Chatham-Kent Integrated Children’s Services v. J.R., 2011 ONCJ 636

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Chatham-Kent Registry No. FO-03-269-0003 DATE: 08·IV·2011 CITATION: Chatham-Kent Integrated Children’s Services v. J.R. , 2011 ONCJ 636 ONTARIO COURT OF JUSTICE BETWEEN: CHATHAM-KENT CHILDREN’S AID SOCIETY, Applicant, — AND — J.R., K.M. and J.P., Respondents. Before Justice Stephen J.

Fuerth Heard on December 7 th , 8 th , 10, 11 th , 14 th , 18 th , 2009, October 18 th , 19 th , 20 th , 21 st , 2010; January 11 th , 13 th , 14 th , 17 th , and 18 th , 2011 Reasons for Judgment released on April 8th, 2011 L. Hodgson Harris ...................................................................................... for the applicant society J. Schatz ..................................................................................................... for the respondent, J.R. K.M. …………………………………………………………….…respondent, on his own behalf

A. Skuce……………… for the office of the Children’s Lawyer, legal representative for the children No appearance by or on behalf of John Purvis, even though served with notice FUERTH, J.: [ 1 ] This was a status review of the Order of Justice O’Dea made on July 5, 2007. The Applicant Chatham-Kent Children’s Services (“the Society”) brought this application pursuant to

Section 64 of The Child and Family Services Act . [ 2 ] A status review is a fresh proceeding, not a continuation of or an appeal of the prior protection proceeding. [ 3 ] On status review, the enquiry is twofold. Do the children continue to be in need of protection, and if so, what is the appropriate disposition, having regard to the children’s best interests in light of all the circumstances at the time of review? The issue for the review court is whether the order being reviewed continues to be required for the protection of the children.

The court on status review is not faced with the correctness of the original finding that the children were in need of protection. [ 4 ] The Order of Justice O’Dea of July 5, 2007 was contained in the trial record. The reasons for his decision were Exhibit A contained within Exhibit 1 at trial, being the affidavit of D.D. dated June 15, 2009. [ 5 ] The Society commenced this status review application on December 2 nd , 2007.

In its original application it sought to continue the order of Justice O’Dea for a further 12 month period of supervision with the children placed with the mother, and access to the father with strict terms and conditions. [ 6 ] On March 28, 2008, the Society amended its application. The amendments sought an Order of no access by the father to the children, a restraining order against the father, and an order of court costs against the father payable to the Society. History of the proceeding [ 7 ] The first trial management conference in this matter was heard by me on August 13 th , 2008.

K.M. was in attendance with his counsel. Directions were issued by me concerning trial procedure and disclosure. The direction included, among other things, that K.M. was to provide trial affidavits of his witnesses by November 30, 2008, save and except for himself and doctors that he might call. [ 8 ] The matter proceeded to an assignment court on the following dates, October 8 and December 10, 2008, February 11 and April 1 of 2009.

The matter was added to the list of matters to be tried by myself. [ 9 ] After the attendance at assignment court on April 1, 2009, K.M. served and filed a notice of intention to act in person. His counsel failed to bring a motion seeking leave to be removed as counsel of record as required by the rules. [ 10 ] On the date scheduled for trial commencement, June 29 th , 2009, K.M. attended. He requested an adjournment based upon his need to receive medical treatment. He was required to provide confirmation of his medical appointment for the Court, which was done.

The matter was adjourned to July 23 rd , 2009 for a motion to be brought by the Society, and then to the next assignment court of August 12, 2009. The matter remained on the trial list. [ 11 ] On July 27th, 2009, an order was made by Justice Glenn that determined that the Society was relieved on the responsibility of supervising K.M..’s access. His access to the children was suspended until such time as he brought a motion to substitute an appropriate professional supervisor approved by the Court. The Order clearly stated that the onus to seek such alternate supervisor rested with K.M.

[ 12 ] On August 12 th and October 7 th , 2009, K.M. again failed to attend for assignment court to confirm his readiness for trial. He had not complied with the direction concerning the provision of trial affidavits. On October 7 th , a firm date for the commencement of trial was set for December 7, 2009. [ 13 ] The trial commenced December 7, 2009, and continued to December 18 th .

At that time, I directed a further trial management conference, with clear instructions to K.M. of the necessity of filing a proper Trial Management Conference Brief, with particular attention to the list of witnesses he intended to call along with “will say” statements, the documents upon which he intended to rely and requests for disclosure to be detailed. [ 14 ] Once again, at the trial management conference on Feb 24, 2010, no brief was filed by K.M.

At that time I made a further order concerning the conduct of the trial that included limits on the evidence that K.M. was permitted to call, absent further order of the Court. The trial continued on the following dates until its completion, namely, October 18 th , 19 th , 20 th and 21 st , 2010, and January 11, 13, 14, 17 and 18 of 2011.

The Order of Justice O’Dea [ 15 ] Justice O’Dea’s Order is a matter of record, as are his reasons for the Order that he made. [ 16 ] For the sake of the narrative of this judgment, it is important that I reflect upon the salient aspects of his findings that are of particular relevancy to the evidence that I heard during the status review, to the submissions of the parties and to my analysis of this case in rendering a judgment. [ 17 ] The Order of July 5, 2007, found the children R., I., J.M. and D.M. to be in need of protection pursuant to section 37 (2) (b) (

i) and (

g) of the Child and Family Services Act. The four children were placed with the mother J.R. for a period of six months subject to the terms of supervision in the order. Access was granted to K.M. to the children J.M. and D.M. twice monthly for three hours per visit, subject to terms and conditions. [ 18 ] The findings of the need for protection as against the mother centered on her inability to protect the children from the physical danger to which they were exposed by her association with K.M., and the exposure of the children to continuing adult conflict.

In her case, the risk of such exposure had not been addressed by J.R. in that she had failed to take any remedial therapy that would have addressed the reasons for her historical poor choices in partners, and her failure to protect the children from this kind of risk. [ 19 ] With respect to K.M., Justice O’Dea was very clear in his reasons for the finding of a need for protection. Firstly he observed that K.M. made complaints and accusations alleging that it was J.R. who was the abuser.

At the same time he left the children in her care for extended periods of time, allowing her to continue the abhorrent conduct unabated and made no visible effort to protect the children.

In that respect he left himself open to the same finding that determined that the children were at risk in J.R.’s care, that is an inability to protect. [ 20 ] Secondly, K.M. was fully aware in May of 2003 that the nature of his relationship with J.R. was conflictual and exposed the children to such conflict and yet at the same time, he encouraged J.R. to breach the agreement that had been entered into voluntarily with the Society that would have separated the parties and protected the children. [ 21 ] Instead he was obsessed with challenging the intervention of the Society and proving his complete innocence of wrongdoing.

He clearly put his obsessive needs ahead of those of the children. [ 22 ] Thirdly, the attempt to shift the blame for what was wrong in the home onto the older children R. and I. further confirmed his incapacity as a parent as well as his sense of reality. [ 23 ] After reviewing the evidence, Justice O’Dea accepted the evidence of the children, particular R., in concluding that it exposed a general dysfunction in the home as it related to K.M.’s conduct towards her and I.. He was vulgar with the children and J.R.. He and J.R. had frequent shouting matches and occasional physical confrontations.

He was physically harsh with J.M. and D.M.. There were the accusations that R. was lesbian.

[ 24 ] To a lesser degree, I.’s recollections tended to support the dysfunction R. spoke of as well as an atmosphere created by K.M. that would logically cause a child his age to fear the adult. [ 25 ] He accepted the evidence of J.R. as it related to K.M. and the children. He concluded that his attitude and conduct toward the children logically fit his medical and psychological profile. [ 26 ] Justice O’Dea found that the adult conflict within the home was the norm. In K.M.’s case, the cause was his obsessiveness and a refusal to admit fault. [ 27 ] For these reasons he found that protection was necessary under 37 (2) (b) (

i) given the clear evidence of physical harm, and the continued risk of it escalating. [ 28 ] He also found that there was a risk of emotional harm as a result of the constant exposure to the physical confrontations and the discord. [ 29 ] Finally he made a finding of a risk of sexual exploitation of R. under 37 (2) (d). In this respect Justice O’Dea concluded that such a finding was made in relation to the historic psychiatric diagnoses, without attribution to a sexual fetish of any nature.

He concluded, “If K.M. addresses the historic psychiatric diagnoses, he will have addressed the concerns leading to the finding.” [ 30 ] Justice O’Dea said the following about the father’s psychiatric/psychological history: “K.M.’s psychiatric/psychological history is the real barrier to his placement claim. The findings made by Drs. Hill and Shapiro remain untreated in any meaningful fashion.

There has been no appreciable change in the circumstances underlying Justice Granger’s finding that as a result of his psychiatric/psychological limitations and without extensive clinical interventions, K.M. poses a significant range of risks to any child in his care.” [ 31 ] Justice O’Dea continued: “And, many of the facts and circumstances testified to in this hearing support a conclusion that nothing on the psychiatric/psychological front has really changed.

K.M. continues to exhibit obsessive behaviour in many areas that are logically tied to how he will treat these children.” [ 32 ] Finally, of particular note is the following exerpt from Justice O’Dea’s decision: “Overall, I find K.M. will not accept the findings in this decision just as he has refused for the last nine years to accept the finding Justice Granger’s decision. I find that he will, as he has done with the Granger decision, take advantage of any circumstance in his relationship with others, especially J.M. and D.M., to try and show that this decision was wrong.

He will not let it go and will not balk at potentially hurting J.M. or D.M. if that serves him in making whatever point he sees the circumstances of the time might offer.” [ 33 ] Justice O’Dea found that K.M.’s visits to date had been positive and but for his untreated psychiatric diagnoses, he would be entitled by virtue of the evidence on point to a very liberal regime without supervision. [ 34 ] He found that K.M.’s obsessiveness precluded a liberal and unsupervised regime in the interests of the children for the same reasons he would not place the children with him. [ 35 ] He found that when K.M. was visiting with the children through a private supervisory agency, there were no issues whatsoever with the supervisory staff.

Each visit occurred without a hint of a hitch. When visits were returned to the Societies supervised center,

problems with staff started. Justice O’Dea found that the Society was responsible in part for the deterioration. However, he also concluded that K.M.’s role in letting the relationship with the supervisors deteriorate was not insignificant. [ 36 ] On this issue, Justice O’Dea concluded as follows: “While I have recognized and weighed the Applicant’s defaults in regard to access, I find that K.M. showed a clear propensity to take any opportunity to find advantage in his own disadvantage or to create the disadvantage if he sensed it might be useful to him.

In this context, he took the one major strong point favouring him in this litigation (access) and weakened it.

In doing this, the children were consistently involved and I do not see that changing in the future.” Procedural Issues [ 37 ] When this trial began, the pleadings of the Society sought placement of the children with the mother for a period of 12 months supervision, with no access to the father and a restraining order against the father. [ 38 ] During the course of the trial, counsel orally advised the court that in its submissions the Society would be advocating that the Court make a custody order in favour of the mother, with no order as to access to the father. [ 39 ] During the course of final submissions to the Court, the Society repeated its request for a custody order in favour of the mother, and further advocated that the order should be silent on the issue of access. [ 40 ] The Children’s Lawyer counsel raised in his submissions that it was unfair procedurally for the Court to consider the submission of the Society in the absence of a formal amendment of its pleading during the course of trial.

It conceded that the Court had jurisdiction to impose the order it might consider most appropriate in the circumstances, including the order submitted by the Society. The Children’s Lawyer expressed the concern that it had failed to perceive this shifting in position in which case it may have made considerably different submissions when the access order was suspended in July of 2009 by Justice Glenn, and may very well have undertaken a different strategy during the course of this trial since that time.

One of the factors that weighed in making the submission was the length of time that had transpired since the order of Justice Glenn suspending access and the completion of the trial itself. [ 41 ] This trial was scheduled to start in June of 2009. An adjournment of the trial was requested by K.M. for a variety of reasons, and was granted. Following the adjournment, the Society brought the motion that resulted in Justice Glenn’s order suspending access. [ 42 ] The court conducted 8 days of trial in December, 2009.

A further trial management conference was scheduled for February 24 th , 2010, to try to ensure that K.M. had every opportunity to prepare his case for trial, and to let the Court and the parties know the nature of the evidence he intended to call. [ 43 ] The Children’s Lawyer was fully aware during the entire period of this lengthy trial that access was not taking place, and further that there had been a clear direction by Justice Glenn that access could resume under certain circumstances. [ 44 ] I am unable to conclude that the process has been procedurally unfair as was submitted.

The Court always had jurisdiction to make the order that was suggested by counsel. It was open to the Children’s Lawyer to intervene by way of motion to restart access with an appropriate alternate agency, or to appeal the order of Justice Glenn that had been made. The Issues [ 45 ] The issues to be decided in this proceeding are as follows:

(

a) Do the children remain in need of protection? (

b) If they do, what is the most appropriate disposition having regard to all of the evidence? (

c) In particular, have the underlying circumstances that related to the findings against J.R. been ameliorated sufficiently that a custody order is the most appropriate disposition, such that the services of the Society can be safely removed? (

d) What access, if any, should be ordered with respect to K.M.? Is this an appropriate case for an Order for no access? The Evidence [ 46 ] Following the release of Justice O’Dea’s decision, the Society decided that it was time for a new family worker to be assigned. The evidence of the worker assigned was that it was his task to make a fresh start with K.M. A letter was prepared by the supervisor and sent to K.M. dated July 18 th , 2007. This letter was to form the basis of his new approach with K.M. during the period of supervision. [ 47 ] I do not intend to recite the letter in its entirety. The important points from the letter for purposes of this decision are as follows: (

a) Supervised access visits of twice per month, three hours per visit, were to take place at the Society Supervised Access Center. (

b) Community access that had been offered in the past on an interim basis pending the conclusion of trial would not be offered, as the Society was not obligated to do so. (

c) Telephone access was not ordered, and the Society was not willing to do so. (

d) The Society was not agreeable to other family members attending for the father’s access in his absence. The Society was prepared to support occasional visits by his mother with him, provided there was advance notice and could be accommodated by the Center. (

e) The previous no trespass notice continued in effect except for his visits at the Center. (

f) The previous directive against lengthy voice mail messages remained in effect as they interfered with staff’s ability to do their work. He was instructed to present his concerns in writing. (

g) Based upon prior statements by him referencing knowing personal information of staff members he was cautioned against any attempt to contact staff in non work venues, and would be viewed as harassment and would result in police involvement. (

h) As the matter would be up for review in six months, the letter clearly stated the following in bold letters, “ what will change over the next six months (or year) to cause the Court to make a different finding or outcome?” In this respect he was encouraged to accept the findings of the Court, and pursue the psychiatric treatment previously recommended by Justice Granger. This component was a pivotal component to set in motion a course of events to permit him to persuade the Court that he had addressed the concerns of the Court.

It was suggested to him that he arrange for a referral through his family doctor, and provide to the doctor both Justice O’Dea’s and Justice Granger’s decisions in that respect. (

i) He was further directed in the letter to access parenting training programs in his community to develop an understanding of age appropriate growth and development, and parenting skills and practices.

[ 48 ] The Society gave K.M. a

schedule of dates for access on a calendar. He was provided with instructions by the family service worker of the need to review and sign the Supervised Access Center agreement that contained the rules for visits at the center. [ 49 ] K.M. immediately raised the issue of having community access. He continued to raise the issue of being entitled to community access throughout his visits with the Society. He raised the issue during the course of his evidence. He would not accept the Society’s position in that regard.

He could not accept that his access would be supervised, and in the manner directed by the Society. [ 50 ] During the course of the initial visits in 2007, problems arose during visits. I will not invest the time to examine the minutiae of the disputes that arose in this judgment and try to resolve the issue of who was more to blame. There were mistakes made by the Society. Of particular note were the following. [ 51 ] The Society Supervised Access Center has an established rule that is contained in its agreement that the parent visiting was to arrive at least 15 minutes before the visit.

However, Justice O’Dea’s order was clear that K.M. was not to arrive earlier than 10 minutes before a visit. A worker advised K.M. that his failure to arrive early could very well have resulted in a cancellation of his visit. [ 52 ] Christmas access in 2007 was problematic. Due to miscommunication, an alternate date that had been arranged with K.M. was not communicated to J.R..

As a result the children did not arrive at the time scheduled and the visit was shortened accordingly. [ 53 ] There were some inconsistencies in how workers approached what K.M. was allowed or not allowed to bring into a visit. [ 54 ] The rules barring the taking of pictures changed in the fall of 2008.

K.M. complained that he had difficulty getting permission to take these pictures, and that the worker who took them “deliberately” took pictures of shoes, etc. ruining most of the film on his disposable camera. [ 55 ] A supervised access worker took exception to the manner in which K.M. walked into her hands while she was trying to hand him slippers for the children. She viewed this as an invasion of her personal space, and viewed his actions as deliberate and intimidating. The family service worker talked to K.M. about this concern.

His response was overboard to the point of alleging that she was guilty of sexually harassing him. [ 56 ] A visit was cancelled in early February of 2008 due to weather. A sign was posted on the door. Attempts were made to contact K.M. to advise him by telephone without success. He attended only to be met with the sign. He demanded make up access. He demanded to be paid for his trip. He viewed this event as further evidence of the Society’s continuing efforts to frustrate his access. [ 57 ] In each of these situations, it might be arguable that the Society could have done better to serve the family.

For example, the confusion over when K.M. was to arrive was entirely that of the Society and its failure to read the plain language of the order. There was a breakdown in communication in arranging for Christmas access for which the Society must bear the responsibility. Arguably, the physical contact between the worker and K.M. may have been accidental, and the response by the Society was arguably beyond what was necessary. [ 58 ] In every instance however, K.M.’s response went well beyond appropriate and reasonable bounds. He railed against the workers and his treatment.

He was abusive and intimidating in his language. He was persistent in leaving messages on a continuous basis that rose to the point of harassment. He constantly challenged the instructions he was given, and stretched the limits of arrangements to the point of conflict. [ 59 ] K.M. wanted to make a large dinosaur lamp for the boys bedroom. It was never cleared that such a craft would be accepted into the home of J.R.. The project involved the creation of a large paper mache likeness that could not be completed in a single visit.

He sought to leave the unfinished piece at the Center along with supplies so that it could be finished at a later time. The logistics of doing so are obvious, given the number of families and visits that occur at the Centre on an ongoing basis. [ 60 ] K.M. proposed that J.R. and the boys attend the Norwich County Fall Fair. He provided tickets and proposed where J.R. and the children could stay. At trial he still could not accept that this was an unreasonable request. He had no insight as to why the Society

would reject his request. [ 61 ] K.M. also proposed that the children attend with him at the Ontario Early Years program in Simcoe. He said that the Society refused to consider his request unreasonably and without regard to the welfare of his children. [ 62 ] On the visit of February 16 th , 2008, a dispute arose with K.M. The dispute centered around gifts that K.M. had brought on the visit and that he wanted to give to the children. The worker supervising the visit advised Mr.

M. that firstly he could not bring more than two boxes into the center with him, and secondly that he was not permitted to give the gifts to the children to be brought home by them, because there had been no prior approval. [ 63 ] This visit had been preceded by the cancelled visit due to the snowstorm the first weekend of February, 2008. K.M. had behaved rudely to a staff member at the center on the day of the storm, a staff member who was present not to supervise, but to do some additional paper work. He complained bitterly to the family service worker about the cancellation, and demanded compensation.

The discussion ensued over a number of days, during which it was disclosed by K.M. that he had attempted to see the children anyway by attending at their residence. He also disclosed that he had seen the family at a Tim Horton’s restaurant. [ 64 ] He knew that these statements would attract the attention and response from the Society. In spite of his behaviour, the Society offered to make up the visit on the 9 th of February, which he declined.

February 16 th was the next scheduled visit. [ 65 ] The supervisor of the visit on February 16 th excused himself from the visiting room to check to see if there was an email from the supervisor approving the delivery of the gifts, in accordance with the written policy of the center. He discovered there was not, and returned to advise K.M. [ 66 ] He was clearly angered by the information. He told the children that the Society was trying to ruin their relationship. He became angry, and slammed the dishwasher in the kitchen area, causing the door to become unhinged.

He was redirected and warned that he would be asked to leave the center early if he did not stop. He became angry, made a comment that was intimidating, and then left. [ 67 ] In reaction to what had occurred, K.M. called and left messages for both the family services worker and the supervisor of the supervised access center. During the course of his messages, he clearly stated in rather couched language that he knew where they lived, and they would get what was coming to them. In this respect the messages were transcribed, and entered into evidence.

K.M. did not dispute the content of the messages when pressed on examination, but he was also evasive in confirming that the transcription was accurate. [ 68 ] The messages were viewed by the workers, and by the Society, as constituting a threat. The visit was cancelled early, and the matter was reported to the police. Following an investigation, criminal code charges of uttering threats were laid. [ 69 ] As a result of the alleged threats, the Society determined that it would request police presence during subsequent visits. K.M. objected. According to him, he attended at the police station to object.

He said he was assured that any police presence would be in plain clothes without weapons. When uniformed police arrived to subsequent supervised visits, he was outraged. He made a suggestion to the officer who attended the visit on March 15th that he, K.M., hated dealing with Hell’s Angels. The police officer followed K.M. from the room at this comment and said he would not be intimidated by him. The visit was cancelled. [ 70 ] He was subsequently asked by the family service worker in a telephone conference what had happened, and what the comment meant.

K.M. was quoted as saying “The president of Hell’s Angels is a family friend. Richard has been very supportive. He is willing to take care of things if things get out of control, but I have told him, no, I don’t need that.” He also made reference to calls from Alabama to take care of things, but that he had refused their help. [ 71 ] K.M. attempted to explain away this comment by explaining how his sister had dated someone from Hell’s Angels, and that they had offered direct assistance in intervening.

It was never clear to what situation this offer related. [ 72 ] It appeared that for several months afterwards, the visits continued, with police presence. An uneasy peace ensued. A new

worker was assigned after the February 16 th , 2008 visit. [ 73 ] By August of 2008, the new worker was sufficiently intimidated by K.M.’s comments that he was removed from the case. He gave evidence that he genuinely feared what K.M. might do, and that he was concerned not only for himself but also his family. I did not accept the evidence of the worker that K.M. had been stalking his personal residence as there was insufficient proof of that fact.

However, the evidence that the worker gave confirmed his state of mind, and a genuine fear of what K.M. might be capable. [ 74 ] The observations of the visits confirmed that K.M.’s interaction with the boys was positive.

Generally speaking, the evidence of the supervisors of visits found there to be a healthy interaction with the children, age appropriate play, healthy food, and a great attention to activities to keep the boys busy during the visits. [ 75 ] The negative comments over the visits centered primarily on K.M. raising issues with the boys that might have lead to him obtaining information as to their location. In response to this allegation, K.M. stated that he already knew where they lived, and where they went to school.

He complained that it was an artificial barrier that prevented him from having normal conversations with his children about matters concerning their education. [ 76 ] J.R. did not give evidence. The evidence with respect to her circumstances and the steps she took in response to the ruling of Justice O’Dea was offered by the Society witnesses. [ 77 ] In that respect, the evidence of the family service workers was consistently positive concerning J.R.’s care of the children, and her personal progress in addressing the underlying concerns expressed in decision of Justice O’Dea.

She was always described as cooperative with the Society. She undertook the counselling that was recommended by the Society. The children were safe, secure and well cared for. J.R. had exhibited stability in housing, and in her personal relationships. She obtained permanent employment. There was no concern about her choice of partners. [ 78 ] On at least two occasions the Society investigated complaints of K.M. about the care of the children. On both occasions the Society concluded that there was no substance to the complaints.

They were satisfied on both occasions that J.R. was providing proper care of the children. The Society witnesses were not recommending further services for J. R. [ 79 ] K.M. gave evidence. [ 80 ] He said that he had taken many parenting and self improvement courses over the past three years. He offered into evidence certificates of completion with respect to a number of these courses. [ 81 ] He said that he had been devoting himself to a number of community related activities primarily associated with his church.

He was involved in plays, in a choir, in study groups. [ 82 ] He said that he had been to his family doctor, and had been trying through him to obtain a referral to a psychiatrist for an opinion about his psychiatric health. He named several psychiatrists with whom he had met. He described having had problems in his relationship with one of the psychiatrists, but that the situation was resolved. [ 83 ] He said that his doctor had sent a letter to the Society asking for clear instructions as to what was expected by the Society as to a referral.

This letter was never authenticated as having been sent by the family doctor, and the Society witnesses were unable to confirm that such a letter had been received. Counsel for the Society advised the Court that a thorough search of the Society records had failed to reveal receipt of such a letter. [ 84 ] No reports were served or filed concerning K.M.’s mental health.

In the absence of any reports, I was not prepared to allow K.M. to call any of the doctors he claimed to have visited to give evidence. [ 85 ] K.M. described under oath how he had attempted on two occasions in 2010 to be admitted for a psychiatric evaluation through the emergency department at a London hospital. On one occasion he was refused admission. He said that within plain view of the staff, he then consumed pills in a bottle that was on his person. He said that as a result his stomach was pumped, and he was discharged. He said that the pills were in fact candies, and not harmful to him.

[ 86 ] On another occasion, he had been in an accident while a passenger in a vehicle driven by his sister. He said they were both taken by ambulance to a London hospital. He was advised he was okay and was to be discharged. Again he said that he complained of being severely depressed and in need of psychiatric help but was refused assistance. He said in this instance he wrapped an IV line around his neck in the examining room, strung the line through the ceiling tiles and its metal support system, and jumped off the bed.

He brought the ceiling down, but with no harm to himself. [ 87 ] After giving this evidence, he also said that he had thought about doing a demonstration in the Courtroom, intending to shoot a bolt of lightning across the room. When pressed as to this evidence, he said that it would be easy to do with tinfoil and the electrical outlet immediately beside and behind the witness box. When asked who he was intending to shoot with the bolt, he said himself, but that it would not cause him harm. [ 88 ] We recessed at this point in his evidence for the day.

When resuming the following morning, he insisted on retracting all of this evidence, i.e., the two incidents at the hospital, and his plan for a courtroom demonstration, as being complete fabrications. [ 89 ] He confirmed that he had been arrested and charged with criminal offences. He was in custody for varying periods during 2009. He also said that he had been charged with criminal offences in London at Christmas in 2010 as a result of an allegation of terrorism against the Toronto Dominion Bank.

He later recanted this evidence as well. [ 90 ] He indicated that he wanted to arrange for horses from TJ Stables to be made available for the children’s birthday. He asked to be able to take the children to TJ Stables, located on the outskirts of the City of Chatham, for their birthday. When this was refused, he proposed to have the horses brought to the children’s home instead. He was clearly upset at the refusal to accommodate this request. [ 91 ] He said he had investigated ice times at the various city arenas for the children.

He wanted to enrol them in skating programs and was willing to pay for these activities. He also said he had offered to enrol the children at the YMCA. [ 92 ] He said he wanted his children back with him. He wanted to have a normal relationship with them, be able to play with them outside. He said he had asked to take the children outside, to play on the grounds of the Center, or to play basketball nearby.

He said he was refused this request, a position which again he said was an unreasonable position by the Society. [ 93 ] He was very clear in his denunciation of the findings of Justice Granger and Justice O’Dea. He wanted to argue that Justice O’Dea’s findings in the prior trial were wrong, and attempted several times to ask questions about, and give evidence himself about, events that had occurred prior to July of 2007, in an effort to argue that these decisions were wrong. [ 94 ] He complained about the quality of his legal representation at the trial before Justice O’Dea.

He complained about not having counsel represent him. He said that the system was corrupt. He repeatedly said, “I supposedly have all these mental problems, and yet your honour, you are forcing me to represent myself in this trial without a lawyer”. He said he was not capable of conducting the trial, and that I ought to appoint a lawyer for him. [ 95 ] He complained bitterly about gifts that his grandmother had given for the children, which were refused to be delivered by the Society. He said that when these gifts were rejected, “it killed my grandmother”.

I understood his evidence in this regard as attributing his grandmother’s death directly to the actions of the Society. [ 96 ] He wanted his mother to attend visits with him. He said that he asked for this permission, and was refused. He said that the worker was rude to his mother. [ 97 ] Several times during his evidence he said he wanted to deliver skates to the children as a present. He said he was unable to do so, at the behest of the Society.

He also said that when he gave a little bit of money to the children, it was stolen by the workers on one occasion. [ 98 ] He said he wanted to have the children’s birth certificates so he could set up an education fund for the children, but was routinely denied access to this by the Society.

[ 99 ] He professed to know where the mother and children were living. He indicated that he could see their street and residence from a parking lot across the river. He said he would occasionally sit in the parking lot including during the last days of the trial. [ 100 ] He said that he was on several medications, some of which he stopped taking on his own. He acknowledged taking several medications for pain. [ 101 ] He reported to the Society in late J.R. of 2009 that the children were riding around in a vehicle driven by J.R.’s new boyfriend, with whom he alleged she was living.

He said that the boyfriend was drinking and driving, and was prohibited from driving because of a record. He also said that he had evidence that J.R. and her boyfriend engaged in loud arguments at the children’s home. He made several calls to the Society about this complaint. He was unsatisfied with the response of the Society. [ 102 ] He acknowledged having received a letter from counsel for the Society asking for specific details about the witness to the alleged arguments and fighting in the home. He never provided a response in writing as requested.

Even at trial he took the position that the Society knew who the witnesses were, because they were involved in a child protection case with that family. [ 103 ] I heard the evidence of the worker who was assigned to investigate the complaint. She gave detailed evidence of the steps taken in response to the complaint, and the actions that were taken in response to the findings.

I will not detail the evidence in that respect, but I find that the response of the Society to the complaints and the investigation it conducted were reasonable in all of the circumstances having regard to the limited information it had been given. The Society determined that the allegations of fighting were not substantiated. The Society did not substantiate the allegation of drinking by the mother’s boyfriend, but were able to confirm that while on a brief license suspension the boyfriend had driven the children. J.R. was instructed that this was not to occur again.

Do the children continue to be in need of protection? [ 104 ] Having considered the evidence as a whole, I was satisfied that J.R. has made considerable progress with respect to her ability to parent the children and be protective of them. I accept the evidence of the Society that she has attended for and responded to the minimal counselling that she received. She is employed.

She has cared for the children appropriately, and they appear to be healthy, happy and nurtured children. [ 105 ] However, the children’s relationship with their father continues to be problematic, and in that respect, the risks associated with K.M. have remained virtually unchanged. [ 106 ] His obsessive behaviour is clearly evident throughout all aspects of his behaviour. [ 107 ] He was obsessed with directing the children’s lives, including his insistence on community access, his endeavours to direct their participation in riding horses, in attending the Norwich County Fair, his efforts to secure their attendance at skating or at the YMCA.

He continued to watch her residence periodically, although from a safe distance. He claimed to have relatives who lived near the mother. He claimed to have a complete knowledge about what was going on at the children’s home. [ 108 ] His obsessive nature also was apparent in the activities with the children. The efforts he made to entertain and engage with the children during the limited and confined visits that he had with the children, while apparently healthy, were conducted in a way that struck me as well beyond what one would normally expect in the circumstances.

The effort to build the dinosaur is a glaring example of long term project not particularly suited to the time or the environment in which it took place. Rather it was evidence to me of K.M.’s need to prove himself as the best father, and that the prior judgments about him were wrong. [ 109 ] There was absolutely no evidence of any psychiatric treatment having taken place.

In that respect, I concluded that K.M. has never accepted that there is a need for treatment, and he continued to refuse to take steps to address the very issues contained in Justice O’Dea’s decision. [ 110 ] It was curious to hear K.M. give evidence about the number of psychiatrists to whom he had been referred during the past 3 and ½ years. It appeared that he was attempting to find some authority who would refute the findings of Justice O’Dea and give him a clean

bill of health. [ 111 ] K.M.’s evidence must be approached with extreme caution having regard to the manner in which he recanted what had been very clear and compelling evidence under oath. In the circumstances, I cannot rely on any evidence of K.M. as being factual or reliable given his willingness to concoct such incredible stories which were recanted the following day. It was possible that he may have seen one or more of the specialists as he claimed.

If he has, nothing has been achieved by way of a remediation of his obsessive profile. [ 112 ] The efforts to gain parenting skills were also an effort to respond to the direction from the Society in its letter of July 18 th , 2007. There was no evidence offered that would persuade me that anything was learned from these sessions. I was only given the certificates to support attendance at the programs. [ 113 ] I have provided in the introduction the salient parts of Justice O’Dea’s findings.

Nothing in this trial persuaded me that there was any improvement whatsoever in the risks posed by K.M. [ 114 ] He will continue to battle against what he believes to be an uncaring and corrupt Society, a system designed to deny him justice, and findings of the medical experts who have made significant diagnoses which remain untreated. [ 115 ] He will continue to be at risk to engage the children in whatever way might serve his own personal obsession for vindication against perceived injustices.

In that respect the risk to the children has not been reduced in any measure. [ 116 ] The risk of unpredictable and potentially harmful actions directed towards the children has not been addressed. [ 117 ] His obsession was also exhibited in his behaviour of viewing the children’s home from across the river. This was a very troubling aspect of his evidence that logically leads to the conclusion that he continues with the obsession that J.R. was the real villain in this case.

This conclusion was further supported by the fact that he consistently tried to plan and direct activities of the children while in her care, as well as his willingness to make the complaints he did about the care of the children, and then criticize the failure of the Society to find fault with her care. [ 118 ] For these reasons I find that the children continue to be in need of protection primarily having regard to the risk of physical and emotional harm that is posed by the father which is unremitting in nature, and which remains untreated.

Disposition: [ 119 ] The jurisdiction of the Court on a status review application is contained in

Section 65 of the Child and Family Services Act. [ 120 ] When considering the order to make, the sole criteria for the Court to consider are the children’s best interests. Section 37 (3) of the Child and Family Services Act sets out what criteria the Court ought to consider in determining the children’s best interests. [ 121 ] In this regard, I have considered all of the criteria contained in section 37 (3) as it relates to the competing claims for placement of the child and custody of the child. [ 122 ] It is clear that R.R. and I.’s relationship has been completely severed with K.M.

The only issue with respect to them is whether it is necessary and desirable that a supervision order continue, or whether an order for custody under

section 57.1 is more appropriate. [ 123 ] I have concluded that J.R. has addressed the issues identified by Justice O’Dea, that is, failing to protect her children from

abusive partners, failing to appreciate the risk of marital discord on the children, and failing to appreciate her role in exposing the children to unhealthy households having regard to her poor choices in spousal relationships. J.R. has undertaken the counselling recommended by the Society. She has demonstrated stability in her life, maintaining her current home, attending to the children’s needs, and securing employment. The evidence also demonstrated that the children were nurtured and cared for properly.

The risks identified by Justice O’Dea with respect to J.R.’s care of the children were sufficiently ameliorated such that an order of custody of the children in her favour is the most appropriate disposition. [ 124 ] With respect to J.M. and D.M., I cannot give effect to K.M.’s plan for the children. For all of the reasons that I have outlined under the need for protection heading above, nothing has changed in his circumstances such that his plan could ever serve the children’s best interests. The risks identified by Justice O’Dea continued to present themselves. His psychological deficits remained untreated.

His anger and obsessive nature pervaded all aspects of his behaviours with the children, and influenced his choices. He did not accept that there was any reason to change, or that there was any cause for concern, except when it suited his purposes to criticize the system’s failure to assist him in his legal proceedings. [ 125 ] Clearly, the plan of the mother offered long term stability and a nurturing environment for the children.

I was unconvinced that the report by K.M. of marital discord, physical and verbal fighting in the home, and dangers associated with the children being exposed to a person who would drink and drive the children. The investigation of the Society failed to establish any cause for concern about these allegations. [ 126 ] Similarly, the complaint about the children being poked with pencils by the older children was also unsubstantiated. [ 127 ] My observations about J.R.’s progress during the period of supervision above apply with equal consideration to her plan for J.M. and D.M..

I was satisfied that her plan to care for the children presents the best opportunity for a long term and stable environment in which they will be nurtured and cared for appropriately. The risks were addressed through her efforts. There was no further need for supervision of her care, nor was there any further need for services. The only remaining issue is the question of access by K.M. to his children J.M. and D.M.. Children’s access to K.M. [ 128 ] There was nothing in the evidence before me that the risks identified by Justice O’Dea have been addressed at all.

Justice O’Dea concluded that he would only order supervised access, and on a limited basis. In my view, nothing has changed. In particular I note the following concerns revealed by the evidence: (

a) K.M. continued to attempt to direct the lives of the children while in J.R.’s care. He did so by his plans with respect to the horses being made available for a birthday party, by his efforts to persuade J.R. to take the children to the Norwich County Fair, by his plans for the children in terms of recreational activities; (

b) He continued to be critical of the care of the children while in her care, to the point of obsessive pursuit of complaints that were unfounded; (

c) He continued to “watch” the home of the children, albeit from across the river; (

d) He continued his criticism of J.R. from issues that arose during the trial with Justice O’Dea in terms of a relationship with “a known pedophile”, an issue that was fully addressed by the order of Justice O’Dea; (

e) He continued to attempt to insert himself into the lives of the children within J.R.’s home, by arranging to deliver gifts to the children that would by their very nature impose an expectation of certain activities on J.R.. An example of this is the gift of ice skates which would create the expectation in the minds of the children that their mother ought to be taking them to the arena. K.M. has not accepted nor seemed to understand that these plans and choices are entirely those of J.R. as custodial parent.

Another example is the creation of a large paper mache dinosaur that would stand as a lamp in the children’s bedroom. It was not for K.M. to furnish the children’s rooms. Similarly the creation of an education account is an example of a unilateral plan of K.M. that would insinuate his involvement in matters of concern to the custodial parent. All of these kinds of efforts were arguably “good for the children”. However, in my view these unilateral efforts of K.M. belie his obsessive need to be involved in the children’s lives, and to exert a measure of direction and control

over J.R.. (

f) K.M. continued to insinuate that he has a watchful eye over all that occurred in J.R.’s home, by alluding to neighbours who were his relatives reporting to him what was occurring. [ 129 ] Having regard to his untreated psychological condition, which he has not recognized or accepted as problematic, I am certain that a scheme of unsupervised access would quickly be used by K.M. to further intrude and direct the lives of the children within their mother’s home which would be very disruptive to them. [ 130 ] K.M. has not seen the children in about 18 months. He has taken no effective steps to do so.

Any order that would “reintroduce” the children to their father by way of access would by necessity have to be supervised. [ 131 ] I have concluded that any access that might be considered must be supervised. I cannot see any prospect that there will be a progression to the point when supervision is unnecessary. [ 132 ] K.M. made it clear in his evidence that he did not want to return to supervised visits with the Society. [ 133 ] I was provided with absolutely no reasonable alternate supervised environment in which access could take place.

K.M. mentioned in his evidence some people who might supervise his visits. There was no specific proposal put forward for access.

I know nothing about the persons he might suggest, and no way to be assured that the safety of the children would be assured. [ 134 ] The evidence supported the conclusion that the children were enjoying their visits with their father, that there was a bond between the father and the children, and that K.M. was, for the most part, nurturing and appropriate in his care of the children. [ 135 ] I had no evidence at all of the impact upon the children in not seeing their father. [ 136 ] I had considerable evidence about the supervision of the access by the Society.

The regime broke down because of K.M.’s obsession with effecting change in the scheme of access, i.e. his insistence on having access in the community, and by his obsession with finding fault in the actions of the Society and its workers to the point of frequent outbursts and acts of intimidation towards them. He was the author of the circumstances that lead to the ultimate suspension of his access at the Supervised Access Center, and took no steps to investigate or propose an alternate regime.

He also had available to him the opportunity over the last three and a half years to pursue effective treatment of his psychological issues that might have addressed in some meaningful way the risks he imposed. [ 137 ] In these circumstances, I have no reason to attempt to continue the imposition of the responsibility of supervision on the Society. I am mindful of the purposes of the Child and Family Services Act as it is reflected in

section 1. The paramount purpose of the Act is to promote the best interests, protection and well-being of children. Section 1 (2) of the Act identifies a number of additional purposes, so long as they are consistent with the paramount purpose. [ 138 ] I am mindful that while parents may need help in caring for the children, that help should give support to the autonomy and integrity of the family unit. In this case, the family has been involved with Society services essentially since the birth of the children.

No progress has been made whatsoever since Justice O’Dea’s order, and I see little hope to expect any change. [ 139 ] I am directed to consider the least measure to disrupt the lives of the children. [ 140 ] Children’s services should be provided in a manner that respects a child’s need for continuous care and stable family relationships, take into accounts all of the needs of the children, provide for early assessment and planning for the child, and include the child and his or her family in the process.

These additional purposes are not particularly applicable in this case, having regard to the lengthy history of involvement of services in support of the children and their family, and the ineffectiveness of the efforts to date as it concerns the father.

[ 141 ] One possible order that I considered was to simply order access by the father, on the same terms as Justice O’Dea, to be supervised by a party to be determined subsequently by the Court. To do so would simply continue the litigation process. In my view, it is sufficient to note for the record that I would only order access by the father to be supervised, and only until I was satisfied that: (

a) The father had been properly assessed by a qualified psychiatrist or psychologist, (

b) That the assessment included a plan for treatment of any conditions that were identified, (

c) That the father had accepted the recommendations for treatment, and had embarked upon a course of treatment that provided concrete results that could be measured and identified by the assessor or treating professional, (

d) That the assessor could offer a professional opinion that the treatment that had been undertaken had sufficiently addressed the underlying risks found by Justice O’Dea such that it might be appropriate to recommence access, (

e) That before any proposal for a continuation of access would be considered, a comprehensive professional evaluation of the children and their circumstances in the future demonstrated that a resumption of access with their father was expected to be a positive experience for them that met their needs, together with a recommendation as to the most appropriate conditions and means by which such access might take place. [ 142 ] In the absence of such information, I fail to see how a resumption of access at this time under the current circumstances, (particularly if it includes that supervision be the responsibility of the Society), will serve anyone’s benefit other than K.M.’s need for vindication.

To attempt to restart visitation under the current circumstances would be doomed to failure. The last thing the children need at this point in time is to struggle to maintain some semblance of a relationship without having addressed the principle impediment which is the state of K.M.’s emotional and psychiatric health. [ 143 ] I cannot say that the children should never again see their father or have a relationship with him.

In view of the consistent positive reports about their relationship in a very restrictive and controlled environment, without any evidence of a positive change in them following the cessation of access since July of 2009, I am not convinced that the future possibility of access should be proscribed.

However, the likelihood of any change in K.M.’s preoccupation with the injustice he has claimed since Justice Granger’s decision in 1996 make it extremely remote that he will ever take the steps necessary to ensure a healthy and safe regime of access with the children that will be a positive experience meeting their needs, and not K.M.’s. [ 144 ] In the circumstances, it is important that my order support a permanent and stable plan that is in the children’s best interests.

A vague order that includes future possibilities dependent upon the voluntary actions of K.M. to change would be destabilizing and create uncertainty. [ 145 ] For these reasons, I have determined that custody of the four children should be to the mother J.R., with an order that K.M. have no access to the children. [ 146 ] I have recorded my reasons in this judgment such that a future court can consider whether there has been a material change in circumstances, particularly as it concerns K.M. I have provided in this judgment an outline of what might be considered to measure whether a material change has occurred.

Order: [ 147 ] For the reasons noted above, there is a finding that the children continue to be in need of protection. [ 148 ] There will be an order that custody of the children, R.R., born July […] , 1994, I.R., born January […] , 1997, J.M., born November […] , 2000 and D.M., born July […] , 2002, be to the mother J.R. It is further ordered that K.M. have no access to the children.

[ 149 ] Notice of any application for variation of this order shall be served upon Chatham-Kent Children’s Services. Restraining Order: [ 150 ] The Society also sought a restraining order against K.M. pursuant to

section 80 of the Child and Family Services Act. I am convinced that such an order is required in the children’s best interests for the following reasons: (

a) K.M. has exhibited an obsession with being involved in the lives of the children, having regard to his attempts in the face of the Order of Justice O’Dea to insinuate himself into the lives and home of the children as I have already described in seeking to have them involved in horseback riding, attending fairs, engaged in recreational activities, and sending materials to their home; (

b) K.M. has repeatedly asserted that he knows where the children live, and that he has relatives and friends who were reporting to him the events transpiring in the household. He has also indicated he knows where the children go to school. (

c) K.M. intimated that he had connections with Hells Angels who offered to take care of the situation for him if he wanted. (

d) K.M. has been under a Court order that prevented him from remaining in Chatham except for purposes of access. He gave evidence at trial of sitting in a parking lot across the river from J.R.’s residence and being able to see her house from his vantage point. (

e) His very bizarre narrative, under oath at trial, concerning his attempts in London to get treatment, and his offer of a court room demonstration, which he then recanted, raised the spectre of unpredictable behaviour. I have grave concerns about his response to this decision, and his resort to self help. (

f) The evidence at trial was consistent with comments being made by K.M. insinuating that he knew where people lived, that is Society workers. The comments were certainly ominous and intimidating. (

g) K.M.’s underlying mental health diagnosis remains untreated in any way. [ 151 ] In light of all of these factors, the best interests of the children will be served by restraining and prohibiting K.M. from attending at their place of residence or education, and that he shall not associate or communicate with them either directly or indirectly.

This should only occur under circumstances following a proper assessment and treatment of K.M. as I have already outlined above. [ 152 ] I therefore order that K.M. be restrained and prohibited from associating or communicating with the children, R.R., born July […] , 1994, I.R., born January […] , 1997, J.M., born November […] , 2000 and D.M., born July […] , 2002, either directly or indirectly. K.M. is hereby prohibited from attending at any place of residence of the children, or at any place of education or training of the children, or at any place of medical treatment of the children.

This order shall continue in force until it is varied or terminated by the Court. Costs [ 153 ] Costs may be spoken to by any party to this proceeding upon request to the trial coordinator within 30 days of this Judgment. If such request is made, the parties will be notified forthwith of a date for argument with respect to costs. If no such request is made within 30 days, there shall be no order as to costs. Released: April 8th, 2011 _______________________ Justice Stephen J Fuerth