick-up and drop-off location, counsel may write to me with brief submission no more than two pages in length setting out their proposal, and I will determine the issue;

       v. Unless otherwise agreed, the father shall have two phone calls with the two younger children per week (via a third party), to take place every Sunday at 3:30 p.m. and every Wednesday at 7 p.m. If there are issues implementing this telephone access, counsel may write to me with brief submission no more than two pages in length setting out their proposal regarding the implementation issues, and I will determine the issue.

       vi. The parties may agree to alter the above dates and times for access to accommodate their respective schedules or other important events. Both parties shall be reasonable in agreeing to such changes. But if they cannot agree in writing, the above schedule shall be binding.

       vii. The issue of interim holiday access is adjourned to the February 20, 2020 motion date.

    2. Subject to the approval and direction of the children’s counsellor, the father shall be permitted to be involved in the two younger children’s counselling process, including by receiving information from the counsellor, providing information to the counsellor, and/or attending sessions with the counsellor.

Costs

25. If the parties are unable to agree on costs of this motion, the Respondent may file submissions concerning costs on or before February 18, 2020. The Applicant may file submissions concerning costs on or before February 25, 2020. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

Dated: February 6, 2020 __________________

Justice P. MacEachern

COURT FILE NO.: FC-19-45-0

DATE: 2020/02/06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robyn Eileen Vekeman Applicant

-and-

Ryan Edmund Vekeman Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Catherine Calvert for the Applicant

Any Mayer for the Respondent

HEARD: January 14, 2020

ENDORSEMENT

Justice Pam MacEachern

Released: February 6, 2020