R.G.A. v. K.A.C., 2011 ONCJ 278

Toronto registry No. DFO 01 0865 B3 DATE: 2011·V·20 CITATION: R.G.A. v. K.A.C. , 2011 ONCJ 278 ONTARIO COURT OF JUSTICE BETWEEN: R.G.A., Applicant, — AND — K.A.C., Respondent. Before Justice Penny J.

Jones Heard on 5, 7, 12-13 and 16 July 2010; 4 August 2010; 11 October 11 2010; 10 January 2011; and 15 February 2011 Reasons for Judgment released on 20 May 2011 ACCESS TO CHILD — Grounds — Best interests of child — Conduct of parties — High-conflict access dispute — Parties had been litigating in course 2 separate applications over past decade in which natural father of child (now 10 years old) was seeking access — Mother had resisted first application by denying father’s paternity in affidavit that laid out detailed chronology of circumstances that purported to rule him out of her social circle at time of conception — She thwarted court order that allowed blood tests to establish parentage simply by failing to present herself or child at testing facility — On consent, parties withdrew application as part of attempted reconciliation, during which they voluntarily submitted to blood tests that established father’s paternity and, incidentally, indicated that mother had lied in her affidavit (to which she subsequently admitted in court) — When reconciliation broke down, father filed second application 5 years ago, which mother opposed this time on basis of allegations that father was paedophile and violent, threatening man — In this round of litigation, mother had, by refusing to fill out mandatory forms, frustrated effort by Office of Children’s Lawyer to produce investigative report, even though, on one occasion, she had consented to court order for such report — Because father and child were effectively strangers, case management judge had ordered that father be re-introduced to child in therapeutic setting by way of interim access supervised by therapeutic access facilitator but mother scuttled that arrangement by refusing to produce child for interview with facilitator — When matter came to trial, mother’s attendance was sporadic and, in the end, she stopped attending and ignored process — Trial judge had low opinion of mother’s credibility and found that, on balance of probabilities, her extremely serious allegations of abuse against father were not substantiated — Case was complicated, however, by mother’s intractable stance against access, one that was unlikely to change in future — Relationship between mother and father was so toxic that it would inevitably pollute any access regime that might be set up — Expert, who had never met child or mother, was unable to indicate to court what would be best for this child but did indicate that, if court were serious about implementing access, it would first have remove child from mother’s influence and care but also noted that this would be extreme measure to be taken only after court had carefully weighed risks and benefits of such move — In any arrangement where mother retained care and custody of child, any access regime would be doomed since she would inevitably ignore it or flout it, preferring to face punishment that she would portray as martyrdom and, even if effective enforcement were to occur, mother would proceed to poison child’s mind against father with “disclosures” of sexual abuse, something that she had already done with respect to her older daughter — In view of fact that 10-year-old child had not seen father in past 7 years and because of lack of information about child (other than what was provided by mother, which was not necessarily trustworthy), court concluded that, in this case, likelihood for successful reintegration of father and son was not good one — Court admitted that, in this complex, high-conflict case, it could find no available treatment or appropriate alternate child custody option — Best decision under these circumstances would be to focus on child’s best interests and child’s need to maintain sense of security and place in his family ( status quo , in effect) — There was glimmer of optimism in that, within few years, child might become curious about his father and would be in position to make up his own mind — Father’s claim for access dismissed.

STATUTES AND REGULATIONS CITED Children’s Law Reform Act , R.S.O. 1990, c. C-12 [as amended], subsection 10(3) and

section 24 .

Family Law Rules, O. Reg. 114/99 [as amended]. CASES CITED McMillan v. McMillan, , 44 O.R. (3d) 139, 173 D.L.R. (4th) 748, 47 R.F.L. (4th) 173, 95 O.T.C. 276, [1999] O.J. No.1285, 1999 Cars​well​Ont 1028 (Ont. Gen. Div). Denise M.F. Badley ......................................................................... counsel for the applicant father Respondent mother, K.A.C. ................................................................................. on her own behalf For previous proceedings, see R.G.A. v. K.A.C., , 110 A.C.W.S. (3d) 1053, [2002] O.J. No. 21, 2002 Cars​well​Ont 7(Ont.

C.J.), per Justice Lynn King. [1] JUSTICE P.J. JONES:— This is an application for access brought by the applicant, Mr. R.G.A., to his son, D.S.M.,born on […] February 2001. The applicant and the respondent are the natural parents of the child. 1: HISTORY OF THE PROCEEDING [2] The parties have been litigating about access since 2001. There have been two applications for access brought by theapplicant. [3] The issue of child support was settled on an interim basis early on it the litigation and the applicant consented to a finalorder on 16 July 2010.

I understand that the applicant, notwithstanding his difficulty with access, has paid his child support without fail. [4] I have set out in some detail the interim orders made in this case as I find that they are relevant in my deliberations. [5] The applicant first applied for access and for a finding that he was the biological father of D.S.M., on 18 May 2001. Inher original answer filed, the respondent asserted that her common law husband, Mr.

A.M., was the father of all her four childrenincluding D.S.M. [6] In that first application, the applicant brought a motion for blood tests to confirm paternity and each party filedaffidavits. The applicant swore that he and the respondent were involved in a “loving relationship” from March until October 2000 andthat D.S.M. was conceived as a result of this relationship. He indicated that the applicant had asked Mr. A.M. to leave the home in the3rd week of May 2000 and that he in fact left the home.

By mid-June, the pregnancy was confirmed by a home pregnancy test. [7] The respondent mother, in her affidavit, swore that Mr. A.M. was the biological father of D.S.M. She asserted that sheseparated from Mr. A.M. on 26 June 2000 and, until that date, she and her husband had maintained “intimate relations” and that it wasonly after she separated that she and the respondent became involved sexually. It was her evidence that she was pregnant prior to herseparating from Mr. A.M. It is also noteworthy that Mr.

A.M. also filed an affidavit confirming that he and the respondent had sexualrelations until the date of their separation and that he believed that he was the father of D.S.M. [8] On 2 January 2002, Justice Lynn King made an order for leave to obtain blood tests of the parties and the child toestablish paternity and to submit the results into evidence. She did so on the basis that. “The better foundation for any future problem[solving] is the simple truth.” [9] In a response that was to become a pattern in this proceeding, the respondent did not comply with the order of JusticeKing.

The applicant asked the court to draw an adverse inference under subsection 10(3) of the Children’s Law Reform Act, R.S.O.1990, c. C-12, as amended. The matter continued on adjournment until the application was withdrawn on 30 September 2002 onconsent, as the parties were attempting reconciliation. [10] I am advised that the parties attended for paternity testing after the first application was withdrawn from the court. Theresults of the testing confirmed that Mr. R.G.A. is the biological father of D.S.M.

The necessary inference from this result is that therespondent lied in her affidavit. [11] The applicant returned the matter to court by way of a second application dated 19 September 2006. This is theapplication that is currently before the court. [12] In this application, the applicant, again, seeks a finding that he is the biological father of D.S.M. and an order that thechild’s birth registration be amended to reflect that fact. He also seeks an order that he be granted alternate weekend access to the childas well as designated holiday time.

He seeks a meaningful involvement in his son’s life and indicates in his application that, since thefinal separation of the parities in March 2004, he has been denied all access to the child. [13] In the respondent mother’s answer to this second application, she claims custody, child support and requests that the courtmake an order of no access. She claims that there should be no access to the applicant because the applicant is a paedophile who hasbehaved in a sexually inappropriate way with D.S.M. and with his daughter from his first relationship.

She also alleges that he wasconvicted of criminal harassment because of his behaviour towards her and was abusive to her and her children during cohabitation. Shenotes that she and the applicant separated in 2004 and this is the first time that he sought access to D.S.M. since separation. She noted inher pleading that D.S.M. is a happy boy with a great life and that there is no reason to disturb the status quo.

[ 14 ] On 8 February 2007, Justice Brian M. Scully made an order requesting the assistance of the Office of the Children’s Lawyer. He also made a temporary order for child support. [ 15 ] On 19 April 2007, on consent, he made a finding that Mr. R.G.A. is the biological father of D.S.M., born on […] February 2001. [ 16 ] The matter was on adjournment for a number of months awaiting the report of the Children’s Lawyer. The respondent refused to bring the child for an interview with the investigator for the Office of the Children’s Lawyer.

As a result, this process was terminated as the Office of the Children’s Lawyer was unable to provide a full report to the court. [ 17 ] On 14 January 2008, Justice Scully removed the respondent’s counsel from the record. [ 18 ] After a contested motion for supervised access, on 28 March 2008, Justice Scully ordered that the applicant was to be introduced to the child in a therapeutic setting and the applicant was granted temporary supervised access to be facilitated in a therapeutic manner. [ 19 ] On 24 June 2008, Justice Scully ordered that, until access is regularized, the applicant was not to attend at the child’s school. [ 20 ] On 11 August 2008, Justice Scully noted in his endorsement that the parties were still making arrangements for a therapeutic access facilitator. [ 21 ] On 12 September 2008, the matter was adjourned to 17 November 2008 to permit the therapeutic access to begin. [ 22 ] The matter remained on adjournment to permit Dr.

Barbara Jo Fidler to implement the therapeutic access ordered by the court. [ 23 ] The order for therapeutic access was never implemented as the respondent refused to produce the child for an interview with Dr. Fidler. [ 24 ] The court attempted to

schedule a trial management conference. [ 25 ] On 13 October 2009, the court permitted the respondent’s second counsel to be removed from the record and set 19 October 2008 as a date for a trial management conference peremptory to the respondent. From that date forward, the respondent has been self represented. [ 26 ] On 13 October 2009, the matter was set for trial. [ 27 ] A three-day trial was set peremptory to the respondent to commence on 5 July 2010. [ 28 ] The trial began on 5 July 2010. The respondent did not appear.

The court instructed the trial co-ordinator to contact the respondent and advise her that the matter was proceeding and would be continuing on 7 July 2010. On 7 July 2010, she appeared and the trial proceeded. The trial continued on 12, 13 and 16 July and on 4 August 2010. 4 August 2010 was the date set for the hearing of submissions. [ 29 ] When the matter came back to court on 4 August 2010, the respondent requested a further settlement conference in front of another judge, at which point the parties agreed to a temporary order as follows: 1.

That the applicant have temporary supervised access in conjunction with an investigation by the Office of the Children’s Lawyer. 2. The parties agreed to request the further assistance of the Children’s Lawyer and they both agreed to complete the intake form provided by the Office of the Children’s Lawyer and promptly to forward their forms within 14 days of the date the consent was signed. 3. The respondent also agreed to change D.S.M.’s surname from M. to C. 4.

The parties consented to an order granting the applicant the standard rights to release of information concerning the child as if he were the party having custody. 5. The respondent consented to an order that she provide the applicant with D.S.M.’s social insurance number so that the applicant could establish a registered education savings plan. 6. The respondent consented to an order that she correct the child’s birth registration records, to show Mr.

R.G.A. as the biological father to the child. [ 30 ] The matter was adjourned to 10 January 2011 for continuation of trial with the expectation that the Children’s Lawyer’s report would be ready when the matter returned to court and that supervised access would have commenced. [ 31 ] On 21 September 2010, the applicant sought return of the matter. The respondent had not provided her intake form to the Office of the Children’s Lawyer within 14 days and the Office of the Children’s Lawyer had accordingly refused the referral.

The respondent did not explain her refusal to provide this form, as required, and she made no further contact with the court, counsel for the applicant, or the Office of the Children’s Lawyer. [ 32 ] The matter was placed on my list for 19 October 2010. The respondent did not appear, but it was unclear whether she was aware of this date. The matter was adjourned to 10 January 2011, as this date had been set on 4 August 2010, when the respondent was present. [ 33 ] On 10 January 2011, the respondent did not attend. At that time, 15 February 2011 was set for submissions and the court

asked court staff to advise the respondent of the date by way of the telephone number left with the trial co-ordinator. She did not attend court on that date and the hearing of submissions proceeded in her absence. 2: BACKGROUND AND FINDINGS OF FACT AT TRIAL [ 34 ] This current access application has been before the court for over four and one half years.

I have set out the history of the proceedings in great detail in order to outline the number of appearances and the attempts by the case management judge and the trial judge to intervene in a manner sensitive to the child’s best interests and the parties concerns. [ 35 ] Notwithstanding the attempts made by the case management judge to have the situation assessed by the Office of the Children’s Lawyer or for a therapeutic reintroduction of the child to the father to be made under the supervision of Dr. Fidler, these attempts failed as the respondent mother refused to bring the child to see either professional.

It is common ground that D.S.M. is now over ten years old and has had no access to his father in over seven years. [ 36 ] At trial, I heard evidence from: • Dr. Fidler, • the applicant, Mr. R.G.A., • his daughter, Ms. E.W., • Greg Michell, clinical investigator for the Office of the Children’s Lawyer, as well as • the respondent mother, Ms. K.A.C. and • her daughter, Ms. T.M. 3: THE FACTS [ 37 ] The parties became friends during a time they were both involved in volunteer activities at their children’s public school.

At the time, the respondent was a stay-at-home mother and the applicant, who was separated from his child’s mother, was the parent responsible for taking his daughter to and from school. (The applicant’s daughter, Ms. E.W., and the respondent’s daughter, Ms. T.M., are a number of months apart in age and attended the same school). [ 38 ] In the year 2000, the relationship between the respondent and her long time common law husband was in trouble. According to the respondent, Mr. A.M. had suffered from two strokes and he had begun to drink heavily.

The respondent, who was unhappy in her marriage, sought comfort from the applicant, and D.S.M. was conceived as a result. [ 39 ] When the respondent discovered she was pregnant with D.S.M., she asked Mr. A.M. to leave. The respondent stayed in the matrimonial home and, although the relationship between the applicant and the respondent was ongoing, he never moved in with the respondent at this time. Prior to the birth of D.S.M., the respondent and A.M. reconciled and the respondent sought to sever all contact with the applicant.

She refused to keep him advised of the course of her pregnancy and did not advise him when she went into labour or when she gave birth. She told everyone that A.M. was the father of her child and placed his name on the birth registration. When the applicant sought to see the child or ask the child’s name, she called the police and told them that he was not the child’s father. When the applicant persisted in his efforts to see the child and learn the child’s name, he was charged with criminal harassment.

It was around this time that the first application for access was commenced. [ 40 ] The relationship between the respondent and Mr. A.M. began to break down over the summer of 2002 at the same time as the respondent began to renew her relationship with the applicant. During this time, the criminal harassment charge went to trial and the respondent testified against the applicant. He was found guilty and was granted a conditional discharge. According to the respondent, in October 2002, Mr.

A.M. told the respondent to vacate his premises when he learned that the respondent was once again in contact with the applicant. The respondent testified that she called the applicant and told him that she was being kicked out of her home and the applicant responded by renting premises to house the respondent and her children, including D.S.M. [ 41 ] Both parties agree that the apartment, which was rented on such short notice by the applicant, was a very substandard apartment located on West Lodge Avenue in Parkdale, a low-income area in the west end of Toronto. This was not a happy time for anyone.

The parties were very poor and, shortly after the parties moved in, the respondent once again became pregnant. It is common ground that the applicant and the respondent fought about the termination of the pregnancy. The respondent ultimately terminated the pregnancy. [ 42 ] The applicant and the respondent fought over many things, including the children. The respondent testified that she did not trust the applicant to be alone with her children or with D.S.M. The applicant agreed that the respondent’s refusal to allow him to be alone with D.S.M. caused many arguments.

He was unable to explain why she took this position. [ 43 ] The respondent testified that she kept D.S.M. away from his father because she believed the applicant was a paedophile who had sexually abused his son and his daughter Ms. E.W. According to the respondent, the applicant had acted inappropriately with his son. She detailed the following instances: 1. As soon as they moved in together, he took D.S.M. into the bathroom and locked the door. She heard the child cry until he vomited but the applicant refused to allow her in or to open the door.

When the applicant came out, he told her that he had taken a bath with his son so that they could get to know each other. 2. The respondent testified that she saw the applicant masturbating with his hand down D.S.M.’s diaper 4-5 times including one time she found him naked with D.S.M. in the bedroom with one finger in D.S.M.’s mouth and his other hand under the sheets with an erection apparently masturbating himself.

3. With respect to Ms. E.W., the respondent testified that, early on in her relationship with the applicant and prior to her reconciliation with the applicant in 2002, she had gone swimming with her children and with the applicant and Ms. E.W. and she had seen him showering with Ms. E.W. in the family change house where he was soaping and rubbing Ms. E.W. in her breast area and soaping and rubbing her vagina.

She also testified that she did not approve of how he interacted with his daughter and how he would fondle her and place her on his lap and kiss her on the face and the lips. [ 44 ] The applicant denied any sexual improprieties as described by the respondent. [ 45 ] For the following reasons, I am not satisfied on a balance of probabilities that the applicant acted in a sexually inappropriate way towards D.S.M. or towards Ms. E.W. 1. Ms. E.W. testified at trial. She is now a twenty-year-old young woman who is planning a career in sustainable energy and building technology.

At the time that she testified, she was out of school and was working with horses on a farm in Oakville. When she spoke of her relationship with her father, she did so with warmth and affection. She noted that, when she was younger, her father played a big

part in her life and took her to school each day and, when she became older, they would spend holidays together, camping, visiting relatives in Ottawa and hiking the Bruce Trail. She testified at this stage in her life she phones her father and sees him a couple of times a month for dinner or a movie. When asked whether her father ever touched her in a sexually improper way, she denied any such improprieties. She was asked specifically about whether or not her father touched her inappropriately at a public swimming pool.

It was her evidence that, when they used the family change room, they would change under towels instead of going into the men’s change room. She summed up her evidence by saying that “he would never do anything inappropriate in a sexual manner to me ever and my mom knew that.” She spoke in a sincere, straightforward manner and I gave her evidence considerable weight. 2. The respondent admitted in her evidence that she had previously lied to the court about the identity of D.S.M.’s father. She acknowledged in her evidence that she knew that the applicant was the father of D.S.M.

It was her evidence that her sexual relationship with Mr. A.M. had actually ended a year prior to her becoming pregnant with D.S.M. and that, at all times, she knew that the applicant was the father of D.S.M. This evidence was in stark contrast to the facts she swore to in her affidavit filed in the proceeding that began in 2001 and she acknowledged in cross-examination that she lied when she said that Mr. A.M. was the father of D.S.M.

She acknowledged that she filed a false birth registration and that she lied to the police when she told them that the applicant was not the father of D.S.M. around the time the criminal harassment charge was laid. She justified this behaviour by saying that she had decided to keep the applicant as far away from the child as possible because she was afraid of Mr. R.G.A. She decided that, “he would have to put up a fight to get close to D.S.M.” 3. The respondent testified that she refused to co-operate with the investigator from the Office of the Children’s Lawyer, Mr.

Greg Michell, and to bring D.S.M. for an observation visit with D.S.M. and his father because she was not satisfied that he would protect the child from inappropriate touching by his father. She testified that she had asked him, if a child was crying and there was inappropriate touching, would he stop the visit and that he had said no. According to the respondent, Mr. Michell said he would stop the visit only if the child requested him to do so. Mr.

Michell was called in reply and he testified that he would never say such a thing; if he saw any inappropriate touching, he would immediately intervene not only because he had a legal requirement to do so, he would also have a very strong moral requirement to do so. He said that the investigation ended because the respondent refused to allow an observation visit between the applicant and the child to take place because she felt the applicant would use the opportunity to build up a relationship with the child and, then when the inevitable unsupervised access occurred, he would sexually exploit the child.

I did not find the respondent’s account of Mr. Michell’s position on supervised access credible and saw it as a means for the respondent to justify her failure to complete the investigation as ordered by the court. 4. The respondent lived with the applicant for one and one half years after she first said she saw him abuse her two year old son.

Throughout that time, she did not call the police to report the abuse nor did she call the children’s aid society and only spoke of the abuse in 2007 when the Office of the Children’s Lawyer called the children’s aid society as a result of the information contained in the respondent’s intake forms. She testified that she did not call the police because she had been so very dissatisfied with her last contact with the police. She also said she did not call the police because she had no place to go.

She said she did not call the police because “she did not believe the police could have helped her at all.” However, it is clear that she contacted the police prior to their reconciliation in 2002 and had the applicant charged with criminal harassment. On that occasion, he had been found guilty and given a conditional discharge. Again, after they separated in 2004, she told the applicant to stop calling and writing to her or she would call the police and she testified that she would have done so if he had not desisted.

In the result, her evidence why she did not call the police when she saw the applicant abuse their son made no sense and I did not believe it. 5. Ms. K.A.C. testified that she reconciled with Mr. R.G.A. in 2002 and actually moved her children into his apartment. According to the sequence of events as related by her, this cohabitation began after she had witnessed the applicant act in a sexually inappropriate manner towards his ten-year-old daughter (who was the same age as her daughter Ms. T.M.) at the local swimming pool.

From what I know of the respondent, she would not have moved in with the applicant if she believed her daughter would have been at risk of sexual molestation. [ 46 ] I have also reached the conclusion on the balance of probabilities that the respondent is prepared to go to any lengths to thwart any access between her son and the applicant. As early as 2002, she resisted access by alleging that the applicant was not the biological father of D.S.M., was a violent, threatening man who had been charged with criminal harassment, and a father who had acted in a sexually inappropriate manner with his daughter Ms. E.W.

In the respondent’s own words, “the applicant would have to fight to get close to D.S.M.” [ 47 ] The respondent has not complied with any of the court orders that would have assisted the court in clarifying whether access between D.S.M. and the applicant would be in D.S.M.’s best interests. 1. Initially, the respondent refused to co-operate with an order for blood tests in order to establish whether the applicant was the biological father of D.S.M. She only agreed to participate when she and the applicant were considering reconciliation.

2. She has not co-operated with the Office of the Children’s Lawyer and, on this last occasion, refused even to send in the referral form. Although she agreed before me to allow the child to decide whether he wished to see the applicant at the Office of the Children’s Lawyer, she did not follow through. 3. She refused to co-operate with the therapeutic access ordered by Justice Scully in his capacity as case management judge. As well, she refused to bring the child to Dr. Fidler and indicated that she would not allow the child to see his father even in a therapeutic access situation.

Her explanation to the various professionals for her refusal to co-operate with the court orders was that she feared for the safety of her son, given the applicant’s sexual deviant ways. She told them that she feared that supervised access would eventually change to unsupervised access and that the applicant would use his time with the child to “groom” D.S.M. for his future sexual gratification. (According to Dr. Fidler and Mr.

Michell, she was compelling and believable in her recital of the events and it was unclear to them whether such misbehaviour by the applicant had actually occurred.) 5: D.S.M. [ 48 ] According to his mother, D.S.M. is a straight-A student who is very sweet and very shy. He loves music. Plays the guitar. He loves his brother and sisters. At present, he is residing with his mother and his 13-year-old sister V. and his twenty-year-old sister Ms. T.M. His older brother, As., is living away from the home. Until June 2010, he resided with his mother and her long time common law husband Mr. A.M.

At the end of June, the family moved, as the former matrimonial home was sold and the household split up. [ 49 ] Ms. T.M. testified that she really loves her youngest brother D.S.M. She plays with him, reads to him, talks to him and helps him with his homework. She takes him to movies, picks him up from school and from soccer and swimming. She says that he loves her father, Mr. A.M., like a father. He and V. visit regularly with Mr. A.M.; they go out to lunch and to the cottage regularly. D.S.M. enjoys boating, fishing, and making camp fires at the cottage. [ 50 ] I am advised that D.S.M. knows Mr.

A.M. is not his “father” but, for all intents and purposes, Mr. A.M. is his “father”. From the evidence of the respondent and his sister Ms. T.M., Mr. A.M. has acted as D.S.M.’s father and has been exercising alternate weekend access with D.S.M. and V. since his latest separation from Ms. K.A.C. [ 51 ] I am advised by the respondent that D.S.M. is unaware of the present access controversy. D.S.M. has not seen the applicant for over seven years.

According to the testimony of the respondent, he has never been told about the “sexual abuse.” Initially, she told the court that she had not discussed the “sexual abuse” with any of her children but, when Ms. T.M. testified, she told the court that her mother had told her before she came to court “that [Mr. R.G.A.] had molested her youngest brother”. 6: RELATIONSHIP BETWEEN THE PARTIES [ 52 ] Although I do not accept that the applicant sexually abused his son or his daughter, I find that the relationship between the parties was very toxic.

The relationship between the applicant and the respondent and her children was punctuated by anger and ill feelings. The family was very poor during their time together. Their housing was substandard and, no doubt, the cramped surroundings added to the family tensions. The family members argued about money, parenting styles, time on the computer, choice of television programs and sharing of toys. Nobody in the family had sufficient money, space or privacy and the frustration that caused was often expressed in yelling and swearing at one another. Ms.

T.M. confirmed in her testimony the tension evident in the household and her unhappiness during this period of her life. [ 53 ] The respondent did not trust the applicant with her children and she refused to leave her young children alone with him. It was her habit to take her children with her or leave the little children in the care of her older children. She refused to allow the applicant time alone with his son and this was a cause of extreme friction between the parties. As well, the respondent refused to allow the applicant to bring his daughter Ms.

E.W. over to the apartment and, for the period of cohabitation, the applicant’s relationship with Ms. E.W. suffered. [ 54 ] When the parties separated for the last time, the respondent moved back into the home she had shared with Mr. A.M. and refused to permit any contact between D.S.M. and his father.

When the applicant attempted to make contact with his son, the respondent threatened to involve the police once more and, given his previous experience with the criminal harassment charge, he withdrew from the situation until he renewed his application for access in 2006. 7: POSITION OF THE PARTIES 7.1: Applicant [ 55 ] The applicant makes no claim for custody. He seeks an order for alternate weekend access and shared holiday time.

Given the length of time that he has not seen his child and the fact that he is a virtual stranger to D.S.M., he is prepared to begin to exercise access at a supervised access centre or to participate in a therapeutic reintroduction program if the court felt that such a program was necessary. 7.2: Respondent [ 56 ] Although the respondent advised the court in August, 2010 that she was prepared to allow her son to determine whether

he wished contact with his father and that she was prepared to co-operate with the Office of the Children’s Lawyer in the process of reintroducing D.S.M. to the applicant, her subsequent actions in withdrawing from the process and failing to attend court make it clear that she is not prepared to support any access between her son and the applicant. 8: TEST [ 57 ]

Section 24 of the Children’s Law Reform Act sets out the test that the court should apply in determining an application for access. It reads as follows: 24. Merits of application for custody or access.—

(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

(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 care and upbringing of the child; (

b) the views and preferences of the child, where such views and preferences 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) the plan proposed by each person applying for custody of or access to the child 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.

(3) Past conduct.— A person’s past conduct shall be considered only, (

a) in accordance with subsection (4); or (

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

(4) Violence and abuse. — In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against, 9: ANALYSIS [ 58 ] The circumstances of this case pose enormous difficulties to the court in determining what, if any, access to the applicant would be in D.S.M.’s best interests at this time. Counsel for the applicant began by characterizing this case as a case of parental alienation.

I do not accept this characterization of the case as I have no evidence that the child is alienated from the father. [ 59 ] Initially, the allegations of abuse were extremely serious and the court was required to determine whether the allegations of abuse were proven on a balance of probabilities. In this regard, I found that the allegations of abuse were not substantiated for the reasons set out above.

In retrospect, this was perhaps one of the more straightforward issues the court had to decide in this case. [ 60 ] This case is complicated by the intractable stance the respondent has adopted towards the applicant’s request for access. Her position on access has not changed over time, even with court intervention, and appears unlikely to change in the future. Simply put, she is against access and believes that any attempt by the court to order access is a mistake. Believing any access order to be a mistake, she has done everything she can to frustrate access. [ 61 ] Dr.

Barbara Jo Fidler gave evidence at the trial. She is a well known expert in the area of parental alienation, although she made it clear that she had been engaged to effect a therapeutic reintroduction of the child with his father and not to render an opinion on whether this case is a case of parental alienation. She noted that she never met the child and is not aware of how the child would react to meeting his father or what the child’s wishes were.

She also noted that it was clear to her that the mother was adamant that access was not in the child’s best interests and she testified that, if the mother never agrees to access, then the prognoses for a successful reintegration is extremely poor so long as the child continues to reside with the mother. [ 62 ] According to Dr. Fidler, in the event the mother never changes her mind, in order for there to be access, there is only one solution and that is to remove the child from the care of the mother.

She noted that this is a very extreme solution and, if the court were to consider doing so, it should only do so after the risks and benefits of such a move have been carefully weighed. [ 63 ] Dr. Fidler testified that she had no idea what would be best for this child. She has not met the child or the father and has not even seen the child with the mother or with the father. She does not know how the child is doing emotionally, socially, or academically and she did not have an opportunity to assess the relationship the child has with his mother.

She does know that the child has not seen his father for seven years and is now ten years old so that he probably has no real memory of his father. She also does not know what the child understands about why he does not see his father and does not know what his mother has told him about his father. In this case, if the mother were to continue to thwart access, the court would have to determine whether removal of the child from the care of the mother would be in the child’s best interests to make access with the father a possibility.

[64] Dr. Fidler, on page 32 of the transcript of 5 July 2010, beginning at line 29, testified (my emphasis added): Witness: Right. So again, we have a situation where the child has not had contact with a parent for along period of time. When we have severe cases, we see a situation where therapy andtherapeutic reintegration is impossible. I would have to say nearly impossible to effect whilethe child is living in the environment that does not support the relationship with the father inthis case.

So sometime, if the child is separated on an interim basis from the custodial parent toallow a reintegration to occur, then the child would be reintegrated back with the custodialparent that without . . . Court: Where would the child be? Witness: That is the question. The child is sometimes with the rejected parent. In this case, again. . . . Court: This is a stranger. Witness: Exactly. So this is a very unique — this is one of those extreme cases. This is an outlier insome respects. And sometimes in the care of children’s aid in a foster home, sometimes with arelative, it is a transitional environment.

Court: Presumably, that would be extremely dramatic to the child. [65] Judicial case management has failed to make any change in the respondent’s attitude towards access. At trial, shejustified her failure to comply with court orders by saying that she felt “bullied and coerced” into agreeing to the order for aninvestigation by the Office of the Children’s Lawyer and the order for the therapeutic reintegration of access by Dr. Fidler. She told methat she felt she had no choice but to allow her son to have access to his father and to let him decide whether he wished access tocontinue.

Apparently any order made by the court with which she did not agree is seen by her as an attempt to “bully and coerce” herand is therefore illegitimate and need not be followed. 10: CONCLUSION [66] On the second day of the trial, the applicant considered withdrawing his claim for access because he said, “This is notgoing to end well.” Although he decided to continue with the litigation, I see why he made the comment. I have determined that thelikelihood for a successful reintegration of the applicant with his son is not a good one for the following reasons: 1.

The litigation has been going on for five years without any access having occurred, notwithstanding the attemptedinterventions of a skilled case management judge. 2. The child is now ten years old and has not seen his father for over seven years. The applicant is a virtual stranger to thechild. 3. I do not know how the child feels about access. In fact, I know very little about the child other than what I was told by hismother and his sister. 4. The respondent has refused to comply with any court order made to produce her son to any professional with a view toassessing his best interests. 5.

The respondent takes the position that access is not in her son’s best interests and is prepared to lie to the court and makeserious allegations against the applicant in order to confuse the issue. 6. The relationship between the applicant and the respondent is very dysfunctional and conflictual. 7. At this point, the respondent has ceased to engage in the court process. 8.

The applicant is not seeking a change in custody and, even if he were to do so, it would be necessary to assess how thechange might impact on the best interests of the child before any such order removing the child would be made. [67] Had the situation been other than as I have found it to be, I would have ordered supervised access to the child to beincreased if the relationship between the father and son had developed as I would have anticipated. However, given the history of thislitigation, I question whether any access order made at this time would be in this child’s best interests.

I say this for the followingreasons. [68] It is clear to me that the respondent is truly resistant to any further judicial intervention. Any order that I make will beignored and flouted.

Attempts to enforce any order that I make will lead inevitably to contempt motions and police intervention as allefforts short of that have proved futile over the course of this litigation. [69] I am concerned that enforcement by way of contempt proceedings and possible heavy fines or imprisonment or bothmight cause the respondent’s young family to lose their home and make a martyr of the mother in the eyes of the child, especially giventhe fact that the child only knows his mother and has no on-going relationship with his father.

I fear that such enforcement actions willnot advance the building of a relationship between the child and his father and will prove very upsetting to the child. [70] Although respect for courts and court orders is an important factor in this case, I question whether this is the mostimportant factor in this case. Disrespect for the law is a serious matter. Justice Joseph W. Quinn in McMillan v. McMillan, , 44 O.R. (3d) 139, 173 D.L.R. (4th) 748, 47 R.F.L. (4th) 173, 95 O.T.C. 276, [1999] O.J. No. 1285, 1999 Cars​well​Ont 1028 (Ont.Gen.

Div), on page 6 found on the facts of the case before him (a contempt proceedings) that the most important factor in the face ofwilful non-compliance of a court order for access was the “need to preserve the integrity of the administration of justice.” In that case,access was occurring, but not in accordance with the order and he found the mother in contempt and sentenced her to five daysimprisonment on her contempt. In reaching the conclusion that imprisonment was the only option in that case, he noted on page 6 of theMcMillan case, supra as follows: [29] . . .

I am reminded, in this case, of the following passage from Attorney-General v. Harris,[1961] 1 Q.B. 74 at p. 95, per Pearce L.J.: . . . a breach with impunity by one citizen leads to a breach by other citizens, or to a generalfeeling that the law is unjustly partial to those who have the persistence to flout it.

[ 71 ] In this case, a determination has yet to be made whether an access order is in the child’s best interests. Not only am I concerned that any access order that I make will be flouted and its enforceability will be challenged, but I am also concerned that, if I make an access order and if effective enforcement were to occur, the respondent, faced with a requirement to comply with an access order, will proceed to poison the child’s mind against his father with tales of sexual abuse. I say this because of the evidence that the respondent told her daughter Ms.

T.M. about the sexual abuse allegations before bringing her to court as a witness and it was clear that her disclosures to her daughter negatively influenced Ms. T.M.’s opinion of the applicant. If I accept that she has not involved the child in the dispute to date, I have no question that she will do so if she is forced to comply with any form of access order.

These disclosures will not advance the building of a relationship between the child and his father and will prove very upsetting to the child. [ 72 ] As the applicant has not claimed custody and the child has been in the de facto custody of his mother with the consent, or acquiescence of the father, I grant custody of the child to the respondent. [ 73 ] It is very difficult for the court to decide that any further effort to effect change at this time should be abandoned; however, on these facts, I have reluctantly come to that conclusion.

This is a complex, high conflict situation with no available treatment or appropriate alternate child custody option. I have made my decision by focusing on the best interests of the child and his need to maintain his sense of security and his place in his family. I am also aware that the child is now 10 years old and, in a few years, may become curious about his father and will be in a position to make up his own mind. Accordingly, the applicant’s claim for access is dismissed at this time.

All other claims not otherwise disposed of, are dismissed 11: COSTS [ 74 ] If any party is seeking costs, that party shall serve and file, within 30 days, a bill of costs together with a two-page submission that outlines reasons why costs should be awarded and includes any case law relied upon. The responding party shall have 20 days from date of service to serve and file responding material. The party seeking costs shall have 10 days to serve and file a reply. [ 75 ] The respondent has not filed a notice of change of address.

However, when the respondent testified on 12 July 2010, she provided a signed, dated note indicating her current home address and work address, which she gave to me and asked that it not be released. I told her that the note would be placed in my file and that I would decide if and when it could be released. Given the failure of the respondent to file a change of address for service as a self-represented party, I am releasing this note to counsel for the applicant. This note shall be treated as if it were a notice of change of address for service as required by the Family Law Rules , O. Reg. 114/99, as amended.