C.O. v. K.M., 2011 ONCJ 353

Brampton Registry No. 901/06 DATE: 2011·VI·29 CITATION: C.O. v. K.M. , 2011 ONCJ 353 ONTARIO COURT OF JUSTICE BETWEEN: C.O., Applicant, — AND — K.M., Respondent. Before Justice Juliet C.

Baldock Heard on 10 June 2011 Reasons for Judgment released on 29 June 2011 CIVIL PROCEDURE — Pleadings — General — Need to claim relief — Court’s discretion to entertain issues not raised in pleadings — Case involving child’s best interests — Shortly after father made motion to vary terms of his access and child support payments, custodial mother suffered crisis that resulted in criminal charges against her and in children’s placement with father — Local children’s aid society had not launched formal proceedings of its own but it did ensure that mother’s access to children was supervised — Parties agreed to order making father’s home children’s primary residence and that father would have right to make day-to-day decisions about children, including education and health matters — Father was concerned that society’s supervisory role, which until now was voluntary on its part, might relax or even end and, in absence of formal child protection application, court had no authority to compel society to carry on supervision — Father therefore made motion for custody order, hoping that it would give him greater control over access, its location and supervision — Mother objected to his custody motion because it was made within context of his original motion to vary in which had never asked for such relief and that he had not sought to amend — Motion judge agreed with mother that, on strict application of rules of court, father was not entitled to seek final custody in this manner — Nevertheless, this case did not involve request for

summary judgment — Moreover, in all cases relating to custody or access, overriding concern had to be children’s best interests and therefore, father could make motion for interim custody in wake of unforeseen circumstances — Indeed, in addressing children’s best interests, court had to consider all possible options, whether pleaded or not — In this case, motion judge concluded that interim custody was not necessary to address father’s concerns and dismissed father’s motion. STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended]. Courts of Justice Act , R.S.O. 1990, c. C-43 [as amended],

section 112 Carolyn C. McNeil ......................................................................... counsel for the applicant mother Nicole A. Matthews ...................................................................... counsel for the respondent father [ 1 ] JUSTICE J.C. BALDOCK:— The parties are the parents of two sons, K.I.M. (born on […] January 2002, now 9 years old) and K.O.M. (born on […] July 2005, almost 6 years of age). [ 2 ] In September 2007, the parties consented to an order whereby they shared joint custody, the boys having their primary residence with the mother. They had earlier, in June of that year, agreed to an order that set out child support and a

schedule of access by the respondent father. [ 3 ] In November 2009, the respondent father commenced a motion to change the order of 4 June 2007 with respect to

access and child support. [ 4 ] The motion was adjourned several times on consent to allow for the filing of responding material by the applicant and further financial disclosure by the respondent. [ 5 ] In October 2010, an incident occurred that had a significant impact on these proceedings. The applicant mother was charged with several offences arising out of this incident and initially, her bail terms prevented her from having contact with the children. [ 6 ] Briefly, the allegations are that the children were found locked in a bathroom with their mother.

They had not been to school for a week, they had not eaten for some time. They were either naked or partially clothed and in considerable distress.

It is also alleged that the applicant mother was herself in a very agitated and delirious state and that one of the children had been assaulted. [ 7 ] Following intervention by the Peel Regional Police and the Children’s Aid Society of Peer Region (“the society”), the respondent father took the children to live with him and his wife in their home in Brampton. [ 8 ] It has been the position of the society that any access by the applicant mother should be supervised. [ 9 ] In January 2011, the parties agreed to an order that provided that, if and when the applicant’s bail conditions were varied, she would have access to the children supervised by and in the discretion of the society. [ 10 ] The parties also agreed to the inclusion of a term that the primary residence of the children would be with the respondent father, “who is entitled to make the day-to-day decisions regarding the children, including matters relating to their education and health care”. [ 11 ] The ongoing support order was terminated effective 18 October 2010 when the children began residing with the respondent father. [ 12 ] The bail terms were varied on consent and access began in accordance with the parties’ earlier agreement. [ 13 ] The matter was then adjourned to 3 May 2011 for the respondent to bring a motion with respect to medical disclosure and custody.

That motion was adjourned to 10 June 2011 on certain terms, relating to timelines for filing further material. [ 14 ] On 10 June 2011, the court heard the respondent’s motion in which he sought the following relief: 1. a final order that the respondent have sole custody of the children; 2. an order in the alternative that the parties have joint custody of the children, primary residence to the respondent; 3. an order in the further alternative adjourning the motion and appointing the Office of the Children’s Lawyer to provide a report under

section 112 of the Courts of Justice Act , R.S.O. 1990, c. C-43, as amended; 4. an order that the applicant have telephone access to the children in accordance with their wishes and initiated by them; 5. an interim “without prejudice” order that the applicant have supervised access to the children every Friday after school to 7:00 p.m.; such access to be supervised by the paternal grandparents in their home.

Access exchanges to be arranged as between the respondent and the paternal grandparents; 6. an order that the applicant provide medical disclosure as to her current physical health and mental health status; 7. an order that the society release such records and notes in its possession with respect to the parties and the children; 8.

An order that the Peel Regional Police force release such incident reports or notes or both pertaining to the parties or children or both in this matter; and 9. an order that the applicant pay to the respondent his costs of the motion on a “substantial indemnity” basis. [ 15 ] Item 1 is not appropriate as this is an interim motion.

I will therefore treat it as a request for temporary custody. [ 16 ] Item 2 has already been granted on consent in the order of 24 January 2011. [ 17 ] A Children’s Lawyer’s order was made on 3 May 2011, on consent. [ 18 ] Item 6 has largely been complied with, but I will address that issue further below. [ 19 ] Items 7 and 8 were granted on consent on 3 May 2011. [ 20 ] The only issues therefore remaining relate to: (

a) temporary custody; (

b) access arrangements; (

c) further medical disclosure; and (

d) costs. [ 21 ] The respondent’s main concern is that the applicant’s access, which is currently supervised by the society, may, with the society’s approval, be changed to allow her to visit the children at the home of a maternal grandparent. He argues that this would not provide sufficient supervision. He is particularly concerned that the children, as potential witnesses in the applicant’s criminal matter, could be influenced with respect to their evidence. [ 22 ] He is also critical of the society for not exercising more vigilance and oversight with respect to present access as the applicant is routinely permitted to take the children to the washroom without direct supervision.

[ 23 ] The mother takes the position that her actions of last October were directly related to the effects and interactions of certain drugs that she had been prescribed to address her medical condition, which include sickle cell anaemia and an ulcerated leg. [ 24 ] There is no dispute that, aside from the incident referred to, the mother has a good relationship with the children and they are bonded to her. [ 25 ] The boys are, however, now well settled in their father’s home and have been attending school and making new friends. [ 26 ] The respondent father does not seek to curtail the applicant mother’s access but rather to ensure that, until her criminal and medical issues are addressed, it is adequately supervised.

He has no confidence in the ability or willingness of the society to do so. [ 27 ] He is also requesting greater detail regarding the applicant’s condition and treatment by way of hospital notes and records. [ 28 ] The applicant raises the issue of whether the respondent is entitled to bring a motion for custody within a motion to change that does not seek such relief and that he has not sought to amend. [ 29 ] A strict application of the rules would support that position, but this is not a

summary judgment motion, and the overriding concern in all cases relating to custody or access must be the best interests of the children. Therefore, although the respondent is not, in my view, entitled to seek final custody on this motion, he is at liberty to seek a temporary order in light of the unforeseen circumstances — i.e. , the events of, and subsequent to 18 October 2010.

Furthermore, the court must, in addressing the children’s best interests, consider all possible alternatives, whether pleaded or not. [ 30 ] The respondent did not, immediately following the incident of 18 October 2010, seek sole custody as he had no reason to do so. The children were in his care and, by agreement and subsequent court orders, their primary residence was with him. [ 31 ] What has changed is the prospect of the applicant mother’s access being less strictly supervised.

He is now therefore seeking a custody order to enable him to have greater control with respect to access, its location and supervision. [ 32 ] The society has to date been involved only in providing counselling for the boys and a venue for access. [ 33 ] There is no protection application before the court as, presumably, the society deems the current arrangement to present no risk to the children. [ 34 ] The problem then is that, in the absence of any proceedings under the Child and Family Services Act , R.S.O. 1990, c.

C- 11, as amended, the court has no authority to compel the society to continue its supervision of access should it choose not to do so. [ 35 ] In my view, a sole custody order is not necessary to address this concern. [ 36 ] Furthermore, any issue with respect to the potential influence of a witness in a criminal matter is one that should be addressed by the Crown attorney in that proceeding. [ 37 ] I consider the matter only from the perspective of the best interests of the children. Clearly the relationship between the applicant and the children should be preserved and, if necessary, repaired.

However, the incident of October 2010 was of such a serious and potentially traumatic nature that close supervision is essential at this time. It must have been a frightening experience for the children, the long-term effects of which are yet unknown. [ 38 ] I am satisfied that, in the event that the society withdraws its role as supervisor of access, the home of the paternal grandparents would offer a reasonable alternative.

This may not be ideal from the mother’s perspective, but it does offer the opportunity for visits of greater frequency and duration than would be available at a visit centre. [ 39 ] As to the medical disclosure, I find the request to be premature. The Office of the Children’s Lawyer is currently reviewing the court’s request for its involvement.

If counsel is appointed or a clinical investigation provided, both parties will be required to sign releases with respect to all pertinent information as it relates to the custody-and-access issue. [ 40 ] The applicant has already provided some medical information, including a letter from Dr.

Rosenbloom, Professor of Pharmacology in the Department of Medicine, Neurology Division, McMaster University, regarding the medications that she was taking and their effects. [ 41 ] By itself, this report, dated 30 March 2011, is limited in value, as it is based largely on information provided by the applicant but, together with the other reports already filed and those agreed to, it is, in my view, sufficient at this time. [ 42 ] In the event that the Office of the Children’s Lawyer declines involvement or the issues of custody and access are not resolved following the outcome of the applicant’s criminal matter, the respondent is entitled to renew his request. [ 43 ] For these reasons, I make the following order: 1.

The parties shall continue to have joint custody of the children, K.I.M. (born on […] January 2002) and K.O.M. (born on […] July 2005). 2. The children shall continue to have their primary residence with the respondent father. 3. The applicant mother shall continue to have access to the children supervised by the Children’s Aid Society of Peel Region. 4. In the event the Children’s Aid Society of Peel Region declines to actively supervise visits, access shall take place at the home of and be supervised by the paternal grandparents. 5. The applicant mother is not permitted to be alone with either or both children.

6. The respondent father is entitled to make all day-to-day decisions regarding the children, including those involving their health, education and welfare. 7. The respondent father shall keep the applicant mother informed of the names and contact information of all professionals involved in the health, education and welfare of the children. 8. The applicant mother is entitled to communicate directly with such professions regarding the children. 9. The applicant mother shall also have reasonable telephone access to the children. 10.

The applicant mother is strictly prohibited from discussing the ongoing litigation, the pending criminal matter or the events of 18 October 2010 with, or in the presence of the children. 11. Any access by the applicant mother shall be subject to any limitations or restrictions placed upon her by the terms of her bail recognizance or the Children’s Aid Society of Peel Region. 12. The applicant mother will forthwith provide the respondent father with: (

a) a list of all medical professionals currently involved in her physical or mental health; (

b) report of dermatologist Dr. Sibbald; (

c) report of Dr. Brian Cho; and (

d) report of Dr. Small. 13. The respondent father’s request for release of additional medical information is denied, on a “without prejudice” basis. [ 44 ] There shall be no order as to costs. [ 45 ] The matter is adjourned to a date to be set by the trial co-ordinator (in consultation with counsel) for settlement conference, after 31 October 2011.