COURT FILE NO.: FS-19-95212
DATE: 2021 12 08
AMENDED: 2021 12 14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: JK v. RK
BEFORE: McGee J
COUNSEL: P.L. Bateman, for the Applicant
C.A. Haber, for the Respondent
HEARD: November 16, 2021
CORRIGENDUM: Paragraph [39] – consent order of October 24, 2019 as varied by the consent Order of February 7, 2021 corrected to consent order of October 24, 2019 as varied by the consent Order of April 15, 2021.
ENDORSEMENT
Relevant Background
[1] In June of 2019, JK, and the parties’ three children, R., M., and L. then aged 6, 4 and 23 months took sanctuary in a women’s shelter to escape escalating family violence. RK was subsequently charged with assault and uttering threats. He pled guilty and was placed on terms of probation that prohibited contact with the children subject to further Order of the court.
[2] Prior to marriage, RK had been acquitted of collecting child pornography from 1999 to 2006 on the defense that he had done so for artistic merit and educational purposes. The Crown successfully appealed the acquittal. A conviction was entered, and the matter remitted to the trial judge for sentencing.
[3] JK issued this Application on June 5, 2019. She sets out in the Application her former spouse’s listing on the Ontario Sex Offender Registry, a detailed history of emotional and physical child and spousal abuse, CAS involvement and the children’s state of distress and self-harm.
[4] At the same time, JK has recognized the children’s attachment to their father and desire to know him and spend time with him. She has consented to three Orders for supervised parenting time within this proceeding: October 24, 2019 (which also placed the children in the mother’s primary care); February 13, 2020, which varied paragraph 7 of the prior consent Order; and April 15, 2021.
[5] The April 15, 2021 consent Order further expanded the father’s supervised parenting time to 10:30 a.m. to 1:30 p.m. every third Saturday. It also requested the assistance of the Office of the Children’s Lawyer which although delayed, was ultimately accepted by the OCL for service.
[6] This is RK’s hastily issued January 22, 2021 Motion for unsupervised, expanded parenting time inclusive of a detailed holiday schedule. It was launched as a long Motion to be heard on January 28, 2021 – the same day on which JK had scheduled a short Motion for a Family Law Act restraining Order.
[7] On January 28, 2021, Justice Mandhane did not allow the father’s January 22, 2021 Notice of Motion to derail the previously scheduled short Motion and she adjourned RK’s Motion to August 4, 2021. In written reasons of that date, she granted the mother’s Motion for a Family Law Act restraining Order.
[8] On August 4, 2021, this January 22, 2021 Motion was again adjourned, now to be heard November 15, 2021 as a long Motion. The further adjournment was to permit the OCL clinician to complete her investigation, and for the production of third-party records from the Catholic Children’s Aid Society of Hamilton and the Peel Regional Police. The steps to November 15, 2021 Long Motion were carefully timetabled, including deadlines for updated affidavits.
[9] The OCL clinician completed her work in September of 2021. A Disclosure Meeting was conducted on October 5, 2021 and the clinician’s recommendations to progress the father’s parenting time were set out. The clinician’s full report was prepared and issued on October 25, 2021. In summary, it recommends that:
a. JK have decision making authority for the children, and that she provides RK with timely, written updates on the important issues affecting the children.
b. RK not attend the children’s school, day-care or doctor’s office, but that he be free to contact each by phone to learn about the children’s progress.
c. RK never be alone with the children.
d. From November 2021 to June 2022, RK have supervised daytime parenting with the children for up to 6 hours every second weekend; after a minimum period of adjustment, being at least three 4-hour alternate weekend supervised visits, with additional, specified holiday time.
e. Details of the parenting time are set out in the recommendations such as distance for the children to travel, the use of appropriate pronouns and, of importance to the submissions received on this Motion from the father, that the supervisor not be RK’s father or brother but instead, be a professional person or agency.
f. RK develop certain skills to assist him in building an emotional bond with the children that is not centered on gifts and treats.
g. A review be conducted in July 2022 to expand the parenting time, conditional on
i. the visits being a positive experience for the children,
ii. RK regularly engaging with a psychotherapist,
iii. JK receiving trauma specific counselling,
iv. R. being connected to a transgendered clinic at a pediatric hospital,
v. M. and L. attending trauma directed play therapy, and
vi. that all therapists and clinicians working with the children and parents be given a copy of the OCL Report.
h. Provided that progress continues to be made, that the OCL be engaged for a further review in November 2022.
[10] RK does not accept the recommendations of the OCL and has stated through his counsel, Ms. Haber, an intention to file an Objection to the Report.
[11] On November 8, 2021, well after the time provided for the father’s reply within the August 4, 2021 timetable, RK served a brand-new Notice of Motion.
[12] Ms. Bateman, counsel for the father observed that pursuant to Rule 14(6) of the Family Law Rules, service of the new Notice of Motion constituted a withdrawal of the prior January 22, 2021 Motion. In her confirmation for November 15, 2021 she sought costs for the withdrawal.
[13] At the start of the November 15, 2021 long Motion, RK withdrew his November 8, 2021 Notice of Motion. JK’s submissions for costs on the withdrawal were heard prior to the start of the Long Motion. For oral reasons given, RK shall forthwith pay costs of $500 on the withdrawal of his November 8, 2021 Notice of Motion, pursuant to Rules 12(2) and 24 of the Family Law Rules.
RK’s January 22, 2021 Motion
[14] RK seeks orders for unsupervised parenting time from Friday at 6:00 p.m. to Sunday at 7:00 p.m. to be extended to include school holidays; and for a detailed holiday and special occasion schedule.
[15] His Motion is framed as a variation of the original consent Order of October 24, 2019 despite that Order already having been varied within the consent Order of February 7, 2021. Because the test for the variation of a temporary Order is that of significant change, not material change, I find that nothing turns on the mischaracterization of the Motion.
[16] JK opposes such a dramatic change in parenting time. Instead, she proposes that all the recommendations of the OCL, including the adjustment period and terms for supervised parenting time be immediately implemented.
Preliminary Issue
[17] JK includes in her Motion materials two videos from 2019 that were relied upon by the police and the OCL in their separate involvements. She states that the videos are foundational to an understanding of the ongoing risk that RK poses to the children.
[18] RK argues that the videos should not form part of the record for this proceeding because they are historic. That is, they are evidence of past parenting, not present parenting. He argues that his efforts to rehabilitate his parenting through course work and self-reflection have been more than sufficient to counter any prior concerns.
[19] Even if I do find the video recordings to be relevant, he argues that any probative value of the recordings is outweighed by the prejudicial effect of the recordings having been made surreptitiously.
[20] As a general rule, surreptitious recordings are to be discouraged. Admitting such evidence condones deceit and encourages behaviour that results in distrust, making the resolution of parenting issues ever more difficult. There is also the risk that a recording may not be truly representative of the dealings between the parties, see Paftali v Paftali, 2020 ONSC 5325.
[21] On this Motion, I do not have the ability to conduct a voir dire in order to make the proper enquires into the authenticity of the recording, or to weigh its probative value against its prejudicial effect. I decline to admit them into the record on this Motion.
The Use of an OCL Report on a Temporary Motion
[22] On behalf of RK, Ms. Haber argues that the October 25, 2021 OCL recommendations should be given no weight. She asserts that the Report has not yet been tested through cross examination and Ms. Haber disputes the clinician’s credentials, educational background, training and experience. She argues that the Report gives insufficient attention to RK’s progress as a parent and too much attention is placed on the history of family violence.
[23] At the same time, Ms. Haber proposes that certain of the children’s statements recorded within the Report, in which each child asks for more time with his or her father, be pulled from the whole of the Report and accepted at face value. Ms. Haber argues that these literal statements and her client’s self-reported improvements in parenting should be dispositive of his Motion.
[24] Motions to vary a temporary parenting Order are governed by the general principle that the status quo should be maintained until Trial, as should the implementation of recommendations within an assessment; unless there are compelling circumstances in which a child’s best interests can only be met by an immediate change, see Kaverimanian v. Manickam, 2014 CarswellOnt 3392 and Lonsdale v. Smart, 2018 CarswellOnt 10251.
[25] Compelling circumstances have also been stated as “exceptional circumstances.” In O'Connor v. O'Connor, 2017 CarswellOnt 2366, Justice Parent found that the recommendations in an OCL Report met the exceptional threshold, that it was comprehensive and corroborated by collateral sources and that the children’s best interests required an immediate change.
[26] But here, the parent seeking implementation of the OCL recommendations does not have a Motion before me, and the moving parent vigorously contests the Report, but for cherry-picked statements of the children which support his Motion. He otherwise asks that the Report be given no weight and that the recommendations for counselling supports and professional supervision integrated into a stepped-up parenting plan be bypassed.
Decision
[27] Section 16 of the Divorce Act sets out at subparagraph (1) and (2) that the court shall take into consideration only the best interests of the child of the marriage in making a parenting order, and that the primary consideration when considering the factors related to the circumstances of the child is the child’s physical, emotional and psychological safety, security and well-being.
[28] Subsection (3) lists those individual factors for the court to consider, which pay special attention to family violence and its impact on, among other things, the ability and willingness of the parent who engaged in the family violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons in respect of whom the Order would apply to cooperate on issues affecting the child.
[29] The factors for a Court to consider in relation to family violence are set out in section 16(4)
a. the nature, seriousness, and frequency of the family violence and when it occurred;
b. whether there is a pattern of coercive and controlling behaviour in relation to a family member;
c. whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
d. the physical, emotional and psychological harm or risk of harm to the child;
e. any compromise to the safety of the child or other family member;
f. whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
g. any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
h. any other relevant factor.
[30] I am satisfied on the record before me and the earlier criminal conviction, that R., M. and L. have been subject to indirect, serious family violence and with respect to R., direct family violence. I am not satisfied that there is either independent or demonstrated evidence of RK's present ability to prevent further family violence from occurring. Neither am I satisfied that there is independent evidence of any demonstrated ability to care for and meet the needs of the children. There is no history of successful unsupervised parenting, nor do I have evidence of RK’s current parenting and psychological supports.
[31] This is not an analysis of whether RK has “paid his dues” for past domestic violence as suggested by Ms. Haber, but instead, I must decide if it is in the children’s present best interests to significantly change the current parenting schedule to unsupervised weekend parenting time with their father or alternatively, parenting time supervised by their paternal uncle or grandfather.
[32] I find that it is not in the children’s best interests to move from their present parenting time to that sought by the father on this Motion. Child statements taken out of context or out of the evidence as a whole are not dispositive of their best interests.
[33] The case for bypassing the OCL recommendations is neither compelling, nor exceptional. To the contrary, the mother’s materials set out significant risks to the children should parenting time be suddenly expanded and unsupervised without counselling supports in place. The father’s counselling sessions to date are not sufficient nor have any gains from the counselling been demonstrated. Neither the paternal uncle nor the paternal grandfather have put an affidavit before the Court that sets out their understanding of their proposed role as a supervisor or duty of care to the children. For these reasons, I decline to make the Order sought by RK on this Motion, or his proposed alternate Order which would have his parenting time supervised by his brother or father.
[34] In declining to make the Order sought by RK, I have considered at some length the mother’s request that I place into this Order the terms of the October 25, 2021 OCL recommendations.
[35] Progressing the parenting at this time would be consistent with some of the positive comments within the supervised parenting reports, of which there are many, to the father’s credit. Despite issues of ongoing concern, the mother supports the children’s expressions of seeing more of their father provided that they are safe, and that particular care is taken with respect to R.’s parenting.
[36] The October 25, 2021 OCL is a neutral, child focused and comprehensive exploration of the factors in both section 16(3) and (4) of the Divorce Act. It provides detailed recommendations for a stepped-up parenting plan over time which will move the children towards normalization in a manner that is designed to protect their individual physical, emotional, and psychological safety, security, and well-being. It is subject to review.
[37] It is tempting to place into a temporary Order the stepped-up OCL parenting plan recommendation on my own volition; but ultimately, I decline to do so because RK rejects those recommendations.
[38] RK is entitled to reject the OCL recommendations and to test the factual basis for the Report. But in the absence of his commitment to the envelope of support services integrated into the recommendations, such as ongoing professional supervision until at least June 2022 and his engagement with a psychotherapist, the Court can have no confidence that the stepped-up parenting terms will be successful, or whether they might even cause harm to the children.
[39] The relief sought within the January 22, 2021 Notice of Motion is dismissed. The consent Order of October 24, 2019 as varied by the consent Order of April 15, 2021 shall continue in full force and effect.
Costs
[40] I set the following timetable for the service and filing of costs submissions, which counsels may vary on consent based on their December schedules. If they agree to vary the schedule, or if they agree on a payment of costs, I ask that they inform my assistant at Karen.Bunbury@ontario.ca. Submissions are limited to three pages exclusive of a Bill of Costs and Offers to Settle. Caselaw is to be hyperlinked within the body of the submission. No reply is permitted.
a. JK’s submissions to be filed with the Court by December 30, 2021.
b. RK’s submissions to be filed with the Court by January 21, 2022.
McGEE J
DATE: December 14, 2021
COURT FILE NO.: FS-19-95212
DATE: 2021 12 08
AMENDED: 2021 12 14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: JK
v.
RK
COUNSEL: P.L. Bateman, for the Applicant
C.A. Haber, for the Respondent
ENDORSEMENT
McGEE J
DATE: December 14, 2021