L. v. B., 2011 ONCJ 727

Brantford Registry No. F92/01T DATE: 2011·XI·08 CITATION: L. v. B. , 2011 ONCJ 727 ONTARIO COURT OF JUSTICE BETWEEN: S.L. Applicant — AND — B.B. Respondent Before Justice Lawrence P. Thibideau Trial heard on 24 and 25 October 2011 Reasons for Judgment 8 November 2011 C. Brennan ................................................................................................................... for the Applicant W. Drescher ................................................................................................................ for the Respondent J.

Grant .................................................................................... for the Office of the Children’s Lawyer [ 1 ] JUSTICE L.P. THINIDEAU:— S.L. and B.B. are the biological parents of the child, T.R.L., born […] June 1997.

By motion to change dated 26 August 2009 mother seeks to vary the access terms of the final order of the 18 th of November 2004 whereby father has custody and mother has alternate weekend access subject to restrictive terms, including a discretion reserved to father to reintroduce supervised access if the restrictive terms are breached. [ 2 ] At trial the issues focused on mother not complying with terms that the child not be in the presence of the maternal aunt H.B1., and the maternal grandmother H.B2., and father exercising his right to restrict mother’s access for the lack of compliance.

Father asked for a continuation of the status quo, complete with his discretion to alter terms of access based upon mother’s compliance or lack of compliance with the existing court order. Mother asked for a new access regime once monthly overnights, on a weekend, to better build her relationship with T. and to reduce her significant access costs.

The father lives in the Waterford area and the mother lives in the eastern part of Toronto. [ 3 ] The evidence at trial focused on mother’s situation and the child’s circumstances in some detail, expanding beyond the narrow issue of lack of compliance with the court order. Mother seeks an access review by the court some seven years after the final order was made. [ 4 ] In 2004 mother’s circumstances were much less positive than they are now.

She agreed to father having custody and her own access being limited and qualified because in the years 2001-2003 she was heavily involved with drugs, involved with the criminal justice system and did not have a stable home for herself or her child. Her family support was her crack-addicted mother who lost the family home to the mortgagee. [ 5 ] In subsequent years she has rehabilitated herself substantially. She has had the same partner, T.Y., for seven years, has left the drug scene and has reduced her alcohol consumption to appropriate social drinking. This is not contradicted.

In fact she had alternate weekend access from the time of the order till the summer of 2008, after which her access was a combination of severely restricted, non-

overnight access to no access at all, the result of several circumstances. [ 6 ] The first set of circumstances related to mother, without father’s prior consent, permitting both H.B1. and H.B2. to be in the child’s presence contrary to terms of the access order. The issue of H.B1.’s contact with the child resolved itself over time. Mother gave evidence she could not understand why her sister H1. was prevented by court order from seeing T.. However the history is clear.

H1. had by 2004 a heavy involvement with a Children’s Aid Society, complete with apprehension of her three children with clear indications of unfit parenting. Mother’s statement she never understood the prohibition against contact with H1. demonstrates her lack of insight as to why the order was made and what risk was posed, at least for a time, by child contact with H1.. [ 7 ] However over time H.B1.’s issues resolved, her three children were returned from care, two continuing to reside with her. While details were not provided, it appears father came to know that contact with H1. was no longer a risk for T..

He responded appropriately by agreeing that contact with H1. would not trigger discretionary restriction on access in the future. However, father was concerned that the way mother reintroduced the child to H.1. demonstrated her lack of regard for his custodial parent position by simply informing him of contact after the fact (more precisely during the fact) without any information of change in her circumstances to allay his concerns based on previous demonstrated history.

This issue surfaced in relation to the child’s contact with the maternal grandmother H.B2. as well. [ 8 ] While T. was on a regular access visit with his mother in July of 2008 grandmother H2. visited with mother at her residence. She also accompanied T. in the vehicle taking him from Toronto to his home with his father that weekend. This occurred when mother and grandmother were in a stage of redeveloping their often strained difficult relationship.

Mother chose to allow grandmother to remain in the home with T. that weekend, immediately informing father by phone, who did not agree. [ 9 ] Mother made the judgment that grandmother H2. was sober at the time and not crack cocaine intoxicated.

It is clear from the entirety of mother’s evidence that this was not a long term improvement, like the improvement in H.B1.’s circumstances, but rather, a sobriety of the moment whether that moment was a day or a week, certainly not months. [ 10 ] The telling circumstance for father was continued contact in home and in vehicle the next day without his consent and without his being informed as to the circumstances of grandmother related to her long term addiction to crack cocaine. In short mother decided the issue for father.

From that time in July of 2008 until trial mother has had sporadic and very restricted access to T.. Immediately following the incident there was no access at all. [ 11 ] Orders were made for some contact. For example, a temporary order of 2 nd of June 2010 whereby mother had access on three days in June and July 2010 for three hours at a Brantford Wal-Mart.

By a temporary consent order of the 23 rd of February 2011 mother has access alternate Sunday’s for seven hours within the City of Branford, accommodating T.’s sports activities, including at the residence of the aunt, H.B1. who now would facilitate access. [ 12 ] Unfortunately for mother her approach – agree to terms and then act otherwise – continued. On December 15 th 2010 an order for Christmas access was made at mother’s request.

The order stipulated the access would be December 24 th noon to 8:00 p.m. with one hour at father’s residence, six hours at Aunt H.B1.’sresidence, and one hour upon return to father’s residence. In fact mother spent the first one hour at father’s residence as required, then took the child to Cambridge Ontario to visit the paternal grandfather and simply dropped the child off at father’s residence after the six hour visit with the grandfather.

Father was not informed of where the child had been till the child returned. [ 13 ] Access pursuant to that last temporary order has not been consistent, with respect to attendance and with respect to length of time for each visit. In total there have probably been more visits missed than taken. Part of this seems to be mother’s decision simply to do other things which she deems to be more important, part of it is the very substantial cost of access travel between Toronto and Brantford which is the meeting point for transfer of the child for access purposes.

This situation arose because mother’s partner T. acquired fines of several thousands of dollars under the Highway Traffic Act resulting in his loss of licence and his inability to transport mother for access purposes. Mother spends $150 roundtrip for a combination of Go-train and taxis, or Via Rail, to attend access resulting in less access being exercised than permitted under the court order. The track record is one visit per month at best. Therefore the request by mother for once monthly access overnight. [ 14 ] In her evidence mother referred to this situation as “a few missed visits”.

She also informed the court that she had had no Christmas access since 2008. Clearly the order of December 15 th 2010 was an express order for Christmas access subsequent to Christmas of 2008. These are but two examples of mother’s habit, during her testimony, of making factual generalizations which were

not accurate. Other considerations are relevant. Father complains that since the order of the 18 th of November 2004, and particularly in the last four years, mother has moved frequently, often to dangerous neighbourhoods in Toronto. The frequent moves are admitted, reasons provided. There have been six moves inside Toronto since the move from Cambridge to Toronto in 2007.

Mother moved to her current residence one month ago. [ 15 ] Father’s concerns regarding dangerous neighbourhoods may be overprotection, despite mother being randomly assaulted on the street near her residence and despite one particular difficult landlord-tenant relationship resulting in a variety of criminal charges against mother and her partner, currently the subject of an adjourned trial. It remains to be seen whether or not the charges brought against mother and her partner are frivolous, as they assert, or whether they are not.

Mother’s most recent landlord is an Ontario Provincial Police officer living on site. [ 16 ] There is another issue. Mother accounted for the moves in contradictory ways. At one time during her testimony she attributed several moves to the need to get away from the maternal grandmother, who cycles into and out of crack cocaine addiction intoxication. The dynamics of that relationship led to conflict and turmoil for mother and her family, partner T. and new son Preston. While they all lived in the same apartment complex grandmother stole money from T..

He responded by breaking down the door to her unit, intimidating her into making good the money stolen. The result was criminal charges for T., all of which were withdrawn in return for entering into a peace bond. [ 17 ] What is important about the charges related to grandmother is the following. One, the essence of the charges – breaking down a door by force to enter an apartment in order to intimidate grandmother to hand over money was admitted in court.

Two, mother’s assessment in 2008 that grandmother H2. was sufficiently rehabilitated to have contact with T. was at best premature and at worst risky conduct because of the obvious hostile dynamics surrounding the June 2010 charges against T. with respect to the victim grandmother, stealing money to ostensibly pay for her crack cocaine addiction. Mother confirmed in her evidence that her relationship with grandmother and grandmother’s conduct has cycled up and down over the years. [ 18 ] Mother continues to permit grandmother contact with her new child in her home, always supervised.

Mother gave evidence that grandmother has been entirely appropriate with the child in her home. Mother gave oral evidence in a temporary court proceeding in March 10 th 2010. At that time she was clear there would be no contact between grandmother and child because of safety concerns for herself and her child. She told the court grandmother was highly addicted to drugs at that time. [ 19 ] Father puts the position that the issues with respect to the maternal grandmother not only involve a history of crack cocaine use but also a history of violence when intoxicated. This is not denied.

Father’s decision, that the terms of the order with respect to grandmother being breached, access would have to be supervised, was after he asked for information in regard to rehabilitation of grandmother be provided. In fact mother refused to provide this information. The only logical conclusion, given the overall history as presented in court, was that no such rehabilitation by way of counselling or therapy has ever taken place.

At trial mother’s position was that her personal assessment of grandmother and whatever risk grandmother posed to T. should be sufficient. [ 20 ] It cannot be said that father’s response to the non-permitted contact between grandmother and T. in 2008 was either capricious or arbitrary, rather, it was reasonable in all the circumstances.

The evidence discloses, and mother admits, that father adheres to the letter of the court orders as they exist from time to time, sometimes accommodating mother beyond the orders. [ 21 ] While there was some evidence about Children’s Aid Society involvement with mother and her child Preston, initial contact being made as a result of a third-party complaint about a verbal domestic at mother’s residence, there is no significant evidence that mother is deficient in her parenting on a day to day basis. She further admits that father is a good provider and parent for T..

However she sees father as believing he considers sports activities more important than access with her. [ 22 ] With respect to access to the maternal aunt and maternal grandmother father always took the position that he would assess the merits of that access once he received information with respect to criminal records search and occurrence reports and whatever counselling or whatever other remedial activity each of these two individuals had been involved in. None of that information was ever provided to father until some of it was provided when the court process was well underway.

On the other hand mother complains that father refuses to provide her with information, including report cards, regarding T.’s schooling. In fact the final order gives mother the right to deal directly with all service providers for T. including school professionals. [ 23 ] Mother was never interviewed by the Office of the Children’s Lawyer representative. She failed to meet at the appointed time and nothing was ever rescheduled.

[ 24 ] It is noteworthy that much of the noncompliance with court orders, Christmas access 2010, visits missed for non-financial reasons, was at a time when father and the court would be monitoring mother’s conduct carefully. What is particularly problematic is that even the term placed in an order at the request of mother to widen her access was not adhered to. This brings into question mother’s ability to adhere to court orders in the future. [ 25 ] In July of 2009 father asked to inspect mother’s residence. In her evidence mother indicated that the request was accepted but never followed through with.

Father gave evidence that when he informed mother that he was attending by himself to do the inspection, without T., the invitation to inspect was withdrawn by mother. [ 26 ] Father believes that T. does wish to see his mother, but not on overnight visits.

On T.’s part this appears to be a combination of wishing to be fully engaged in his winter hockey and summer lacrosse and fear of residing on access in Toronto with mother as a result of some of the events he has heard about – mother assaulted on the street, a shooting in a building complex in which mother resided, hostile relations between mother and one previous landlord and his allies in the building, and the violence between T. and grandmother. Father attributes smooth access from 2004 to 2008 to mother’s adherence to the court order, and T.’s ability to facilitate access.

Similarly he believes access has fallen apart because mother now has great physical and financial inability to adhere to the access order, even when changed to facilitate her access, and mother’s re-involvement with maternal grandmother. [ 27 ] All of this has impacted upon the well being of T.. Over the last two and a half years, particularly when he was in grade seven and grade eight there was a marked decrease in his school performance and there were observed issues with self-esteem. [ 28 ] Father engaged the services of an experienced counsellor for T..

The report of the counsellor dated the 24 th of February 2011 is filed as Exhibit 5 in this proceeding. Adults involved in the assessment process were father and his partner, mother and her partner not being notified by father that the process was underway. The assessor identified father and stepmother as the adults that T. turns to for psychological care. The assessor identified a dynamic that was directly responsible for much of the negative affect on T..

The routine for mother’s access was mother conversing with T. on the telephone or through Internet, telling him she would pursue a court process to see him and then asking T. to intervene with his father to allow access. The result was T.’s opinion that father was the obstacle to access and not mother. Result, both father and son angry. The agreed upon solution was for father to stop being angry and for T. to ask his mother to deal directly with his father regarding issues of access.

It was during this therapeutic process that facts were explained to T. to support father’s view that unrestricted overnight access was not appropriate. [ 29 ] A second dynamic was the fact that mother would express her desire to see T. but in fact would frequently not attend for access, either cancelling very shortly before or at the access time period. He therefore came to doubt that his mother really wanted to spend time with him as she was repeatedly telling him. Coupled with this sentiment is T.’s knowledge that mother does not observe the terms of court orders which provide access.

The professional assessment was that, on the one hand, T. came to understand his father’s intention to protect him, but on the other hand, he had a continued emotional investment in the hope that mother would in the future put into action her desire to see him. [ 30 ] The observable result of the interaction with the counsellor was a marked improvement in grades as T. passed into grade nine in September of 2010 and a less confrontational more understanding attitude at home.

This has come about because T. has stopped internalizing his anger and frustrations and has been able to place trust in his father and stepmother as go to persons for his concerns. The result is less anger most trust and less isolation in the three person relationship in father’s home. The counsellor identified two issues with mother’s relationship with T., lack of follow through on access and a perceived inability to keep T. safe. These shortcomings are at odds with T.’s deep desire to spend time with his mother, despite being uncomfortable with overnight visits.

The delicate balance is not helped by multiple changes and cancellations of access at mother’s request, multiple residence moves without notice or details, lack of information about crisis events in mother’s life as previously reviewed. RESOLUTION [ 31 ] From the totality of the evidence it is clear that father’s exercise of his discretion to terminate unsupervised access and impose supervised access in 2008 was appropriate keeping in mind the best interests of T., particularly his emotional and physical safety.

It is also clear that mother has a contrarian personality trait that causes her to persevere with demonstrations of noncompliant behaviour that she sees as appropriate, but which in fact are not. She refuses to accept that she is not the person who decides in a unilateral way whether court orders will be adhered to or not. Her professed lack of understanding as to why court orders were imposed in the first place with the conditions that were included, is objectively not reasonable.

The glaring example is her assessment of grandmother as being a fit and proper person to be around T. in the summer of 2008 compared against the chaos, turmoil and criminal behaviour (despite no criminal convictions) that mother’s relationship with grandmother fostered.

[ 32 ] Mother does not have insight to understand that repeated promises of attendances on access not followed through are emotionally harmful to T.. The difficulty is not that the access visits are missed, often because of a financial inability to pay the substantial cost of transportation for access, but rather how she deals with this shortcoming. Repeated promises unfulfilled do not foster a healthy relationship between her and T.. A careful explanation of why visits are missed, without apportioning blame, would be more beneficial.

Mother’s current request to reduce access to once monthly is a step in the right direction until her circumstances change. False excuses for non-attendance like mother’s other child being sick when T. can communicate with that child to find that he is healthy, are not steps in the right direction. [ 33 ] The Office of the Children’s Lawyer representative put the child’s position. The children’s lawyer has been involved for one and a half years and has conducted four interviews, including one immediately before trial. The report is that T.’s position has been entirely consistent over that period of time.

He wants to see his mother more but he has serious misgivings about overnight access or about attending her residence at all. He gets upset about missed visits even if warned ahead of time they will not take place. He faults his mother for not being available for the visits at all or for the full time period allotted. Both the OCL representative and the counsellor made comment about obvious self-esteem issues for T.. Both agreed that any order made should minimize the risk of non-attendance on access, otherwise T. experiences shame, noncompliant behaviour and risk of return to difficulties at school.

The conflict between birth mother statements about the wish to have access and the actual experience needs to be avoided. The gains that have been made cannot be risked. [ 34 ] Mother commenced the motion to change two and a half years ago. In order to succeed she needs to demonstrate a material change in circumstance that is positive from her point of view. Alternatively it is open to her to demonstrate a material negative change in circumstance originating with father’s conduct or attitude.

She has done neither. [ 35 ] The inability of mother to appropriately follow agreed upon court orders, as they were made from time to time, mother’s refusal to provide information that might assist in determining whether or not restrictions on access should be continued, and mother’s unfortunate inability to attend regularly on access are all negative factors for her.

They are also factors which permit the court to conclude that father’s conduct has been reasonable and appropriate in restricting access in these circumstances. [ 36 ] It is clear that given the emotional fragility of T., providing him with any discretion with respect to whether access occurs and the terms of access is not appropriate (despite his age, now 14). He needs to be isolated from the decision-making process which properly belongs to the birth parents and their partners.

The history, particularly with respect to mother, and the assessed fragility of T., are sufficient changes in circumstance to warrant a new order taking into account the new reality. That order should protect T., and provide an access regime that is conducive to fuller access in the future if mother’s situation changes. [ 37 ] For these reasons the order of the 18 th of November 2004 is varied by deleting paragraphs 2 to 4 inclusive, 6 to 9 inclusive, and 11 with the following being substituted therefor: 2.

(1) The respondent B.S.B. shall have access to the child T.R.L. born […] June 1997 on the first Saturday of each month from 10:00 a.m. to 8:00 p.m. commencing with the first Saturday after the date of this judgment, subject to alteration as to time by agreement between the birth parents taking into account train and bus schedules for mother to attend at access.

(2) Father shall provide access transportation for T. to and from Brantford Ontario in order to facilitate the access by mother as set out herein with mother to be responsible for delivery of the child back to the pickup point for father.

(3) There will be no restriction on the geographic limits of where mother can take the child during access provided that there be no access at her residence without the express preapproval of father.

(4) In the event that there is a conflict between organized sporting activities for T. and the times of access mother will facilitate his attendance at sporting activities not including practices, during her access periods.

(5) At no time shall mother permit contact between T. and the maternal grandmother H.B2., until such time as father is satisfied that such contact is reasonable and safe for T., which decision shall be in his sole discretion.

(6) Mother shall have access to T. at any other time that is agreed to in advance between mother and father.

(7) Should the respondent breach the terms of access herein or the remaining terms applicable on the order of November 18 th 2004, access may be varied, including to supervised access in the father’s sole discretion. 3. The parties may make representations in writing with respect to costs within 21 days of this order.

Dated at Brantford, Ontario 8 November 2011 Justice Lawrence P. Thibideau