COURT FILE NO.: FS-18-00707
DATE: 20210929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
L.M.
Applicant
– and –
L.P.
Respondent
Kathryn Hendrikx, for the Applicant
L.P., self-represented
HEARD: September 28, 2021
Pinto J.
REASONS FOR DECISION
[1] On September 28, 2021 via Zoom, I heard the completion of the respondent father’s Motion for resumption of in-person parenting time.
[2] The Motion originally commenced on March 30, 2021 but was adjourned to May 18, 2021, where the parties, both represented by counsel at the time, made submissions. On June 16, 2021 I issued a decision varying the supervised parenting mechanism for the respondent father on an interim basis (from text based communications to videoconference) and adjourning the Motion on terms. The Motion was rescheduled to return before me after August 2021. At the September 28 attendance, the father was self-represented.
[3] The relevant part of my Order dated June 16, 2021 states:
The Respondent, [L.P.’s] motion for in-person parenting time with [the children aged 10 and 9] is adjourned on the following terms:
On a temporary basis, and until this court orders otherwise, starting the week of June 21, 2021, instead of text communications, the Respondent, [L.P.] shall be entitled to supervised parenting time with the children, through regular videoconference calls twice a week for up to 30 minutes. Such calls are to be supervised by a professional supervision agency, York Region Supervised Access Program (Social Enterprise for Canada, 17705 Leslie Street, Unit 11, Newmarket, ON L3Y 3E3, Ph 289-470-5312). The Respondent shall pay the expenses.
If the parties cannot agree on the days and times for the supervised videoconference calls, the parties shall schedule a brief conference call with His Honour Justice Pinto during the week of June 21, 2021 through his judicial assistant Patrizia Generali, patrizia.generali@ontario.ca.
This motion is adjourned to a date to be scheduled by the Respondent, in consultation with the Applicant, [L.M.] after August 11, 2021 and before Justice Pinto.
At the return of the motion, the Court shall consider whether the Respondent’s parenting time should be expanded or varied, and if so, under what terms and conditions. In making that determination, the Court expects to receive and shall consider the following:
(a) Evidence concerning the Respondent’s videoconference parenting sessions with the children;
(b) Detailed evidence concerning whether and to what extent the Respondent has followed the recommendations of Dr. Bloom;
(c) An updated and comprehensive report from Mr. Cecon and/or any other health professional concerning the Respondent’s participation in and completion of (if applicable) any programs or treatment in counselling/psychotherapy, and whether further enrollment in such programs is recommended and being undertaken by the Respondent;
(d) Evidence concerning the completion of the Respondent’s conditional sentence, completion of sentencing report (if any), and compliance with probation conditions;
(e) The parties’ positions concerning the Respondent’s disclosure to the Applicant of “reasonable and necessary medical records” pertaining to his health;
(f) The parties’ specific proposals, if any, for varying the parenting order and, if in person parenting is proposed, the timing and logistics involved;
(g) The parties’ position regarding how to proceed in light of the Applicant’s pending Motion to Change.
- On the return of the motion, the Moving Party/Respondent’s materials shall be delivered two weeks before the hearing date, the Responding Party/Applicant’s materials shall be delivered one week before, and the reply materials, if any, shall be delivered four days before the hearing. Supplementary facta, not to exceed 15 pages in length, shall be submitted two days before the hearing.
[4] The respondent did not comply with my June 16 order. Or, to the extent that he claims to have done so, I find his efforts insufficient.
[5] Instead of filing his motion materials two weeks in advance of the return of motion date, the respondent filed his motion materials two days in advance, on September 26, 2021. This is unfair to the applicant and to the court. No reasonable explanation was provided for such tardiness.
[6] A further and more fundamental problem with the respondent’s motion materials is that his affidavit was unsworn. The respondent claimed that he received advice from a legal clinic that unsworn affidavits are acceptable given COVID19. I am skeptical of the respondent’s explanation particularly as, by now, he has been involved in several family motions including after the onset of the pandemic.
[7] Even if I were prepared to look past the above problems, the respondent’s motion materials contain little of the information that I was expecting to receive, that would have assisted the court in arriving at a fair determination of the parenting issues on the motion.
[8] I requested evidence concerning the respondent’s videoconference parenting sessions with the children. The sum total of the respondent’s unsworn evidence about this aspect was his statement:
The supervised call summaries show details of the conversations. There is nothing inappropriate except a conversation between an alienated father and his two children. The restrictions on what can be discussed are excessive based on the fact there has never been any concern with the children’s safety. During the calls the children are not engaged and the morale is very low as the messaging from [the applicant] about [the respondent] has been negative.
[9] The applicant provided examples of what she characterized as the respondent’s inappropriate comments during videoconference and text sessions with the children. Despite my order permitting the respondent to communicate with his children twice a week, on June 18, 2021, he indicated that he preferred to communicate once a week. Of the 13 scheduled supervised access visits, the respondent only completed 8.
[10] While I do not agree with the applicant that all the examples of allegedly inappropriate communications are, in fact, inappropriate, I certainly find that the respondent continues to have difficulty conducting his communications with the children in an appropriate and child-centric manner.
[11] For instance, on July 12, 2021, the respondent stated to the children “Your mom gets [a] big check from your Dad, $30,000, so make sure you buy something nice.” The York Region Supervised Access Program sent correspondence to the respondent cautioning him to stay within the parameters of the Program’s policies and the signed agreement he entered into as a condition of participation. On the July 19 and July 26, 2021 supervised virtual visits with the children, the respondent referenced how he would like to discuss certain things with the children but couldn’t. He also told the son that he is not allowed to take him to the Blue Jays game. On the July 31, 2021 session, he advised the children that he was moving to Mexico but travelling back and forth from Dallas, Texas. The respondent then stated, “I want you to know I’m not doing this because I don’t love you but I won’t see you anymore. Your mom is never going to let me see you so we need to fight for this. We’ll figure it out.” The respondent also told the children that they are going to have to come and visit him. These are a sample of inappropriate communications with the children. Other comments by the respondent are borderline.
[12] Overall, I agree with applicant that the respondent has not been able to conduct himself appropriately in his videoconference sessions with the children. I find that the respondent lacks insight into how he comes across during these sessions, and has wrongly concluded that his conduct and comments are acceptable.
[13] I requested “detailed evidence concerning whether and to what extent the respondent has followed the recommendations of Dr. Bloom”. In his unsworn affidavit, the respondent stated “The 6 month conditional sentence as are (sic) all recommendations from Dr. Bloom to the criminal matter of [the respondent] have been completed”. The respondent appended a document purporting to prove completion of all tasks required under the conditional sentence.
[14] I will address Dr. Bloom’s recommendations first, and the completion of the conditional sentence next.
[15] With respect to Dr. Bloom’s recommendations, I identified them at paragraph 38 of my Amended Reasons for Decision of June 16, 2021:
• The respondent increases contact with Dr. Giacobbe, assuming the latter is willing and able to accommodate the respondent in this regard.
• The respondent should participate in a substance abuse program.
• The respondent should participate in counselling/psychotherapy with Mr. Cecon or any other suitable psychotherapist for the foreseeable future. Any therapy should include some Cognitive Behavioural Therapy (CBT).
• The respondent should undergo an assessment by an expert in ADHD.
• The respondent should undergo a course of dialectical behavioural therapy, a relatively new variant of CBT, which Dr. Bloom considers highly effective in individuals with cluster B personality pathology.
• The respondent could benefit from a discrete anger management program.
• The respondent should establish a solid and enduring relationship with a family physician who could quarterback the mental health addiction and other services and have a total understanding of where the respondent is at in his various treatments.
[16] I find that the respondent, in his unsworn motion materials for September 28, only advised the court that “Frequency of visits to Dr. Peter Giacobbe are up to quarterly as per his request. Medication review conducted during these sessions. The last two appointments were dated May 3, 2021 and July 2021.” Giving the benefit of the doubt to the respondent, I am prepared to accept that the respondent updated the court on this point and appears to have increased his contact with Dr. Giacobbe. I note, however, that there was no confirmation of next set of appointments with Dr. Giacobbe, nor was there any report from this physician concerning the respondent’s progress.
[17] Did the respondent participate in a substance abuse program? It is unclear.
[18] Did the respondent participate in counselling/psychotherapy with Mr. Cecon or any other suitable psychotherapist, including with respect to CBT? The respondent provided no update.
[19] Did the respondent undergo an assessment by an expert in ADHD? He did not, based on his comments at the hearing of the motion.
[20] Did he complete a discrete anger management program? I assume that if the respondent did, he would have advised the court.
[21] Has he established, or at least tried to establish a “solid and enduring relationship with a family physician who could quarterback” his various treatments? There is no evidence of this. We know that the respondent has apparently moved to Mexico purportedly for his “mental health”. But that too is far from explained in the respondent’s motion materials which, I repeat, are unsworn.
[22] Accordingly, I conclude that, with the exception of increasing visits to Dr. Giacobbe, the respondent has not followed the recommendations of Dr. Bloom.
[23] I did not receive “an updated and comprehensive report from Mr. Cecon and/or any other health professional concerning the Respondent’s participation in and completion of (if applicable) any programs or treatment in counselling/psychotherapy, and whether further enrollment in such programs is recommended and being undertaken by the Respondent.”
[24] I acknowledge receipt of “evidence concerning the completion of the Respondent’s conditional sentence, completion of sentencing report (if any), and compliance with probation conditions” by way of a letter dated September 15, 2021 from the respondent’s Probation and Parole Officer, who confirmed, among other things, that the respondent “successfully completed his Conditional Sentence Order without any incident” in August 2021, and that he successfully completed the 12 session PAR (Partner Assault Response) as well as the total hours of community service. In the P&P Officer’s view, the respondent “has demonstrated his commitment to change and has made significant efforts in his rehabilitation, through programming, mental health counselling and support groups”, and “has been able to regain meaningful, stable employment and maintain a sober lifestyle.”
[25] I did not receive the parties’ positions concerning the Respondent’s disclosure to the Applicant of “reasonable and necessary medical records” pertaining to his health.
[26] At the hearing of the motion September 28, when I advised the respondent that I found his materials insufficient and unresponsive to the court’s concerns, the respondent was combative. He variously suggested that the court was biased against fathers/men generally, that the outcome of the motion was a foregone conclusion, that he had completed everything that the court had requested of him, and that he had no idea why he was back before the court or still, after four years, embroiled in legal proceedings. In a nutshell, the respondent was unfiltered and unprepared to accept responsibility for his situation and not following up on the court’s direction and June 16 order.
[27] I am mindful that supervised parenting is, at best, a short term expedient while a range of other initiatives are explored to regularize a parenting relationship: Smith v. Ainsworth, 2016 ONSC 3575, at para. 24. But, in the circumstances, the respondent’s motion to regain in-person parenting time must be dismissed as it is not in the best interests of the children to have in-person parenting time with the respondent. I am still prepared to permit the respondent to maintain videoconference contact with the children, but I would limit it to once a week for 30 minutes which, in any event, appears to be what the respondent requested.
[28] The applicant has been successful in resisting the respondent’s motion. If the parties are unable to resolve the issue of costs the applicant will provide her costs submissions by October 15, 2021. The respondent shall provide his response by October 22, 2021. Reply submissions from the applicant are only with leave of the court. Such written submissions directed to the Family Law Judicial Assistant Patrizia Generali at Patrizia.Generali@ontario.ca shall not exceed three double-spaced pages, exclusive of Costs Outlines, Bills of Costs, and Offers to Settle. Authorities are to be hyperlinked or forwarded to me via the judicial assistant. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs.
[29] The parties shall provide me, through Ms. Generali, with a draft order approved as to form and content, and a clean copy of the order in WORD for signing.
Pinto J.
Released: September 29, 2021
COURT FILE NO.: FS-18-00707
DATE: 20210929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
L.M.
Applicant
– and –
L.P.
Respondent
REASONS FOR DECISION
Pinto J.
Released: September 29, 2021