Trimble v. Thwaites, 2011 ONCJ 397

Orangeville Registry No. 94/08 DATE: 2011·VI·29 CITATION: Trimble v. Thwaites , 2011 ONCJ 397 ONTARIO COURT OF JUSTICE BETWEEN: CAROLE MARGARET TRIMBLE and SCOTT HORSLEY, Applicants, — AND — ZENA MARIE THWAITES and MARK ANDREW TRIMBLE, Respondents. Before Justice Bruce E.

Pugsley Heard on 22 June 2011 Reasons for Judgment released on 28 June 2011 ACCESS TO CHILD — Interim access — Form of order — Supervised access — Grounds — Risk of child’s abduction — Girl (now almost 5 years old) had been in care of paternal grandmother and her partner since age 2 — Ever since, litigation had dragged on between mother and grandmother — Grandmother wanted slow evolution from supervised to unsupervised access and thence to overnight access — About year ago, court granted mother interim order of supervised access with flexibility to allow parties to expand any aspect of access by mutual agreement — That order was regarded as temporary stop-gap measure in expectation that Office of Children’s Lawyer (OCL) might intervene — Unfortunately, OCL declined invitation to intervene and mother’s visits remained supervised — Recently, after 2nd request from court, OCL decided to provide clinical investigator who would prepare report for court’s assistance — Mother seized on this occasion to renew her request for less restrictive access — Grandmother, however, wanted to reset dial and restart that slow evolution anew, fearing that mother would abduct child — Most of affidavit evidence was inadmissible and irrelevant but nevertheless, motion judge could see no justification for grandmother’s fear — Mother had put down roots with 2 younger children in Brampton where her mobility was at mercy of public transit and whence she would be unlikely to remove child from grandmother’s care in violation of court order — Furthermore, there was no evidence that any act or neglect of mother might physically harmed child — No aspect of child’s bests interests required mother’s daytime access to be supervised — With detailed regard to transit schedules between Brampton and Orangeville (where grandmother resided), judge issued interim order spelling out specific times of unsupervised daytime access for mother for next 2 months, with review date at end of this interval.

Gary L. Wright ............................................... duty counsel for the applicant paternal grandmother No appearance by or on behalf of the applicant’s partner, Scott Horsley Shirley R. Woodley Griffin ......................................................... counsel for the respondent mother No appearance by or on behalf of the respondent father, Mark Andrew Trimble, even though served with notice [ 1 ] JUSTICE B.E. PUGSLEY:— The applicants are the paternal grandmother of the child Summer Elizabeth Trimble (female, born on 10 August 2006) and her partner, Scott Horsley. Mr.

Horsley has taken no active role in this proceeding. The respondents are the parents of Summer. The respondent (Mr. Trimble) has taken no active role in this proceeding and was noted in default in 2008. [ 2 ] The parties have been engaged in this proceeding since the summer of 2008 when Summer was about to turn 2. Since that time, Summer has resided in the continuous custody of the applicants. The litigation has proceeded on a slow course through the legal system as the respondent mother first left for Calgary and then returned. Interim access and custody motions were twice argued.

Settlement conferences were held and continued and mediation was urged upon the parties without success. Upon her return from Calgary to Toronto, a motion for temporary access was commenced by the respondent mother in August of 2010. That motion was

decided in part pending further argument and a temporary plan of scheduled supervised access was ordered, with flexibility in case the parties wished to expand aspects of access by agreement. The matter was treated as a stop-gap order because the Office of the Children’s Lawyer was asked to become involved here to assist the court as an independent observer.

It subsequently declined to become involved, leaving the pattern of access to be continued by the court pending either settlement or the completion of argument on the latest temporary access motion. [ 3 ] The respondent mother now resides in Brampton and has two younger children whom Summer sees during access.

The applicants continue to take the position that they do not plan on caring for Summer forever and the respondent mother still seeks to reunite her family by regaining custody of Summer at some point in the future. [ 4 ] Lately, after a second request, the Office of the Children’s Lawyer has agreed to appoint a social worker to assess the family and report to the court. That social worker has only very recently commenced her assessment.

The report will be of undoubted value to the court. [ 5 ] The issue before me here is the nature and extent of access by Summer to the respondent mother in the interim while the report from the Office of the Children’s Lawyer is being created. This is the same issue as was placed before me for decision in August of 2010.

The parties essentially repeat the same arguments made before me nearly a year ago, with little reliable evidence as to what has taken place in the intervening time. [ 6 ] The applicants urge that there be a slow expansion of access from supervised access to unsupervised access to overnight access. In the fall of 2010, the applicant grandmother made such a proposal to the respondent mother. Had that proposal been implemented successfully, the respondent mother would have moved to “regular” access by now. For reasons greatly disputed by the parties, no such expansion has taken place.

The applicants now want to reset the dial and start that slow process anew with access at the Headwaters Family Visit Centre on a schedule. The applicants also fear that, if access is unsupervised, the respondent mother will abduct the child. The primary reason for going slow on access is that the respondent mother has been undependable in her exercise of access in the past. [ 7 ] The respondent mother disputes that there is any need for supervision of her access. Access should be moved to regular unsupervised access as soon as possible with the ultimate goal of reuniting the family unit.

In her view, supervision is an extension of the applicant grandmother’s desire to control all contact between the child and her mother. The applicant grandmother “hovers” close by during all access. [ 8 ] Access is made more complex by the fact that the respondent mother relies on public transit and Orangeville is poorly served by such transit at this time. On the other hand, the applicants’ current availability is somewhat flexible, which assists in scheduling access. [ 9 ] A key need, as I set out in my last decision here, and again noted to counsel, continues to be a need for a

schedule of access upon which both sides can know and depend upon. In the past, flexibility has been allowed such that the parties could accommodate each other’s scheduling difficulties. While at times this assisted both sides, in the end it created a basis on which each could blame the other for not abiding by what they had agreed to.

Large parts of the recent material, paralleling the old, involve this process of mutual blame more suited to children than adults. [ 10 ] The material filed here (which continued to arrive as the day unfolded) is in large part unseemly, untested by cross- examination and not in compliance with the rules governing what should be included in an affidavit. As such, much if not most of the material is of little or no use to me in deciding the very important issue that the parties have once again asked me to resolve.

At best, reading between the lines of the inflammatory affidavits serves to tell me about the current inability of the parties to co-operate in Summer’s best interests. This is disappointing, given the lengthy history of this dispute and the multi-judge comment on the issue in the past. [ 11 ] In my view, there is no current requirement in Summer’s best interests that her access to her mother be continuously supervised if it is exercised in the community. Supervised access has taken place both formally within the local facilities, and informally as arranged between the parties.

There is no convincing evidence that the acts of the respondent mother represent likely harm to the child if she sees her mother in this community without supervision. [ 12 ] The applicants fear abduction. There is no basis for this fear. The respondent has apparently settled in Ontario, has two younger children with her here, is entirely dependent on public transit and there is no real prospect that she will remove the child from the applicants’ care contrary to a court order. Such

an act would be a criminal act and would put at great risk her future contact with Summer. [ 13 ] There is no basis for any risk that Summer may be physically harmed by the act or neglect of the respondent mother on the evidence before me. The applicants themselves facilitated moving access from the visit centre to a community setting to accommodate contact between Summer and her mother. This suggests that the applicants themselves understood that formal agency supervision was no longer needed to protect Summer.

It is notable that the respondent mother has two young children in her current full- time care without any apparent alarm by child welfare agencies. [ 14 ] It remains possible that the respondent mother outside the realm of supervision, might disobey the existing court and discuss this proceeding with Summer. I expect that the respondent mother will comply with my order and will allow Summer to be kept clear of these adult issues. [ 15 ] The respondent mother may need to be seen in the presence of the social worker from the Office of the Children’s Lawyer as part of her assessment of the parties.

The applicants agree to assist in transporting Summer to Brampton for such a visit when scheduled. [ 16 ] Transportation has been a continuing source of difficulty for the parties. The Family Visit Centre mostly allows for

supervised access on weekends or evenings. No available public transit to and from Orangeville meshes well with such a schedule. Trips by the respondent mother for access therefore often became dependant on the goodwill of others. [ 17 ] The respondent mother now usually travels to Orangeville by bus. The GO Transit bus service here is set up mostly to allow commuters to travel south to the GTA in the morning and north home at night, during the week. There is one bus that travels north in mid-morning from Brampton and another that travels south in the mid-evening to Brampton.

There is no GO bus on the weekend although Can-ar Coach runs a single bus through Orangeville on a daily basis including Saturday and Sunday (Monday on a long weekend) on the way to and from Kincardine, which does not stop in Brampton (but does stop at Pearson Airport). [ 18 ] The GO bus from Brampton stops at the Orangeville Mall at 11:10 a.m. This is the stop closest to the applicants’ home. A GO bus leaves the Orangeville Mall to return to Brampton at 12:30 p.m. and a final bus leaves at 7:35 p.m.

Bus travel relieves the respondent mother of the need to try to arrange rides on an ad hoc basis with friends and is independent of weather difficulties. During the day, Orangeville Transit buses link other parts of the town to the Orangeville Mall, which is a transit node. [ 19 ] An application of the bus

schedule to the available access times leaves a window of several hours for Summer to be with her mother and siblings (if desired) in the community on a weekday. In keeping with the past pattern of access, this unsupervised community access should start off with relatively short access and gradually expand to take up more of this window. Further days of the week might also be contemplated after the report of the Children’s Lawyer is received and, in any event, will need to consider Summer’s school

schedule starting in September. Access during the week also leaves weekend time between the applicants and Summer. [ 20 ] In my view, there is no current need for supervision of the respondent mother during her local daytime access. Supervised access has taken place in the past. Now it is time to stretch the limits of access slightly in Summer’s best interests. [ 21 ] My order therefore is as follows: 1. Commencing on Tuesday, 5 July 2011, the following access shall take place between the respondent mother and the child, Summer Elizabeth Trimble (female, born on 10 August 2006): (

a) each Tuesday from 11:30 a.m. until 2:30 p.m.; (

b) frequent telephone access as arranged between the parties; and, (

c) such further and other access as the parties may agree to in writing. 2. Commencing on Tuesday, 19 July 2011, the respondent mother’s Tuesday access shall be extended to 4:30 p.m. 3. Commencing on Tuesday, 9 August 2011, the respondent mother’s Tuesday access shall be extended to 6:30 p.m. 4. Pick up and return from access shall be at the applicants’ residence at 306 Michael Drive, Orangeville, Ontario, or such other place as may be agreed to between the parties in writing. 5.

Tuesday access shall take place entirely within the boundaries of the Town of Orangeville unless with the prior written consent of the applicant grandmother specific as to places, dates and times. 6. Access at the respondent mother’s residence in Brampton shall be accommodated by the applicants at the request of the Office of the Children’s Lawyer for the purpose of an observational visit. 7. The respondent mother shall have special access to the said child on 10 August 2011, between the hours of 11:30 a.m. and 2:30 p.m. for the purpose of the child’s birthday.

Access shall be unsupervised and shall take place entirely within the Town of Orangeville. The child shall be picked up and returned by the respondent mother at the applicant’s said residence. 8. The respondent mother shall not remove the child from the County of Dufferin or the Region of Peel, without further order of the court, notwithstanding the applicants’ consent. 9. The parties will not discuss the ongoing court action with the child save and except as may be necessary to facilitate the child’s contact with the social worker assigned to the matter by the Children’s Lawyer. 10.

Neither party will put down or disrespect the other to or in the presence of the child and will permit no one else to do so. 11. No costs. 12. Adjourned to 7 September 2011, for update as already endorsed.