McIntosh v. Nunes, 2014 ONCJ 356

COURT FILE NO. 170/12 DATE : July 11, 2014 Citation: McIntosh v. Nunes , 2014 ONCJ 356 ONTARIO COURT OF JUSTICE RE: LESLIE MCINTOSH – Applicant JOAO NUNES– Respondent BEFORE: Justice Roselyn Zisman COUNSEL: Aneesa R. Oumarally - for the Applicant Self- represented - Respondent HEARD ON: November 21, 2013, January 27, March 27 and June 13, 2014 REASONS FOR DECISION Introduction [ 1 ] The only issue in this trial is the Respondent’s (father’

s) access to his son Caleb Nunes born March 7, 2008 (“Caleb” or “the child”). . [ 2 ] The Applicant (“mother”) commenced her application in April 2012. She sought an order of no access to the father, an order that the father have no contact with her and not to be within 100 metres of her, that she be permitted to obtain a passport and travel without the father’s consent and for child support. The mother alleged that there had been a significant amount of violence in the relationship and incidents of violence after the separation.

Background and nature of relationship [ 3 ] The parties resided together from 2007 to February 2009. Caleb is their biological child. The parties resided at the paternal grandmother’s home until they separated when Caleb was 9 months old. The mother testified that the father was physically and emotionally abusive to her. She testified that the father was in and out of jail. She left with Caleb as a result of the father pushing her down the stairs.

The father denied this happened but never explained why he thought the mother left the home with Caleb. [ 4 ] Prior to the separation the father had only cared for the child alone on one occasion and according to the mother’s testimony the father left the child with the paternal grandmother who was recovering from surgery and couldn’t walk. The father never denied this happened. [ 5 ] Shortly after the separation, the father attended at the mother’s home and slashed the tires of her car.

The father did not deny that he slashed the mother’s tires but explained that he bought the car for the mother so in reality he slashed his own tires. [ 6 ] In April 2009, only a few months after the separation, the father had Caleb for an overnight visit, he attended at the mother’s home very early in the morning with Caleb, he pushed his way into the house, saw a male sleeping in the family room and assaulted the male. The father thought it was someone the mother was seeing but the male was the mother’s girlfriend’s boyfriend and the couple had slept over.

[ 7 ] With respect to this incident the father testified that he had to go to work early and as the mother had not arrived to pick up Caleb he went to her house to return him. According to the father, the door was open, he knocked and went in. He explained that he was very jealous, lost his temper and reacted terribly. [ 8 ] On April 7, 2009 the father pleaded guilty to charges arising out of these incidents namely, break and enter, commit mischief exceeding $5,000, commit mischief under $5,000 and 3 charges of failing to comply with probation.

He was sentenced to 6 months in jail and placed on 3 years of probation. The terms of probation included attending for counseling for substance abuse, anger management and not to communicate with the mother or attend at her property without a family court order. [ 9 ] According to the father’s 35.1 affidavit in addition to the criminal convictions in 2009, he was convicted of 2 breaches of probation in 2010 and sentenced to 28 days in jail and convicted of an assault in 2011 and sentenced to 3 months in jail. [ 10 ] The mother also alleged the father had used drugs for 15 years.

The father was never cross-examined about this allegation. [ 11 ] In August 2011, the mother testified that the father sat across from her house and yelling and swearing at her. The mother did not indicate if she ever reported his to the police as this would have been a breach of the terms of his probation order. [ 12 ] The mother also alleged that when they separated the father emptied her bank account and never paid any support.

The father was not cross-examined about these allegations either. [ 13 ] The mother alleged that the father was not interested or committed to a relationship with Caleb as he never began court proceedings to see Caleb but only responded when she began her application. History of court proceedings [ 14 ] On July 23, 2012 the case was before Justice O’Connell for an uncontested hearing as the father had not filed his responding materials. However, neither the mother nor her counsel was present.

The father was present and was seeking an adjournment to serve and file his responding documents which was granted as it was unopposed. According to the endorsement, he had prepared his materials but they needed to be sworn and served and he was granted an extension to do so.

Court staff were directed to advise mother’s counsel of the return date. [ 15 ] On September 21, 2012 the parties entered into final minutes of settlement [1] granting the mother sole custody of the child, the ability to travel and obtain a passport for the child without the father’s consent and based on the father’s’ income of $30,000 child support of $245.00 per month.

On a temporary basis, the parties also agreed that the father exercise access at a supervised access centre every other week for eight weeks and provided the father attended all access visits, he was then to have unsupervised access once per week. The order also provided that the father was not to communicate directly or indirectly with the mother, except through counsel, or be within100 metres of her or attend at the child’s school or daycare. [ 16 ] The matter was before Justice O’Connell again on January 11, 2013 and she was advised that access had not yet commenced at the supervised access centre.

The father did not attend court even though he had advised counsel that he would not consent to a Form 14B adjournment request by counsel as he wanted the court to be advised about his frustration in the delay in access commencing.

The court received a message that he could not attend court due to his car breaking down. [ 17 ] The matter was again before Justice O’Connell on April 17, 2013 and the endorsement indicates that the father had missed 4 out of 5 access visits, that he acknowledged that this was wrong and that he had acted against the child’s best interests and that he wished to have supervised access reinstated. Access was reinstated but the endorsement states that the father must attend consistently or provide adequate notice of any cancellation.

The case was then adjourned to monitor the access. [ 18 ] At the return of the case on July 16, 2013 although the mother was present her counsel was not and neither was the father. The mother advised the court that since the last court hearing the father had not exercised access. The mother advised the court she wished to proceed with an uncontested trial relying on her affidavit for an uncontested trial sworn July 29, 2012 that had been filed. But as her counsel was not present the matter was adjourned for an uncontested trial to October 22, 2013. [ 19 ] On October 22, 2014 the father attended court.

Justice O’Connell scheduled the matter for a trial management conference before me on October 31, 2013 for a half day trial to occur on November 20, 2013. Mother’s counsel did not request the trial proceed that day on an uncontested basis. It is not clear why this was not done as it appears that the father had never filed an Answer. A trial date of November 20 th was scheduled. [ 20 ] The trial commenced on November 21 st , 2013 (as it could not be reached on November 20 th ). The only issue was access. Both the mother and father testified.

Position of the parties [ 21 ] It was the mother’s position that access should be at her discretion. She testified that it was not in Caleb’s best interests to see his father, that he was not bonded to him, that he had a chance to see Caleb, that Caleb refused to see him at the supervised access centre, that Caleb doesn’t know him and it would confuse Caleb to see his father now. [ 22 ] The mother testified that she would consider granting the father reasonable access if he works, pays child support, shows an interest in Caleb and when he can show that he is mature.

[ 23 ] It was the father’s position that he should have access on alternate week-ends or whenever he was not working. He then acknowledged that in view of the length of time he had not seen Caleb, he would agree to supervised access. Evidence regarding supervised access [ 24 ] Pursuant to Justice O’Connell’s order of September 21, 2012, the first supervised access visit was scheduled to take place at the supervised access facility in Hamilton on January 26 th 2013.

The mother and Caleb attended but the father did not show up and he had not called to cancel. [ 25 ] The second visit was scheduled for February 9, 2013. The father arrived a bit late, but the mother was not yet there. He attended with his mother who had not been approved to attend the visit and she was asked to wait in a waiting room. Caleb then arrived with his mother. As staff was trying to talk to Caleb about going into the playroom to see his father, the maternal grandmother came out of the room and had to be asked to go back into the room.

The staff then asked the mother to encourage Caleb to go see his father, the mother is quoted [2] as saying,” I’m not going to encourage him to do something that will screw him up.” According to the access note, the mother’s eyes began to water and she asked Caleb if he wanted to leave and he said he did and they left. The paternal grandmother and to a lesser extent the father made a scene. [ 26 ] The mother confirmed in her testimony that she made this comment to Caleb.

When she was asked by the court why she said this, she explained that by then Caleb had not seen his father for several years and the staff was trying to bribe him with toys to go see his father. She felt that Caleb from the beginning did not want to see his father and shouldn’t be bribed into seeing him. [ 27 ] To the mother’s credit she did attend with Caleb for the next 3 scheduled visits for February 23, March 9 and 23, 2013. The father did not attend and except for the last visit he not provide any advance notice that he was not attending.

As a result of the father’s non-attendance, the supervised access centre cancelled his visits in accordance with their policy. [ 28 ] The father testified that he missed the first visit because he was busy. With respect to the second visit, both he and his mother wanted to see Caleb and he did not know that he was not allowed to bring his mother. He testified that he was torn up because Caleb did not want to see him.

After that visit, he testified that he did not go to the visits because he thought there would be no chance that the mother and Caleb would come again. [ 29 ] In cross-examination, he agreed that he had not acted in Caleb’s best interests and that he had not shown that Caleb was his first priority. He testified that he wanted another chance and felt he could be a consistent parent.

He also testified that he was now available because he had been working out of the jurisdiction and this was another reason he could not attend the visits. [ 30 ] He was cross-examined about why he had not paid child support if he was working and stated that he listened to his mother who told him that if he was not seeing his son he should not pay child support. Temporary order for supervised access [ 31 ] This ended the testimony on the trial. After hearing submissions, I advised the parties and mother’s counsel that it was my intention to adjourn the trial and make a temporary order for supervised access.

Based on the evidence I was concerned that the mother’s request for reasonable access at her discretion would in reality mean that there would be no access to the father. It was clear to me that the mother had not encouraged a relationship between the father and Caleb and did not believe that it was in Caleb’s best interests to have a relationship with his father.

On the other hand, the father had shown himself to be incapable of putting his son’s needs ahead of his own and unless he was able to demonstrate a commitment to attend access visits on a consistent basis that the court needed to consider a no access order. [ 32 ] The trial was adjourned to January 27, 2014 and a temporary order was made as follows: 1. Both parties to immediately contact the Hamilton Supervised Access Centre within 7 days to arrange for access. If access cannot be arranged within 2 months, I am to be contacted by a Form14B to consider a request to contact another access centre. 2.

The father is to attend 4 consecutive access visits at which time the issue of access will be reconsidered and I will hear further evidence and submissions. 3. The mother is to encourage Caleb to attend access visits. [ 33 ] On January 14, 2014, mother’s counsel submitted a Form 14B requesting the continuation of the trial be adjourned to April 2014 as supervised access had not yet commenced.

The affidavit in support of the motion sworn by a law clerk, Ms Sally deposes the history of the matter but refers to the trial taking place on October 24, 2013( as opposed to November 21 st ) and that the mother’s counsel contacted the Hamilton access centre on October 25 th and was advised the next day that the centre needed an copy of the endorsement and the parties needed to re-register. The affidavit states that the mother re-registered on October 26 th . [ 34 ] Given this error regarding the trial date, it was not clear when the contact was made with the supervised access centre.

The affidavit then states that as of December 18 th the parties were still on the wait list and that counsel contacted access centres in

Woodstock and Niagara and was advised that it was a busy time of year and no centre could guarantee a spot. Further, access centres do not want parties to register at more than one centre. [ 35 ] Ms Sally then deposes that the mother does not want to reveal her address as she feared the father, that in April 2012, her home was vandalized and this was just after the father came out of jail and the mother fled her home and moved just outside of Niagara. She also deposed that the mother was given a gift of a holiday sometime between February and March but did not want to give any details as she feared the father.

This was a further reason for the adjournment request to April. [ 36 ] I refused the adjournment and indicated that counsel should contact the Halton supervised access centre to determine its availability or be prepared to make submissions as to another place for access to occur. The parties were therefore required to attend court on January 27, 2014. [ 37 ] On January 27, 2014 mother’s counsel was granted leave to file a further affidavit by her law clerk, Ms Sally with respect to her office’s attempts to contact and arrange supervised access.

Ms Sally deposes that she spoke to Mary Ann Duncan, the co-ordinator of the Access and Family Services that is responsible for the supervised access centre in Halton Region. According to Ms Sally, Ms Duncan described what she called a “lengthy process” to change access centres as she would have to obtain the consents of the parties to obtain the records from the Hamilton centre and conduct a complete investigation in which the parties and the Hamilton Access Centre would have to be interviewed.

Ms Sally deposed that Ms Duncan stated that she could not guarantee that supervised access would be granted as it would depend on the information gleaned from her investigation. She confirmed that counsel advised her that once this investigation began that the parties would be dropped that the waiting list for the supervised access centre in Hamilton.

She also confirmed that in December she had been advised that it was only a matter of weeks before access could begin but access had still not begun and despite writing the supervised access centre to obtain an update she received no response. [ 38 ] I advised counsel that on own initiative I was issuing a summons to Mary Ann Duncan as it was my understanding that the supervised access centre in Halton Region did not have a wait list and the court needed to clarify the process for the father to be able to utilize the supervised access centre in this jurisdiction. [ 39 ] On March 27, 2014 Ms Duncan testified.

She explained that in order to use their supervised access centre, both parties need to book an intake appointment with her and meet with her, consents to other agencies may be required such as to the children's aid society or to other access centres, a visit by the child is arranged and then access can proceed. She testified that there is no wait list and an intake appointment can be arranged within 1 to 2 weeks and then if everything is straightforward access can begin shortly thereafter.

She also testified that parents do not have to reside in Halton Region to use their centre, that parents can use more than one centre and the fact that there were missed visits before would not disqualify a parent but the parent would be given a clear direction that there can be no further missed visits. [ 40 ] Ms Duncan testified that she keeps records of all telephone calls and had a record of the call between herself and Ms Sally on January 24, 2014. [3] Ms Duncan testified that she received a fax from counsel on January 22 nd inquiring about availability of access at the centre.

In response she called counsel’s office on January 24 th and spoke to her assistant. Ms Duncan testified that she did not say that she needed to “investigate” but rather that she gathers information. She stated that she said that although there was no guarantee that she may be able to take on these clients. Ms Duncan repeated that she wanted to be clear that there was no wait list and that she never told Ms Sally that she needed the file from Hamilton centre.

Ms Duncan advised Ms Sally that she could speed up the process by faxing the parents’ consents and that it was agreed that she would fax the consents, which she did, and then counsel’s office would arrange to have the consents signed and forward them to the Hamilton supervised access centre and then Ms Duncan would contact the centre in Hamilton and speak to the staff. [ 41 ] Ms Duncan confirmed that she never received a callback from either counsel or the parents. [ 42 ] After Ms Duncan’s testimony, I invited further submissions.

Ms Oumarally, counsel for the mother, submitted on behalf of the mother that she had done everything possible to arrange access at the Hamilton access centre and that the mother had not signed the consents requested by Ms Duncan as there was no guarantee that the supervised access centre in Halton would be able to facilitate access and then they would lose their place on the Hamilton wait list. She again requested the court to order reasonable access to reasonable notice to the father.

Counsel did not address what in my view was a serious misrepresentation by her law clerk of her discussion with Ms Duncan about the process for access to take place in this region. As indicated to counsel, I accepted Ms Duncan’s evidence regarding the discussion between herself and counsel’s assistant and that it was clear that supervised access could be quickly accommodated in this region. [ 43 ] The father simply submitted that he wanted to see his son. [ 44 ] After hearing submissions, I made the following order: 1.

The parties are to sign the consents to permit Ms Duncan to contact the staff at the Hamilton access centre [4] . 2. The parties are to immediately contact the supervised access centre for Halton region and arrange the intake appointments. 3. As soon as the father’s access can be commenced, he is to attend 4 consecutive visits, if the mother cancels a visit it is to be made up the following week and the father is not to cancel any visits except for a medical emergency. I further endorsed that 4.

If the father does not exercise 4 consecutive access visits I will hear submissions as to why his access should not be terminated. 5. The mother is ordered to prepare and encourage Caleb to attend access visits and not to interfere in any way with attempts by staff to encourage Caleb to exercise access to the father. 6. The father is also ordered not to bring anyone else to the visit but is permitted to bring toys, food and family pictures in accordance with the rule of the supervised access centre.

7. The trial is adjourned to June 4 th , 2014. Evidence on resumption of trial on June 4 th , 2014 [ 45 ] The mother testified that she complied with the court order of March 27 th , 2014 and an access visit was scheduled for May 11 th , 2014 that also happened to be Mother’s Day. The father was present but Caleb refused to meet his father despite the staff’s attempts. She testified that Caleb was not comfortable and that the staff told her it was fine if he wanted to leave. [ 46 ] A further visit was scheduled for May 25 th , a female staff person was used as previously a male had tried to encourage Caleb.

The father was asked to write a letter and it was read to Caleb. He was also given some toys that the father had bought for him. Despite these attempts Caleb still refused to go into the playroom to see his father.

The mother testified that she had trouble getting him to attend the access centre. [ 47 ] The mother testified that she spoke to the staff at the access centre and that she was told there was nothing more they could do to encourage Caleb to see his father. [ 48 ] A letter from Ms Duncan was entered as an exhibit that stated that the staff had offered a variety of supports to Caleb but he still refused to go into the visit room.

She stated that in view of the fact that he had refused to visit in Hamilton and now had refused on 2 occasions to see his father at their facility she was not continuing the service at this time. Ms Duncan suggested more therapeutic one on one support was needed than could not be provided by their program. [ 49 ] The mother also testified, in a very emotional state, that she had lost her job as a result of all of the court attendances and therefore she had been required to move up north to live with relatives due to her lack of finances.

However, I note that this evidence about being required to move up north contradicts the affidavit of the mother’s counsel’s law clerk who deposed that the mother moved up north in April 2012 as she feared the father. I find that the mother blamed the father and this court process for anything that went wrong her life. I did not find her evidence credible on either of these points given the contradiction in the evidence as to when she and why she moved and given the fact that her court appearances were staggered over several years. She provided no proof that she lost her job.

The mother also testified that the father had still not paid any child support and she was understandably upset and bitter about his lack of financial responsibility. [ 50 ] The father did not cross-examine the mother and did not testify. [ 51 ] On behalf of the mother it was submitted that the mother took Caleb to the access centre and that he was not ready for access and that access should be left to the mother’s discretion. [ 52 ] When asked if the father had any submissions he simply stated that what he could do, if his son did not want to see him.

Applicable legal principles regarding access [ 53 ] In considering what access order is appropriate for a child, the only consideration for a court is what arrangements are in the particular child’s best interests. Despite the imprecision of that test, the legislation and case law have identified two important factors the court should consider and balance namely, the conduct of the parents and the principle of maximizing beneficial contact between a child with both parents. [ 54 ] The Supreme Court of Canada considered the issue of the best interest test in the context of access in the seminal case on Young v.

Young [5] , McLachlin, C.J.C. speaking for the majority of the court stated at paragraph 210 as follows: I conclude that the ultimate criterion for determining limits on access to a child is the best interests of the child. The custodial parent has no "right" to limit access. The judge must consider all factors relevant to determining what is in the child's best interests; a factor which must be considered in all cases is Parliament's view that contact with each parent is to be maximized to the extent that this is compatible with the best interests of the child.

The risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered. This is particularly so where the issue is the quality of access -- what the access parent may say or do with the child. In such cases, it will generally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a free and open relationship which permits the child to know the access parent as he or she is.

It goes without saying that, as for any other legal test, the judge, in determining what is in the best interests of the child, must act not on his or her personal views, but on the evidence. [ 55 ] There is a presumption that access by a non-custodial parent is in a child’s best interests.

The right of a child to know or establish relationship with a non-custodial parent is a fundamental right and the termination of such a right should only be forfeited in the most extreme circumstances. [6] Discussion [ 56 ] In this case, I find that both parents’ conduct has been concerning and not in this child’s best interests with respect to establishing

a relationship with the father. [ 57 ] The mother agreed that in the first 9 months of Caleb’s life, prior to the separation. the father was an involved parent and had a relationship with the child. However, after the separation the father allowed his jealously and uncontrollable animosity towards the mother to interfere with what was best for his son. His actions understandably frightened the mother and warranted her concerns about her own safety and the child’s safety. The father’s conduct also resulted in the father being incarcerated.

However, it appears the father has remained out of trouble since 2011 and abided by the terms of both his probation and family court order of September 21, 2013 not to communicate or attend at the mother’s residence of the child’s daycare or school.

Although the mother alleged that the father used drugs, as the father was not cross-examined on this issue and there is no evidence that he appeared at the supervised access centre under the influence of drugs, I put no weight on this concern. [ 58 ] Although the mother agreed on September 21, 2103 to the father exercising supervised access, I find that she did not encourage or facilitate that access. It is clear that she did not believe that access between the child and the father was in the child’s best interests.

The mother admitted that she did not feel she should encourage access when the first supervised visit finally occurred in January 2013. [ 59 ] The mother is extremely angry that the father had not met his financial obligations to support his son after the separation and then not paying support in accordance with the court order. In fact the mother testified that one of the factors she would consider in determining if the father could have access was if he paid child support.

Although it is an undisputed legal principle that access and support are not intertwined, in this case and in many others the parties believe it is and act according to this belief. The father believed that if he was not seeing his child he should not pay support. Despite the father been advised by the court that regardless of whether or not he was seeing his child he needed to abide by the court order to pay child support, on the resumption of the trial the mother’s undisputed evidence was that the father had still not been paying child support.

I have no doubt that if the father had met his financial obligations that mother would have been more open to facilitating access. [ 60 ] The father’s actions are difficult to understand. I find that he loves his son and is sincere in wanting to have a relationship with him. But despite stating that he wanted to see his son and being frustrated at the length of time for supervised access to begin, he missed the first access visit in January 2013 and then when Caleb refused to see him on the second visit he then did not show up for any subsequent visits.

I found the father to be quite simple and a very unsophisticated litigant. But nevertheless, I find he should have appreciated that in order to try to re-establish a relationship with his son that consistency was important.

Given the passage of time, it is now impossible to know whether or not if the father had persisted and attended those visits in the winter of 2013 whether or not Caleb would have agreed to see him. [ 61 ] However, I find thereafter the delay in arranging the resumption of supervised access, as ordered by Justice O’Connell on April 17, 2013, is a result of the mother and her counsel not diligently pursuing and making the necessary arrangements. On the next court attendance of July 16, 2013 the endorsement states that the mother advised the court that since the last court date the father had not exercised access.

But as became clear in the trial, in order to re-instate the parties needed to re-register and it is not clear that was ever done.

Although there is no question that the father could have been more pro-active, as indicated he is an unsophisticated litigant and was unrepresented throughout the court proceedings; I find that it was incumbent upon mother’s counsel to be more pro-active in ensuring that arrangements for supervised access were made in accordance with the court orders or at the very least advised the father to what steps he needed to take. [ 62 ] By the time this trial commenced on November 21, 2013 it had been 7 months since the order for the father’s supervised access to be re-commenced had been made and nothing had happened.

Based on my finding that the mother had not encouraged the access and the father’ stated willingness to commit to attending supervised access, I adjourned the trial and ordered supervised access to again resume. At the time, I considered that if the father did not show his commitment that this might be a case for a termination of access. [ 63 ] However, what ensued next makes me question if there was ever a genuine commitment by the mother to facilitate supervised access.

Over the next 4 months, again access did not resume with the excuse that there was a lengthy wait list at the Hamilton supervised access centre. Based on the representations of mother’s counsel and the affidavit of her law clerk these parties were on a wait list for supervised access from about April 2013 to March 2014 without any definite date when access could take place.

No correspondence from mother’s counsel to the Hamilton access centre was produced to show that there were any inquiries about this inordinate delay. [ 64 ] What is most concerning is the affidavit of the law clerk from mother’s counsel’s office regarding her discussion with Ms Duncan about making arrangements for supervised access in this jurisdiction. Not only are the contents extremely misleading they are very close to being untruthful.

While I appreciate that it was counsel’s law clerk who spoke Ms Duncan nevertheless, it would have been prudent for counsel to verify the contents of that affidavit in view of the concerns the court had already expressed to counsel about the delay in supervised access commencing and ordering that another supervised access facility should be found. [ 65 ] Unfortunately, by the time supervised access was commenced again in May 2014, the child would not agree to see his father.

By then Caleb who is now 6 years old would not have seen his father since he was about a year old and without the strong encouragement of his mother it was inevitable that he would not wish to see his father. [ 66 ] The mother’s resentment against the father is palpable. His conduct towards her is inexcusable but it is doubtful that Caleb who was only 9 months old when they separated would have any memory of the volatile relationship between his parents. The father’s violence shortly after the separation although frightening to the mother, again would not be something the child remembered in view of his age.

Therefore, I find that there is no conduct by the father towards the child that can explain his refusal to see him. However, the father should not have waited so long after the separation to attempt to establish a relationship with his son. I agree that the evidence of the mother that nothing prevented him from initiating a court proceeding to see his son. In fact, the terms of his probation order specifically indicated that he could have contact in accordance with a family court order.

I am unsure if the father failure’s to takes steps to see his son after the separation was due to his lack of understanding the legal process or just failing to appreciate that time marches on for a young child and just because he is the biological father that does not mean that 3 or 4 years later he can just assume he can appear and expect a normal father and son relationship.

[ 67 ] In this case, the passage of time is probably the most fundamental impediment to the father establishing a relationship with his son.

Despite my misgivings about the mother, the father must assume responsibility for failing to diligently pursue access to his son. [ 68 ] I have considered ordering some type of therapeutic or reconciliation counselling in this case, but it is clear that the parties do not have the financial resources, the skill set or the willingness for this to be successful. [ 69 ] I find that it is in Caleb’s best interests to have a relationship with his father and to know his paternal family and their heritage, but unless the mother sees the benefit in such a relationship no court order or any therapy or counselling will assist in facilitating such a relationship.

The mother is content with an order that access be at her discretion. The father needs to show the mother that he can be a responsible parent and that includes ensuring that he meets his obligation to support his son. [ 70 ] When requested by the court, the mother agreed that the father can communicate with the child by sending letters, cards and gifts. The mother did not wish to reveal her address and the father to his credit did not pursue the issue.

Counsel for the mother agreed that the father could send any correspondance and gifts to her office and she would undertake to forward them to the mtoehr and if she was no longer able to act as a third party she would advise of another means of contact with the mother. [ 71 ] Order as follows: 1. The Respondent, Joao Nunes shall have reasonable access to the child Caleb Nunes born March 7, 2008 on reasonable notice to the Applicant, Leslie McIntosh.

The terms of access including but not limited to whether or not there should be any access, the duration, frequency and level of supervision shall be at the discretion of the Applicant. 2. The Respondent shall be permitted to contact the child by sending any correspondence, photographs, cards and gifts to the Applicant’s counsel’s office. Counsel undertakes to forward these items to the Applicant and to advise the Respondent in writing of any change in these arrangements and to prove an alternate means of contacting the child if she is no longer able to facilitates contact. 3.

Once a year, the Applicant shall forward to the Respondent a letter updating him about the child’s well-being and about any significant events or milestones in the child’s life and providing a current photograph. 4. For clarify, the final terms of the order of September 21, 2012 continue in full force and effect. 5. Ms Oumarally shall prepare this order and approval by the Respondent as to form and content is dispensed with. [ 72 ] Ms Oumarally shall serve and file brief submissions as to costs with any offers to settle and her Bill of Costs within 30 days.

The Respondent shall have 14 days to serve and file any response. ___________________________ Justice Roselyn Zisman DATE: July 11, 2014