COURT FILE NO.: FC-18-F0-175-1
DATE: 2022/01/31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Teresa Ann Hellman, Applicant
AND:
Kevin Patrick Morin, Respondent
BEFORE: Somji J.
COUNSEL: Cheryl Lean, for the Applicant
Respondent, Self-Represented
HEARD: January 14, 2022-Belleville
Reasons for Decision on Uncontested trial re parenting time
Overview
[1] The applicant mother (“mother”) seeks a final order for decision-making responsibility for two children R.T.M. aged 10 and M.G.M. aged 8 (“children”) and to have the children reside primarily with her. The mother supports the respondent father (“father”) having parenting time with the children, but seeks that it be supervised at this time. The mother also seeks that the request for divorce be severed from corollary relief.
[2] The matter proceeded to an uncontested trial scheduled on January 14, 2022. The father was not present.
[3] The issues to be decided are:
Have the grounds been met to proceed to an uncontested trial?
Is it in the best interests of the children to grant the parenting orders requested?
Analysis
Issue 1: have the grounds for an uncontested trial been established?
[4] Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.
[5] An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”
[6] In this case, the father was served on July 3, 2021, with the mother’s original application dated May 5, 2021. A first appearance dated was set for July 22, 2021. The father appeared and was self-represented. The matter was adjourned for a second appearance on August 12, 2021. The July 22nd endorsement indicated that the father was to file has Answer and financial disclosure by August 6, 2021, failing which the matter could proceed by way of an uncontested trial.
[7] At the second appearance on August 12, 2021, the father did not appear. A case conference was scheduled for January 14, 2022. The August 12th endorsement indicated that on consent and with the permission of the court, the father was allowed to file his Answer and financial disclosure by September 1, 2021, failing which the matter could proceed by way of an uncontested trial. The father was to file a case conference brief by January 10, 2022.
[8] On the following day, August 13, 2021, counsel for the mother received an email from a lawyer by the name of Jeffrey Van de Kleut requesting the application materials on behalf of the father. Mr. Van de Kleut indicated that he had been contacted by the father, but was not retained. Counsel for the mother forwarded the materials.
[9] To date the father has not served an Answer or any other materials. Counsel for the mother did not hear further from Mr. Van de Kleut. Counsel for the mother requested that the case conference be converted to an uncontested trial, and the request was granted. The father was served an affidavit for an uncontested trial dated January 10, 2022. The father did not appear on January 14, 2022 for the uncontested trial.
[10] Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given: rule 23(22) FLR. In this case, I directed the mother to testify under oath about the events leading up to the uncontested trial and the basis for her parenting requests.
[11] The mother testified that the father did receive the materials for an uncontested trial because he showed up at her residence 10 minutes after service very upset and angry. He told her he was trying to get in contact with his counsel, that his lawyer told him that he needed his tax returns, and that this was the hold-up. The mother testified that the father also told her the night before the uncontested trial hearing that he would not be here because he did not have counsel.
[12] Based on the evidence filed and heard, I am satisfied that the requite conditions have been met to proceed with this matter as an uncontested trial. The father has had over a year to provide a response to the court regarding his position on parenting issues. He was given multiple opportunities beyond the requisite 30 days and has not filed an Answer, not retained counsel, and not appeared or contacted the court.
Issue 2: Is it in the best interests of the children to grant the parenting orders requested?
Law on best interests of the children
[13] The mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v. R.S.C. (2019) ONCJ 381 at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.
[14] The primary consideration in determining the parenting plan for the children which includes in the case primary residence, decision-making, and parenting time for the father, is the best interests of the children: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24 (“CLRA”). Section 24 of the CLRA endorses a child-centered approach in determining parenting orders: Young v Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 62-63, per L’Heureux-Dubé J.; Knapp v Knapp, 2021 ONCA 305, at para. 34.
[15] The best interests of the child requires primary consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss. 24(1)-(2). Section 24(3) CLRA lists additional factors that must be considered. The CLRA provisions read as follows:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
[16] Recent reforms to the CLRA now require the court to consider the following factors when assessing the impact of family violence under clause 24(3)(j):
(4) Factors relating to family violence - In considering the impact of any family violence under clause (3)(j), the court shall take into account,
(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 the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
(5) Past conduct - In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
Primary residence and decision-making responsibility
[17] The parties met in 2008 and were married in June 2010. The mother reports the marriage was a shot gun wedding to please her parents and that at the time, she did not know the father was addicted to crack cocaine. The mother was aware that the father had a criminal record, but was not aware of all his criminal charges. With the help of her family, efforts were made to have the father get pardoned for certain offences so he could work. The family helped the father get an AZ driver’s license which he subsequent lost because his urine test came back positive with drugs. The mother reports that her family also helped the father obtain a three year accounting diploma and paid off his Ontario student loans.
[18] The mother reports that following the marriage, the father became emotionally and psychologically abusive and that this abuse escalated into physical abuse six years ago. In March 2018, following an episode of domestic abuse described in her application materials, she went to a women’s shelter with the children for six days. However, the couple reconciled and she returned to reside with him.
[19] The abuse continued and another argument arose. The mother expressed her concerns about the father taking the children while he was under the influence of drugs. The mother called 911 because the father was threatening and angry. She was taken again to a women’s shelter with the children. While at the shelter, the mother applied for subsidized housing and legal aid. After six days, the father pleaded with her to come home and work things out and the mother did. Within a few weeks of reconciliation, however, the abuse started again.
[20] The mother moved into a subsidized housing unit in September 5, 2018, with the children and without the father. However, the father came around the home, and the parties attempted another reconciliation. The mother reports that by 2019, the father had alienated all of the neighbours because of his frequent calls to police with minor complaints. She describes instances of threats and violence from the neighbours toward the father because of their frustration with him. Consequently, housing authorities moved the family for safety reasons to another unit in September 2020. The mother reports that earlier that summer, the father struck her during a camping trip with the children and was also inciting one of his children to hit their mother.
[21] The mother acknowledges that she has mental health issues. She explained in her affidavit her mental health issues and what steps she has taken over the years to manage and treat these issues. In January 2021 she began to take a medication which caused her to become delusional and to have suicidal thoughts. The mother felt she was becoming progressively sicker. By March 18, 2021, she voluntarily admitted herself into hospital to wean her off the medication. The mother was extremely worried that Family and Children’s Services of Frontenac Lennox and Addington (“CAS”) would become involved because of her suicidal thoughts and what impact it might have on her access to the children. She was assured that admitting herself into hospital would be viewed positively, and that if her mental health issues were under control, there would be no problem with returning home. By March 25, 2021, she was better. However, a CAS worker told her that she would not be able return home because the father had reported concerns about her and her mental health.
[22] The following months of March to July 2021 were extremely difficult. The mother had limited access to the children, but would call daily while living at her parent’s place. When the mother would speak to the children on the phone, they would tell their father to “stop yelling at mommy.” The children reported to her on these calls that they didn’t have adequate food. On July 18, 2021, the children called her and asked her to pick them up because the father was drunk. He had smashed a window and was consequently evicted from the house. The police escorted the mother to the children’s home and removed the father. He was charged with two offences and held in jail overnight.
[23] Following the father’s departure, the mother was able to regain residency in the subsidized home and the father was removed from the lease. She has now regained primary care of the children. The children are stabilizing while in her care. She is not presently employed and on disability because of her mental health issues, but hopes to eventually go back to school. She has a large number of supports in place including her parents, all of her extended family, and her church community.
[24] The mother reports that her mental health has stabilized. She no longer has suicidal thoughts. She takes medication daily and sees a mental health worker weekly. The mother sees her own family doctor every six-nine weeks and a psychiatrist as necessary. The mother intends to participate in a weekly program that runs for 12 weeks called “Managing Powerful Emotions” which has been recommended to her by her psychiatrist. The mother testified she does not intend to reconcile with the father. She seeks that divorce be severed from corollary relief. CAS has closed its file with respect to this family as the children are deemed safe in the mother’s care.
[25] I find that it is in the best interests of the children to reside primarily with the mother and for the mother to have decision-making responsibility for them. Save for a period of four months, the mother has been the primary caregiver for both the children since birth.. She has taken them to all their medical appointments. She has been the parent primarily looking after the household chores and meals. She has been fully engaged in the children’s education, walking them to and from the school bus daily, helping them with their homework, attending school council meetings, and volunteering for school field trips. Outside of school, the mother has taken the children to all their activities such as reading club and swimming and for visits with family. Even when she was not able to be with them physically from March to July 2021, the mother stayed in daily contact with them. She is able to provide the children a stable home. The mother has a strong history of caring for the children, a close relationship with the children, and has demonstrated she is able to meet their needs and provide stability of care: s. 24(3)(a), (c) and (d) CLRA. These factors warrant a parenting order in her favour.
[26] The mother is also close to her parents and extended family. She is part of a larger church community. Primary residency of the children with her allows for the children to maintain their connection to their family and religious community: 24(3)(b) and (f) CLRA.
[27] In considering the best interests of the children, the court must also consider the impact of family violence on the children and the willingness of any person who engaged in family violence to care for and meet the needs of the children: 24(3)(j)(i) and (ii); 24(4) and (5) CLRA. I find consideration of these factors warrant a parenting order in favour of the mother. In this case, the children have been exposed to yelling and screaming as part of the post-separation conflict, but also the father’s physical violence on their mother and to property. There have been several reports of domestic assault, conflict with the neighbours, and an incident where the children called the mother because of the father’s state of intoxication and damage to property. The mother reports that the father is diagnosed with Antisocial Personality Disorder and addiction issues. When the father is not medicated, she indicates he has particularly bad road rage. She has witnessed him jump out of the car at a traffic light to pound on someone’s window yelling at them about their terrible driving. He rages and curses in front of the children.
[28] The mother reported fairly in her testimony that while the father has anger and violence issues, she had not witnessed the father to be physically violent with the children, but that can be intimidating towards them. Given the children’s exposure to the post-separation conflict and the father’s violence, the mother has arranged for the children to receive support and counselling through the Mental Health Program run through Belleville Hospital. One child has had access to phone sessions over the summer of 2021 and another child will have the same opportunity should she need it. These decisions are being made in conjunction with the children’s doctor. The mother has also spoke to the Child and Youth Worker at school to provide her youngest daughter assistance with on-line schooling.
[29] The father has not presented any plan of care: 24(3)(g) CLRA.
[30] For all these reasons, I find that it is in the best interests of the children to have primary residence with the mother and for her to have decision-making responsibility of the children. There will be a Final Order that:
The mother shall have decision making responsibility for the children; and
The children shall have their primary residence with the mother.
Parenting time
[31] The mother supports the children having a relationship with their father. The mother has proposed supervised access at the Belleville Supervised Access Service (“Access Service”) for a minimum of once a week and telephone calls on a daily basis. The mother supports these visits even if it will require her and the children to travel 40 minutes by bus there and back. The mother does not drive. She is reluctant to rely on her parents for pick up and drop off because of the family history. The mother reports that the Access Service is in the end of town close to where the father resides and that he has a car.
[32] Since the children have been residing with her full time, the father is encouraged to call the children daily. The calls take place over a speaker phone and the mother can monitor them. The father sings a song and say prayers to children. The mother reports that sometimes the father does not follow through on his promise to call daily and at other times he is short with them, but that she has not heard him say anything inappropriate recently.
[33] The father has also had some in-person visits with the children in the presence of the mother. The mother reported the father attended the home just before Christmas break for one day and the family opened up gifts. He does not visit the children regularly, but does maintain phone contact. He last saw the children on January 10, 2022.
[34] The mother reports that her youngest child does not want to have unsupervised access with the father at this time, and this was acknowledged by CAS as per the email dated November 22, 2021, from Andree Willetts, Family Services Worker. Ms. Willetts indicates in the email that she will be notifying the father that all and any access will need to be made through his lawyer or with the mother and that access at the father’s home is not supported while the youngest child continues to be uncomfortable with it.
[35] I find it is in the best interests of the children that the father have supervised parenting time with the children once a week at the Access Service for the following reasons. First, parenting time, albeit supervised, will allow the father to maintain and nurture his relationship with his children: 24(3)(b) CLRA. The mother reports that the children love their father and are attached to him. To date, the father has continued to maintain some contact with the children.
[36] Second, the best interests of the child require consideration of the children’s wishes: s. 24(3)(e) CLRA. Here, the youngest child has expressed her wish through her mother and CAS that parenting time with her father be in a supervised setting.
[37] Third, the best interests of the children requires consideration of the children’s safety: 24(2) CLRA. The mother reports continued concerns about the father’s drug and alcohol use. She testified that she worries he will be drunk or high when he sees them. The father lives in a boarding house. The mother is not certain his premises is a safe place for visits. The father has not provided an Answer to refute these claims or to demonstrate that he is able to visit with the children without putting them at any risk of harm due to his addiction and anger issues.
[38] For all these reasons, I find that it is in the best interests of the children to have supervised in-person and telephone/virtual access with their father.
[39] There will be a Final Order that:
The father shall have supervised parenting time at the Belleville Supervised Access Service once a week for a minimum of one hour and a maximum of three hours as arranged by the Service. The visits shall be scheduled by the access service in accordance with their protocol.
The father and mother shall utilize text or email to communicate with the other any concerns or questions regarding the care and education of the children.
The father shall continue to have telephone contact with the children. If however, the mother has concerns about the content of the calls or the father’s condition at the time of these calls, the mother may end the telephone calls and disallow telephone contact until such time as she deems appropriate.
The Respondent’s parenting time may be changed in the event of a material change in circumstances. Upon the Respondent producing evidence that he is clean and sober and able to manage the children, this order may be reviewed.
[40] There will also be an order that divorce be severed from corollary relief.
Somji J.
Date: January 31, 2022
COURT FILE NO.: FC-18-F0-175-1
DATE: 2022/01/31
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Teresa Ann Hellman, Applicant
AND:
Kevin Patrick Morin, Respondent
BEFORE: Somji J.
COUNSEL: Cheryl Lean, for the Applicant
Respondent, Self-Represented
reasons for decision on uncontested trial re parenting time
Somji J.
Released: January 31, 2022