Simpson v. Meditskos, 2019 ONCJ 856

ONTARIO COURT OF JUSTICE CITATION: Simpson v. Meditskos , 2019 ONCJ 856 DATE: November 12, 2019 COURT FILE No.: D21009/19 BETWEEN: ROGER DARRYL SIMPSON Applicant — AND — MARIE MEDITSKOS Respondent Before Justice Roselyn Zisman Heard on October 28, 2019 Reasons for Judgment released on November 12, 2019 Roger Darryl Simpson............................................................................... on his own behalf Roslyn M.

Tsao / Erica Morassutti........... counsel for the respondent / student at law Reasons for Decision Zisman, J.: Introduction [ 1 ] The Applicant (“father”) commenced an Application for liberal and generous access to his son J. born […], 2006, an order that the child not travel outside of Ontario without the prior written consent of the non-travelling parent or order of the court and an order that the father have the right to information about the child. [ 2 ] Although this Application was arguably a Motion to Change the terms of the parties’ separation agreement dated August 5, 2009, the parties agreed that the matter proceed as a focused trial.

Justice Curtis, who was the case management judge, ordered that the parties’ direct evidence be by means of affidavits subject to cross-examination. [ 3 ] The trial proceeded before me on this basis and the only witnesses were the parties. [ 4 ] At trial, the father sought an order for liberal and generous access to his son at a minimum of once a week, an order preventing the Respondent (“mother”) from travelling outside of Canada with the child without his consent, the appointment of the Office of the Children’s Lawyer and an order rescinding the temporary restraining order dated February 20, 2019.

[ 5 ] The mother sought an order dismissing the father’s Application, an order that the terms of the temporary restraining order dated February 20, 2019 be made final and an order that she be permitted to travel with the child outside of Canada without the father’s consent. Both parties sought costs against the other party. Undisputed background facts [ 6 ] The parties were married on November 9, 1996. They separated on December 29, 2006.

They are not divorced. [ 7 ] The father is 60 years old and the mother is 52 years old. [ 8 ] The parties have one son J. (“J.” or “the child”) born […], 2006. [ 9 ] The father loves his son. [ 10 ] The parties entered into a separation agreement dated August 5, 2009 that dealt with issues of custody, access, support and property. [ 11 ] The relevant paragraphs of the agreement provide as follows: (

a) The mother has sole custody of J. with access to the father at the mother’s discretion, acting reasonably; (

b) J. will reside with the mother as this is in his best interests; (

c) The mother shall keep the father advised on all plans and arrangements relating to access and custody and generally on all important matters relating to the child’s health, residence, welfare, education and upbringing; (d)The father shall pay child support pursuant to the Child Support Guidelines to commence when required by the mother and the father shall pay half of the child’s uninsured dental and orthodontal expenses.

No amount is set out in the agreement. [ 12 ] The mother has never sought child support from the father. [ 13 ] From the date of separation until about 2015, the father saw J. about once a week.

Although the parties differ somewhat with respect to the frequency and length of the visits and if the mother facilitated the visits, the differences are not relevant to the issues presently before the court. [ 14 ] In 2014, the father moved into a condominium and the visits began to occur at his home. [ 15 ] From 2015 to 2017, the visits occurred more frequently however, J. infrequently had overnight visits. [ 16 ] In 2017, the father also became involved in J.’s hockey activities. [ 17 ] On May 10, 2017 the father was involved in a motor vehicle accident that has affected his physical and mental health. [ 18 ] The father has not had any access with J. since about June 2017.

History of court proceedings [ 19 ] The father commenced the herein Application on June 25, 2018. [ 20 ] At the first case conference on December 6, 2018, the parties agreed that the father authorize the release of his medical records and any criminal charges and convictions to mother’s counsel. Justice Curtis ordered that the disclosure was be done in 60 days. The parties agreed that the father have a visit with J. at Fairview Mall for a few hours and that J. could leave the visit early if he wished.

Justice Curtis’ endorsement stipulated that if J. refused to attend the visit that this would not be a basis for a contempt motion. [ 21 ] Justice Curtis dismissed the father’s request for the appointment of the OCL. [ 22 ] J. did not attend the scheduled access visit with his father. [ 23 ] A further case conference was held on February 12, 2019 and the father also filed a motion for liberal and generous access in accordance with a specified access schedule.

The motion was adjourned to March 1, 2019 as the father had just been served with the mother’s lengthy response to his motion. [ 24 ] Another case conference was set for February 20, 2019. As a result of the father having been charged with criminal harassment, the parties entered into a consent restraining order that the father not have any contact directly or indirectly with the mother or come within 50 metres of her home, school, workplace or any other place he thinks she may be. [ 25 ] The father’s motion for specified access was heard on March 1, 2019 and for oral reasons [1] was dismissed.

The father was ordered to pay costs of $2,500. [ 26 ] Justice Curtis held that at present the child was at risk of emotional harm from the father’s behaviour and expressed her concerns about the father’s current mental health. However, she stated that there were things the father could do and should do before the trial to make things better. Justice Curtis suggested that he see a doctor, perhaps a psychiatrist, obtain a diagnosis, a treatment plan and comply with that plan. [ 27 ] Justice Curtis waived the necessity of a settlement conference and the matter was adjourned to the assignment court to set dates

for trial. Subsequently, a motion was granted removing father’s counsel as counsel of record. [ 28 ] Although the father was required to file an affidavit as his direct evidence, he only served and filed a trial management conference brief that contained his opening statement. He adopted this statement under oath and relied upon it as his direct evidence.

Counsel for the mother did not object to the father also relying on several medical reports and an application for ODSP that were attached to the brief. [ 29 ] The father has not complied with the order to provide his medical records as he states that he required more information about the type of records and timeframe pertinent to the requested reports. He has not paid the cost order as he states that he cannot do so due to his financial circumstances.

Credibility assessment [ 30 ] Generally the parties’ evidence did not differ significantly about various events that have led to the current estrangement between the father and son, although the father provided some explanations and context for his actions. [ 31 ] However, where there is any disparity in their evidence about past history or past events, I prefer the mother’s evidence. The mother’s evidence was straightforward, did not waver and on many issues was supported by the father’s own text and email messages. [ 32 ] The father’s evidence was vague, contradictory and rambling.

Often times the father was extremely emotional and was unable to focus on the issues or respond to straightforward questions. Nature of relationship prior to 2017 [ 33 ] It is the father’s position that it is only since his accident on May 10, 2017 that his personality and demeanour changed and that for a short time caused him to act inappropriately.

However, I find that there is a history of the father acting hostile, aggressively, threatening and generally inappropriately to both the mother and child. [ 34 ] For example, in April 2013, when the mother was dropping off the child for a visit and seeing that the father was not in a stable state told the child to get back into the car, the father whispered in her ear that he was going to “slit [her] throat”.

The father’s email to the mother confirms he made this comment. [ 35 ] The father testified that when the child was about 6 years old he recalling standing in the Indigo bookstore telling him that his greatest fear was that his mother would take him away and that he would always be there for the child.

He did not agree that this was a criticism of the mother or recognize that this was an inappropriate comment to make to such a young child. [ 36 ] At a pick up in August 2016, the father called his brother and the mother, “pussy ass bitches” in front of the child as he was angry that the mother had gone to visit his family. [ 37 ] The father would leave inappropriate text and voicemail messages for both the mother and the child. His anger and aggressive behaviour escalated in June 2017. Incidents in June 2017 [ 38 ] In June 2017, J. planned to spend a week at his father’s home.

Despite the mother’s concerns, she supported the child’s wish. [ 39 ] On Saturday June 3, 2017 after only spending 3 days with his father, J. sent the mother a text and asked that she pick him up and urged her not to tell the father that it was him who wanted to leave. J. wanted the mother to say that she wanted him home. [ 40 ] On Sunday June 4, 2017, the mother arrived and upon learning that she was there to pick up J., the father began yelling, called the mother a liar, threw the child’s phone across the room and shoved her out of the apartment.

The mother heard the father continue to scream and swear at the child. The mother called the police. [ 41 ] The father opened the door and yelled at the mother in front of J. The mother pleaded for the father to just let J. leave. Hearing the commotion, neighbours had called security, at this point both the child and father were crying.

The father ran to the stairs, returned to give J. a hug and then left the building. [ 42 ] The police reported the incident to the Catholic Children’s Aid Society. [ 43 ] Later that day, the father left J. a voicemail and a text message saying that he did not believe what happened and begged J. to call him and further stated that, I don’t believe you fuckin’ join up with your mom and stab me in the back I might as well just fuckin’ kill myself the next minute buddy. [ 44 ] On June 14, 2017 it had been arranged that the father would take J. out for pizza after school.

J. called his mother to ask if she could take him to his hockey tournament as the father was not able to. According to the mother, the father had agreed he would be taking their son to all the tournaments, but she agreed. [ 45 ] After the call, the mother received an aggressive message from the father and upon calling J. back, she heard the father screaming. Upon learning they were parked in front of her house, she drove home. When the mother arrived, J. ran out of the car in tears.

As the mother drove around the corner to enter her garage the father aggressively cut her off with his car. [ 46 ] The father would not respond to several questions abut this incident or stated he could not recall. He did not recall screaming but if he did it was because he has a loud voice and it could sound like yelling. He did agree that it was a heated exchange but that he was upset with the mother not with his son. He finally agreed that J. would have heard his end of the telephone conversation.

[ 47 ] Both parents were present during J.’s hockey tournament on June 16, 2017. The mother deposed that during the lunch hour, the father called the mother a “fucking maggot” in public and in front of J. He also attempted to grab J. and take him away. The father did not dispute this. [ 48 ] Later that day, the father sent J. a text message stating, You are a freaking total..PUSSY meow…meow meow…get some kitty litter and cat food…I will die before the summer is done, I have many cancers...you are a punk but I still love you. [ 49 ] The father did not deny sending this text.

He gave a rambling explanation about this text. He testified that he had a good-natured relationship with his son, spoke of providing discipline to him and justified the text as in his view that it was just ribbing and his son was able to take this kind of ribbing. [ 50 ] When asked to explain his comment about having cancer, he testified that he thought his hernia was cancer, he hoped he did have cancer and hoped he would die. [ 51 ] The father then testified that he was upset when he sent the text, in pain day and night and there was no malice intent.

He went to say that all he wants is to be able to apologize and then finally admitted that the text was totally inappropriate. [ 52 ] On June 18, 2017, both parents were present for another hockey tournament. The father and J. were in the hockey change room when the mother arrived. J. asked her to stay so she sat on the opposite bench. The father took a wad of $20 bills and began waving them at J. The father kept telling J. to “slap shot the puck to my face”. The mother interpreted this to mean that he would give J. the money if he did so.

J. refused and the father laughed at him, leaned in close and whispered “you’re a punk”. He then sent several text and voicemail messages to the mother and J. telling him that he was benched.

At the time, the father was a trainer for the hockey team. [ 53 ] The father explained that he was upset as June 18 th was also Father’s Day and J. told him that he did not know if he wanted to spend the day with him so he told him, “why don’t you take a slap shot in my face.” He did not deny sending the text messages and further stated that he told the mother “to stop treating him as a maggot” as he felt the mother was demeaning him in front of J. and negatively affecting their relationship. [ 54 ] The next day on June 19, 2017 the father admitted that he went to J.’s school to speak to the principal and to try to see J. [ 55 ] In July 2017, the Catholic Children’s Aid Society conducted an investigation regarding the referral from the police with respect to the incident on June 4 th . [ 56 ] After completing the investigation, the society closed their file and sent a closing letter. [ 57 ] The closing letter of July 27, 2017 states: I have met with your family to speak about these concerns [related to June incident] and I have also had contact with J.’s school regarding their assessments as well and I have found information to support the concerns reported.

It is my recommendation that you continue to act protectively by expecting Roger to manage his emotions better and if he is not able to then it may be best that you continue to not allow J. to see his father. [ 58 ] According to the father he only had a telephone discussion with the society worker and felt he should have been present during the interview with the child. He stated that the investigation was “a joke, bogus and unfair” and the social worker was a “clown”.

The father stated that the social worker recommended that he take a “fathering” course which he felt he did not need. [ 59 ] Later that month, the father used J.’s “Roblex” account to send him messages that were also accessible to his friends accusing him of being like his mother, being brainwashed and hating him. [ 60 ] The father agreed that he sent these messages and used this account as J. was not answering his phone.

According to the mother, J. was humiliated and uncomfortable with these messages and the fact that they were viewed by his friends. [ 61 ] At another hockey tournament on August 11, 2017, the father entered the dressing room and cornered J. in from of his teammates and began to yell that he was wasting his money on lawyers to take the mother to court. He told J. he had better “step up” and take his side in court. J. began to cry and did not want to stay so they left. The father followed them to the parking lot and continued to yell. The father banged the hood of the car as they drove away.

Both the mother and J. were shaken. [ 62 ] After this incident the father sent further aggressive and hurtful text messages such as the following: Hope you KNOW!!! That our son see you for the Cant wait till you are Coco for cocoa puffs just like yo MAMA!!!

TYRANT!!! TRYANT!!! TRYANT!!! that you are you are NO freakin CHRISTIAN [ 63 ] The father agreed that he sent this text and stated that the mother was a “fascist”. [ 64 ] On September 24, 2017 the mother received a letter from the father’s counsel asking for her to arrange access as the father had not seen his son for months and to prevent further escalation.

At this time although the Application had been issued the parties had not yet attended before a judge. [ 65 ] The mother replied providing some of the background and advised that she would be agreeable to the father resuming access if he attend anger management treatment, attend Alcoholics Anonymous and attend therapy to deal with his mental and emotional issues. [ 66 ] On an early morning in September the mother and child saw a bag flying over the fence and were startled. The father had thrown a bag with a pair of running shoes for J. over the mother’s fence.

The father did not explain why he had just not left the shoes. [ 67 ] In October 2017, the father left sticky notes with inappropriate language on the mother’s garage door. [ 68 ] On Halloween 2017, the father unexpectantly came up behind J. and his friend. The mother asked the father what he was doing as he was scaring them. The father admitted that he had attended in the area to see his son. The father testified that his son hugged him, fist bumped him and said he loved him.

The mother testified that if this happened she did not see or hear it. [ 69 ] In November 2017, a neighbour reported to the police that the father had jumped over the mother’s fence. The police attended at the mother’s home and upon checking her security footage, the mother confirmed that this had happened. [ 70 ] Also in November, the father sent J. a text message asking for forgiveness. The messages stated: Please tell your mother to help me NOT HURT me…Begging you J. I love you.

I am so sorry that your mother and I fight so..FORGIVE ME..God bless you my son, I am sorry for every way I have failed you and also for lashing out at your sweet mother. [ 71 ] The father agreed that he sent this text but disputed that he sent it to J. despite the opening line. It was his evidence that he sent it to the mother and it was a cry for help. [ 72 ] Despite the fact that the parties were in court and had already attended two case conferences, the father continued to behave inappropriately. [ 73 ] In March 2018, the father sent J. a text message and card for his birthday.

The card was left in the mailbox and read: HAPPY BIRTHDAY MISS DAD I LOVE YOU DON’T BE A PUPPET J. I AM BEGGING YOU…STOP LETTING HER FART IN MY FREAKIN FACE [ 74 ] The father agreed that he sent the card but testified that it was a joke. [ 75 ] On December 25, 2018 the mother found a package from the father in her mailbox. The package contained a tube with the word “SERIOUSLY” written on it. The tube was covered in bright red paint that was still wet and the paint got all over her hands. There was also a bag with a football jersey.

The package also contained a used Lindt chocolate wrapper over another chocolate bar which had “J.X. Simpson” and “WTF” scrawled on it four times as well as a mixture of beans and grains. The mother gave the football jersey to J. and did not believe that he saw the other items, but he did see the paint on her hands. [ 76 ] The father explained that he had eaten a chocolate bar and left the wrapper in the bag. He explained that the tube was a rainmaker that J. had made when he was 3 years old and he hoped it would bring back memories for him. The father testified that contrary to the mother’s

interpretation of WFT (meaning “What the Fuck”) it stood for, “What this freakshow”. He testified that J. and he had their own inside jokes that only the two of them understood. He testified that his only mistake was that the paint was not dry when he left the gifts. [ 77 ] On January 4, 2019, the mother drove home from work and drove into her garage and heard something that cracked under the wheels of her car. J., who had been home, told her that he heard something which had sounded like rocks hitting his window. [ 78 ] The next morning the mother found 10 peach pits on the ground in front of her garage door.

Later, she checked her security footage and it showed the father had driven up her laneway, opened his window and threw something out of his window towards the garage door. [ 79 ] According to the father’s opening statement, on January 4, 2019, the father drove to the mother’s home and threw several peach pits at the direction of the home. The pits were from peaches that J. ate when he was a little boy and the father had saved them. The father was hoping that his son would see the pits and remember some of the fun moments they shared together.

[ 80 ] However, when being cross-examined about this incident, the father denied he threw peach pits, insisted they were plum pits. He also then did not agree with the timeline and testified that he thought he threw them in December.

The father also could not explain why in his February 25, 2019 affidavit he denied having any knowledge of any peach pits or any other items thrown at the mother’s house. [ 81 ] As a result of this incident and the items left in her mailbox at Christmas, the mother became cautious opening her mailbox and would double check the ground around her house and garage and checked her tire pressure to make sure nothing had been done to them. [ 82 ] Ultimately, the mother contacted the police. The mother advised the police about the incidents that had occurred and provided a copy of the security footage.

The mother also advised the police that the father would call herself and J. multiple times in a row within a day. She was advised to block the father’s phone number from her phone. The mother did so, but continued to receive calls from “blocked” numbers with no caller ID. [ 83 ] Several weeks later, the police advised the mother that a warrant was being issued for the father’s arrest. He was charged with criminal harassment.

Those charges are still pending. [ 84 ] The father confirmed that J. had blocked his number but that he calls him everyday at 4:00 pm from a pay phone and J. either hangs up or does not answer.

The father sometimes leaves a voice mail. [ 85 ] In cross-examination, the father would not acknowledge that J. knew that it was him calling, that J. has his own cell phone or even that J. knows how to text him. [ 86 ] When asked if he would consider writing a letter apologizing to J. the father initially agreed then stated that he would prefer a face to face meeting [ 87 ] When asked if he would accept a letter from J., the father testified that he would not as he does not know what the mother told him to say. [ 88 ] The father was very emotional about his desire to see J. and despite acknow​ledging it would be hard for J. to have a face to face meeting he felt it was his “birthright” for J. to hear his apology face to face. [ 89 ] When asked if he wanted repair his relationship with his son why he did not attend therapy or take medication, he replied that he did not fear death, he only feared not seeing his son.

Father’s mental health [ 90 ] The father’s justifications for his emotional outbursts and inappropriate behaviour varied many times. At times he testified his comments were a joke. Other times he testified that his behaviour was due to his motor vehicle accident on May 10, 2017 and insisting that such behaviour only lasted a few months. Other times he testified that his behaviour was a result of not seeing his son. [ 91 ] The father testified that in the last two years he has been in emotional turmoil, he lost his home, lost his ability to train and exercise and he has not seen his son.

He described himself as a “shadow of the man” he used to be. He described that he is despondent, depressed with an overwhelming sense of apathy and that he was in physical pain. [ 92 ] He confirmed that after the accident, he called the mother and she and J. came to the scene of the accident. He was taken to the hospital and was released that evening. He testified that he left against doctor’s orders and was in shock.

He added that he wished he had been killed that night. [ 93 ] The father went to a walk-in clinic the next day or so, he had an x-ray for his hip and no treatment for a concussion. [ 94 ] He testified that he had treatment for his hernia for about 3 months and an operation on September 20, 2017 and was not able to control his temper during this timeframe. [ 95 ] In the father’s February 4, 2019 affidavit he deposed that over the last 18 months he sought the assistance from several psychologists and psychiatrists with respect to his depression and that they all advised him that his depression is caused by him not being able to see his son. [ 96 ] The father further testified that he saw the psychiatrist and counsellor from the Centre for Addiction and Mental Health (“CAMH”) and saw someone from the insurance company.

He is not currently receiving any treatment. [ 97 ] The father only produced some reports from CAMH. The consulting report dated June 13, 2018 by Dr. Hoppe, a staff psychiatrist of the CAMH Crisis Clinic, states that the father voluntarily attended at the emergency department for worsening depressive and post traumatic symptoms. He was referred to the crisis clinic and was interviewed and assessed by Dr. Hoppe and a counsellor to provide an assessment and management recommendations. [ 98 ] The father told Dr.

Hoppe that he had escalated his alcohol use after the accident and was drinking up to a bottle of wine a day from after the accident but as of September 2017 had decreased his drinking. He had been using half a gram of marijuana daily which he had now abstained from using. [ 99 ] The father reported that he continued to be depressed, that physically he was better but emotionally he was worse.

He reported that he had trouble sleeping and continued to dream about the accident, his ex-wife screaming at him or being rejected by his son and that he experienced occasional panic attacks. [ 100 ] The father stated that his current stressors where his mental health symptoms and not being able to see his son.

[ 101 ] Dr. Hoppe did not diagnose any psychosis and no symptoms that were consistent with generalized anxiety, panic disorder, social anxiety or obsessive-compulsive disorder. He did not diagnose post-traumatic stress disorder. [ 102 ] The father was diagnosed by the referring physician at the Crisis Clinic with a probable major depressive disorder. It is not clear from Dr. Hoppe’s report whether he agreed with this diagnosis as he only states that the father’s mood was depressed. [ 103 ] Dr. Hoppe discussed both psychological and pharmacological treatments with the father.

He recommended treatment with an anti-depressant that the father was not interested in. Although the father expressed interest in psychotherapist treatment, he testified that he attended the crisis clinic for some counselling and he also attended a father’s support group but did not find it useful. [ 104 ] The father generally agreed with the information in the CAMH reports. He agreed that a diagnosis of depression was a mental health issue.

However, the father stated that his depression is minor, that everyone has depression and if he could see his son he would heal emotionally and physically. [ 105 ] The father gave some vague evidence about attending therapy with a psychiatrist from the insurance company to prepare a report, but he also did not find this useful. He also testified that he had been asked his doctor many times for a referral to a psychiatrist and had given up.

No referral or confirmation from his doctor was provided. [ 106 ] In addition to the reports form CAMH, the only other medical information filed by the father was a copy of his ODSP application signed by Dr. Tran, a physician from a walk-in clinic that the father was seeing. His conditions were outlined to be chronic pain from his left hip and that he suffers from anxiety and depression with low mood and low energy. He was described to have either no or minimal symptoms or concerns that affect his intellectual or emotional wellness.

He was described to have ongoing pain that had lasted for over a year and a lack of motivation and low motivation that had lasted for more than a year and it was unknown when these conditions would improve. No further information was provided by Dr.

Tran on the application. [ 107 ] The father testified that he had been denied ODSP and although he appealed the decision his appeal was also denied. [ 108 ] Although the father testified that once his hernia was repaired in September 2017 his emotions were in check, he sent various concerning emails to mother’s counsel between April to July 2018, being both disrespectful and sarcastic. [ 109 ] In an email to mother’s counsel on April 18, 2018 he stated: So as I suspected and imagined you are just as dishonourable, disrespectful and judgemental as my estranged wife, I hope you are going to represent Saint Maria as we go forward.

Thanks so kindly, you are a peach and a pleasure as much or more so than your beautiful and alluring client. I hope that you are doing well and that you and SATAN Maria destroy me before I [she] may do irrevocable harm to my SWEET and Beautiful son. [ 110 ] In further emails he continues to demean counsel, the mother and Justice Curtis. The mother testified that on other occasions the father has called her “Satan”.

Other issues [ 111 ] The father testified that he wanted the temporary restraining order rescinded as he denies parking in front of the mother’s house and the last time he attended there was in October 2018. He further testified that he wished the restraining order lifted so he can knock on the door without a fear of being arrested. [ 112 ] The father feared that the mother would remove the child permanently from Canada. His only basis for this concern was that he maintained the mother had travelled to Australia with J. for months.

However, he conceded that he had consented to that trip in April 2011 and that it was only for 3 weeks.

Analysis [ 113 ] As the parties agreed that the relief sought would be considered as an initial Application since the father was asking for new relief as opposed to a motion to change the terms of the separation agreement, the only consideration for the court is what order is in the best interests of J. [ 114 ] Any proceeding with respect to custody of or access to children is determined according to the best interests of the particular child before the court in accordance with the factors set out in section 24 (2) of the Children's Law Reform Act.

The best interests criteria are as follows: Best interests of child

(2) The court shall consider all the child's needs and circumstances, including, (

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

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

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

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

(

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

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

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

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

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. [ 115 ] J. is 13 ½ years old. Although no independent evidence such as a Voice of the Child Report was available to the court, I find that it is clearly the child’s wishes not to have contact with his father at this time. [ 116 ] The father had consistently reached out to him through texts, social media, telephoning him and attending at his school.

If J. had wished to have contact with his father, he would have done so. [ 117 ] I accept the evidence of the mother that when the order was made on December 6, 2018 for an access visit she attempted to persuade J. that it would be nice to meet his father and she provided him with assurances that he could leave early if he felt uncomfortable. The mother chose not to tell J. about the court proceedings or that the visit had been ordered by the court.

I accept that she made this decision in considering her son’s best interests and she is the parent in the best position to determine how best to approach the issue of seeing his father with her son. [ 118 ] I further accept the mother’s evidence that she has not interfered or negatively influenced J. with his relationship with his father.

I find that the mother encouraged a relationship between J. and his father and there were times when the father and J. had positive visits. [ 119 ] Unfortunately, I find that the father has been solely responsible for the current estrangement from his son. [ 120 ] Although it may be that the father’s motor vehicle accident on May 10, 2017 caused him such physical and emotional pain that it caused him to act in a volatile and inappropriate manner, however, he did not obtain the type of medical care for his mental health that it is clear he required. [ 121 ] Many times during the trial the father stated that it was only for the few months after the accident and until he had surgery for his hernia that he acted inappropriately, but he has continued to act in ways that raise serious concerns about his emotional stability.

He insulted his son and embarrassed him by causing scenes in front of his hockey teammates and by discussing their estrangement on social media. [ 122 ] Further, at other times in the trial and even in texts to his son he has talked about wanting to die. During this trial the father did not act aggressively or disrupt the proceedings as was noted on other court attendances. However, his presentation was extremely emotional and volatile. [ 123 ] The father has attended at the mother’s home on numerous occasions unannounced and thrown items over a fence and thrown peach pits on the driveway.

He has left strange gifts.

His explanations for his actions make no sense and I find that his actions and his explanations are bizarre. [ 124 ] The father was given several suggestions as to the steps he needed to take to begin to repair his relationship with his son but has failed to follow any of those suggestions. [ 125 ] Even before the court proceedings commenced, the mother outlined the steps she needed to see the father take before contact with J. [ 126 ] In delivering her decision on the temporary motion on March 1, 2018 Justice Curtis also outlined the steps the father needed to take namely, attend for therapy. [ 127 ] In the CAMH assessment, Dr.

Hoppe also made recommendations for medication and counselling. The father testified that he chose not to take medication but was interested in counselling but he then testified that he did not find the counselling or support group he attended useful [ 128 ] Although the father testified that he sought a referral from his doctor at a walk-in clinic many times, he did not provide any proof that he is pursuing obtaining psychiatric assistance. Furthermore, the father then testified that he has now given up trying to find a psychiatrist.

Other times, he testified that he did not need any therapy or counselling and all he needed was to see his son [ 129 ] The father has taken no responsivity for his actions and has shown no insight in to how his behaviour has impacted his relationship with his son. By blocking his telephone number J. has made it clear he does not wish to speak to his father. The father does not appreciate that phoning J. everyday would be annoying to his son and would show a lack of respect for his son’s wishes.

Unless the father is able to understand why he has acted in the manner he has acted and how his behaviour has impacted his relationship with his son, there is no way he will be able to repair the damage he has caused. [ 130 ] If in the future J. wishes to have contact with his father, he should feel free to do so. It is important that J. be aware that he has this option.

I find that the mother can be trusted to facilitate contact with the father if J. wishes to resume his relationship with his father. [ 131 ] The father should also be able to send appropriate letters, cards and gifts to his son on special occasions. However, given the very inappropriate correspondence and gifts the father has sent it is important that the mother in her sole discretion vet the items to ensure they are appropriate.

Restraining order [ 132 ] Pursuant to

section 46 of the Family Law Act, the court may grant a restraining order if the applicant “has reasonable grounds to fear for his or her safety or for the safety of any child in his or her lawful custody.” [ 133 ] In McCall v. Res [2] Justice Spence interpreted this provision and held that the fear must be reasonable, the fear may be entirely subjective so long as it is legitimate and the fear may be equally for psychological safety as well as for physical safety.

I agree with his conclusions. [ 134 ] Applying that test, I find that the mother’s fear of the father is reasonable in view of his unwanted intrusions at the mother’s home. It is reasonable that the mother would fear for her psychological and physical safety and seek an order that the father not attend. As the father does not have contact with J. there is no need for him to attend at their home. Non-removal [ 135 ] There is no basis for the father to fear that the mother will permanently remove J. from this jurisdiction.

She should not have to try to negotiate with the father about travel plans as it is inevitable given the history that he will be difficult to deal with. Order as follows: 1. The Applicant shall have access to the child, J., born […], 2006 in the Respondent’s discretion and in accordance with his wishes. 2. The Applicant shall be permitted to send a card and gifts for the child at Christmas and the child’s birthday. The Applicant shall also be permitted to send letters to the child four times a year. 3.

The Respondent shall vet all cards, letters and gifts and provide them to the child if she deems them to be appropriate. 4. The Respondent shall be permitted to travel with the child outside of Canada without the Applicant’s prior written consent. 5. For clarity, all other terms of the separation agreement dated August 5, 2009 continue in full force and effect. 6. A separate restraining order shall issue in the same terms as the temporary restraining order dated February 20, 2019. [ 136 ] As the successful party, the Respondent is presumed to be entitled to costs.

If counsel and the Applicant cannot resolve the issues of costs, counsel for the Respondent shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. The Applicant shall submit his written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Respondent’ s costs submissions. All submissions to be filed with the trial co-ordinator.

If there is reference to any case law, copies of the cases are not necessary. ___________________________ Justice Roselyn Zisman Released: November 12, 2019