Court File and Parties

COURT FILE NO.: FC-20-032

DATE: 2021/01/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Teri Brehanna Marie Skinkle, Applicant

AND: Ryan Brockley, Respondent

BEFORE: Honourable Justice Mary A. Fraser

COUNSEL: Sylvia Christinck, Counsel for the Applicant Wylita Clark, Counsel for the Respondent (on a limited retainer)

HEARD: January 13, 2021

ENDORSEMENT

[1] The Applicant mother (the “Applicant”) brings this motion for, among other things, temporary custody of the child, Annissa Sapphire Brockley born October 12, 2017. She alleges that the Respondent father, Ryan Brockley (the “Respondent”) moved the child’s residence when they separated in November 2019 without her consent. She asserts that since that time, the Respondent has refused to allow the Applicant to have any contact with Annissa. She alleges that despite the terms of a temporary Order made in August 2020 that she be entitled to regular, scheduled access, the Respondent has not abided by the terms of the Order. Indeed, she states that the Respondent has moved Annissa’s residence again in October 2020. As of December 8, 2020 when the motion was initially returnable, the whereabouts of Annissa were still unknown. The Applicant asserts that it is in Annissa’s best interest for there to be a temporary Order giving the Applicant sole custody of Annissa, with Annissa residing with her.

[2] The Respondent opposes this motion. He does not dispute removing Annissa from the matrimonial home without the Applicant’s consent. He does not dispute the fact he moved with Annissa again and that he did not advise the Applicant of Annissa’s whereabouts. Instead, he alleges that the Applicant has mental health issues, that she is verbally and physically abusive, and that all access with Annissa should be supervised. He does not dispute that no access between the Applicant and Annissa has taken place between August 2020 and December 2020 as ordered. He excuses his non-compliance with the Order on the basis that in each instance Annissa was either ill, showing symptoms of COVID-19 or required to isolate due to COVID-19. He raises new allegations about the Applicant in response to the present motion, alleging most notably that the Applicant has a serious substance abuse problem.

[3] Due to the COVID-19 pandemic and the suspension of the regular operation of the Superior Court of Justice, this matter was heard by zoom video conference.

Background:

[4] The parties began cohabiting on December 16, 2016. The initially lived together at the home of the Respondent’s mother in Peterborough, On. They were subsequently married on July 6, 2019. They separated on December 2, 2019.

[5] Annissa is the only child of the relationship.

[6] The Applicant also has a daughter from a previous marriage. This daughter, Eviee Charlie Marie Mackenzie (“Eviee”), was born June 2015. Eviee remains in the primary care of the Applicant pursuant to the terms of a consent Order of McLeod J. dated October 4, 2019. Eviee’s father exercises access three weekends per month with additional access occurring as agreed.

[7] The Respondent moved to Pembroke for employment purposes in January 2019. The Applicant and her two children followed to join him in July 2019.

[8] On November 28, 2019, the Respondent advised the Applicant that he was going to Peterborough and taking Annissa with him. The Applicant claims the Respondent told her that she “would never see Annissa again.”

[9] On November 29, 2019, the Applicant attempted to attend at the Respondent’s home with a police escort to retrieve her personal belongings. The police met her there. She asked to see Annissa and the Respondent stated that she was asleep and that he would not permit it.

[10] On November 30, 2019, the Respondent moved with Annissa to Peterborough without the Applicant’s consent.

[11] The Applicant moved to her present address, 1055 Mountainview Drive in Pembroke with her other daughter Eviee.

[12] Following the Respondent’s move with Annissa to Peterborough, the parties discussed access and the Applicant had Annissa in her care from December 10^th to December 16^th, 2019. She returned Annissa to the Respondent in Peterborough anticipating that she would have Annissa in her care again on December 26, 2019. However, this did not occur. The Applicant’s contact with Annissa has been sporadic to non-existent since that time.

[13] Her next permitted contact with Annissa was by video on January 24, 2020.

[14] In February 2020, the Respondent proposed that the Applicant’s access be supervised. For a brief period, the Applicant and Annissa had video chats. However, the Respondent maintains (in his Affidavit sworn July 28, 2020) that this needed to be stopped as Annissa was upset by and agitated by the video calls. He claims that Annissa was having nightmares and reported dreams wherein the Applicant hit and burned her. He discontinued the video access and thereafter permitted only telephone (audio) contact. He says Annissa made statements to him such as “mommy hit my back.” The Respondent stated in his affidavit sworn July 28, 2020 that he arranged for Annissa to be referred to a child psychologist by her family doctor and the clinical assessment was not yet complete.

[15] For May and June 2020, the Applicant had telephone access three times per week. The Respondent maintained that the Applicant would often yell during these calls and that they were upsetting to Annissa.

[16] There was an in-person visit arranged between the Applicant and Annissa on June 28, 2020. It took place in a park with the Respondent’s mother supervising and the Respondent observing from a distance. The Respondent maintains there were difficulties during the visit which principally revolved around his perception that the Applicant as not following the COVID-19 protocols and he cut the visit short. He attached to his affidavit, an unsworn note from his mother reciting the number of alleged difficulties with the visit.

[17] The Applicant commenced this proceeding by way of an Application on January 24, 2020 returnable on March 25, 2020.

[18] Due to the COVID-19 pandemic, the First Court Date appearance was administratively adjourned. On June 2, 2020 the matter was scheduled for a Case Conference which occurred on June 17, 2020.

[19] Both parties brought a motion before James J. on August 6, 2020. The Applicant sought a temporary order for access and the appointment of the Office of the Children’s Lawyer. The Respondent sought a s. 30 assessment among other things.

[20] In disposing of the motion, James J. remarked that the evidence between the parties was conflicting and that it was difficult to assess what was truthful and what was not.

[21] At paras. 15 and 17 of his reasons he states:

While it is difficult to make credibility assessments on the basis of the competing affidavits without the opportunity to hear and observe witnesses give oral testimony and undergo cross-examination, limited common sense credibility assessments on affidavit evidence are necessary. In this regard I find the respondent’s allegations somewhat improbable and to some extent, uncorroborated by admissible evidence. Where the evidence is in conflict, I tend to prefer the evidence of the applicant…

My impression of the evidence of the respondent is that he believes he has more rights and authority over Annissa than the applicant when in reality neither parent can trump the wishes of the other in the absence of a custody agreement or court order.

[22] In the result, James J. ordered that the Applicant was to have access every second weekend from Friday at 4:00 p.m. to Sunday at 4:30 p.m. starting Friday August 21, 2020. The weekend was to be extended to include Friday or Monday, if the weekend landed on a holiday Friday or Monday. The Applicant was also to have private video calls with Annissa every Wednesday from 4:30 p.m. to 4:45 p.m. and at the same time on Fridays and Mondays, every second week alternate to the access weekend.

[23] James J. also ordered that a request be made for the involvement of the Office of the Children’s Lawyer given the limited ability of the parties to pay for a s. 30 assessment.

[24] The present motion is brought by the Applicant and was initially returnable on December 8, 2020. On that return date, the Respondent asked for an adjournment to accommodate a change in counsel.

[25] The motion was adjourned, on terms, to January 13, 2021.

[26] By way of this motion, the Applicant seeks, among other things, a temporary order transferring custody of Annissa to her. In her affidavit sworn November 23, 2020 she outlines the events which have transpired since the Order of James J. dated August 12, 2020.

[27] The Applicant asserts that the Respondent has refused to comply with the Order of James J. dated August 12, 2020. From August to December 2020, not one of the court-ordered access visits has taken place. Further, the Respondent has once again moved the child. This time he has not advised where he or the child were residing.

[28] On August 21-23, the Applicant’s access was cancelled by the Respondent for “medical reasons.” Similarly, her video call that week was cancelled due to “unforeseen circumstances.”

[29] For the access visit which was to occur on September 4-7, 2020, the Applicant was five minutes away from the access exchange point when the Respondent texted her advising that his lawyer would be contacting hers and that the visit would not happen.

[30] The Respondent then appears to have cancelled through text the scheduled video visits “due to unforeseen circumstances.”

[31] I have reviewed the text exchanges attached as Exhibit D to the Applicant’s affidavit sworn November 23, 2020. The communications are disjointed. I question whether there are parts of the reproduction of the text communications between the parties which are missing or edited. Notwithstanding, the Respondent’s communications are disrespectful and support the concern that he does not intend to support a continuing relationship between the Applicant and Annissa.

[32] As at December 8, 2020, when this matter was initially returnable, no in person or video access visits had occurred since the Order of James J. on August 12, 2020.

[33] The Respondent claims that in each and every case Annissa either had medical symptoms requiring testing for COVID-19, or that other circumstances required her to isolate due to COVID-19, or that Annissa was sick. These excuses to support the non-compliance with the court ordered access are, for the most part, uncorroborated and they are concerning, particularly when I note that not once was a “make-up” visit offered or facilitated.

[34] The Respondent has provided no explanation for the video access visits not occurring.

[35] In early October 2020, the Respondent moved with the child, once again. The Applicant learned of this move was through the police who she asked to perform a wellness check on Annissa after her access visit was cancelled yet again. She was advised by the police officer who attempted to contact the Respondent that he was told the Respondent had moved to the Grimsby Ontario area. As such, Annissa’s whereabouts were unknown. The Respondent did not advise the Applicant of this move and until his appearance at the initial return of the motion, he still had not informed her of the child’s whereabouts.

[36] Carmel Savoia, a Clinician, was appointed by the Office of the Children’s Lawyer to conduct a s. 112 assessment. The Respondent did not respond to Ms. Savoia attempts to contact him. On December 7, 2020, the Office of the Children’s Lawyer filed her report which advised that the assessment had to be discontinued as a result of the Respondent’s failure to respond to multiple attempts to contact him.

[37] In her conclusion, Ms. Savoia states:

The Office of the Children’s Lawyer is extremely concerned with what appears to be Mr. Brockley’s blatant disregard for Annissa’s visitation rights with her mother, Ms. Skinkle. It would appear from his refusal to engage with the Office of the Children’s Lawyer, as well as the information gathered, such as the pattern of repeated failure by Mr. Brockley to produce Annissa for her visits, and his move to an undisclosed location with no means of communication with Ms. Skinkle, other than Facebook, that Mr. Brockley has no intention of allowing Ms. Skinkle to have a relationship with her daughter, Annissa.

[38] As stated, when this motion was initially returnable before me on December 8, 2020, the Respondent asked to adjourn the motion. He had retained new counsel who required time to prepare his response.

[39] That adjournment was granted and the motion adjourned to January 13, 2021 on terms, namely that the Respondent provide, for the court record, his new current address, that there be no further changes of the child’s residence pending further order of the court, that the Applicant’s access as per the Order of James J. take place in the interim and that there be an order for police enforcement of the terms of the Order of James J. dated August 12, 2020.

[40] The Applicant’s next access was to occur the weekend of December 11, 2020. The Respondent initially attempted to cancel the visit, once again claimed Annissa had possible COVID-19 symptoms and would need to isolate. However, after communication between their lawyers, the access visit with Annissa proceeded.

[41] The Applicant feels that the access visit with Annissa was a positive one. She notes however, that Annissa, among other things, kept referring to her as “nanny.” She reports that Annissa seemed perfectly healthy and did not show the symptoms suggested by the Respondent when he attempted to cancel the visit.

[42] The Applicant attempted to have her next access visit with Annissa on December 24, 2020. The Respondent maintained Annissa had symptoms and that she would need to be COVID tested. The Applicant sought police enforcement of her access and the police concluded that, given the allegations of her symptoms, they could not enforce the Order.

[43] On December 24, 2020, the Respondent blocked the Applicant on Facebook when she attempted to communicate with him in order to have contact with Annissa through Facebook Messenger. The Applicant has had no further access, in person or otherwise, with Annissa since.

[44] On December 29, 2020, the Applicant was contacted by the Pembroke OPP to advise that the Respondent had charged her with an alleged assault on him. The assault was alleged to have occurred in September 2019.

[45] As a result of this charge, the parties are now prohibited from having contact with each other.

[46] On January 13, 2021, the Respondent changed counsel again. Leave was then granted on consent for the Respondent to file an affidavit sworn January 12, 2021.

[47] In that affidavit, the Respondent has raised, for the first time, new allegations suggesting, among other things, that:

The Applicant has a serious substance abuse problem. She is dependent on alcohol and drinks and gets black out drunk while watching the kids. She used cocaine, weed, acid, and crack. She used drugs while she watched Annissa and is in denial that it impacts her ability to watch her. She used hard drugs daily.

[48] He further reported that, “[d]aily the Applicant was pulling out switchblades, knives or used anything in the house as a weapon. And at points the abuse was worse as she could be high or drunk or both.”

[49] The Respondent explains that “I was unable to speak of these issues previously because I suffer from PTSD and suffer trauma when I think about or speak about them.” He has now made reports about the Applicant’s alleged misconduct to medical doctors, the child protection authorities and the police with his allegations.

[50] Further, the Respondent suggests in his January 12, 2021 Affidavit that Annissa had bruising on her legs after the December 11-13, 2020 access visit and he suggests they were inflicted on the child through hitting and pinching by the Applicant. He appends photos to his affidavit which appear to show a couple of small bruises on an unidentifiable individual’s leg.

Analysis:

[51] Section 20(1) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (“CLRA”) states that except as otherwise provided in the Act, parents are equally entitled to custody of their child which is subject only to alteration by an order of the court or by separation agreement.

[52] The issue of custody and access is to be determined by what is in the best interests of the children. This is a positive test and ultimately will encompass a wide variety of factors. It is an all-embracing concept that involves consideration of the physical, emotional, intellectual and moral well-being of the child. See: section 24 of the CLRA.

[53] A judge tasked with determining what is in the best interests of the children must also have regard to the desirability of maximizing contact between the children and each parent. This means that a child should have as much contact with each parent as is consistent with the child’s best interests. See: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.).

[54] With very few exceptions, all children benefit from having a loving relationship with both parents. It is a well-established principle that the best interests of the child are generally fostered by ensuring that children have a loving relationship with both parents, and that such a relationship should only be interfered with in demonstrated circumstances of danger to the child's physical, emotional or mental well-being. If one parent does not facilitate a child's relationship with the other parent, or improperly undermines that relationship, this will be an important consideration in determining their ability to meet the child's needs. See: Jackson v. Jackson 2017 ONSC 1566 (Ont S.C.J.) at para. 59.

[55] On interim motions, the court must make a determination of what temporary arrangement is in the best interest of a child when there is often limited information and evidence available. Temporary orders therefore often act as “Band-Aid” solutions. They are meant to decide the issues of custody and access in the short term, so that the parties can move expeditiously towards a final resolution.

[56] The evidence before me gives me great concern that the Respondent has and continues to actively exclude the Applicant from the child’s life. First, he took the child without the Applicant’s consent to reside with him in Peterborough. He had no lawful entitlement to do so. Thereafter he has sought to seriously curtail any contact between the Applicant and the child.

[57] Since the Order of James J. was made on August 12, 2020, the Respondent has continued on a course of conduct which appears intent on excluding the Applicant from Annissa’s life. I do not accept that in each and every instance when the Applicant was to have “in person” access with Annissa, there was justification to cancel the court-ordered visit. The Respondent did not recognize the need to arrange for alternative “make-up” access. He is mocking in the tone in his text communications with the Applicant. He has provided no explanation for why the video access has not happened. He has moved the child’s residence without advising the Applicant. He refused to participate in the s. 112 assessment.

[58] I conclusion that the Respondent has not abided by the terms of the Order of James J. whether by its specific terms or by its intent.

[59] I understand that the parties relate two very different and conflicting realities in their affidavits. The conflicting evidence may need to be assessed at a trial where there can be a proper determination of the issues in dispute based upon a full evidentiary record.

[60] However, that stated, while credibility determinations are difficult to make at an interim motion, I find that the serious allegations which have been advanced by the Respondent to justify excluding the Applicant from Annissa’s life are uncorroborated and not supported by objective evidence. To the extent the parties’ evidence is contradictory, I agree with the observations of James J. stated in paragraphs 15 and 17 of his Endorsement.

[61] In particular, I do not accept the new allegations which have been levelled against the Applicant in the Respondent’s Affidavit sworn January 12, 2021 for the following reasons:

1. The Respondent’s assertion suffers from Post Traumatic Stress Disorder (“PTSD”) is uncorroborated.

2. It seems implausible that the Respondent felt inhibited due to his PTSD from asserting that the Applicant had a drug addiction problem. His alleged condition did not inhibit him from accusing the Applicant of committing other serious, negative and inappropriate conduct. No corroborative or objective evidence has been provided to support his new allegations.

3. If the Respondent had concerns for the welfare of Annissa when he left the relationship, it seems odd that he did not make any report to the child protection authorities or to the police. The opportunity to do so presented itself when the police attended the Respondent’s home with the Applicant to retrieve her personal belongings on November 29, 2019. His failure to do so, given the serious nature of the allegations, seems suspect when he knew the Applicant’s older child remained in her care;

4. The Respondent appears to have only made allegations and reports to the police, doctors, and Children’s Aid Society in late December 2020. This timing, unfortunately, brings with it the suspicion that the Respondent seeks to gain a strategic advantage by making such allegations now.

5. The legitimacy of the Respondent’s alleged concerns respecting the Applicant are also called into question by his refusal to cooperate with the Office of the Children’s Lawyer. Given the seriousness of the allegations, it would seem logical that the Respondent would be anxious that the Applicant’s conduct be investigated by an independent third party as part of a custody/access assessment.

6. The Respondent suggests in his Affidavits sworn July 28, 2020 and July 30, 2020 that he had brought Annissa to a child psychologist, namely Dr. Charlie Menendez. He states that Dr. Menendez was completing a clinical assessment. I question why a report has not been made available. It would support the Respondent’s position.

[62] I conclude that the Respondent is not prepared to facilitate contact between the Applicant and the child. To the contrary, it appears he is attempting to sever the Applicant’s relationship with Annissa.

[63] If not corrected at this time, Annissa could suffer emotional harm.

[64] Any temporary order must preserve Annissa’s relationship with both parties, to the extent this appears to be in the child’s best interest, pending a more fulsome determination of the issues at trial. Given my conclusion that the Respondent is not willing to facilitate Annissa’s contact with the Applicant and given his apparent refusal to abide by the court ordered terms which provided for the Applicant’s access, I conclude that it is not a viable option nor in Annissa’s best interest to remain in his primary care pending trial.

[65] I am satisfied on the totality of the evidence before me that a change in the child’s custody and residence is in the best interests of Annissa at this time as it is clear that this is necessary if Annissa’s relationship with her mother is to be preserved.

[66] As a result, the following temporary order shall issue:

A. The Applicant mother, Teri Brehanna Marie Skinkle (the “Applicant”) shall have sole custody of the child, Annissa Sapphire Brockley, born October 12, 2017 (“Annissa”) and Annissa’s primary residence shall be with the Applicant pending further order of this Court;

B. The Respondent father, Ryan Brockley (the “Respondent”) shall deliver Annissa to the Applicant on Friday, January 29, 2021 at 4:00 p.m. at the parking lot of Tim Horton’s, in Havelock, Ontario. Both parties may bring one additional person to the access exchange so that the designated individual can oversee the access exchange. As a precautionary matter, any individual who has been designated to oversee the exchange of Annissa shall have on their person the written consent to do so of the Applicant or Respondent, as may be the case;

C. The Respondent shall have access with Annissa every second weekend commencing Friday, February 19, 2021 at 4:00 p.m. to Sunday, February 21, 2021 at 4:30 p.m. and every second weekend thereafter on the same basis. Unless other arrangements are agreed upon by the parties in writing, the access exchange shall occur at the parking lot of Tim Horton’s in Havelock, Ontario in the manner set out in paragraph B above. If the exchange weekend includes a holiday Monday, the access shall be extended to include the holiday so that the access shall end at 4:30 p.m. on that Monday. If the exchange weekend includes a holiday Friday, the access will be extended to include the holiday and shall begin at 4:00 p.m. on the Thursday;

D. For the purpose of locating and apprehending Annissa, if necessary, a member of the OPP or the police force and/or border services having jurisdiction in any area where there are reasonable grounds to believe Annissa is located, may enter and search any place where he or she has reasonable and probable grounds to believe the child may be, with such assistance and such force as is reasonable in the circumstances but in such manner that is sensitive to the child. Such entry or search may be made any time. This police enforcement clause shall be in effect for six months from today’s date;

E. Commencing February 24, 2021, the Respondent shall be entitled to video/telephone calls with Annissa every Wednesday from 4:30 p.m. to 4:45 p.m. and at the same time thereafter on Fridays and Mondays, every second week alternate to the access in paragraph C above. The Applicant shall facilitate such access;

F. Neither party is to remove Annissa from the Province of Ontario, pending further court order;

G. The Respondent shall, at all times, provide the Applicant and the court with his upto-date contact information including: address, phone number and email address and he shall immediately advise both the Applicant and the court if his contact information changes;

H. A temporary order shall issue terminating the Applicant’s obligation to pay any further child support pending further order of this court;

I. A temporary order shall issue that the Respondent is to pay the Applicant child support in the amount of $544.00 per month commencing February 1, 2021 and payable on the first day of each month thereafter. This order is based upon the Respondent’s 2019 Line 150 income of $58,823;

J. I direct that court administration provide a copy of this endorsement to Family and Children’s Services of Renfrew County (“FCSRC”) to ensure FCSRC is aware of the change in the interim parenting arrangement.

K. Subject to the ability of FCSRC to bring a motion to me, on notice to the parties, if it wishes to dispute this provision, the FCSRC shall monitor and check in on the wellbeing of Annissa while she is in the Applicant’s care at such intervals as it feels is reasonable and appropriate to check on her physical and mental well-being in addition to pursuing such investigation as it feels may be required in the fulfillment of its mandate;

L. In the circumstances, it would seem that the Applicant’s request that she be paid her costs of this motion fixed in the sum of $1000.00 is very reasonable. If the parties cannot agree to resolve the cost issue on this basis, then the Applicant may make written submissions as to costs, no more than three pages in length, double-spaced, in addition to any pertinent offers and draft bill of costs, within fifteen days of the release of this endorsement. The Respondent shall have fifteen days from receipt of the Applicant’s submissions to respond on the same basis. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves; and

M. Applicant’s counsel is directed to prepare a draft order and forward same to the Respondent’s counsel for approval as to form and content forthwith. If the draft order is not approved before January 28, 2021, then Applicant’s counsel may submit a draft order to me to settle its terms, sign and provide to court administration to be issued.

M. Fraser J.

Date: January 25, 2021