J.M. v. L.P., 2011 ONCJ 816

Elliot Lake Registry No. 28/10 DATE: 2011·IX·13 CITATION: J.M. v. L.P. , 2011 ONCJ 816 ONTARIO COURT OF JUSTICE BETWEEN: ) ) J.M. ) ) Douglas B. Kearns, for the applicant father, J.M. ) — AND — ) ) L.P. ) ) T. Frederick Baxter, for the respondent mother, L.P. ) ) ) HEARD: 29 August 2011 [ 1 ] JUSTICE J. KUKURIN:— This is a decision with respect to several motions, all dealing with the two children, [S1], born […], 2004 (now age 7) and [S2] born […], 2005 (now age 6): (

a) Motion at tab 12, vol. 1 by the applicant father, filed March 9, 2011, made on short notice on an emergency basis, for a police assistance order to locate, apprehend and deliver the children to the father, to suspend the mother’s access and to adjourn this motion to a later date to deal with the issue of maternal access. (

b) Motion at tab 21, vol. 1 by the applicant father, filed May 9, 2011, made without notice for an order for police assistance to locate, apprehend and deliver these same children to him, to suspend the mother’s access, and to adjourn the motion to May 13, 2011 to be spoken to. (

c) Motion at tab 25, vol. 1 by the respondent mother, filed May 13, 2011 for an order to set aside the order of Justice Robert P. Villeneuve dated May 9, 2011, to set a date for hearing of the motion of the father at tab 21, and to make provisions for access to the two children by the parties on an interim, without prejudice basis until the motion (at tab 21) is heard. [ 2 ] The history of these children and their family is somewhat atypical. Time constraints prevent all but a very abbreviated background.

Any attempt to provide a detailed history would be fraught with difficulties, not the least of which are the internal inconsistencies in the evidence of the parties and the contradictory evidence of the parties with respect to historical information. [ 3 ] There are five children, K. (age 17), L. (age 15), [S1] (age 7), [S2] (age 6) and D. (age 1). The mother in the family is the respondent, L.P.. She is the mother of all five children. These children do not all have the same fathers. The applicant, J., is the biological father of the child [S2] only.

He claims, at one point in his evidence, that he is also the father of [S1] but seems to concede in his later evidence that he is actually not. He claims that he was living with the mother when [S1] was born, that he always treated [S1] as his daughter and that he is shown as her father on her birth certificate. In fact, she carries his surname. The fathers of the other three children are not disclosed in the evidence. They do not appear to have any active role in the family. The mother and father [1] separated in 2008 (according to the mother) and in 2010 (according to the father).

They do, however, seem to agree that their relationship started in about 2004. [ 4 ] The child D. was born on […], 2010. The father claims that the children [S1] and [S2] have resided with him since April 17, 2010. He filed the present application (tab 1) in this case on June 3, 2010 seeking sole custody. On the first return date, July 12, 2010, an order was made in the absence of the mother, or of any response by her to his application, that the children, [S1] and [S2], were to reside with the father pending further court order.

The court endorsement indicates that this order was intended to maintain the status quo prevailing at that time. [ 5 ] The mother did retain counsel and did respond. After a number of adjournments, following the hearing of contested motion claims, an interim order was made by me on February 17, 2011 granting primary residence of the children to the father, and granting secondary residence to the mother, Friday overnight to Saturday every second weekend, with Friday overnight to Sunday in the intervening weekends.

This order also provided for telephone contact by either child to either parent or to any sibling at any time. [ 6 ] On March 10, 2011, an order was made on the father’s emergency motion (tab 12) for a police assistance order and for a suspension of the mother’s “access” pending further order of the court. This followed a refusal of the mother to return the children to the father following her scheduled time with them on the weekend of March 5, 2011.

The overholding was, according to the mother, because of disclosures made by the child [S1] that the father “hits” the children, “pulls their hair” and “drags them by their arms”. The mother’s evidence indicates that she took the children to both the police and to the children’s aid society as a result of these disclosures. Neither agency appears to have taken any action as a result of their investigations at that time. [ 7 ] The motion at tab 12 was heard on April 18, 2011 and the following day, an order was made by Justice Villeneuve. It

provided “access” to the mother to [S1] and [S2] on Sunday of each weekend for four hours from noon to 4:00 pm. This could be reviewed but not before June 20, 2011 without consent of the court. The order continued the telephone access provided for in the order of February 13, 2011. There was also a provision for a police assistance order. [ 8 ] On Mother’s day, which fell on Sunday May 8, 2011, despite the four-hour maternal “access” provision in effect, the children [S1] and [S2] were with their mother and (half) siblings from Saturday evening overnight to Sunday at 8:00 pm on mutual agreement of the parents.

The mother indicates in her evidence that “both girls” made disclosure to their older (half) sister K., and repeated them to their mother with her fiancé, B.Q., present, which they all interpreted to be allegations of improper sexual touching by the father. The mother contacted the police, took the children to the Elliot Lake hospital where they were seen by a physician and, either directly or through the police, involved the children’s aid society in investigating these disclosures.

She did not return the children to the father at the arranged time for the exchange on May 8, 2011. [ 9 ] The father brought a motion (tab 21), without notice, and obtained an order the next day, on May 9, 2011, again directing the police to deliver [S1] and [S2] to him and again suspending “ all access” of the mother pending further order of the court. The children were returned to him shortly thereafter. The mother has not seen these two children since May 9, 2011, a period of over four months to date.

So far as can be determined, she has not had any telephone contact with them either. [ 10 ] This motion without notice was put over for a hearing on the merits in anticipation that the mother would have some responding evidence. In fact, it was not heard because of a recusal order made by Justice Villeneuve on a motion claim for this brought by the mother. The mother also brought the motion at tab 25 that simply asks for the father’s motion to be scheduled for hearing.

The mother and father have both filed additional affidavit evidence and have included, as exhibits, records since obtained from the hospital, the police and the children’s aid society. [ 11 ] The society records filed indicate that [S1] was interviewed at her school by a society worker on May 12, 2011, a couple of days after she and [S2] returned to their father. At that time, [S1] admitted that she had lied when she had been interviewed at the police station about the father’s sexual touching and she gave as a reason for lying that her mother had told her to say that her dad had touched her privates.

The society has not apprehended these children nor has it commenced any child protection application. [ 12 ] It is in this litigation context that the parties are before this court. The father’s position is that the mother should not have any access to these children unless it is strictly supervised. She is not to be trusted as she has already twice shown that she manipulates these children into telling lies about their father, which are completely false and which are designed to prejudice his position in this high conflict custody case.

The mother does not appear to be seeking an interim variation of any particular order. It appears that she wishes the order of May 9, 2011 suspending her “access” to be set aside. Unfortunately, she does not say what would be the result in terms of her contact with [S1] and [S2] if that suspension were to disappear. Does she revert back to a four-hour

schedule each Sunday afternoon, or does she go back to a one-day overnight weekend alternating with a two-day overnight weekend? Or should there be some totally different specification of her time with these children in her care? [ 13 ] Courts do not pick and choose the litigants or the issues and the claims that they bring for adjudication. The factual circumstances at the time that a case is commenced are what they are. In this case, on the basis of the initial and only evidence before the court, these two children were residing with their father.

The initial order simply preserved that situation as a temporary measure, and rightly so. Once the evidence of both sides was made available, the court was able to make an “interim” order on the merits. It has often been repeated that interim orders are intended to continue until a final judicial resolution of the case is made. They are not meant to be varied by further interim orders unless there are fairly compelling reasons for doing so. [2] It is expected that the parties will advance all of the evidence that each feels is relevant to the interim claims being argued when they are argued.

If either party is dissatisfied with the interim order made, he or she has the right to an appeal of that order. [ 14 ] Clearly, there will be exceptions. Most notable are those cases where there are new factual happenings after the interim order was made that bear on the appropriateness of the continuation of that order. There are also those situations where information that was not available or not obtainable to be placed before the court when the interim relief claim was being argued, subsequently does become available.

The expected response in these situations is for the party seeking to change the interim order to bring a motion for variation of the existing interim terms. It is not a reasonable response simply to disregard the terms of a valid and subsisting court order. In this case, the mother has never brought any claim to seek a change to the interim order of February 17, 2011. In fact, her actions have been non-compliant with the specific provisions of the interim orders, on not one, but two separate occasions.

In March 2011, when she overheld the children, she realized the consequence of an initial suspension of her right to have the children, followed by a substantial reduction of her time with them each weekend. She was also made aware that the father was quick to seek judicial intervention and that the court was ready to order police action to remove the children from her. After having gone through this experience, a prudent mother would think twice about any repetition of overholding children beyond the time she was entitled to have them.

This one did not and now has reaped the result of having had them removed and not having had any contact with them for over four months. [ 15 ] It becomes more difficult to have any sympathy for the plight of the mother in this case. It seems that she could benefit from developing a bit more discretion in what she says and how she says it. She clearly acts impulsively with little thought for the consequences.

By way of example, her motion for recusal of the only sitting judge in Elliot Lake court has resulted, not surprisingly, in his recusal from this case, but more importantly, it has led to further delay in having these motions rescheduled and heard by another judge. It also means that arrangements will need to be made for another judicial officer to be assigned to the trial of the application.

It does not take a rocket scientist to realize that this translates almost inevitably to more delay. [ 16 ] Notwithstanding the questionable conduct of the mother so far, the court has to consider this case from the perspective of the children, [S1] and [S2]. The judicial criterion that applies in all such cases is the best interests of the child. This applies also at an interim stage. [ 17 ] The undisputed fact is that these children had lived with their mother continuously since their birth until April 17, 2010. Not only with their mother but also with their (half) sisters.

One cannot simply disregard these relationships because of adult conduct and conflict. There is no allegation of serious deficiencies in the maternal parenting of these children. The mother attends to their basic

needs. It was the father, in fact, who was absent from the family for significant periods of time from 2008 to 2010, during which periods he was content that the mother be solely responsible to parent the children on her own. Both of these children have expressed wishes to spend time with their mother and their siblings. The termination of all contact with their immediate family members goes against almost all of the circumstances in subsection 24(2) [3] of the Children’s Law Reform Act , R.S.O. 1990, c.

C-12, as amended (“the Act”) that courts are mandated to consider when dealing with issues of this kind. [ 18 ] This appears to me to be a case in which it is easy to lose sight of the basics and of underlying first principles. There are a number of realities that are relevant to the issues raised by these motions. [ 19 ] First, neither party has any order for “custody” of either [S1] or [S2]. None of the many court orders made in this case even mentions “custody”. The terms that are used are residence and access.

Although “access” has a specific meaning in law, it is substantially different from “secondary residence” which was what was ordered in favour of the mother on February 17, 2011. I infer that suspensions made in this case have actually been with respect to this secondary maternal residency, and specifically the times and durations involved. Neither party has the advantage at this point of being the sole custodial parent on an interim, or on any basis.

Custody is likely to be a determination that will be made after trial. [ 20 ] Second, I do not take as gospel the disclosures of either [S1] or [S2] with respect to physical misconduct or sexual misconduct on the part of the father, J.. Nor do I accept any evidence of any recantation by either of them as to disclosures they may have made with respect to misconduct of the father as being necessarily true or accurate. This entire evidentiary area is fraught with problems. First, it is all hearsay evidence.

Although hearsay is permissible in affidavits on motions, it is not preferred evidence and it must meet certain pre-requisites. In this case, the majority of the allegations of the disclosures and the recants are not in the form of sworn affidavit evidence. Rather, these are found in records of agencies simply attached as exhibits to affidavits of nominal affiants.

Where the sources of these statements are two young girls who have already shown that they can tell untruths, the court must be wary of just what it should believe. [ 21 ] Third, Although the failure of the mother to comply with the terms of the existing orders is not judicially condoned, she has done some things that seem to be the right thing to do. She has reported information of possible criminal conduct to the police. She has taken the children to be examined by a physician. She involved the children’s aid society, which is mandated to investigate allegations that give rise to child protection concerns.

She has permitted these professionals to interview the children. This all seems to be an appropriate response by a concerned mother. That the expected responses were not forthcoming from the agencies she consulted, however, is not a good enough reason for her to disregard a court order. [ 22 ] Fourth, this case is far from a foregone conclusion. There are a number of significant factual allegations that are discomforting, some for the reason that there is contradictory information from the parties. Among these are: (

a) What was the agreement or arrangement with respect to the father’s care of the children [S1] and [S2] just before the mother went to the hospital to deliver the child D.? (

b) What has been the relationship of the mother and the father from 2004 to the present and when did any changes ( e.g. , separations and reconciliations) take place in that relationship? (

c) What are the details of the sexual assault conviction (

section 271 of the Criminal Code , R.S.C. 1985, c. C-46, as amended) of the father in October 2008 and how does the history, if any, of his sexual conduct or misconduct impact on the safety of these children? (

d) What part or parts of what the children [S1] and [S2] may have recounted to any particular person or persons should the court accept or reject? This applies not only to disclosures made about the father and recants of those disclosures. It also includes statements that these children may have made with respect to their relationships to persons in their constellation of significant persons including expressed wishes, preferences and feelings. (

e) What precisely did the mother tell these children to say to others about the father and how is evidence of this going to be introduced at trial? (

f) If the children were suffering from parental neglect with respect to dentition or speech or both, is this the fault of the mother (who claims she was a single parent), or was it the fault of the father also (who claims he was cohabiting with the mother and the children)? [ 23 ] There are some procedural considerations that have some bearing on the motions before this court. An obvious one is the issue of whether the biological father of the child [S1] should be named as a party respondent and served with the father’s application for custody of [S1]. Subrule 7(4) of the Family Law Rules , O.

Reg. 114/99, as amended, which govern this case, requires the biological father to be named and served. [4] [ 24 ] The Office of the Children’s Lawyer (OCL) had declined to provide services in response to the order of Justice Villeneuve dated October 18, 2010. A second order was made by Justice Andrew L. Buttazzoni on November 15, 2010. There is no record in the court file of any response to this order.

Is the OCL going to become involved in this case and how will that impact in terms of delay in a final resolution? [ 25 ] A trial management conference held with Justice Villeneuve on April 18, 2011 resulted in a decision for a trial of three days’ duration to be scheduled by the trial co-ordinator. This was before any of the documents that have since been produced by the hospital, the society and the police.

It seems clear to me that a trial management conference continuation is very desirable at this point because of the numerous developments that have taken place since the trial duration was established (recusal of trial judge — voluminous records — the May incident and the information surrounding it). Frankly, with the issues raised on these motions alone, my impression is that a three-day trial, even with affidavit evidence-in-chief, is an underestimate. [ 26 ] All of the foregoing has some relevance because of the fact of a suspension of maternal access currently in effect.

Should that order continue, there will be no contact between these two children and their mother and siblings until after a trial. Optimally, that can take place as early as November-December 2011. More likely, a trial would not be completed, maybe not even started, until the new year. It is unfair and not in the best interests of the children to be deprived of all contact with their mother and their siblings in the

framework of their maternal family. [ 27 ] I am inclined to terminate the suspension of the mother’s access and to re-instate secondary residence of these children with their mother in accordance with similar terms as contained in my order of February 17, 2011. However, in view of the happenings since that prior order was made, I propose to include specific times for exchanges of these two children with the expectation that they be strictly adhered to by both parties.

I propose also to include a specific police assistance order to enforce the residency rights of both parties in such order by locating, apprehending and delivering the children to the person entitled to have residency of them at any given time. The provisions for telephone contact will be continued in this order. So also will the provisions prohibiting either party from disparaging or demeaning the other. I am not entirely sure of what should be the exchange arrangements and would welcome assistance of counsel on this issue, preferably by way of a consent to terms of exchanges.

I would also be receptive to any other suggestions from counsel with respect to any other terms or conditions that can be included that might assist in maintaining stability in the interim sharing of the care of these children by the mother and the father pending trial. [ 28 ] The foregoing is not intended to be an order but only reasons for the order that I propose to make. These motions have been adjourned to September 19, 2011 and I propose to make an order on that date. I can be contacted by counsel with respect to any matters mentioned in these reasons.

Released: 13 September 2011 Signed: “Justice John Kukurin”

(2) Best interests of child.— The court shall consider all the child’s needs and circumstances, including, (

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

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

b) the child’s views and preferences, if they can reasonably be ascertained; (

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

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

e) any plans proposed for the child’s care and upbringing; (

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

g) the ability of each person applying for custody of or access to the child to act as a parent; and (

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

(4) Parties in cases involving children. — In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child and Family Services Act , shall be named as a party, unless the court orders otherwise: 1. A case about custody of or access to a child. . . .