COURT FILE NO.: FC-21-570

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.M., Applicant

AND:

P.N., Respondent

BEFORE: Associate Justice Kaufman

COUNSEL: J.M., Representing himself

Huyen Tran, Counsel for the Respondent

HEARD: October 28, 2021

REASONS FOR DECISION

[1] The respondent seeks leave to bring an urgent motion on the issues of interim decision-making responsibility, communication and for a restraining order.

Background

[2] The parties have already been to court four times on interim motions to address decision making and parenting regarding their two children, David (7 years old) and Alexander (soon to be 4 years old). David has been diagnosed with autism spectrum disorder and has special needs.

[3] The applicant filed a procedural motion for urgency without notice, which proceeded before Justice Engelking on March 30th, 2021. The motion was deemed urgent but was required to be served upon the respondent. It was adjourned to April 8, 2021.

[4] On April 8, 2021, the parties appeared before Justice Blishen, and the motion was further adjourned to April 14, 2021 to allow the respondent time to retain counsel and file responding materials. Justice Blishen ordered that the Applicant was to have virtual contact to the children once a day, and in-person parenting time with the children as deemed appropriate by the CAS.

[5] On April 15, 2021, the parties appeared for the motion before Justice MacEachern. The applicant’s counsel sought to be removed from the record and the applicant requested an adjournment to retain new counsel. Justice MacEachern granted the adjournment on terms. She refused to make any orders granting sole decision-making authority to either party because, at that time, there was no evidence that David’s medical providers recommended any particular treatment. Justice MacEachern ordered that: “The Respondent may take the children to their existing medical providers, including CHEO, to seek recommendations for their medical care and treatment. If she does, she will provide the Applicant, forthwith, with the particulars of the care and any recommendations made. The Applicant shall also be entitled to contact the medical providers directly to discuss the care and treatment for the children. If the parties do not agree on the children's care and treatment, they will need to bring a motion to determine the issue”.

[6] With respect to parenting time, Justice MacEachern was of the view that the evidence supported that the applicant was angry, blamed the respondent and communicated this to the children. This raised safety concerns that should be addressed on the return of the motion. She made an order for supervised parenting time every weekend.

[7] The motion returned to the Court on May 27 and 31, 2021 before RSJ MacLeod. The applicant had not retained counsel nor filed any affidavit. The applicant had not exercised any parenting time pursuant to Justice MacEachern’s Order because he did not believe that there was any basis for his access to be supervised and he did not want to ask his brother or a friend to spend a day with him so he could see his children. Justice MacLeod concluded that the only reason the applicant did not see his children was because he refused to ask anyone to facilitate such contact by accompanying him and supervising the access.

[8] Justice MacLeod dismissed the applicant’s motion to return the children to the matrimonial home and ordered that the interim parenting arrangements set out in Justice MacEachern’s order continue. This was without prejudice to a further motion for expanded parenting time on proper evidence and after a case conference. With respect to David’s medical situation, RSJ MacLeod ordered the respondent to ensure that David attend school and be taken to his appointments at CHEO, and that the applicant be kept informed of the appointments. The applicant was entitled to information from the treating physicians or the school.

[9] On August 8, 2021, the parties attended at a case conference before Justice Summers. The conference ended early, and no orders were made except for leave to proceed with interim motions.

[10] On September 22, 2021, the office of the children’s lawyer attempted to schedule an assessment of the applicant’s parenting time in the presence of the children. As the CAS had recommended that the parenting time be supervised, the applicant was requested to coordinate the assessment with a supervisor. The applicant did not make any arrangements for a supervised visit and the OCL discontinued its involvement.

The respondent’s claims for urgency

[11] The respondent is seeking interim orders granting her sole decision-making responsibility for the children, that the parties communicate through Our Family Wizard, and for a restraining order.

a. Decision Making Responsibility

[12] There are two related areas of immediate concern regarding decision making: the provision of school services and medical treatment.

[13] In October 2020, David was referred to CHEO for a psychological assessment by Dr. Sassani because his school expressed concerns regarding his ADHD, lack of focus, and behavioural difficulties. Dr. Goss, a psychologist at CHEO, diagnosed David with Autism Spectrum Disorder and made several recommendations.

[14] On August 6, 2021, the respondent’s counsel emailed the applicant to inform him that David had an appointment with Dr. Adejumo, his family physician and asked the applicant to fill out a questionnaire addressed to both parents which would enable CHEO to provide the parties with more accurate information. The applicant responded that he did not take instructions from the respondent’s counsel and that he would see her in court.

[15] The respondent provided an undated note from Dr. Adejumo about David’s condition and treatment recommendation. Dr. Adejumo wrote that David has been diagnosed with autistic treatment disorder and that his paediatrician has recommended the following treatment modalities: Risperidone for aggression, occupational therapy, and self help regarding autism.

[16] In September 2021, the principal of David’s school wrote to the parties to share her concerns about David. She expressed serious concerns about David’s personal safety and wellbeing, as well as educational staff’s. David’s school day was shortened to a half hour per day, and the school decided to engage him in his preferred activities during this half hour.

[17] The school’s concerns are serious and very concerning. David is said to require 3 to 5 educators to ensure his and others’ safety. David is said to be violent and has thrown objects across the room including heavy objects such as chairs, has overturned tables, and has destroyed school property and educational materials. David has kicked, punched and thrown objects at staff. He has engaged in dangerous behaviours such as sticking things in power outlets and jumping off cars in the parking lot. David has also escaped from the school and ran down the street outside of school. Because of these concerns, the school offered to support David’s complex needs. In order to have access to the school board’s services, both parents are required to sign consent form for intervention (social work, behavioural consultation and psychological assessments).

[18] On September 22, 2021, Mr. Wayne Ng, the school’s social worker, contacted the applicant to seek his consent for services to be offered to David. Mr. Ng reported that after introducing himself, the applicant responded that his children were kidnapped and that he was wrongly accused of horrific crimes. The applicant did not address David’s situation. Mr. Ng reached out to the applicant again the next day, but the applicant hung up on him. Mr. Ng attempted to obtain his consent once more by e-mail, but the applicant responded that he refused to give his permission until such time as the children are returned safely to his care.

[19] Mr. Ng reports that if he had parental consent, he would be in a position to facilitate access to essential Applied Bahaviour Analysis Therapy which many experts consider to be the “gold standard” for children with Autism Spectrum Disorder.

Disposition on decision-making

[20] I am satisfied that there is a situation of urgency as it relates decision making for David and concerning health and schooling. The principal of David’s school highlights grave behavioural problems that put David’s safety in peril. In addition, his school day has been restricted to only 30 minutes per day. This situation requires immediate attention.

[21] The applicant did not file any affidavit in response to this motion. I allowed him to provide his positions orally. The applicant stated that the children should be returned to him and after he assessed their needs, he would be in a position to make an informed decision with respect to David’s treatment.

[22] This Court has already made interim parenting orders which provided for supervision. They have not been appealed. The applicant could have spent time with his children every weekend since April 15, 2021. As RSJ MacLeod concluded, the only reason he has not seen the children is because he refuses to ask anyone to facilitate such contact by accompanying him and supervising the access. I understand that the applicant feels that supervision is unnecessary, but the decision to refuse personal contact with his children was his alone. He refuses to engage with the children’s school and with medical practitioners until the supervision condition is removed.

[23] The applicant also told the Court that he did not know who the children’s doctors were and did not have sufficient information to provide his consent. I am not at all persuaded by this argument. Justices MacEachern and MacLeod’s orders entitled the applicant to contact the medical providers directly to discuss the care and treatment for the children. He has evidently made no efforts in that regard. Based on the evidence before me, and the applicant’s own submissions to the Court, it does not appear that the applicant is willing to participate in decision-making unless and until his conditions for parenting time are met.

[24] I determine that the respondent’s motion meets the test for urgency, and I allow the respondent’s motion but only as it relates to decision-making for David, and only on the subject of schooling and medical treatment. The materials have not highlighted any other pressing decision-making concerns, and there is no reference to any pressing decisions required to be made with respect to Alexander. Justice MacEachern’s order that David shall continue to attend his existing school pending further court order or agreement continues to be in effect.

Communication and restraining order

[25] The respondent alleges that, since the May 27, 2021 motion, the applicant sent her 895 emails. The applicant concedes that he has sent this many and probably more. On July 11, 2021 alone, the applicant has sent 70 emails. Exampled of these emails were provided to the Court. The applicant accuses respondent of kidnapping, of adultery and of being evil. Some of these emails are also copied to court staff. Her counsel and a detective with the Ottawa Police, have asked the applicant to stop sending harassing emails but the applicant has persisted.

[26] I agree with the responding that the number and the content of these e-mails constitutes harassment. At the hearing, the applicant advised that he would be willing to stop sending such emails. Based on his consent, I order that all communication with the respondent be civil, made through counsel, and either relate to matters concerning this litigation, or be child focused.

[27] The respondent seeks a restraining order and relies on the volume of emails and their content, slanderous Facebook posts and the fact that he owns a handgun. The fact that the applicant owns a firearm was raised before RSJ MacLeod but the request for a restraining order was dismissed because there was no evidence that the applicant ever behaved inappropriately with a weapon or made any threat to use a weapon. I have considered the content of the emails and while I agree that they are harassing in nature, the applicant does not threaten the respondent physically.

[28] I do not find that the issue of a restraining order is urgent at this time. I strongly urge the applicant to respect his commitment and cease sending harassing emails which do nothing to advance his cause.

[29] Under the Children’s Law Reform Act and Rule 42(8)6 of the Family Law Rules, this Court orders on a temporary and without prejudice basis that:

a. The respondent shall have sole decision-making responsibility with respect to decisions concerning David William Nguyen Martel’s health or schooling.

b. The applicant’s communications with the respondent shall be civil, made through counsel, and either relate to matters concerning this litigation, or be child focused.

c. Costs to respondent in any event of the cause.

“ Original signed by”

Associate Justice Kaufman

Date: October 28, 2021