Naylor v. Malcolm, 2011 ONCJ 629

Toronto Registry No. DFO 05 10142 B2 DATE: 2011·III·31 CITATION: Naylor v. Malcolm , 2011 ONCJ 629 ONTARIO COURT OF JUSTICE BETWEEN: ANNE NAYLOR Applicant — AND — RICARDO MALCOLM Respondent Before Justice Ellen B. Murray Heard on March 7, 8, 9 and 10, 2011 Reasons for Judgment released on March 31, 2011 Louis C. Alexiou ........................................................................................ counsel for the applicant Arthur C. Brown .................................................................................... counsel for the respondent MURRAY, E. B.

J.: [ 1 ] The Applicant Anne Naylor and the Respondent Ricardo Malcolm had an intimate relationship between 2003 -2005. Chloe Naylor Malcolm, born October 4, 2004, is the child of that relationship. Mr. Malcolm was violent to Ms. Naylor during and after the relationship. [ 2 ] On April 1, 2005 the parties consented to an order which provided that Ms. Naylor have custody of Chloe and that Mr. Malcolm have supervised access only of two hours weekly. The order provided that Mr.

Malcolm could apply to change the terms of access after he provided evidence that he had “successfully completed an alcohol treatment program “ and other programs recommended by the Catholic Children’s Aid Society. [ 3 ] In late 2007, Mr. Malcolm began a motion to change that order, alleging that he had completed such programs. Gradually, through the case management system, there has been a temporary expansion of Mr. Malcolm’s access to Chloe. He now would like unsupervised overnight visits with Chloe. Ms. Naylor does not agree. [ 4 ] This is my decision on the issue after trial.

THE PARTIES’ POSITIONS [ 5 ] The order Mr. Malcolm requests is as follows: • Access on alternate weekends, from Friday night to Sunday night; • Telephone access each week, on Tuesdays and Thursdays between the hours of 7 p.m. and 7:30 p.m.; • Holiday and vacation access, including Christmas day and one week each summer. [ 6 ] Ms. Naylor is afraid that the order requested by Mr. Malcolm will plunge her and Chloe back into the chaos and violence of 2004-2006. Ms. Naylor requests an order continuing the current temporary order: access on alternate Sundays from 10 a.m. to 5 p.m.. She agrees that Mr.

Malcolm have some additional daytime access during the Christmas holiday and summer vacation. [ 7 ] Ms. Naylor asks that the current temporary order providing for supervised transfers of Chloe continue, and requests that the supervision take place at the Hamilton Supervised Access Center, as she and Chloe live in Hamilton. Mr. Malcolm sees no need for transfers to take place at a supervised access centre, although he is willing to met Ms. Naylor in a public place for this purpose.

[ 8 ] Ms. Naylor also asks that the temporary orders restraining Mr. Malcolm from contacting her and restricting the information that he can receive about Chloe from service providers continue. Mr. Malcolm opposes this request. [ 9 ] Ms. Naylor also requests an order for child support. The parties have agreed on a table amount that should be payable, as well as arrears that are owing. There is a dispute as to how those arrears should be paid. BACKGROUND FACTS [ 10 ] Mr. Malcolm is now 51 years old. He lives with a roommate, Karen Powers, aged 62, in an apartment in Toronto.

Although he has suffered long periods of unemployment for the past five years, since November 2010 he has worked full-time in a warehouse. He works Monday to Friday, from 12 p.m. to 8:30 p.m. [ 11 ] Between the ages of 20-30, Mr. Malcolm was convicted of a number of drug-related offences, assaults, and criminal harassment. When he formed his relationship with Ms. Naylor in 2003, he had not been convicted of an offence for more than ten years. He did, however, have a problem with abuse of alcohol. [ 12 ] Ms. Naylor is 44 years old.

When this proceeding began, she and Chloe lived in Toronto, but in 2008 she moved to Hamilton to help care for her father, who is in ill health. She does not cohabit with any adult. Ms. Naylor works full-time in Toronto from Monday to Friday, and has a long commute—about 1½-2 hours each way. For reasons of personal security, she did not disclose her address or her place of work in this proceeding. [ 13 ] Chloe is by all accounts a bright, happy, healthy six year old, who attends Grade 1. THE LAW [ 14 ]

Section 29 of the Children’s Law Reform Act provides that ” A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.” [ 15 ] Although neither party made submissions on this point, Ms. Naylor’s counsel implicitly accepted that there has been a change in circumstances relevant to Mr. Malcolm’s access to Chloe since the order of April 1, 2005, and that Mr. Malcolm should have unsupervised access to Chloe. I agree.

I will review the evidence in detail below, but it is apparent that Mr. Malcolm has made much progress in dealing with his admitted alcoholism, and that the day-time unsupervised visits which have taken place for the past year are generally positive experiences for Chloe. [ 16 ]

Section 24 of the Act provides that the merits of an application for access shall be determined on the basis of the child’s best interests, and sets out eight non-inclusive factors that the court shall consider in assessing best interests. Those factors are: • (

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) 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. [ 17 ] Section 24(4) of the Act, set out below, constitutes a legislative direction to the court to take into account domestic violence in assessing a litigant’s ability to parent, whether as a custodial parent or an access parent. 24(4) 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,

• (

a) his or her spouse; • (

b) a parent of the child to whom the application relates; • (

c) a member of the person's household; or • (

d) any child. [ 18 ] Ms. Naylor’s request for an order restraining Mr. Malcolm from contacting her is governed by

section 35 of the Act as it stood in November 2007, when Ms. Naylor, in responding to Mr. Malcolm’s motion to change, requested that he be restrained from contacting her except under certain tightly controlled circumstances.

S. 35 then provided that “a court may make an interim or final order restraining a person from molesting, annoying or harassing the applicant or children in the applicant's lawful custody and may require the person to enter into the recognizance or post the bond that the court considers appropriate.” [1] EVIDENCE [ 19 ] I set out below my findings of fact. [ 20 ] The major issues in this case concern Mr. Malcolm’s violence against Ms. Naylor during the relationship and Mr. Malcolm’s alcoholism, and the extent to which Mr. Malcolm has demonstrated that he has successfully dealt with these problems.

These factors relate to Mr. Malcolm’s ability to parent the child during access periods and have a potential implications for the stability of home environment which Ms. Naylor can provide for the Chloe. Credibility [ 21 ] Mr. Malcolm and Ms. Naylor differed in their evidence about acts of violence that Ms. Naylor alleged Mr. Malcolm perpetrated against her, and the extent of that violence. Ms. Naylor acknowledged that her memory of some details and dates was faulty, as she did not like to remember these events. Even with this frailty, I prefer Ms. Naylor’s evidence on these issues where it differs from Mr.

Malcolm’s evidence. As set out further below, Mr. Malcolm attempted to deny that he had ever been violent to Ms. Naylor, despite the findings of guilt of criminal courts on this issue. These convictions involved both findings of guilt after trial, and after a plea agreement. I advised counsel that Mr. Malcolm’s attempt to introduce evidence calling into question his guilt on these charges (from which no appeal was taken) constituted an abuse of process.

The Supreme Court of Canada has held that abuse of process will be made out where “litigation before the court is found to be in essence an attempt to re-litigate the claim which the court has already determined”. [2] History of domestic violence by Mr. Malcolm [ 22 ] Mr. Malcolm committed a series of violent acts against Ms. Naylor, consisting of assaults, threats and criminal harassment. This violence began shortly after Chloe’s birth and continued until the spring of 2006. [ 23 ] In late 2004, Mr. Malcolm choked Ms. Naylor while Chloe was in her arms. [ 24 ] On a subsequent date in 2004, Mr.

Malcolm assaulted Ms. Naylor by pushing her into a wall (again while she held Chloe), and threatening to kill her. [ 25 ] In January 2005 Ms. Naylor approached CCAS for assistance in obtaining accommodation and in dealing with Mr. Malcolm. The Society warned her not to allow Mr. Malcolm unsupervised contact with Chloe. [ 26 ] In February 2005, Ms. Naylor obtained an ex-parte restraining order, and an order granting her custody and providing for no access to Mr. Malcolm. Mr.

Malcolm, upon being advised of the order, threatened her and her mother, Lena Taylor, and damaged property in their home. [ 27 ] In March 2005, Mr. Malcolm assaulted Ms. Naylor in Chloe’s presence, and then seized the child. Ms. Naylor called police, and he was arrested and charged with two counts of assault against Ms. Naylor. He was released, subject to a recognizance that provided that he not have contact with her, and that he have contact with Chloe only pursuant to a family court order. [ 28 ] Mr. Malcolm violated that recognizance repeatedly. [ 29 ] On April 1, 2005, the order of this court which Mr.

Malcolm seeks to vary was made on consent. It provided that Mr. Malcolm have supervised access only, and that contact between the parties was to be made using a third party, Lena Naylor. [ 30 ] In June 2005, after having had three visits with Chloe, Mr. Malcolm was ejected from the Supervised Access Centre program for aggressive behaviour and racist remarks directed towards a female staff member. [ 31 ] Despite Ms. Naylor’s concerns about Mr. Malcolm’s violence, and the terms of his bail, and the terms of the April 1, 2005 court order, Ms. Naylor did have contact with Mr. Malcolm.

Her evidence is that she had this contact because of his demands to see Chloe and out of fear of reprisal. Both before and after the April 1 st order she brought Chloe to his residence and spent time there. CCAS

believed that Ms. Naylor was ambivalent about her relationship with Mr. Malcolm during this period. I agree. Ms. Naylor and Mr. Malcolm were operating in a cycle of abuse, separation, rapprochement, and further abuse. [ 32 ] Any ambivalence that Ms. Naylor had about continuing her relationship with Mr. Malcolm ended in September 2005. [ 33 ] At the end of August, 2005, Mr. Malcolm, Ms. Naylor and Chloe attended a party at the home of a friend of Mr. Malcolm. Mr. Malcolm was drinking, and became aggressive. Mr. Malcolm argued with Ms. Naylor, and then with his friend.

He assaulted his friend, was ejected from the home. Ms. Naylor, scared, stayed behind with Chloe. [ 34 ] Ms. Naylor contacted CCAS, and received a strong warning that she was to stay away from Mr. Malcolm, and keep Chloe away from him—otherwise, she risked having the Society start a protection proceeding against her for failure to protect Chloe. [ 35 ] Ms. Naylor stopped all contact between her and Mr. Malcolm. She and Chloe stayed with her mother, Lena. Lena managed an apartment building in Parkdale. [ 36 ] Mr.

Malcolm responded by calling the Society worker and threatening her, and by sending a barrage of aggressive messages to Ms. Naylor--47 in one day. A Society worker listened to the messages. She heard Mr. Malcolm threatening, swearing and saying that he was “going to kill them all”. A police officer listened to the messages.

He heard swearing and name-calling but no threats. [ 37 ] Immediately after these calls, the apartment building that Lena Naylor managed came under attack. • Graffiti saying “Lena get out” was scrawled on walls throughout the building. • A fire was set outside the door of Lena’s unit, where Ms. Naylor and Chloe were living. • Sinks in the top-floor laundry room were plugged, and the building was flooded. • A plate glass window was smashed with a rock, and the perpetrator left a trail of blood. [ 38 ] The same evening as these events, Mr. Malcolm called Ms.

Naylor and left an angry message that he had cut himself and was getting medical attention. He demanded that she bring Chloe to him immediately. [ 39 ] Ms. Naylor was terrified. She believed that Mr. Malcolm was trying to kill her and Chloe. [ 40 ] Police posted a car outside her building that evening, and the next day insisted that she move with Chloe to a new location. The Society and police helped her make a safety plan. She was given a “panic button” linked directly to the local police station that she could hit if Mr. Malcolm came to her home. [ 41 ] Mr.

Malcolm was charged with criminal harassment, three counts of failure to comply with recognizance, two counts of uttering death threats, and mischief. He eluded police for some weeks, but in October turned himself in and was kept in custody. [ 42 ] Ultimately, Mr. Malcolm was convicted of the following offences related to Ms. Naylor: • Assault • Uttering death threats • Failure to comply with a recognizance (by contacting Ms. Naylor) • Criminal harassment [ 43 ] One charge (the assault, relating to the choking of Ms. Naylor), was resolved after trial. Mr.

Malcolm pled guilty to the other offences set out above, pursuant to a plea agreement under which the balance of the charges were withdrawn. [ 44 ] Mr. Malcolm was required to spend a further two months in jail, and was released in late January 2006. He was also sentenced to two years probation. The terms of his probation required that he have no contact with Ms. Naylor, and no contact with Chloe except as provided in a family court order, and that he attend counselling for “alcohol addiction and domestic assault”. [ 45 ] Subsequent to his release, Mr. Malcolm made threats to his probation officer concerning Ms.

Naylor. The probation officer called Ms. Naylor to warn her. Mr. Malcolm was charged with breach of probation and convicted on June 9, 2006. He was sentenced to 50 days in jail and two years probation, with conditions similar to that of his earlier probation order, with one addition—he was to have no contact with Lena Naylor. [ 46 ] Despite the fact that Mr. Malcolm was convicted of violent offences of which Ms. Naylor was the victim, at trial before me his evidence was: “I was never violent to Anne”. [ 47 ] The mischief charge related to the attack on Ms.

Naylor’s residence in September 2005 was withdrawn as part of the plea agreement, and Mr. Malcolm specifically denied in evidence before me that he had perpetrated this attack. Ms. Naylor firmly believes that he was responsible and she continues to be afraid of him. Given the nature of the attacks, and their temporal proximity to the threats made by Mr. Malcolm to Ms. Naylor, and his communication to her immediately after the attacks, it appears to me that her belief is reasonable. [ 48 ] The impact on Ms. Naylor of Mr. Malcolm’s violence has been serious and long-lasting.

She has moved twice, in an effort to keep her location unknown to Mr. Malcolm. She testified that she has not entered another relationship with a man—she is too anxious about what might happen. She says that she is “always looking over her shoulder”. She is reluctant to take any steps that would

put her in direct contact with Mr. Malcolm or allow him to find her. Mr. Malcolm’s alcoholism [ 49 ] Mr. Malcolm has a history of abuse of alcohol that goes back years. He testified that he drank alcohol every day, often to excess. When he drank, he became aggressive. He testified that his acts of violence were the product of his alcoholism. Mr. Malcolm had prior to forming a relationship with Ms. Naylor attempted alcoholism treatment, without success. [ 50 ] Ms. Naylor agrees that excessive drinking often presaged Mr. Malcolm’s acts of violence.

She testified, however, that he was aggressive towards others even when he had not been drinking. For example, she related an incident in which Mr. Malcolm became so enraged with a garbage collector that he jumped on the front of the garbage truck as it was moving; police had to defuse the situation. Mr. Malcolm did not deny this incident. [ 51 ] Despite Mr. Malcolm’s history of alcohol abuse, it appears that he was always able to maintain employment, and even advance in his work, until his arrest and incarceration in 2005 removed him from the workforce for a significant period of time. Mr.

Malcolm’s rehabilitation [ 52 ] December 2006 was a turning point for Mr. Malcolm. He testified that the last day he took a drink was December 12, 2006. He enrolled in a residential alcoholism treatment program at Renascent on December 22, 2006, which he successfully completed on January 12, 2007. He did not enrol in the follow-up program because he could not afford it, but he stayed involved with Renascent as a volunteer to get support for continued sobriety. In 2008 he was recognized by Renascent as one of the “Volunteers of the Year”. [ 53 ] In the past two years, Mr.

Malcolm has cut back his involvement with Renascent, but has stayed involved with AA. Mr. Malcolm testified that he has attended AA meetings regularly for almost five years. AA does not have an organizational structure that allows confirmation of this claim. [ 54 ] Ms. Powers has shared accommodation with Mr. Malcolm since January 2006, except for a period between February 2009- July 2010 when she lived outside Toronto. Ms. Powers is a retired sales representative and a non-drinker. She has known Mr. Malcolm for approximately 16 years, and in 2006 acted as his surety.

She testified that he attends AA meetings regularly, and that she believes that that he has not been drinking since December 12, 2006. Ms. Powers is sure that she would be able to detect if Mr. Malcolm began drinking, because in her experience he becomes aggressive when he drinks. In Ms. Powers’ view, Mr. Malcolm is a “changed man”, “responsible and caring”. [ 55 ] Mr. Malcolm acknowledges that in the past he has taken alcoholism treatment programs and relapsed. This time, he says, he has made a lifestyle change, to insure continued sobriety. He no longer socializes with people who drink.

He says that he realizes that any stressor could lead him to drink again, that he could relapse at any time, and that he has to work every day to maintain sobriety. He is confident that he will remain abstinent. [ 56 ] At the request of Ms. Naylor’s lawyer, Mr. Malcolm underwent a hair test in July 2008, which screened for use of alcohol, cocaine, and other drugs. No alcohol or drugs were detected. Unfortunately, the test only covered a two week period. Mr. Malcolm refused to participate in any further testing, unless Ms. Naylor paid for the cost. [ 57 ] In April 2007 Mr.

Malcolm enrolled in and completed and completed a 16 week Partner Assault Response (PARS) program. That course was required because of his convictions for domestic violence against Ms. Naylor. A report from a PARS facilitator commented that Mr. Malcolm was able to acknowledge “tactics of abuse” he had used in the past and accept responsibility for his actions. [3] The PARS facilitator invited Mr. Malcolm to participate in the group in the future on a voluntary basis. Mr. Malcolm has not done so. [ 58 ] A criminal record check on Mr.

Malcolm done in July 2008 revealed no convictions after the June 2006 conviction for breach of probation. He did face charges stemming from incidents in 2006 relating to a woman named Karen Tweedle. Those charges were resolved when Mr. Malcolm entered into a peace bond, undertaking to have no contact with the woman. Mr. Malcolm’s evidence is that since he stopped drinking in December 2006, he has faced no further criminal charges. [ 59 ] Mr. Malcolm inadvertently learned of Ms. Naylor’s address in 2007 when he obtained records he requested from Chloe’s doctor.

He used this knowledge only to have her served for this proceeding, and did not attempt to contact her. Since then, Ms. Naylor has moved. Visits between Chloe and Mr. Malcolm [ 60 ] Over the past three years in the course of conferences with the case management judge, the parties agreed to re-establish access and to expand access gradually. Mr. Malcolm began seeing Chloe again in October 2008, at weekly hour-long visits at a supervised access center. The last temporary order was made on consent on January 10, 2010. That order allowed Mr.

Malcolm visits on alternate Sundays from 10 a.m. to 5 p.m., with supervised pickup and delivery at the Supervised Access Center in Toronto. [ 61 ] Ms. Naylor acknowledges that by and large visits have been a positive experience for Chloe. However, she has had some concerns.

[ 62 ] On Mr. Malcolm’s first unsupervised visit with Chloe at MacDonald’s, the child said she wanted to return to the access centre. Mr. Malcolm told her that she couldn’t; Chloe began crying, and he admonished her. Chloe balked at further unsupervised visits. The parties agreed to restore visits to the access centre for a short time. Unsupervised visits started again soon. [ 63 ] Chloe has reported other incidents to Ms. Naylor that allegedly upset the child, and worried Ms. Naylor. • It is alleged that Mr. Malcolm has told Chloe to “shut up”. Mr. Malcolm denies this. • It is alleged that Mr.

Malcolm warned Chloe “don’t be smart with me”. Mr. Malcolm denies this. • It is alleged that Mr. Malcolm and Ms. Powers argued in Chloe’s presence, upsetting the child. Mr. Malcolm recalls no such argument. • It is alleged that Mr. Malcolm smoked in the car when transporting Chloe. He acknowledged this, and stopped after a complaint from Ms.Naylor. [ 64 ] Mr. Malcolm and Ms. Powers testified that Mr. Malcolm occasionally reproves Chloe; the child may be quiet for a few minutes, and then comes for a hug from Mr. Malcolm. [ 65 ] Visits are busy times. Ms. Powers is usually involved in the visits. Mr.

Malcolm involves Chloe in preparing lunch. They have gone to a park, to Puck’s Farm, or to the mall, shopping. Mr. Malcolm has provided a blackboard, a bicycle, a scooter and other toys. [ 66 ] Mr. Malcolm is anxious to have longer visits with Chloe, overnight visits. He wants the experience of putting her to bed, and giving her breakfast. He wants to be able to take her on longer outings that the length of his current visits now do not allow. He wants to be able to spend time at Christmas with her, and to take her camping in the summer. [ 67 ] Ms.

Naylor is very worried about Chloe spending prolonged or overnight periods with Mr. Malcolm. [ 68 ] Ms. Naylor accepts that Mr. Malcolm has made progress in dealing with his alcoholism, but she is not satisfied that the changes in his behaviour are consistent or permanent. She notes that the only test he has taken to confirm sobriety covered a two-week period, and that he has refused further testing, even though that testing would cost only $150. She does not know Ms. Powers, and places little reliance on her assurances. She says that “it only takes one drink” for Mr.

Malcolm to relapse, and put Chloe at risk. [ 69 ] Ms. Naylor observes that Mr. Malcolm’s limited parenting skills may cause him to have unreasonable expectations of Chloe, and that the child’s failure to meet those expectations may trigger his anger. In evidence Mr. Malcolm related a story in which he disciplined Chloe for farting in his presence, rather than going to the bathroom to “pass wind”. This story illustrates for Ms. Naylor Mr. Malcolm’s unreasonable expectations of the child. [ 70 ] Ms. Naylor testified that before she would feel safe sending Chloe for overnight visits, she would like to see Mr.

Malcolm: • Provide evidence, either through a hair test or urinanalysis, that he has abstained from the use of alcohol for a significant period of time; • Provide evidence of completion of an anger management program; and • Provide evidence of completion of a parenting program. Transportation for visits [ 71 ] Ms. Naylor does not have a car. For Chloe and her, each visit entails rising at 6:30 a.m. on Sunday, taking a bus to the GO train, arriving at Union station, and connecting with another bus to the access centre. The return trip is so late that Ms.

Naylor and Chloe miss the last bus home, and have to make a long walk. This means that Chloe is travelling 3 ½-4 hours each Sunday, and arriving home at about 7:30 p.m. — before having dinner or a bath. [ 72 ] Ms. Naylor testified that the cost of transportation to visits —about $30 each Sunday—strains her limited budget. [ 73 ] These trips started for Chloe started when Ms. Naylor moved to Hamilton because of her father’s illness. Mr. Malcolm took the position that it was Ms. Naylor’s choice to move, so she should bear any costs associated with that move. At the time, Mr.

Malcolm did not have access to a car. [ 74 ] Mr. Malcolm now has access to Ms. Powers’ car. At trial, Mr. Malcolm took the position that, even though the costs should still rightly be Ms. Naylor’s responsibility, he would split the cost, by driving one way. Telephone calls between Mr. Malcolm and Chloe [ 75 ] The January 2010 temporary order provides for two phone calls weekly (Tuesday and Thursday between 7-7:30 p.m.), to be made by Chloe to Mr. Malcolm. It is a source of great frustration to Mr.

Malcolm that these calls are not always made, or if made, that Chloe does not stay on the line as long as he thinks appropriate. Even if she stays on the line, he is disappointed that she may be in the middle of playing, or finishing dinner, or eager to do something else. Mr. Malcolm introduced into evidence his log of phone calls

that he found deficient. [ 76 ] Ms. Naylor testified that the phone calls are frequently a source of anxiety for Chloe. When Chloe wants to end a call but Mr. Malcolm admonishes that she must stay on the line, Chloe often leaves the call crying. Ms. Naylor also says that at aged 6, Chloe doesn’t like to talk on the phone much, and doesn’t have enough new things to fill a conversation twice a week. Ms. Naylor suggests calls be only once a week. Contact between Mr. Malcolm and Ms. Naylor [ 77 ] The current temporary order provides for transfers of Chloe at the Supervised Access Centre, and restrains Mr.

Malcolm from contacting Ms. Naylor, except through email in order to communicate about access. Email contact was never established between the parties; evidence before me did not establish why. [ 78 ] Mr. Malcolm says that he does not wish to have contact with Ms. Naylor, except contact that is necessary to facilitate access. Mr. Malcolm suggests that Ms. Naylor’s security concerns could be satisfied by exchanging Chloe in a public place, such as a restaurant or a police station. He points out that supervised access centres have restricted hours that limit access times.

As well, an access centre charges fees, fees that he has been paying since access was resumed in October 2008. [ 79 ] Ms. Naylor wants to continue to exchange Chloe at a supervised access centre, in Hamilton if possible. She feels more secure with a system that allows a transfer to take place without her and Mr. Malcolm meeting at all. Exchange at a supervised access centre allows this, because of staggered arrival and departure times. Ms.

Naylor is also reassured that a supervised access exchange program involves staff who observe and note Chloe’s condition at the beginning and the end of a visit. [ 80 ] Communication between the parties currently takes place through the supervised access centre staff. Ms. Naylor would like to leave it that way. Ms. Naylor is currently unable to have internet service at her residence, although that service should be available within a few months. Mr. Malcolm says that the parties should have some other means of communicating with each other about matters important to Chloe.

Information about Chloe [ 81 ] The current temporary order does not allow Mr. Malcolm to obtain information about Chloe from service providers, except for medical information if there is a serious risk to the child's health. Apparently this provision was agreed to after Chloe’s doctor complained to Ms. Naylor that Mr. Malcolm had been rude and aggressive in demanding access to Chloe’s medical records. Ms. Naylor wishes the current order to continue; Mr. Malcolm does not. Mr. Malcolm’s current relationship with Ms. Naylor [ 82 ] It was evident from his testimony at trial that Mr.

Malcolm has a great deal of anger towards Ms. Naylor, and blames her at least in part for his difficulties in 2005-2006. [ 83 ] Part of Mr. Malcolm’s anger is expressed in complaints about Ms. Naylor’s use of a prescribed medication, buprenorphine. Ms. Naylor has been taking this medication under a program that entails weekly testing and medical supervision for more than ten years. Mr. Malcolm testified that he resented being “dictated to” by someone who is “an addict”. He acknowledged that twice during the case management phase of this case, he has confronted Ms.

Naylor in the hallway of the court, calling her a “fff…ing drug addict”. [ 84 ] As a result of complaints by Mr. Malcolm, the Catholic Children’s Aid Society investigated Ms. Naylor’s circumstances, was satisfied that there were no protection concerns, and closed the file. There has been more than one Society investigation that revealed no concerns about Ms.Naylor’s use of this medication. [ 85 ] In evidence in this trial, Mr. Malcolm attributed his violence at Ms. Naylor’s home immediately after she obtained a restraining order in 2005 and his threats to harm her in 2006 to his concern about Ms.

Naylor’s “drug addiction” , and his frustration that “no one was listening to me” . [ 86 ] Mr. Malcolm testified that he would “never give up” trying to demonstrate that Ms. Naylor has a drug problem. [ 87 ] Mr. Malcolm’s resentment of Ms. Naylor was demonstrated in other aspects of his evidence: • Mr. Malcolm, when explaining the incident in August 2005 in which he punched his friend while Ms. Naylor and Chloe were present, commented that Ms. Naylor was “playing head games, like she always did”. • Mr.

Malcolm attributed his aggression to the Supervised Access staff in 2005—which resulted in his ejection from the program—to his justified frustration with Ms. Naylor because she had provided diapers for Chloe that were the wrong size. • Mr. Malcolm had only negative remarks to make about Ms. Naylor’s care of Chloe. He observed with concern that Chloe sometimes came to her visit with her hair uncombed, or wearing inappropriate clothing, or leaky boots. [ 88 ] Mr. Malcolm was visibly angry when discussing his frustration that Ms. Naylor would not agree to his plan for overnight access.

He said that he was tired that he kept “giving, and got nothing back”.

[ 89 ] Despite Mr. Malcolm’s hostility to Ms. Naylor, I heard no evidence that suggested that he conveys his negative feelings about Ms. Naylor to Chloe. I also heard no evidence that suggested that Ms. Naylor, despite her fear and distrust of Mr. Malcolm, conveys those fears to Chloe. It is to each party’s credit that they have not tried to influence Chloe’s feelings about the other parent. Child support [ 90 ] Mr. Malcolm currently earns $39,200 annually.

The parties have agree that an order should issue for payment of support in a table amount of $360 monthly commencing November 1, 2010. [ 91 ] Although it is apparent that Ms. Naylor would have a claim for special expenses for the cost of before and after- school programs for Chloe, she has not pursued this claim. [ 92 ] There are arrears of support which accumulated in the past. On October 30, 2009, a consent order was made that Mr. Malcolm pay child support in a table amount of $278 monthly, and arrears in an amount of $3,000, at a rate of $75 monthly.

These arrears accumulated because during this proceeding Mr. Malcolm obtained employment, but did not disclose this fact to Ms. Naylor or pay support for approximately one year. [ 93 ] That employment ended, and on January 12, 2011 the payments were reduced to $135 monthly to reflect Mr. Malcolm’s EI income. [ 94 ] When Mr. Malcolm obtained further employment in November, 2010, he again did not promptly advise Ms. Naylor’s lawyer or increase his payments. Thus, further arrears of support are created. He wishes to pay this amount of at the rate of $75 monthly; Ms.

Naylor requests that these arrears be paid immediately. ANALYSIS [ 95 ] Below I consider the best interests factors most relevant in the assessment of Chloe’s best interests in the context of Mr. Malcolm’s access claim. Love, affection and emotional ties of the child [ 96 ] Both parties agree that Chloe loves her father, and he loves her. Mr. Malcolm has been diligent in pursuing his claim for increased access, and in attending visits and court appearances. That is one measure of his commitment to building a relationship with Chloe.

The child’s views [ 97 ] Given the fact that Chloe is only six years old, her views are not determinative of the case. The evidence establishes that Chloe’s views on the question of overnight access to her father are changeable, depending on when she is talking and perhaps on whom she is talking to. It is natural that the child might be tentative about a

schedule that she has not yet experienced. Chloe has said that if she does spend overnight periods with Mr. Malcolm, that she would like access to a telephone so that she can call her mother if and when she wants. Mr. Malcolm’s ability to parent [ 98 ] The limited evidence before me about Mr. Malcolm’s behaviour on visits indicates that he has many basic parenting skills. Mr. Malcolm appreciates the importance of keeping the visits regular. He keeps visits child-focused. He arranges activities that are are appropriate for a six-year old. [ 99 ] However, I have three concerns about Mr.

Malcolm’s ability to parent as far as extended access is concerned. [ 100 ] Deficient evidence of abstinence from alcohol consumption. Mr. Malcolm’s alcoholism, if not adequately managed, is an obvious impediment to an ability to parent a six-year-old on visits that are longer than seven hours. Mr. Malcolm has made progress, but I am concerned that he has refused—for reasons that counsel acknowledges were “strategic”—to provide the clearest evidence possible that he is abstinent from alcohol.

That evidence would be a hair test covering a significant period of time, or a series of properly administered urine tests. If Mr. Malcolm had taken steps to have these tests done ten months ago when this matter was sent to trial, then this evidence would exist. Given Mr. Malcolm’s acknowledged lengthy history of alcohol abuse, both the court and Ms. Naylor should have the best evidence available to corroborate Mr. Malcolm’s claims of abstinence. That was not provided. [ 101 ] Mr. Malcolm’s blind spots in appreciating Chloe’s best interests. Mr.

Malcolm does not always appreciate what is in Chloe’s best interests, particularly if the issue involves a conflict with Ms. Naylor. The best example of this is Mr. Malcolm’s attitude towards transportation arrangements for visits. Currently, Chloe endures travel time of 3 ½-4 hours each visit on public transport, despite the fact that Mr. Malcolm could shorten this time dramatically if he provided transportation by car. A child-focused parent would offer

to shorten the child’s trip, even if he felt that it was not his “responsibility”. [ 102 ] Another example of Mr. Malcolm’s failure to focus on Chloe’s interests is his insistence that Chloe stay on the phone with him for a specified duration, even when the child becomes distressed. This indicates that he sometimes lets his wishes obscure his appreciation of Chloe’s needs. [ 103 ] Mr. Malcolm could benefit from a parenting program that gave him information about the developmental needs of a six- year old. To date, he has not sought out such a program. [ 104 ] Denial of responsibility for domestic violence. Mr.

Malcolm’s denial of responsibility for his past violence against Ms. Naylor also raises concerns about his parenting ability. Although the report from Mr. Malcolm’s PARS program in 2007 suggested that he “accepted responsibility for his actions”, Mr. Malcolm’s evidence before me indicated otherwise. [ 105 ] In making this observation, I do not ignore the evidence that, despite Mr. Malcolm’s continuing hostility to Ms. Naylor, he has apparently learned to control himself sufficiently that he did not contact her in 2007-2008, although he knew of her address.

He has come a long way from his uncontrolled behaviour in 2004-2006, but his refusal to acknowledge responsibility for acts of violence indicates to me that he has attitudes and beliefs that could negatively affect his ability to parent. [ 106 ] At the time of submissions in this case, I provided counsel with a copy of an article, “Custody Disputes Involving Allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans”. [4] The authors are Dr. Peter Jaffe, Professor Nicholas Bala, Janet R. Johnston, and Claire V. Crooks, all well known in the field of domestic violence and parenting. The

article reviews current research on the topic, and makes recommendations about appropriate and safe parenting arrangements for children in families in which domestic violence has been perpetrated. Counsel were familiar with the article, and reviewed its contents with their clients. Counsel agreed that I could properly make use of the information and opinions contained in the

article in reaching my decision in this case. I have done so. [ 107 ] Dr. Jaffe and his co-authors identify different patterns of family violence, the most concerning of which is “coercive controlling violence”, where the perpetrator uses violence or threats of violence to achieve compliance from his or her partner. Mr. Malcolm’s history would place him in that category. [ 108 ] I have two concerns about Mr. Malcolm’s future parenting of Chloe related to his refusal to accept responsibility for past acts of violence against Ms.

Naylor and his continuing hostility to her. [ 109 ] The first concern relates to deficits I have already discussed in Mr. Malcolm’s parenting of Chloe. Jaffe and Bala’s review of the research indicates that shown that “perpetrators of domestic violence are more likely to be deficient, if not abusive parents”. [5] Such parents may exhibit “coercive tactics” and “swings from permissive to rigid, authoritarian parenting”.

These parenting deficits are more likely when a parent has employed violence in a coercive controlling manner, and when he or she has not acknowledged wrong- doing and successful completed treatment. I have set out above certain parenting deficits evident in Mr. Malcolm’s behaviour with Chloe that suggest an overly rigid approach. If Mr.

Malcolm receives professional assistance that helps him understand his role as a perpetrator of domestic violence, and helps him change the use of coercive techniques to achieve his ends, this should assist him in his parenting in the future. [ 110 ] The second concern relates to the possibility that Mr. Malcolm, if he is frustrated with Ms. Naylor in the future when the matter is no longer under the scrutiny of the court, will act in a way that causes her to have renewed fears for her safety. Mr.

Malcolm acknowledged that he is angered if he perceives that someone is lying to him, or treating him unfairly, although he works to master this anger. I have already discussed Mr. Malcolm’s resentment towards Ms. Naylor because he believes that she treated him unfairly. Even while this case has been ongoing, he has berated Ms. Naylor in the courthouse as a “fff…ing drug addict”. Chloe’s primary caregiver is Ms. Naylor. Anything that causes Ms. Naylor to have further anxiety about violence or harassment from Mr. Malcolm is a factor that threatens Chloe’s stability. [ 111 ] I conclude that Mr.

Malcolm could benefit from a further program for perpetrators of domestic violence. Plan for access [ 112 ] Unlike the Divorce Act , the Children’s Law Reform Act does not contain a principle that residential arrangements which provide for “maximum contact” between a parent and child are to be preferred, provided that it is in the child’s best interests.

However, courts making decisions under the CLRA have incorporated the maximum contact principle into their assessment of best interests. [6] It is important to note that “maximum contact “ is not an end in itself, and is always subject to a multi-faceted determination of what is in the child’s best interests. [7] [ 113 ] What is in a child’s best interests varies from case to case. Although it is frequently the case that overnight access is part of an access order for a child six years of age, there is no presumption that such access should be ordered.

I heard no evidence that such access was “necessary” for Chloe to have a healthy relationship with her father. However, I accept the proposition that it would be a good thing for Chloe to have more time with her father, including overnight time, if this access could be put in place without risk to her safety and stability. [ 114 ] Jaffe and Bala and their associates have suggested that when dealing with competing plans for children in cases of domestic violence, that a risk-benefit analysis must be done: “In most domestic violence cases there are multiple factors to consider.

What is needed is a risk—benefit analysis of different kinds of parenting plans that are in the best interests of the particular child and family (Sturge & Glaser, 2000). What are some guiding principles for undertaking this kind of analysis? It is submitted that the goals of any plan should be prioritized in the following order : [8]

1. Protect children directly from violent, abusive, and neglectful environments; 2. Provide for the safety and support the well-being of parents who are victims of abuse (with the assumption that they will then be better able to protect their child); 3. Respect and empower victim parents to make their own decisions and direct their own lives (thereby recognizing the state's limitations in the role of loco parentis); 4.

Hold perpetrators accountable for their past and future actions (i.e., in the context of family proceedings, have them acknowledge the problem and take measures to correct abusive behaviour); and 5. Allow and promote the least restrictive plan for parent—child access that benefits the child, along with parents' reciprocal rights.” [9] [ 115 ] The risk-benefit analysis in this case indicates to me that there should not be an immediate order for overnight access.

It is clear to me that a change to overnight access arrangements now would pose risks for Chloe which I have outlined above in my discussion of the deficiencies in Mr. Malcolm’s parenting abilities. A great cause of concern to me is the stress placed on Ms. Naylor by an immediate transition to overnight access. Mr. Malcolm’s counsel put it to Ms. Naylor that the problem in this case was her over- sensitivity to any risk from contact with Mr. Malcolm. It was suggested that that she “just couldn’t get over it” -- despite all Mr.

Malcolm’s efforts, whatever he did would never be good enough to satisfy her. [ 116 ] I do not accept that proposition. Ms. Naylor has good reason to be wary of further contact with Mr. Malcolm, for herself and Chloe. She has cooperated in a gradual establishment of regular access. Her concerns at going further now are understandable. [ 117 ] The order that I make will provide that Chloe shall have overnight access to Mr. Malcolm only when he provides evidence to Ms. Naylor’s counsel as set out below. 1. Mr.

Malcolm is to provide results of a hair test with an explanatory report from the Motherrisk program based on at least three centimeters of hair confirming that he has not consumed alcohol during the period covered by the test. This will provide results covering approximately a three month period. I realize that, as Mr. Malcolm wears his hair quite short, he will have to let his hair grow to complete such a test.

If he chooses not to do this, then it would also be acceptable if he provides test results from a program of urinanalysis over three months with a report confirming that the test results show no indication of use of alcohol. The report must confirm that the testing program is conducted with sufficient security (re samples) and sufficient with frequency and appropriate temporal spacing that abstinence can be established. 2. Mr. Malcolm is to provide documentary evidence of completion of a parenting program. 3. Mr.

Malcolm is to provide evidence of completion of a further program treating perpetrators of domestic violence. [ 118 ] If Mr. Malcolm requires guidance as to appropriate parenting and domestic violence programs, I recommend that he seek advice about programming that will build upon his strengths from the Domestic Violence Unit of the Children’s Aid Society of Toronto, 416-924-4646, Lisa Tomlinson, manager. I believe that there is programming available that would deal with parenting and domestic violence in an integrated manner. [ 119 ] If there is any disagreement as to whether Mr.

Malcolm has met these conditions, then an appointment may be arranged before me. [ 120 ] Upon Mr. Malcolm providing evidence that he has complied with the above conditions, his access to Chloe shall be as follows: 1. On alternate weekends, from Saturday at 10 a.m. to Sunday at 4:30 p.m. If an access weekend falls on December 24 or 25 in any year, then the access shall occur on the following weekend. 2. During Christmas vacation, from Dec. 26 at 10 a.m. to Dec. 27 at 4:30 p.m. 3.

Commencing in 2012, during the summer school holidays for five continuous days, which shall include one weekend pre-arranged under the regular access

schedule set out above. Mr. Malcolm shall advise Ms. Naylor by April 1 st of each year what days he has selected for summer access. Mr. Malcolm shall allow Chloe to phone her mother at any time the child requests. [ 121 ] When the access

schedule changes as set out above, the pickup and delivery back of Chloe shall be transferred to the Hamilton Supervised Access Centre. Mr. Malcolm shall pay the Centre’s fees. Access transfers there will allow Chloe much shorter travel time, and support Ms. Naylor’s need to have the transfer mediated by an organization that is alerted to safety concerns. [ 122 ] If an access weekend occurs at a time when the Centre is closed, then, as suggested by the parties, the transfer of the child shall take place at a police station in Hamilton stipulated by Ms. Naylor. [ 123 ] Until Mr.

Malcolm complies with the conditions set out above, the current temporary order of January 10, 2010 with respect to access shall remain in force, except as modified below. [ 124 ] I make the following further directions as to access and contact between the parties, effective immediately:

1. Ms. Naylor shall facilitate a telephone call by Chloe to Mr. Malcolm once a week, on Thursday evenings between 7-7:30 p.m. Mr. Malcolm shall not insist that Chloe stay on the phone longer than she wishes. When Chloe is able to use email, she may communicate with Mr. Malcolm whenever she wishes using this medium. 2. Mr. Malcolm and Ms. Naylor shall communicate only through the Supervised Access Centre, or counsel, or through email. Ms. Naylor shall, by June 30, 2011, arrange access to an email address for communication with Mr. Malcolm, and shall advise him of this address through counsel.

The parties’ communication via email shall be limited to issues concerning access and the child’s welfare. 3. Mr. Malcolm shall have no direct communication with Chloe’s service providers, except as set out below. Ms. Naylor shall send Mr. Malcolm Chloe’s school reports, redacted to remove information that might disclose her address. Further, Ms. Naylor shall advise Mr. Malcolm forthwith if the child develops a serious health problem, and provide him with copies of relevant records and reports made available to her. In the case of a serious health problem, she shall also permit Mr.

Malcolm to contact Chloe’s treating physician to discuss the information provided. [ 125 ] A restraining order shall issue that prohibits Mr. Malcolm from attending at Ms. Naylor’s place of residence or employment, or from contacting Ms. Naylor except as set out above, or from contacting Chloe except as permitted by the access order above. [ 126 ] I order that Mr. Malcolm shall pay child support in a table amount of $360 monthly commencing November 1, 2010, based on an annual income of $39,200. I am conscious that compliance by Mr.

Malcolm with some of the provisions of my access order will require a financial outlay by him. Therefore, I order that the arrears created by this order shall be paid at a rate of $75 monthly. [ 127 ] It appears to me that success in this case was mixed, and that no costs should be ordered. If either counsel disagrees, an appointment before me should be arranged. Released: March 31, 2011 Signed: “Justice E. B. Murray”