Court File and Parties

COURT FILE NO.: FS-22-15 DATE: September 26, 2023 SUPERIOR COURT OF JUSTICE – ONTARIO (Haileybury)

RE: LAURA HUNT, Applicant/Responding Party AND: CHRISTOPHER HUNT, Respondent/Moving Party

BEFORE: Justice J.S. Richard

COUNSEL: Mathieu Perron, for the Applicant Dawood Ahmad, for the Respondent

HEARD: September 18, 2023

Endorsement

Motion

1The Respondent father brings a motion requesting that the temporary without prejudice Order of Justice Wilcox, dated April 12, 2023 be varied so as to increase his parenting time, and to allow for unsupervised parenting time.

2The Applicant mother takes the position that the motion should be dismissed on the basis that there has been no material change in circumstances. She further submits that, even if there was, allowing unsupervised parenting time would not be in the children’s best interest, especially given the father’s recent conviction of assault on their daughter.

Background

3The parents started cohabitating in 2010, were married in August 2013, and separated on December 29, 2021. The parties have two children: Holly and Rowan. Holly is now 5 years old, and Rowan is 4 years old.

4At the time of separation, when Holly was 4 years old, and Rowan was almost 2 years old, the parents decided to coparent as they both continued to live in the matrimonial home. In March, 2022, the father was offered a job in Bracebridge, Ontario, that would require him to be there four days per week. According to the father’s evidence, the mother encouraged him to take the job, and assured him that he would have parenting time with the children when he was home for the three days per week.

5The father accepted the job, and began work on March 20, 2022. On March 24, 2022, while on his way back for parenting time, he was arrested for historical allegations made by the mother. The 12 charges for the alleged offences, dating between 2019 and early 2022, included assaults, uttering a threat to cause bodily harm, and mischief. His release order prevented him from residing in the District of Temiskaming, and from contacting the mother except through a mutually agreed upon third party.

6On August 4, 2022, the Crown attorney agreed to vary the release order to allow the father to reside in the district, and to return to the matrimonial home. The father continues to reside in the matrimonial home today. The mother has alternate accommodation.

7From the date of the arrest on March 24, 2022 onward, the mother did not agree for the father to have parenting time unless it was supervised either at the Supervised Access Centre or by a third party at her discretion.

8On April 1, 2022, the mother had an application issued by the court. In her application, she seeks temporary and permanent orders for sole decision-making responsibility, primary residency, supervised access for the father, equalization and support. The father filed his answer on May 25, 2022, and seeks sole decision-making responsibility (joint as an alternative position), shared parenting, and equalization. Office of the Children’s Lawyer (the “OCL”) clinical investigator, Nathalie Bouffard, was assigned to the matter on November 25, 2022.

9On February 10, 2023, the father brought a motion before Justice Wilcox requesting unsupervised in-person parenting time. On April 12, 2023, Justice Wilcox made a temporary without prejudice order “which may be revisited once better information, particularly from the OCL, is available.” Moreover, the order grants the father parenting time as follows:

1. The respondent shall continue to have parenting time at the supervised access centre each second weekend on the current schedule.
2. The respondent shall have frequency of his parenting time at the supervised access centre increased to weekly if the supervised access centre can accommodate that.
3. The respondent’s parenting time at the supervised access centre shall be increased in half hour increments up to a total length of 3 hours per visit, if the supervised access centre can accommodate this, with the second half hour increment following the first by no fewer than 4 visits.
4. The respondent shall have telephone or video calls with the children at least two times per week, on Tuesdays and Thursdays, and on Saturdays when there is otherwise no parenting time, at 6pm, or as otherwise agreed to by the parties in writing.
5. The respondent shall have such other access, not in a supervised access centre supervised by a responsible adult proposed by the respondent, consent to the use of whom shall not be unreasonably withheld by the applicant, as arranged by the parties. If the arrangements for such a visit conflict with a visit at the supervised access centre, the visit outside the supervised access centre shall take precedence.

10In granting the above order, Justice Wilcox explains:

In the circumstances, it is necessary to put in place interim arrangements for the respondents’ parenting time to satisfy the interests of the children. The schedule must be as predictable and reliable as possible to minimize the potential for conflict. However, given the paucity of the information available, there are limits on what the court can do.

11On May 3, 2023, the father was found guilty of one count of assault on Holly for incident that would have occurred on May 13, 2020, during which Mr. Hunt squeezed her arm causing bruising. The 11 other charges were either withdrawn or quashed by acquittal. The father was sentenced to 18 months of probation, and he is now appealing the conviction and sentence. The crown is not appealing the acquittals. The date for the hearing of the appeal has yet to be set.

12On July 12, 2023, clinical investigator, Nathalie Bouffard, filed a s.112 Report, in which she recommends, among other things, continued supervised parenting time with a very gradual increase in frequency, and the eventual goal of having two overnights, “after criminal court resolves.”

Issues

A. Striking some of the father’s evidence

13The mother objects to the inclusion of certain evidence put before the court by the father, and requests that it be struck from the record. Namely, the mother requests that the court strike exhibits “M”, “N”, “S”, “T”, “Q”, “P” and “O” from the father’s affidavit of July 31, 2023. These particular exhibits consist of the following:

“M” : excerpts of communications between the mother and father on the Family Wizard platform;

“N”: letters from the father’s lawyer to the mother’s lawyer, dated between May 1, 2023 and June 23, 2023 proposing dates and times for the father’s supervised parenting time;

“O”: email correspondence between the paternal grandmother and the mother from July 2023;

“P”: email correspondence between Nicole Perreault and the father regarding Rowan’s status on the waitlist for speech therapy, dated July 10, 2023;

“Q”: correspondence between the father and Holly’s teacher, Jessica Maga, dated in June and July 2023;

“R”: email correspondence from Jessica Maga to the father, dated June 30, 2023;

“S”: email correspondence between Lori Caldwell, speech language pathologist, and the father, from July 2023; and

“T”: email correspondence between the mother and the father dated July 9, 2023.

14The mother takes the position that these contain hearsay statements, as well as privileged information in the context of offers to settle, and she relies on LiSanti v. LiSanti, [1990] OJ No 3092 in support of her argument. Respectfully, the entire family law court system in Ontario has evolved by leaps and bounds, to the point of almost being unrecognizable, over the last three decades, and this decision is irrelevant for the purposes of this issue. This evolution, moreover, has resulted in the implementation of the Family Law Rules, including Rule 14(18).

15In a motion, evidence is to be presented by way of affidavit, as outlined by rule 14(17). Rule 14(18) then states:

Affidavit based on personal knowledge

14(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. O. Reg. 114/99, r. 14 (18).

16While rule 14(18) does not give parties carte blanche on evidence, it does allow for some flexibility in the acceptance of evidence, and will open the door to hearsay evidence if:

(a) The deponent discloses the source of the information by name;

(b) The deponent states a belief that the information is true; and

(c) In the case of a contempt motion, the information must not likely be disputed (r.14(19)).

Additionally, reliance on information learned from someone else should be restricted when it applies to the substantive merits of a claim (see: Neeteson v. Neeteson, [2007] O.J. 4277)

17First, what I assume the mother is referring to in terms of “offers to settle” is “Exhibit N”, which contains nine separate letters from the father’s lawyer to the mother’s lawyer making proposals for supervised parenting time dates. None of these letters are marked “without prejudice,” and the correspondence responding to these letters, if any exist, were not included. Not only should lawyers be highly encouraged to resolve such issues outside court, as did the father’s lawyer, but the source of the document is clearly identified, and the letter was sent on behalf of the party by his legal representative. This does not fall under the guise of privilege. In addition, the mother does not contest that proposals and requests for parenting time were made by the father. Frankly, it is difficult to understand why she would object to this evidence being included since the information is clearly innocuous (see Catholic Children’s Aid Society of Hamilton v. R.(P.), 2010 ONSC 6096, Greig v.Young-Grieg, 2014 ONSC 581).

18Secondly, with the exception of Exhibit “O” (email correspondence between the paternal grandmother and the mother), all other exhibits consist of communications in which the father directly participated. Automatically, these can at last be weighed as to the father’s participation in such discussions. With respect to the truth of their contents, some weight can be attributed since all sources are identified by name. I therefore disagree that Exhibits “M”, “N”, “P”, “Q”, “R”, “S” and “T” are inadmissible.

19With respect to Exhibit “O”, I find that little weight should be given to it, but in any event, I do not find it entirely relevant to the issues. In fact, none of these exhibits serve as determinative, and although certainly considered, I do not attribute much weight to them. What they do is provide context to the landscape in which Rowan and Holly are living, and it is unequivocally clear that it is one of high conflict and distrust.

B. Material Change in Circumstances

20The mother challenges the court’s authority to vary the interim order of Justice Wilcox. Specifically, she argues that the mere fact that the OCL clinician filed her report does not constitute a material change in circumstances. I disagree with this submission.

21By stating in his order that he was making a “temporary without prejudice order which may be revisited once better information, particularly from the OCL, is available”, Justice Wilcox invited a review of his order on the basis of this exact information becoming available. Thus, in the circumstances, I find that although not said explicitly, Justice Wilcox already deemed, the availability of the OCL report as a material change in circumstances, and the threshold was therefore met on July 12, 2023.

22In the event that I am mistaken in my interpretation of Justice Wilcox’s reasons, I still find that there is a material change in circumstances that meets the requirements of section 17(5) of the Divorce Act, R.S.C. 1985, c. 3:

Factors for parenting order or contact order

17 (5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

23A helpful summary of the case law on this issue was provided in Miller v. Miller, 2022 ONSC 7237, at paragraph 25:

25 (…) a. The courts have traditionally taken a dim view of any change in a parenting status quo on a temporary motion. That is because such a motion is brought on unreliable and conflicting affidavit evidence where credibility of parties cannot be determined. As well, if the status quo does change on an interim motion, there is, of course the risk that the change will be undone at trial, resulting in the children moving twice rather than once, creating instability. b. Because of this, the court requires compelling reasons to depart from the status quo prior to the hearing of the motion. Alternatively, the test has been set out as requiring "exceptional circumstances where immediate action is mandated": see Grant v. Turgeon, [2000] O.J. No. 970 (S.C.J.) at para. 17. Other cases have suggested that there must be some danger to the child remaining in the present status quo: see Miranda v. Miranda, 2013 ONSC 4704 and Elliott v. Filipova, 2019 ONSC 4506. c. In addition, if a party is seeking to change the terms of an existing court order, temporary or otherwise, there must be a change in circumstances prior to making the order: see the Divorce Act, s. 17(5) Lonsdale v. Smart, 2018 ONSC 3991 at para. 9. d. If a party wishes to rely upon the recommendations in an assessment report or s. 112 investigation in changing the status quo, the court must exercise caution in doing so. The traditional viewpoint is that an assessment report or an investigation as in the present case is only one piece of evidence to be used at trial and should not be acted upon until the court can assess the weight to give to the report through cross-examination and trial: see Genovesi v. Genovesi, [1992] O.J. No. 1261 (Gen. Div.), Grant v. Turgeon, supra and JLM v. PDAB, 2012 ONSC 4696 at para. 15-16. e. There is authority, however, that the evidence contained in an assessment report (as opposed to the expert's recommendations) may be relied upon if it is sufficiently compelling to warrant a change in a status quo or previous order: see Bos v. Bos, [2012] ONSC 3425 and Krasaev v. Krasaev, 2016 ONSC 5951. In fact, in Krasaev, Douglas J. distinguished between the evidence in the report and the recommendations when he says [at para. 38]: "I note that the caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in the report." [Emphasis added]

24I agree with Justice Wilcox’s reasons on the issue of “status quo”:

In the present case, what the status quo was is open to question as the situation changed from pre-separation to continued cohabitation post-separation, to the respondent’s release order not allowing him to be in the district where the children were, and then to that restriction being dropped (…)

25The status quo is now shaped by evidence that these very young children are spending time with their father, expressing that they enjoy it, and are requesting more of it. This important information, as well as detailed observations of their interactions by the clinician, was not available to the court during the hearing of February 10, 2023.

26Under these circumstances, the filing of the OCL report constituted a material change significant enough to re-examine the children’s best interest pending trial, and so did the conclusion of the father’s criminal trial.

C. Best interest of Holly and Rowan

27Under section 16(1) of the Divorce Act, in making or varying, a parenting time order, only the best interest of the children needs to be considered, with primary consideration to be given to the children’s physical, emotional and psychological safety, security and well-being (s.16(2), Divorce Act).

28The factors the court needs to consider in determining their best interest include not only the children’s needs given their age, but also the history of their care, the nature and strength of their relationship with each parent, their views and preferences, their linguistic and cultural heritage, and the history of their care, just to name a few. Also listed as one of the mandatory 11 factors at s.16(3) of the Divorce Act is the following: “ (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the children. “

i) The father’s criminal proceedings

29The finding of guilt, and the sentence of 18 months of probation, relating to a historical assault against Holly from May 13, 2020 are currently under appeal. The assault charge relates to the squeezing of her arm causing her bruising.

30The introduction into evidence of previous convictions such as this provided for in section 22.I of the Ontario Evidence Act, R.S.O. 1990, c.E.22 which states:

22.1(1) Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if,

(a) no appeal of the conviction or discharge was taken and the time for an appeal has expired; or

(b) an appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available.

31While the conviction may not be relied upon as fact that the alleged assault occurred beyond a reasonable doubt, in assessing the safety of the children, under 16.3(k), the court should consider the reasons of Justice Maille delivered during the sentencing of the father (certified transcript, p.48):

The accused has taken substantial steps to seek and comply with counselling and therapy regarding his mental health and he has taken parenting courses (…)

There are important mitigating factors:

(1) The accused is a first offender.

(2) The offence consists of a single isolated incident.

(3) The incident was of a short duration.

(4) The accused at the time had been misdiagnosed with a mental health illness and prescribed medication, which may have contributed 20 to his behavior. This medication has since been discontinued.

(5) The offender has expressed remorse, which I accept.

(6) The offender has taken significant steps, as I noted earlier, to address his mental health and parenting skills with considerable success.

(…) He is motivated to continue working on self-improvement as an individual and as a parent. I am satisfied that the offender's prospects for rehabilitation are very good and that, in fact, he has already achieved a meaningful measure of rehabilitation.

I also take into account that the offender has complied with release conditions for a considerable period of time. (…) [Emphasis added]

32The father has submitted voluminous evidence showing the completion of, or registration in, various programs since separation, including the Nobody’s Perfect Parenting Program, the Triple P Parenting Program, North Eastern Ontario family and Children’s Services’ counselling and therapy services, and the Making Two Homes Work online class. He has attended weekly regular scheduled counselling services through the Canadian Mental Health Association, and graduated from services on April 27, 2023.

33Also included in his evidence is a letter from his probation officer dated August 4, 2023, stating that due to “his prior involvement in programming/counselling and his very low risk supervision level, his reporting requirement will end following the successful completion of Nobody’s Perfect in August 2023.”

ii) OCL Report

34What is even more telling in the evidence before the court are the observations of the clinician in her report of July 12, 2023. While the mother argued in oral and written submissions that the court should be cautioned in relying on a report that has not been tested in cross-examination, and in implementing a “drastic uprooting change solely based on OCL clinician’s recommendations,” the mother can be assured that this court is not relying on the clinician’s recommendations, but rather on her observations, as it ought to do (Miller v. Miller, supra). Notably, the clinician’s sworn evidence states::

Page 13: Holly, Rowan appeared to be very comfortable with Mr. Hunt. Mr. Hunt remained calm and in control throughout the visits at the SAC. From what was observed Mr. Hunt appeared to practice positive parenting skills and the children appear to respond positively by being equally available to both children, sharing his time, offers the children options, tells them what he is doing before doing it. Mr. Hunt was able to soothe Rowan when he hurt himself.

Page 13: Holly shared the following information while at her mother’s residence (…) “without being asked Holly requested the following: ‘a toy box filled with plush toys’, ‘wishes to see dad more, ‘cries and misses him so much’, "like to see more of Dad 100 days" (…) happy to see Dad, sad not to see Dad” (…) her number one wish is to see Daddy a hundred times”, ‘When sick, Mom, Dad and my Nana take care of me’”

Page 14: Rowan shared the following while at his mother’s residence: “He shared spending enough time with Mom and enough time with Dad. Shortly after he shared wishing to spend more time with Dad and wishes to see Dad every day.”

Page 16: The children appeared to be comfortable in his presence and company and requested more time with their father.

Page 33: Overall Mr. Hunt's visits were respectful, positive interactions were noted and the children were receptive to Mr. Hunt's directions and discipline. When Mr. Hunt needed re-direction the children i.e. when jumping on the sofa, or a child was yelling, or the children were fighting he remained calm, discouraged the behaviour, asked the children not to fight and proposed a positive alterative. When the children arrive, they yell ‘Daddy’, run to their father, hug him, and say, ‘I miss you so much’”

iii) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse

35Recognized as a mandatory factor under s. 16(3) of the Divorce Act, a parent must be prepared to promote the other parent as an important part of the children's lives and refrain from denigrating, minimizing, or alienating that other parent.

36According to the father’s evidence, the mother has been quite restrictive in the access, and only allowed a limited number of people to supervise parenting time outside the supervised access centre.

37What is even more alarming is the fact that she very recently called the police when the father attended the children’s soccer game. During the motion, the mother argued that the father should not have attended, nor should he attend gymnastics, as it causes the children to be “confused.” With that said, she did say that she would be “willing” to consent to allowing the father to attend extra-curricular activities, but not while she is there, so that they avoid creating “chaotic situations.”

iv) The children’s relationship with grandparents

38Evidence put forward by the father showed that the mother has not been very supportive of the relationship between the children and their paternal grandparents.

v) History of the care of the children

39With the children being so young, the history of care is short. As noted in Justice Wilcox’s reasons of April 12, 2023, and as mentioned above, what the status quo was is open to question. The children are very young still, and although versions may differ, it is clear that the father he was very much part of their life until he was charged on March 24, 2022. This is supported by the OCL’s observations.

vi) Any family violence

40As already mentioned, family violence is a factor mandated to be considered. Section 16(4) of the Divorce Act assists the court in analysing this factor:

16 (4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following 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 their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

41In conducting the above analysis, this court has not only turned its mind to the alleged events of May 13, 2020, but also to the allegations of aggressive behaviour and abuse being made by the mother about the father during the relationship.

42I accept the comments made by Justice Maille in his sentencing reasons, as well as the evidence put forward by the father relating to treatment and services he has completed. In addition, I also give some weight to the clinician’s observations:

p. 15: Mr. Hunt appears to have made some positive steps by engaging in counselling for himself, discontinued marijuana usage on his own before being suggested to do so by Dr. Fleury, psychiatrist, following the recommendations regarding counselling medical treatments, and continues to be followed by Dr. Fleury and the Canadian Mental Health Association (CMHA). He seems to have regrets in how he behaved with young children and admitted to being ill equipped and not as patient with young children. He has since worked on himself, has taken ownership, is ready to continue working on himself, wants to be a better parent for the children and participate to any parenting programs offered by CMHA-Mental Health programs. A parent's responsibility is to protect, nurture and care for their children and Mr. Hunt appears to have made changes in that regard. Since the allegation of assault, mischief involving Ms. Hunt and their oldest daughter it would be difficult to recommend anything other than supervised visits for Mr. Hunt.

p.16: From what the police occurrence reports indicated Mr. Hunt did not appear to have any other problems with the law besides the historical charges against him brought forward by Ms. Hunt in March 2022.

D. Conclusion

43There is consensus in the case law that an order for supervised access is an exceptional order. As a general rule, courts have taken the view that because supervised access creates an artificial environment, it should not be ordered as a long-term access arrangement. This proposition is underscored in M.(B.P.) v. M.(B.L.D.E.), leave to appeal to S.C.C. ref'd [1993] 3 S.C.R. vii, in which Abella J.A. stated (at para. 33):

The purpose of supervised access, far from being a permanent feature of a child's life, is to provide "a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used ... as a long-term remedy": Norris Weisman, "On Access after Parental Separation" (1992), 36 R.F.L. (3d) 35 at 74 ... .

44In addition, an order for supervised access should require cogent evidence that the children are in danger of physical or emotional harm. Suspicion of risk, without evidence, is not a proper basis for ordering supervised access. (See Jennings v. Garrett)

45In light of all of the circumstances and evidence mentioned above, the father’s motion is granted. Although there is no doubt that the father’s goal is to eventually ask the court for shared parenting time with Rowan and Holly, he also proposed a slow and progressive schedule, which shows that he is attuned to the children’s needs given their young age. It also shows that he is willing to allow the mother time to rebuild some trust so that she can increase her comfort. Unfortunately, the evidence does not seem to suggest the same about the mother. While it is understandable that the mother feels she must protect the children, some of her behaviours, actions, and even submissions in court, do not seem to demonstrate much interest in supporting the children’s relationship with their father, which does raise concerns about her lack of cooperation and her motivations. The father has had 68 supervised visits with the children, and all have been positive, yet the mother took the inflexible position of simply seeking a dismissal of the father’s motion with costs, without making any proposal that would address the children’s needs in relation to the relationship with their father.

46Accordingly, this court makes the following temporary order:

1. Commencing immediately, and on a rotation to be agreed upon by the parents in advance so as to accommodate work schedules, and to allow for predictability and consistency for the parents and the children, the Respondent father, Christopher Hunt, shall have parenting time, without supervision, as follows: a. For first four weeks, 3 half-day visits per week, of a duration of no less than 4 hours each; b. For the following four weeks, 2 half day visits (at least 4 hours each) per week, plus 1 overnight of no less than twenty-four 24 hours, on alternating weekends; and c. After the first 8 weeks, 1 half day visit (of at least 4 hours) per week, and 2 overnights on alternating weekends, from Friday after school until Sunday night at 6:00pm.
2. Unless otherwise agreed upon by the parties, the father will pick up the children at the beginning of his parenting time, and the mother will pick up the children at the end of the father’s parenting time.
3. Unless otherwise agreed upon, the parent with whom the children are residing at the time of an extra-curricular shall be responsible for bringing the children to their extra-curricular activity.
4. Both parents shall be able to attend all school functions.
5. Notwithstanding the above, the children will share Christmas between both homes, such that they will spend Christmas Eve (December 24th at noon until December 25th at noon) with one parent, and Christmas Day (December 25th at noon until December 26th at noon) with the other. In the event that there is still no final order in place in subsequent years, the parents will alternate Christmas Eve and Christmas Day annually.
6. Neither party shall speak negatively about the other parent, or about the other parent’s family, to the children, or anywhere near them. Nor will they discuss these proceedings with them, or any other adult issue.
7. The parents will continue to communicate via Family Wizard, and a response from either party will be provided within 48 hours. Communication must be minimal and limited to issues related to the children.
8. The parents shall explore mediation options to try to develop a long-term parenting plan for their family.
9. The Applicant mother shall pay the Respondent father $2,500 in costs for this motion within 60 days.