Court File and Parties

Court File No.: FS-23-39728-0000 Date: 2024-01-09 Superior Court of Justice - Ontario

Re: Royan Gayle, Applicant And: Annetta Neil, Respondent

Before: Schabas J.

Counsel: Rachel Zweig, Counsel for the Applicant Clifton Leung, Counsel for the Respondent

Heard: January 4, 2024

reasons on motion

Endorsement

Overview

[1] The Applicant, Royan Gayle ("Royan"), and the Respondent, Annetta Neil (“Annetta”), married in 2010. Their daughter was born August 6, 2019. Royan and Annetta separated on August 4, 2022. However, they lived in the same residence with their daughter from October 2022 until March 30, 2023 when Royan was charged with assaulting Annetta – an incident alleged to have occurred in January 2023. Aside from seeing his daughter when he returned to the home to get his belongings in April 2023, Royan has not seen her since March 2023.

[2] Royan now seeks parenting time. Annetta does not oppose parenting time for Royan but argues it should be limited and supervised.

[3] I grant the motion for parenting time, on terms and conditions set out at the end of these reasons.

Applicable Principles

[4] The only consideration in making a parenting order under s. 16 of the Divorce Act, RSC 1985, c 3 (2nd Supp,) is the best interests of the child. Subsection 16(3) sets out a non-exclusive list of factors to be considered in determining the best interests of the child, and subsection 16(2) directs that in considering those factors the court shall give “primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”

[5] Subsection 16(6) states that “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.” Further, subsection 16(5) prohibits consideration of past conduct “unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.” Subsection 16(5) addresses factors to consider when family violence is relevant.

[6] It is well-accepted that the best interests of a child are usually furthered by having a loving relationship with both parents. Emphasis must be placed on the importance of bonding, attachment and stability in the lives of young children. Any limitations on parental access to their children, including supervised access, must be justified based on a risk of harm to the child’s physical and emotional well-being. The onus is on the parent who seeks to limit access to justify it. Supervision orders in particular are “usually a last resort where there is a risk of harm to the children that cannot be addressed in any other satisfactory way.” Kohli v. Thom, 2021 ONSC 927 at paras. 29-31; SI v. II, 2013 ONSC 2762 at para. 10.

Positions of the Parties

[7] Although the Applicant’s position is that he wishes to pursue an equal schedule for parenting, on this motion he seeks unsupervised time as follows:

• Every Saturday from 9:00am - Sunday at 10:00am;
• Every Tuesday from pickup at daycare to drop off at school on Thursday morning;
• Everything Thursday from pickup at school until 8:00p.m.

[8] The Respondent submits that parenting time should be supervised at a supervised access centre at the Applicant's cost, twice a week “or per the supervised access centre's availability.”

Discussion

[9] The Respondent’s opposition to unsupervised access is based on concerns about the Applicant’s mental health, his alleged addiction to sex, incidents of family violence, and concerns about reintroducing the child to her father after a lengthy, almost one-year, absence.

[10] In my view, while these concerns exist, they do not justify the limited order sought by the Respondent.

Mental health concerns

[11] Royan and Annetta met in Jamaica in 2002. They married in 2010 and came to Canada in 2013. They have done well. They bought their first house in 2016 and moved to a second home in 2018. They purchased an investment property in 2022. Annetta is a registered nurse and Royan is employed as a supervisor at a bank.

[12] Annetta took a maternity leave when the child was born in August 2019. In August 2020, when her leave ended, the COVID-19 pandemic was continuing. Annetta reluctantly returned to work and Royan stayed home to care for their daughter. Although the record is not clear, I was advised that in August 2021 the child was placed in daycare.

[13] Annetta’s concerns with Royan’s mental health appear to have emerged in 2014 when she discovered Royan exposing his genitals on his computer. She said that Royan admitted he had an addiction to homosexual (male-male) pornography, and that he had suffered sexual trauma as a child. Royan agreed to engage in counselling with their church pastor and he received counselling “on and off” until 2017. Following their separation in August 2022, Royan engaged in counselling for a short period of time, until October 2022.

[14] Annetta’s evidence is that Royan’s mental health continued to decline after he moved back into the matrimonial home in October 2022, and that he became increasingly aggressive towards her. Royan’s journal, and messages to Annetta, contain notes form him expressing his own concerns about his behaviour and state of mind, suggesting he can feel isolated, overwhelmed and has “uncontrolled behaviour.” However, Royan has never been diagnosed with any mental illness, and while Annetta expresses her concerns strongly today, she did not appear to have concerns with leaving the child with Royan as the primary care giver in 2020 or having him in the home in 2022 and 2023, until an incident in March that led to him being charged for an assault on Annetta that allegedly occurred in January.

[15] Annetta’s concerns over Royan’s mental health are diminished when he is taking counselling. However, while Royan may well benefit from counselling, he has not been diagnosed with any mental disorder, nor is there evidence that his challenges have impacted his ability to care for his daughter.

Sexual behaviour

[16] Turning to the evidence of Royan’s sexual behaviour, it is clear that Annetta disapproves of his sexual activity, but there is little, if anything, in this conduct that is relevant to the exercise of Royan’s parenting time. The evidence from Annetta that he has engaged in sexual activity in the child’s presence is weak and strongly denied by Royan. I see no basis in this evidence on which to limit Royan’s parenting time.

Family violence

[17] Annetta alleges instances of family violence. She says Royan violently assaulted her in 2017, something he strongly denies. He did, however, write in his journal at the time that he had “scared his wife in ways both physically and mentally.”

[18] In 2020, during the pandemic, the parties had a disagreement over Royan’s need to isolate for several days. Annetta said Royan became angry causing her to call the police. No charges were laid, but Annetta and the baby left for a few days to stay with a friend. Children’s Aid were involved but no steps were taken by them. Royan denies Annetta’s account of the incident.

[19] Annetta says they argued in January 2023 and that Royan slapped her hand which caused considerable pain. This was reported to the police in March 2023 when they were called to the home because Annetta alleged that Royan was rattling her door handle attempting to come into her bedroom. Royan denies both incidents, and no charges were laid over the door rattling allegation.

[20] Royan was released on a promise not to contact Annetta. That restriction was varied in August to permit arranging access to the child “by choosing a mutually agreeable 3rd party.” Although Annetta complained of emails sent to her by Royan in August 2023, no charges were laid as he was seeking to arrange access to the child.

[21] Family violence is, of course, a matter of concern and an important factor in considering the best interests of the child. Having regard to the factors in s. 16(4) of the Divorce Act, the allegations, all of which are denied, have limited impact. Annetta has identified a few incidents in a 12-year long marriage and a 20-year relationship. The only injury asserted is a sore hand from an alleged slap in January 2023. There are no suggestions of violence or aggressive behaviour towards the child that would give rise to concerns for the safety, security and well-being of the child.

Royan’s lengthy absence

[22] Royan has not seen his daughter since April 2023. This is not for lack of trying. He could not communicate with Annetta about access until August 2023. He did try to see the child at the daycare, but this was prevented on instructions from Annetta. When his release condition was varied to facilitate access in August 2023, Annetta complained that Royan was in breach of his release and did not respond to his requests to arrange parenting time, even after Royan retained counsel. In December 2023, he brought this motion.

[23] There has been a lengthy period since the young child has not seen her father. In such situations, supervision can be an intermediate step (Izyuk v. Bilousov, 2015 ONSC 3684, para. 53), or the reintroduction can be addressed through visits of increasing length with the parent to allow them to re-establish their relationship. Royan’s original proposal implicitly recognized this as his original notice of motion in December proposed more limited parenting time than he now seeks.

Conclusions and Order

[24] Annetta’s main concern, at the end of the day, is that Royan engage in counselling as she is concerned about his behaviour when he is not receiving counselling. While counselling appears to have benefitted Royan in the past, and might on an ongoing basis, I see no grounds to impose such a condition before permitting him parenting time. Nor am I persuaded that there is a need for supervision.

[25] It is in the child’s best interests to see her father and reconnect with him. However, given the lengthy absence of the father in the life of the young child, visits should be limited in length at the outset and gradually lengthen. In his original notice of motion, Royan proposed parenting time for several hours on Saturdays and Sundays. His amended notice now seeks parenting time from 9AM Saturday to 10AM Sunday and, when not in daycare, from Tuesday afternoon to Thursday at 8PM. It is proposed that an intermediary facilitate the exchanges.

[26] In my view, there should be a gradual re-integration of the child and her father. I order as follows:

(a) The Applicant shall have parenting time with the child [full name and DOB to be inserted into formal Order] from 10AM to 3PM on Saturday January 13 and Saturday, January 20, 2024;

(b) Commencing Saturday January 27, 2024, the Applicant shall have parenting time from 10AM on Saturdays to 10AM on Sundays;

(c) Commencing Tuesday February 6, 2024, the Applicant shall have parenting time commencing with pick-up at daycare/school on Tuesday afternoons until drop-off at daycare/school on Wednesday mornings;

(d) the Respondent shall provide the Applicant with the name and address of the child's daycare/school forthwith;

(e) the Respondent shall register the Applicant as an approved pickup party at the daycare/school;

(f) the Respondent shall provide the daycare/school with a copy of any court order pertaining to the child forthwith;

(g) On a temporary without prejudice basis, the logistics of the parenting time on weekends shall be as follows:

a. The parties will select a mutually agreeable third party to facilitate the exchanges;

b. If the parties cannot agree on a third party, the court will appoint one based on a review of the lists of individuals to be provided by both parties no later than 5PM on Thursday January 11, 2024;

c. The selected third party shall pick up the child from the matrimonial home and bring her to the McDonald's at Jane and Finch located at 1831 Finch Ave W, Downsview, ON M3N 1M7. The third party shall meet the Applicant inside the restaurant and deliver the child to the Applicant.

d. the child shall be returned to the third party at the same McDonalds at the end of parenting time.

f. At no times shall there be contact between the Applicant and Respondent. The Respondent shall not come inside the McDonalds.

g. The third party shall communicate with the Applicant directly if there is any traffic or issues with respect to the exchange.

h. If at any time the third party is no longer willing or able to facilitate the exchanges, the parties shall communicate either directly or through counsel to select another mutually agreeable third party within 24 hours to ensure that no parenting time is missed.

(h) On consent of the parties, the Court is requesting the involvement of the Office of the Children's Lawyer to investigate, report, and make recommendations to this Honourable Court on all matters concerning decision-making responsibility or parenting time regarding the children, if necessary. The Applicant shall serve the Children’s Lawyer with the Order requesting its involvement together with this Endorsement.

(i) The parties shall attend a Case Conference in May 2024 on a date to be scheduled by the Family Court Office to address the status of the matter;

(j) The parties shall provide costs submissions to me, in writing, by January 19, 2024, not exceeding 3 pages double-spaced, not including attachments.

Paul B. Schabas J. Date: January 9, 2024