JASON NORMAN APPLICANT AND: AMANDA PENNEY RESPONDENT ___________________________________________________________________ Before: The Honourable Mr. Justice Raymond P. Whalen ___________________________________________________________________ Place of Hearing: Gander, Newfoundland v. Labrador, 2010 NLTD 197

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION ( GENERAL ) Citation : Norman v. Penney , 2010 NLTD(G) 197 Date : 201012 15 Docket : 200805T0023 BETWEEN: JASON NORMAN APPLICANT AND: AMANDA PENNEY RESPONDENT ___________________________________________________________________ Before: The Honourable Mr. Justice Raymond P. Whalen ___________________________________________________________________ Place of Hearing: Gander, Newfoundland and Labrador Date(

s) of Hearing: June 4, 2010

Summary: The Applicant sought access to his son aged eight following a six-year absence from the child’s life. The Applicant had a criminal record for violent offences. It was recognized that denial of access is the most extreme order and one only to be considered by the Court in exceptional circumstances. The presumption that there was a right to the child having access to the non-custodial parent prevailed. Access was granted in phases, starting with the Applicant’s participation in a reintroduction program.

Appearances: Lynn Cole Counsel for the Applicant Katrina Brannan Counsel for the Respondent Authorities Cited: CASES CONSIDERED: C.T. V. J.T. , [2007] W.D.F.L. 4300 ; 2007 BCPC 112 ; Young v. Young , 1993 CanLII 34 (SCC) , [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; Jennings v. Garrett 2004 CanLII 17126 (ON SC) , 5 R.F.L. (6th) 319; L. (C.M.) v. T. (R.) , 2000 SKQB 268 ; Newfoundland and Labrador (Director of Child, Youth and Family Services) v. F. (J.) , 2009

NLUFC 20 ; Gordon v. Goertz , 1996 CanLII 191 (SCC) , [1996] 2 S.C.R. 27; Furlong v. Furlong , 2009 NLUFC 14 ; Miller v. McMaster , 2005 NSSC 259 STATUTES CONSIDERED: Children’s Law Act , RSNL 1990, c-13 REASONS FOR JUDGMENT Whalen, J. : INTRODUCTION [ 1 ] The Applicant, Jason Norman, seeks access to his son, Brady, who was born March 12, 2002. [ 2 ] The Respondent, Amanda Penney, is the mother and pursuant to an Order of the Provincial Court of Newfoundland dated November 17, 2005 she was granted custody with leave to Mr. Norman to apply for access. Mr.

Norman was to pay child support in the amount of $181.50. facts [ 3 ] The present application before the Court is to determine Mr. Norman’s right of access. [ 4 ] The parties lived together from September, 2000 to August, 2003. The Applicant is 36 years old. He owns a residence and lives in Seal Cove, Newfoundland and Labrador. Mr. Norman has another son, Lucas Rice, who was born March 24, 1997. This child resides with the maternal grandmother in the same community as Mr. Norman. Mr. Norman has liberal and generous access.

While the relationship between father and son has had its ups and downs, the evidence disclosed that Lucas had frequent visits with his father for meals and overnights. Mr. Norman appears to be playing a significant role in the parenting of this child, [ 5 ] Concern was raised that the Applicant abused illegal drugs and alcohol. While the Applicant admitted to a continued use of soft drugs following the separation, he claims no use for some time and expressed a willingness to abide by any condition for access, including providing blood samples, if necessary, to confirm his drug-free status. Ms.

Penney’s evidence also disclosed that Mr. Norman had been violent to her, which, combined with financial issues and the use of drugs and alcohol, lead to the breakup of their relationship. She continues to fear his aggressive behaviour. Mr. Norman has a significant criminal record involving violent crimes. [ 6 ] Ms. Penney has remarried and Brady lives with the Respondent in Gander. [ 7 ] The evidence disclosed some involvement by Mr. Norman as a parent in the early childhood of Brady, before separation of the parties. Mr.

Norman’s connection with Brady since separation has been sporadic, including: access during Christmas, 2003; every second weekend until February, 2004; a visit in August 2004 or 2005; a visit in August, 2008. Mr. Norman’s mother and grandmother had some regular access to Brady for a short period after the separation of the parties. [ 8 ] Brady has been diagnosed with Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder (“ADD/ADHD”) and has been regularly seeing a psychologist, Kari-Ann Maidment. Brady has been described as shy, nervous, clingy and young in his vocalization.

He is hyper at times and has trouble focusing. issue [ 9 ] Should access be granted to Mr. Norman and if so, under what conditions? law Legislation [ 10 ] The applicable legislation is the Children’s Law Act , RSNL 1990, c-13. “25. The purposes of this Part are (

a) to ensure that application to the courts in respect of custody of, incidents of custody of and access to, children will be determined on the basis of the best interests of the children;” “26.

(1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and shall exercise those rights and responsibilities in the best interests of the child.

(3) Where more than 1 person is entitled to custody of a child, 1 of them may exercise the rights and accept the responsibilities of a parent on behalf of both in respect of the child.

(4) Where the parents of a child live separate and apart and the child lives with 1 of them with the express or implied consent of the other, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.

(5) Where the parents of a child live separate and apart and the child is in the custody of 1 of them and the other is entitled to access under the terms of a separation agreement or order, each shall, in the best interests of the child, encourage and support the child's continuing relationship with the other.

(6) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.” “31.

(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child.

(2) In determining the best interests of a child for the purposes of an application under this

Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child including (

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child's family who live with the child, and (iii) persons involved in the care and upbringing of the child; (

b) the views and preferences of the child, where the views and preferences can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and the special needs of the child; (

e) the ability of each parent seeking the custody or access to act as a parent; (

f) plans proposed for the care and upbringing of the child; (

g) the permanence and stability of the family unit with which it is proposed that the child will live; and

(

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) In assessing a person's ability to act as a parent, the court shall consider whether the person has ever acted in a violent manner towards (

a) his or her spouse or child; (

b) his or her child's parent; or (

c) another member of the household, otherwise a person's past conduct shall only be considered if the court thinks it is relevant to the person's ability to act as a parent.” [ 11 ] The guiding principle is the best interest of the child, while the aim of access is to provide as much contact between the child and each parent as is consistent with that principle. Case Law [ 12 ] In C.T. V. J.T. , [2007] W.D.F.L. 4300 ; 2007 BCPC 112 Judge K.D. Skilnick paraphrased the applicable law in deciding access issues as set out in Young v.

Young , 1993 CanLII 34 (SCC) , [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, at paragraph. 27: “In Young v. Young , 1993 CanLII 34 (SCC) , [1993] 4 S.C.R. 3 (S.C.C.), the Supreme Court of Canada set out the applicable law for consideration by a court in deciding issues of access, which I now paraphrase as follows: 1. The power of the custodial parent is not a ‘right’ granted by courts for the benefit of that parent. Instead, the child has a right to a parent who will look after his or her best interests. 2. The custodial parent has a duty to ensure, protect and promote the child’s best interests.

That duty includes the sole and primary responsibility to oversee all aspects of day-to-day life and long-term well-being, as well as major decisions with respect to education, religion, health and well-being. 3. Child placement decisions should safeguard the child’s need for continuity of relationships and should reflect the child’s (not the adult’

s) sense of time. This need for continuity generally requires that the custodial parent have the autonomy to raise the child as he or she sees fit without interference with that authority by the non-custodian. 4. The right to access is limited in scope and is shaped and governed by the best interests of the child. The role of the party exercising access is that of a very interested observer, giving love and support to the child in the background. 5. The right to access and the circumstances in which it takes place must be perceived from the vantage point of the child.

Wherever the relationship to the non-custodian conflicts with the best interests of the child, the furtherance and protection of the child’s best interests must take priority over the desires and interests of the non-custodian. 6. As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access must be crafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve its purpose. 7.

Sources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship should be removed or mitigated. While caution may be had about the vulnerability of access rights by abuse of authority by a vengeful custodial parent, courts should not be too quick to presume that the access concerns of the custodial parent are unrelated to the best interests of the child.

8. When disagreements between parents do reach the courts, the judge must always draw the line in favour of the best interests of the child, from a child-centered perspective. The best interests of the child cannot be equated with the mere absence of harm. Courts must attempt to balance such considerations as the age, physical and emotional constitution and psychology of both the child and his or her parents and the particular environment in which the child will live.’” [ 13 ] In Young v. Young , the Supreme Court further stated that the only test when discussing access is the best interest of the child.

At paragraph 24: “I conclude that 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.” [ 14 ] It has been recognized in the case law that denial of access is the most extreme remedy to be ordered and only in the most exceptional circumstances. (See: Jennings v. Garrett 2004 CanLII 17126 (ON SC) , 5 R.F.L. (6th) 319.) In L. (C.M.) v.

T. (R.) , 2000 SKQB 268 the court found that there was a presumption, “that there was a benefit to the child to have access to the non-custodial parent”, and the burden was on the party seeking to deny or restrict access to convince the court that access is not in the best interest of the child. [ 15 ] Also, in Newfoundland and Labrador (Director of Child, Youth and Family Services) v. F. (J.) , 2009 NLUFC 20 , Madam Justice Dunn at paragraph 67 states: “The test, then for deciding access is the best interests of the child. A child’s right of access is a positive right .

Termination of access is viewed as a measure of last resort. Each case must be considered on its own facts. A trial judge is not to imbue the case with his or her views but, rather, to decide it on the facts and evidence presented at the hearing.” [ 16 ] Case law also recognizes the maximum contact principle; that is the maximization of time the child spends with both parents. This principle is tempered by and always subject to the best interest of the child (See Gordon v. Goertz , 1996 CanLII 191 (SCC) , [1996] 2 S.C.R. 27.) [ 17 ] In Furlong v.

Furlong , 2009 NLUFC 14 Justice Fry stated at paragraph 57: “There are a number of cases which demonstrate that joint custody and shared-parenting arrangements have been ordered when it is considered in the best interests of the children even in situations where there are conflict and communication difficulties between the parents. Grandy v. Grandy (1999), 1999 CanLII 19134 (NL SC) , 181 Nfld. & P.E.I.R. 282 ; Park v. Walsh (2003), 33 Nfld. & P.E.I.R. 116 (N.L.S.C. (T.D.)); Buckingham v. Bishop (2004), 2004 CanLII 72611 (NL SC) , 243 Nfld. & P.E.I.R. 290 (N.L.U.F.C.); Jennex v. Cox , [2005] N.J.

No. 82 (U.F.C.0; South v. Tichelaar (2001), 2001 CanLII 28133 (ON SC) , 20 R.F.L. (5th) 175 (Sup. C.T.); Brushett v. Brushett (1993), 1993 CanLII 8352 (NL SC) , 109 Nfld. & P.E.I.R. 129 (Nfld. S.C. (T.D.)); Jacob v. Jacob , [2000] N.J. No. 231 (S.C.) ; and Thornhill v. Henderson , [2008] N.J. No. 317 (U.F.C.) are cases which demonstrate that despite strained or even hostile relations between parents, it may still be in the best interests of the children to live in shared parenting arrangements with both parents continuing to participate in joint decision-making for their children.

In most situations it is necessary to tailor the court order to assist the parties in overcoming communication barriers and limiting opportunities for conflict. These cases recognize that in many situations parents can and do set aside their differences to ensure their children enjoy a good, wholesome and loving relationship with both parents.” analysis [ 18 ] There is certainly a strong willingness by Mr. Norman to make this reconnection with his son. Mr. Norman acknowledges that Ms. Penney is a good mother and provider to Brady.

No change in the primary parenting arrangement is proposed. [ 19 ] In the present case, the father has had no relationship with his son, Brady, for a considerable period of time. The child is now eight years old and there has been no real contact since February, 2004, the child would have then been two years old. The evidence does disclose some early parenting by the father prior to his separation from the Respondent. Mr. Norman’s mother and grandmother had continued access to Brady until approximately the summer of 2004. Brady would not have much memory of Mr. Norman as his father.

That said, I can only hold from the evidence that the Applicant, his mother and grandmother express their love and affection for Brady and appear to have a real desire to renew their ties with the child. [ 20 ] Mr. Norman has a history of parenting another son. He is not the custodial parent in that circumstance, but the evidence describes a strong interaction between the two within the community and at Mr. Norman’s home. Lucas (Rice) lives with his maternal grandmother in Seal Cove where the Applicant resides. He flows freely to and from the home of Mr. Norman. [ 21 ] Mr. Norman had been violent towards Ms.

Penney during their relationship and her reluctance to have anything to do with Mr. Norman because of this is understandable. Mr. Norman has a violent past, however, there is no evidence before the Court that Mr. Norman was ever violent towards Brady or towards his other son, Lucas. There was one apparent disagreement between the Applicant and his son, Lucas, where Mr. Norman raised his hand as if to strike Lucas, but there was no striking. Equally, it is suggested that Mr. Norman used a variety of drugs and still uses soft drugs form time to time. This activity is illegal and could lead to criminal conviction.

There was no direct evidence that Mr. Norman was drunk or disorderly or high on drugs around Lucas and nothing to suggest he would be so around Brady. On one occasion, Lucas unexpectedly dropped in on his father to find him passed out with “weed” around. To some degree Mr. Norman’s activities while with Brady, can be carefully viewed through a supervised access regime and his behaviour limited

through the terms of access. The evidence does not raise as a serious consideration, the risk of harm to the child, to any degree that outweighs the benefit of reuniting with his father. [ 22 ] The custodial parent has no automatic right to limit access. Is the best interest of Brady served by denying him an opportunity to reestablish with his biological father? I think not. I am persuaded by the evidence that Mr. Norman should be granted access at this time and get a chance to prove himself. There is a presumption that access to the non-custodial parent is a benefit to the child.

I believe, considering all the relevant factors, granting access to Mr. Norman is in Brady’s best interest. There is a father and extended family, including a half-brother, that the child deserves to know. The conflict and communication difficulties between the parents must be set aside. [ 23 ] Since 2005, Brady has lived in a stable home environment with his mother and her husband. Mr. Norman has been absent from Brady’s life. This causes me concern.

It is left unanswered why access to Brady was not more timely sought, however, for the last six years the father had little or no access and some reintroduction plan is required, considering also the age of the child throughout. I am also cognizant that the child has ADD/ADHD and more care and caution must be taken during any reintroduction or supervised access plan. It is positive that Brady is currently working with a psychologist. [ 24 ] In Miller v.

McMaster , 2005 NSSC 259 , Justice Forgeron commented upon the situations in which it is appropriate to require a parent’s access to be supervised: “Supervised access is not a long-term solution to access problems which usually arise in high conflict custody and access cases where distrust and negative parental allegations abound. Supervised access is appropriate in specific situations, some of which include the following: (

a) where the child requires protection from physical, sexual or emotional abuse; (

b) where the child is being introduced or reintroduced into the life of a parent after a significant absence; (

c) where there are substance abuse issues; or (

d) where there are clinical issues involving the access parent. Supervised access is not appropriate if it’s sole purpose is to provide comfort to the custodial parent. Access is for the benefit of the child and each application is to be determined on its own merits.” conclusion [ 25 ] I have concluded, based on the totality of the evidence, case law and submissions, that access to the Applicant must be granted. [ 26 ] This is one of those cases where the child’s interests would be best served by first, a reintroduction plan.

The reality is that no service, accessible to the parties, exists for a third party to act as facilitator for such a plan. That said, we must craft one, as some third party involved in bridging the gap of time between father and son is required. [ 27 ] Both parties have been represented by very able counsel who may be of further service to their clients by working, where necessary, to implement the Order, recognizing that the overall intent of the Order is to grant access to Mr.

Norman. order [ 28 ] As a result of these findings, I order access be granted to the Applicant in the following manner and on the following conditions: Phase I • The parties will consult with Brady’s psychologist, Ms. Kari-Ann Maidment, and request that she act as an independent facilitator for the reintroduction of Mr. Norman to Brady. Progress of reintroduction will be at the sole discretion of Ms. Maidment and completion of the reintroduction plan will be required to proceed with Phase II of the access plan. • In the event Ms.

Maidment refuses to act as facilitator and in the further event the parties cannot otherwise agree on another appropriate party to supervise the reintroduction, then either party may request to be further heard and present to the Court alternatives and means available to establish a reintroduction plan between Mr. Norman and Brady. Phase II • Following completion of the reintroduction plan and for a period of six months thereafter, the Applicant shall have supervised access to Brady every second Saturday between the hours of 2 p.m. and 4 p.m. unless an alternative

schedule is agreed between the parties. For the purpose of this access schedule:

(

a) access will occur in Gander; (

b) access is to be supervised by, and access will only occur if Mr. Norman is accompanied by, his mother or his grandmother who will remain with Brady and Mr. Norman during the access period; (

c) to ensure easy transfers (drop off and pickup arrangements) the Respondent or someone on her behalf will drop Brady off and pick him up at a mutually agreed point for the parenting time by Mr. Norman; and Phase III • Following the period of supervised access in Phase II, the Applicant shall be entitled to access to Brady for a further six months every Saturday between 2 p.m. and 4 p.m. unless an alternate

schedule is agreed between the parties. For the purpose of this access schedule: (

a) access will occur in Gander; (

b) to ensure easy transfers (drop off and pickup arrangements) the Respondent or someone on her behalf will drop Brady off and pick him up at a mutually agreed point for the parenting time by Mr. Norman; and [ 29 ] Mr. Norman shall not to be under the influence of alcohol or non-prescription drugs at anytime within 24 hours before participating in the reintroduction plan as determined by Ms. Maidment or at any time within twenty-four hours of having access to Brady. [ 30 ] Following the elapse of Phase III, unless the parties otherwise agree to a longer term plan, access shall continue as outlined therein.

Following the elapse of Phase III, either party may make application for review of the access arrangements and schedule. [ 31 ] In addition, following the reintroduction period, Mr. Norman shall be entitled to one telephone call per week with Brady and unless the parties otherwise agree, the telephone call shall take place on Wednesdays between 5 p.m. and 6 p.m. Each parent must cooperate to ensure that telephone access is accommodated. It must be recognized by the Applicant that the length of any communication may be determined by Brady. [ 32 ] Ms. Penney must encourage and foster Brady’s relationship with Mr.

Norman. [ 33 ] Mr. Norman must recognize that access is for the benefit of the child, not the parent. It is understood by the Court that Mr. Norman resides some considerable distance from Brady, but it is now his obligation to meet the access

schedule to the extent reasonable with a focus on what is best for Brady. _____________________________ Raymond P. Whalen Justice