L.E.S. Applicant v. M.J.S. Respondent Library Heading Judge: The Honourable Justice Elizabeth Jollimore, 2014 NSSC 34

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: L.E. S. v M.J.S , 2014 NSSC 34 Date: 2014-02-05 Docket: SFHMCA-074168 Registry: Halifax Between: L.E.S. Applicant v. M.J.S. Respondent Library Heading Judge: The Honourable Justice Elizabeth Jollimore Heard: January 13 and 14, 2014 in Halifax, Nova Scotia

Summary: At a review hearing, the father’s supervised access to his children was expanded and directions provided for a further review. Key Words: Family, Maintenance and Custody Act , access, supervision, review hearing Legislation: Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3, subsection 15.1(4), subsection 15.2(3), subsection 16(6), subsection 17(4) Maintenance and Custody Act , R.S.N.S 1989, c. 160,

section 18 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: L.E. s V. M.J.s , 2014 NSSC 34 Date: 2014-02-5 Docket: SFHMCA-074168 Registry: Halifax Between: L.E.S. Applicant v. M.J.S. Respondent

Judge: The Honourable Justice Elizabeth Jollimore Heard: January 13 and 14, 2014, in Halifax, Nova Scotia Counsel: Susan Young for Ms. S Nicolas Hoehne for Mr. S By the Court: Introduction [ 1 ] This is a review hearing relating to Mr. S’s supervised access to his children. [ 2 ] Three years ago, Ms. S applied for a parenting order and child maintenance under the Maintenance and Custody Act , R.S.N.S. 1989, c. 160. Her application was resolved at a settlement conference in 2012 and a comprehensive order was granted. Since then, there have been a series of reviews focussing on the supervision of Mr. S’s access.

As time passed, Mr. S no longer agreed with having his access supervised and this hearing was scheduled to determine whether supervision remains in the children’s best interests. [ 3 ] The couple have four children: a fifteen year old daughter (S), a thirteen year old son (N), a ten year old son (

R) and an eight year old daughter (K). Presently, only the two youngest children have access with their father. The older two children determine their own access. Family history [ 4 ] The parties married in 1997. In early 2003 Mr. S experienced a mental breakdown and threatened to kill himself. He entered a day treatment program and was diagnosed with schizophrenic tendencies. At the time, the couple had two children, a daughter and a son, then aged four and almost three, respectively. Following Mr.

S’s breakdown, child welfare authorities became involved and were engaged with the family for approximately three months. [ 5 ] The couple’s third child, their son R, was born in 2003 and their youngest child, their daughter K, was born in 2005. Ms. S says she was the children’s primary caregiver. Mr. S says that when he and his wife were together they were both caregivers: when she experienced flare-ups of her multiple sclerosis, he would take over because she needed to sleep or was in constant pain. Mr.

S said he would make meals, look after the children and clean at these times. [ 6 ] During a discussion about housework in September 2006, Mr. S became agitated and threw a television remote control at Ms. S. She ducked out of the way and the device hit their daughter K, who was then fifteen months old. She told Mr. S she would call the police, he said “I don’t care” and then punched her in the head. Mr. S was charged with assault and pled guilty. He was sentenced to a year of probation, was ordered to perform community service and was required to take

part in a program dealing with domestic assault. The couple separated. Ms. S and the children moved to a shelter. She also applied to the court in Ontario for custody of the children. Mr. S didn’t contest this application, saying that he and his wife had agreed before their marriage that if they ever had children they would never fight about the children in court. The court granted Mr. S partially supervised access with the children on alternate Saturdays for four hours. Ms. S says her husband didn’t exercise his access on a consistent basis.

He says that both parties canceled visits. [ 7 ] After approximately fourteen months apart, the parents reconciled in November 2007. [ 8 ] In April 2008 the youngest child, two year old K, ingested some of N’s autism medication. Local child welfare authorities were involved for a very brief period of time. That same month, the little girl was sexually assaulted by a neighborhood child. Child welfare authorities renewed their involvement with the family. Ms.

S says she recognized the family’s circumstances weren’t ideal and the family moved to Newfoundland in September 2009. [ 9 ] After the move, N expressed disappointment that he no longer had a case worker. He once locked himself in a washroom in protest. After his mother managed to talk him out of the washroom, she took him to the hospital to ensure he hadn’t harmed himself. At the hospital the boy told a police officer that he was being abused.

Child welfare authorities were called and interviewed N, who eventually admitted he’d made up the story to get a new case worker. [ 10 ] Shortly after this incident, the mother says that a family friend reported to the RCMP that Mr. S had sexually assaulted her young son, variously described as three and four years old. [ 11 ] Mr. S denied the accusation and suggests the report was fabricated. The boy did not disclose any abuse to the RCMP when he was interviewed. The RCMP were told that the boy disclosed the abuse to his mother and grandparents who questioned him extensively.

In the absence of any reasonable prospect of conviction, Mr. S was not charged. Regardless, one officer who spoke with child welfare authorities in Nova Scotia remained convinced there was grave reason to be concerned about Mr. S. His concern was premised on the truth and accuracy of the reports made by the mother and grandparents and his view that a four year old would not have the knowledge to describe what this child is said to have described.

Whatever the criminal courts might say about this, child welfare authorities have acted on the basis that this raises a substantial risk to the S children. [ 12 ] Three of the S children were interviewed and Ms. S was told that none of them exhibited signs of abuse. In December 2009 a child welfare case worker told Ms. S that her husband was to have no contact with any of the children. This meant that Mr. S couldn’t live with the family with the result that Ms. S couldn’t afford to maintain the home. She and the children moved to Nova Scotia in February 2010.

As directed by child welfare authorities in Newfoundland, Ms. S contacted child welfare authorities in Nova Scotia when she arrived here. [ 13 ] Mr. S moved to Nova Scotia at the same time as his wife and children.

[ 14 ] In Nova Scotia, arrangements were made through the Department of Community Services for Mr. S to have supervised time his children. This lasted until October 2010 when Ms. S stopped the visits. Ms. S says she stopped the visits on the advice of Josephine Burchill, a long term social worker employed by the Department of Community Services. According to Ms. S, she was advised by Ms. Burchill that Mr. S’s visits should be stopped because when he missed visits or cancelled them on short notice the children became upset and would act out. In contrast, in her case notes, Ms.

Burchill wrote that when she telephoned Ms. S, Ms. S “stated that she [Ms. S] has decided to suspend visits due to the impact of [sic] the children when [Mr. S] does not follow through with the visits as scheduled.” The emphasis is mine. [ 15 ] The mother says that the father only phoned the children three times in the last three months of 2010. [ 16 ] The Department of Community Services closed its file on this family in September 2011. Litigation history [ 17 ] The parties were first in this court in October 2011 when they appeared before Justice Lynch and consented to an interim order providing that Mr.

S would have access to the children every Saturday at Veith House for an hour. At the discretion of the access supervisor, his access would increase to ninety minutes. It was specifically provided that the parties would act “with the children’s schedules, prior-planned activities, and appointments in mind and respect the wishes of the children when enforcing access visitation.” The access supervisor would report when the parties next came to court in February 2012. Final hearing dates were scheduled. [ 18 ] By the date of the February conference, supervised access still hadn’t started.

The parents decided they wanted to participate in a settlement conference, so this was scheduled. [ 19 ] The settlement conference was successful and the trial was cancelled. The parents reached a comprehensive agreement that included continuing supervised access. The children’s schedules were to be considered in scheduling these visits. There was to be a review in three months and Mr. S was allowed telephone calls with the children once each week between 6:30 and 7:00 p.m. Mr. S says he didn’t have his wife’s contact information so the children would need to call him.

The order didn’t identify who would initiate the calls. [ 20 ] At the review in July, the parents agreed Mr. S’s visits would be ninety minutes long. Ms. S was taking the children on holiday and Mr. S said he wanted to make up any visits he would lose as a result of this. He said that he wasn’t having telephone access. Another review was scheduled. [ 21 ] At the review in September 2012 there was no change to the outstanding order. It was reported that Mr. S was now having telephone access. A further review was scheduled for January 2013.

Veith House’s access report arrived on the day of the January conference, so there was no progress in discussing any further changes. Two additional review hearings were scheduled: one in February and one in April. The requirement that Mr. S’s access be supervised was not changed. This hearing was scheduled at the April 2013 review. The evidence [ 22 ] Each parent filed an affidavit. Both were cross-examined. I also heard testimony from Josephine Burchill, a long term social worker at the Department of Community Services, and Noreen Richard, an access supervisor at Veith House. [ 23 ] In her affidavit, Ms.

S tells me that N is autistic and doesn’t deal well with change. She tells me about his attention-seeking behaviour in Newfoundland when he locked himself in a washroom. She also tells me that K was struck by a remote control thrown by her father; ingested her brother’s autism medication; and was sexually assaulted by a neighbourhood child when she was very young. I know that S graduated from grade six and Mr. S was unable to stay for her graduation party and that the two older children don’t attend access with their father any longer. [ 24 ] Mr.

S makes even less mention of the children in his affidavit. [ 25 ] Various labels are attached to the children in the “Child Information” portion of the Veith House access observation notes. For example, N is described as having Asperger’s syndrome or autism. Some notes say that S is “ADHD/ODD”, K has “ADHD spectrum disorder ODD tendencies” and R has “ADHD oppositional defiant disorder”. These labels are not consistently applied to the children: on occasion, there’s no note of K having any special needs, while all the other children do and other times, S has no noted special need while all the other children do.

At no point in the evidence did any witness directly identify exactly what diagnoses the children have and what these mean in terms of structuring access to be in their best interests. [ 26 ] I was provided with over 275 pages which comprise the Department of Community Services’ file materials. Materials date from late 2009 until mid-2011. In testimony, there was specific reference to only a fraction of the Community Services’ file, though it was admitted into evidence in its entirety.

Without testimony, it is difficult to know what to make of these materials: I have no context and can’t assess the accuracy and completeness of the notes. From my perspective, it is preferable if counsel identify the relevant materials and admit only those upon which there is testimony or to which reference is made in an affidavit. [ 27 ] At the core of my decision-making are the children’s best interests. The parties have offered little evidence about this. If I turn to the Community Services’ file for information, I’m faced with material that is dated and calls into question what Ms.

S tells me. [ 28 ] For example, the Community Services file doesn’t disclose the origins of the children’s various diagnoses, it merely records what Ms. S reports to Ms. Burchill or others. It was Ms. S who provided the Department with the information that N has autism, and R and K both have ADHD (though she later said that R “appears to have ADHD and OCD” and K “appears to have ADHD”). Ms. S described S as not having a diagnosis but being “just under the wire”. [ 29 ] In contrast, reports from the three younger children’s teachers (all but S’s teacher are questioned) indicate that “None of these

children are hyperactive or have outbursts. The school has no behaviour concerns with any of these children however [Ms. S] paints a different picture of them.” One teacher said that it’s as if Ms. S “wants there to be a problem” with the children. Community Services’ materials note that S, R and K have no known physical, mental or social development delays, while N has some delays and was seen by a psychologist “for a possible diagnoses [sic] of Autism”, and K was being followed by a pediatrician for a possible diagnosis of ADHD.

These possible diagnoses were not confirmed when the child protection file was closed. The pediatrician is reported as having said that she doesn’t think Ms. S is “always overly truthful with her.” Mr. S’s position [ 30 ] Mr. S did not describe the access arrangement he’d want, aside from saying that he wants unsupervised access. He wants the children to come over to his home or to spend time with him in the community. He and Ms. S live in the same neighborhood and in close proximity to the younger children’s school. [ 31 ] Mr.

S feels the artificial environment of Veith House “is holding back the relationship” he could develop with his children. He says he isn’t able to hug the children, give gifts to them or take their picture. He says that the restrictions of Veith House make him feel “unable to express to my children that I’m proud of them.” [ 32 ] I prepared a chronology of Mr. S’s visits at Veith House based on the access supervisors’ notes describing what happens at the visits. Over a period of twenty-two months, there have been twenty-seven visits.

The Veith House notes disclose no critical incidents and describe the children enjoying their time with their father. He plays games with them, talks to them about school, watches videos and reads to them. Even after N believed he didn’t need to attend visits, he’d still occasionally attend. [ 33 ] In the chronology which is attached to this decision I’ve noted some, but not all, occasions when the children and Mr. S hug and when gifts are given. I’ve noted a few of the occasions when the access reports describe Mr. S praising the children.

There are more times when he praises the children and the children and their father say “I love you” to each other. Veith House has a policy prohibiting pictures from being taken. [ 34 ] In her testimony, Ms. Richard said that during his one-on-one visits, Mr. S “is very attentive to interacting and meeting the child where they’re at. Visits are good. The children enjoy them, have fun and want to be with him.” The children’s time with their father is a positive experience for them. [ 35 ] While Mr. S’s specific complaints aren’t borne out by the Veith House reports, the access room is small.

Being confined to a small room in a public building is artificial. Neither the children nor their father see each other in their typical milieu or doing everyday things. Their interactions are shaped by this environment: they play with the toys that are supplied and watch the videos that are provided. Mr. S isn’t able to make a snack for K, he doesn’t help R with his homework or have either child help him do household chores, for example. Ms. S’s position [ 36 ] Ms. S offered various reasons why supervised access must continue. She says that Mr. S was verbally and emotionally abusive to her.

She says that the older children have access to his Facebook page which has a photograph of him smoking marijuana. She says that he hasn’t followed instructions which have the children’s best interests in mind, such as staying away from the children. She complains that he’s gone long periods without seeing the children, that he never exercised phone access and he’s never called her for information about the children. She says the older children don’t want to see him. She has concerns about his mental health. He’s been transient.

He hasn’t followed through on the recommendations from a 2010 psychological assessment. He might become overwhelmed during a visit and simply leave. He might stop taking his medication and seeing his psychiatrist. [ 37 ] Not all of these concerns are of equal importance. For example, I have no evidence that Mr. S has been verbally or emotionally abusive to the children. Ms. S says that the children were exposed to what passed between her and Mr. S. Mr. S says that this wasn’t verbal or emotional abuse, but the normal disagreements any couple might have.

In either event, the parents are no longer part of each other’s lives and have had little to do with each other for over three years, so the children are not exposed to this. [ 38 ] Mr. S was questioned about the Facebook photograph which showed a man holding a large cigarette, his face obscured by smoke. He says the photograph is not a picture of him (and, to the extent that hair and a face are visible, it does not look like him) and the man is not smoking marijuana, but what Mr. S called “toblacky”, a cigarette made from “what’s left of cigarettes”. [ 39 ] Concerns about Mr.

S not following instructions about the children relate to the time of Community Services’ involvement. Because the parties and their children live in the same neighbourhood and the children were either attending school in that area or near Mr. S’s then-workplace, Mr. S would see the children on the street and attempt to speak to them. Based on the Department’s requirement that Mr. S’s contact with the children must be supervised, Ms. S objects to this incidental contact. [ 40 ] At the same time, she complains that Mr.

S went for an extended period of time (from October 2010 until March 2012) without seeing the children and without phone contact. [ 41 ] To be specific, Ms. S terminated access in October 2010. She started her court application in February 2011 and it first came before a judge in October 2011 when supervised access was ordered. Ms. S says that despite this order, her husband didn’t begin access until March 21, 2012. This is correct, unfortunately, but responsibility may not lie with Mr. S. The order arising from the October 2011 court appearance was not finalized and sent to the court until January 2012.

It was forwarded to Veith House in February 2012. Veith House’s protocol for supervised access requires both parents attend intake appointments before access starts. Mr. S’s appointment was on February 10 and Ms. S’s was on March 8, so access didn’t begin until March 21, 2012, one week before the parties returned to court for their settlement conference. Much valuable time was lost. [ 42 ] Establishing court-ordered access entails some delay in any event: filing an application, attending conciliation and a conference, finalizing the order, referring the order to Veith House and attending intake appointments.

Here, the delay was prolonged by the length

of time it took to finalize the order. That said, I recognize that Mr. S didn’t initiate or advance the process. Mr. S explains that he was told by staff at the Department of Community Services the children would be taken if he had any contact with them or with his wife, so he stayed away. (Ms. S says that he violated this prohibition a number of times when he would see the children on the street and try to engage with them or when he came to her home to collect a coffee filter.) [ 43 ] According to Mr.

S, from March until July 2013 there was no order confirming he was to have supervised access, so Veith House would not arrange these sessions. From July until September there were various scheduling conflicts, including the children’s unavailability because they were on holiday with Ms. S. [ 44 ] It’s likely that both parents bear some responsibility for the absence of telephone contact. Mr. S says that when he called, he was told it was the wrong time to call and he’d be told to call at a later time. When he’d call again at the later time, the children would be in bed and he wouldn’t be allowed to speak to them.

At times he said the children were to call him because didn’t have their phone number. Mr. S is non-confrontational and, just as he didn’t initiate a claim for access when Ms. S suspended his contact with the children, he didn’t push the issue of phone calls or obtaining information about the children. [ 45 ] Mr. S has established a pattern of limited contact with the children: he sees each of the younger children once each month, subject to the schedules of Veith House and the children. [ 46 ] In terms of his contact with the older children, in June 2012, Ms.

S told the access supervisor that the older two children didn’t want to visit with their father and they’d learned that, because they were over twelve, they weren’t required to attend. Veith House notes record “[Ms. S] said they found this out from CAS worker.” There is no record that Ms. Burchill told the children this. Ms. Burchill does not recall saying this and doesn’t think she would have said this to Ms. S or to the children. Ms. Burchill last met with the children on August 19, 2011. The children began their supervised visits with their father in March 2012.

I don’t accept that the older children were told this by a child protection worker. [ 47 ] Mr. S openly admits that he’s struggled with his mental health and says that this will not affect his ability to be a good and effective parent. Specifically, he’s been diagnosed with schizophrenic tendencies. He says that he has experienced auditory hallucinations through most of his adult life and that he has agoraphobia.

He says that he would be able to teach his children that many people have different illnesses and there are different ways to overcome the obstacle of poor mental health. [ 48 ] I heard no evidence of how Mr. S’s hallucinations or his schizophrenic tendencies impact his life or would affect his access with his children. [ 49 ] I was told of three separate occasions when Mr. S was exercising access with his children in public locations (at school, at a recreation center and on the Commons), and he either curtailed access or failed to appear because he was overwhelmed by the circumstances.

Since this access was supervised, in no case were the children left alone. Ms. S says that his abrupt departure from S’s elementary school graduation was without notice and caused some distress, but Mr. S is clear that he told his wife he felt uncomfortable because there were too many people in a confined space and he was leaving. All of these instances occurred in 2010, while the Department of Community Services was still providing a supervisor for Mr. S’s visits. Mr. S never left the children alone when he left a visit. [ 50 ] At the time of the psychological assessment in 2010, Ms. S was seeing Dr.

Bilski at Bayers Road Community Mental Health Centre and taking his medication. Mr. S says he is taking his prescribed medication currently and he regularly sees Dr. Bilski. He provided no report from Dr. Bilski about his diagnosis, treatment, medication, prognosis or progress. Mr. S was not questioned about whether there were any interruptions in his medication or treatment from 2010 to the present. [ 51 ] Ms. S expressed concern that if one of the children gets upset, Mr. S will “stress out” and leave.

This hasn’t happened during the time that Veith House has provided access supervision, even when he was with all four children. Veith House records report no instances of inappropriate or ineffective parenting. [ 52 ] Mr. S has accepted the changes in his access which Ms. S initiated: suspending access, excusing S and N from access and then moving to one-on-one visits with R or K. While he’s not been happy about them, he has made the best of the situation and sheltered the children from his disappointment. [ 53 ] Ms. S is also concerned that Mr. S was homeless and did not have a permanent residence.

According to Mr. S’s testimony, in 2011 and 2012 he had a stable job, residence and a lease. He lost his job at a local call center in April 2013 and has moved numerous times since then. He has lived with friends or coworkers and, twice, has had to rely on the Salvation Army Men’s Shelter for housing. He isn’t currently working and shares a four bedroom home with two others. [ 54 ] Through the auspices of the Department of Community Services, Mr. S took

part in a psychological assessment in June 2010. The purpose of the assessment, done by registered psychologist Steven Cann, was “to examine the stable and changeable factors associated with treatment of sexual offenders.” The report then went on to note immediately that Mr. S has never been convicted of sexual assault and the assessment could not assess his risk to re-offend. Its secondary purpose was to identify intervention and treatment targets associated with sexual offending. [ 55 ] Mr. Cann’s report was admitted by the parties’ agreement. He wasn’t present to answer any questions.

Most notably, he couldn’t be asked about the current validity of his report which was prepared over three and one-half years ago, during the summer of 2010, or its relevance to the issue of access supervision. [ 56 ] In the context of this report – with its focus on sexual offending - Mr. Cann said that Mr. S needed “assistance in developing positive social relationships” and “extensive intervention in the area of capacity for relationship stability.” Mr. Cann said Mr. S should address “his aggression and lack of intimacy in his relationship.” According to Mr.

Cann, “Mr. [S] needs assistance in developing new coping strategies and effectively implementing them.”

[57] According to the assessment, there was evidence that Mr. S suffered from serious psychological problems. His current familysituation was causing him to experience considerable situational stress and anxiety. Mr. Cann said “testing results indicate [Mr. S]’sthinking has become so distorted that he may be experiencing hallucinations.” Mr. Cann suggested that Mr. S undergoMRI/neurological psychological testing to determine the nature and extent of the neurological damage. At the time of the assessment,Mr. S was seeing a psychiatrist and taking medication. [58] Mr. Cann said that Mr.

S’s mental health must be stabilized for him to benefit from CBT (which I assume means cognitivebehaviour therapy) and he wrote that MRI and neurological testing would provide important information for treatment. He said that Mr.S “must regularly take his medication and maintain stability for CBT treatment for the issues outlined above to be effective.” [59] The report concluded One of the positive elements in [Mr. S’s] life is the contact he has with the children. The supervised visits can continue and beexpanded as [Mr. S] engages in and makes progress in treatment.

By entering into a cooperative relationship with supervisingagency, the safety of children can be effectively managed. As he progresses and demonstrates stability in his interpersonal relationships,the level of contact and responsibility can be expanded. Clear goals and expectations should be set and the expansion of his contact withthe children should be contingent on his meeting those goals. By moving in a step-by-step process, [Mr. S] can demonstrate his abilityand willingness to act in the best interests of the children. [I have added the emphasis.] [60] Reading his report, it isn’t clear that Mr.

Cann was concerned with the same issue that I have before me, but both parties haveaccepted the validity of the report and their disagreement arises because Ms. S believes that Mr. S hasn’t followed the recommendationswhile Mr. S believes that he has followed all of the necessary recommendations, with the exception of taking a child rearing course. (Isee no reference to a child rearing course in the report.) As noted, Mr. S sees Dr. Bilski and follows his medication regime. He has nothad an MRI or undergone neurological testing. [61] Dr. Bilski did not testify and there was no report from him about Mr.

S’s progress or medication. Review hearings [62] Parties sometimes resolve litigation by agreeing to review orders. Often they do this without clearly defining the scope of thereview. Here, the parties frequently returned to court for reviews, indicating nothing more in the orders than that there was to be areview. [63] While decided in the context of spousal support under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, the Supreme Court ofCanada’s decision in Leskun, 2006 SCC 25, explains review hearings.

According to Justice Binnie, who wrote the reasons for theunanimous court, at paragraph 39, wherever possible, a judge should determine all the parties’ claims and make an order that ispermanent, subject to variation upon proof of a change in circumstances. In some cases this may not be possible because a particularcircumstance is unknown. If the judge thinks it’s essential to identify an issue for future review, that issue should be tightlycircumscribed.

This is necessary because in a review hearing neither party bears the burden of proving a change in circumstances, whilethis is necessary in a variation application pursuant to

section 17 of the Divorce Act. If the scope of the review isn’t constrained, eitherparty may try to use the review to re-litigate. [64] The Divorce Act specifically allows a judge to impose “terms and conditions” on orders for child support (subsection 15.1(4)),spousal support (subsection 15.2(3)) and custody (subsection 16(6)).

One such term is the review. [65] The Maintenance and Custody Act is not explicit in allowing the imposition of terms and conditions on parenting orders,however I believe such orders are permissible, by virtue of subsection 18(5) of the Act, where the review is required by a child’s bestinterests. [66] I assume that all earlier reviews were for the purpose of ensuring there was an order for supervised access in place, though thiswas never stated in the review provision of any order.

The Department of Justice, Court Services, will pay for eighteen hours ofsupervised access visits (and for an additional amount of administrative time) where this is court-ordered. I believe the review beforeme, while equally undefined, is a review of whether supervision is required and it is the first review on the merits.

As well, it is the firstjudicial determination of whether supervision is in the children’s best interests, given that all previous orders were granted by consent. [67] According to subsection 18(5) of the Maintenance and Custody Act, the children’s best interests are the paramountconsideration in a parenting proceeding. Subsection 18(6) instructs me to consider all relevant circumstances and identifies a number ofconsiderations.

Where I have evidence about these, I have outlined it in my reasons. [68] While neither party bears an onus of proving that there’s been a material change in circumstances since the last order wasgranted, it must be shown that his or her plan for access is in the children’s best interests. [69] In Young, (SCC), Chief Justice McLachlin said that a “custodial parent has no ‘right’ to limit access.” I am toconsider the children’s best interests and, in particular, the principle of maximum contact which, in the context of this case, is providedfor in subsection 18(8) of the Maintenance and Custody Act. [70] In Abdo, (NS CA), Justice Pugsley wrote the Court of Appeal’s unanimous reasons and made clear that theburden of proof is on the parent seeking to restrict access to show that this is in the children’s best interests. [71] While a member of the Ontario Court of Appeal, Justice Abella said, at paragraph 33 of M.(B.P.) v.

M.(B.L.D.E.), (1992) (ON CA), 42 R.F.L. (3d) 349, that “[t]he purpose of supervised access, far from being a permanent feature of a child’s life,is to provide “a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used [ . . .] as along-term remedy”. Here she was adopting a proposition taken from Norris Weisman’s article, “On Access after Parental Separation”(1992), 36 R.F.L. (3d) 35 at 74.

[72] In V.S.J. v. L.J.G., (ON SC), Justice Blishen recognized the research of Professor Martha Bailey atparagraph 139, in noting that there may be times “where medium or longer term supervised access is in the child’s best interests.” [73] Justice Forgeron discussed supervised access in M.T. v. M.G., 2010 NSSC 89.

At paragraph 18 she said that supervised accessis appropriate in specific situations, and included in those situations, circumstances where a child requires protection from physical,sexual or emotional abuse and circumstances where there are clinical issues involving the access parent. [74] Of the complaints that Ms. S has about her husband, two are addressed by supervised access. These are concerns relating to Mr.S’s mental health and the allegation that he sexually assaulted a young boy.

The remainder of her concerns (his transiency, his treatmentof her, his inconsistent contact with the children, and his posting an inappropriate photograph on his Facebook page) are not resolved bysupervised access. [75] Supervised access would ensure that if Mr. S felt unable to continue with a visit, the children would not be left alone. To theextent that there may be a risk that Mr. S would sexually assault one of his children, supervision would prevent this from occurring. [76] The evidence does not establish that when Mr. S has felt overwhelmed he has left the children alone. [77] Ms. S’s concerns about Mr.

S’s mental health are unresolved. She could have required Dr. Bilski to attend court to resolvethese issues but she did not. [78] With regard to the allegation that Mr. S sexually assaulted a young boy, I am mindful of the fact that the boy was extensivelyquestioned by his mother and his grandparents. He did not disclose any abuse to the police. The police officer who was so convincedthat the assault occurred based his conviction on his view that a four year old could not know what this child was said to know.

In R. v.Khan, (SCC), then-Justice McLachlin was unwilling to accept that there were certain areas of evidence that shouldalways be regarded as reliable, and she specifically mentioned the evidence of young children on sexual matters as an example. Here, itis unclear what the boy actually said: we have only the reports of his family to the police, coming after the boy was extensively, andpossibly clumsily, interviewed. [79] In his assessment report, Mr. Cann wrote of establishing “clear goals and expectations”, and making the expansion of Mr.

S’scontact with the children contingent on his meeting these goals and expectations. [80] For almost two years, Mr. S has taken

part in supervised access. He has done this in the absence of any goals or expectationsthat lay the foundation for its withdrawal. The parties have repeatedly come to court for “review hearings” which have lacked focus. [81] There are some general aspects of access which I can easily address. First, each parent must provide the other with his or hercurrent telephone number. Second, Mr. S may telephone the children once per week between the hours of 6:30 and 8:30 p.m. Mr. S willmake this phone call: he will not wait for the children to call him.

Counsel will determine and state in the order the evening when thisphone call will be made. Ms. S may monitor the call by remaining in the room with the children during the call. The phone call does notneed be made on speakerphone. [82] A discrete order will be prepared stating that Mr. S is entitled to speak with and to receive information from the children’steachers, doctors and anyone else involved with the children, such as counselors, activity leaders or coaches. Ms. S will provide Mr.

Swith a list of the names and phone numbers for all these individuals within two weeks of this decision. [83] Incidental contact between Mr. S and the children is not prohibited. If they see each other in the neighborhood, they may speakwith each other. If the children are walking to school, Mr. S may walk with them to school. If the children are walking home, he maywalk them to their home. At this point, their incidental meeting may not turn into an extended visit. [84] From now until I review this matter in November 2014, Mr. S shall continue to have supervised access at Veith House.

He willhave one-on-one visits, each ninety minutes long, with R and with K. There will be one visit with each child each month. These visitsare not to be pre-empted by other activities. [85] Ms. S says it isn’t necessary for access to be supervised at Veith House. This means that supervised access can occur in thecommunity. In the parents’ immediate neighborhood there is a public library, a YMCA and a recreation center. They are withinwalking distance of the Commons, with the skating Oval where skates and rollerblades are available at no cost. Sometimes theselocations may be too crowded for Mr. S’s comfort.

At other times they may not. [86] Additionally, each month until I review this matter in November 2014, Mr. S will have a sixty minute long visit with either R orK in the community. This visit will not occur at his home. It will be supervised. The supervisor will be someone mutually acceptable toboth parties. If they cannot agree on a supervisor, they will return to me before March 7, 2014 and each will have the names of up tofive potential supervisors. I will determine which supervisors are appropriate after hearing each party’s objections and concerns.

Thesevisits will not occur during a week when there is a Veith House visit. Mr. S will have a supervised community visit with one childduring one month and with the other child during the next month. If the parties can agree on a supervisor, the supervised communityvisits can begin this month. If they require my involvement to create a roster of supervisors, the visits will begin in March. [87] There are various levels of supervision. An overseer ensures that there is no inappropriate behavior.

The overseer protects thechildren from harm or abuse during the visit and ends the visits if this occurs. [88] A recorder takes note of what occurs between the parent and child. The recorder can act as a witness of a factual observation,but not offer opinion evidence. The Veith House access supervisors are recorders. [89] An expert observes the interaction between the parent and child and can offer expert opinion evidence about the nature of theirrelationship, dynamic and behaviours.

[ 90 ] Lastly, a therapist or counselor works with a parent during access to develop parenting skills, an appreciation of child development or behavior modification. [ 91 ] While involved with the Department of Community Services, Mr. S’s access visits were supervised by a family skills worker who provided some education to Mr. S during visits. This was in the fall of 2010. From 2012 to the present, Mr. S has been subject to supervision by a recorder. Ms. S has agreed that this level of supervision is no longer necessary.

So, supervision can be reduced to the level of an overseer. [ 92 ] The task of the non-Veith House supervisor is not to provide report. Mr. S has demonstrated no inappropriate conduct in his visits with the children so far. The remaining concern is that he might be overwhelmed, either by the child’s behavior or by a public space, and leave the child or that he might act inappropriately. The responsibility of the access supervisor is to ensure that if this happens, the child is not left alone when the visit is terminated. [ 93 ] Mr. S must provide Dr. Bilski with copy of Mr. Cann’s assessment immediately. Dr.

Bilski must provide a report addressing Mr. S’s diagnosis, treatment and prognosis as they relate to his ability to have unsupervised access with his children. If there are any steps which Mr. S must take to progress to unsupervised access, these must be outlined. This must be prepared and filed at the court two weeks before this matter returns to me for a conference in July 2014. [ 94 ] A report shall be provided by Veith House staff, also two weeks before the conference in July 2014. [ 95 ] The parties will

schedule two days on my docket in November 2014 for a review. The purpose of this review is to determine whether any further adjustments can be made to Mr. S’s access and, in particular: (

a) whether supervision remains appropriate; (

b) what form of supervision should take, if it remains appropriate; and (

c) whether Mr. S has progressed, having regard to any steps identified that are necessary to eliminate supervision, to the point where supervision is no longer required. [ 96 ] I am instructing our scheduling office to contact counsel to arrange for a half hour appearance before March 7, 2014 in case I need to determine who will act as a community access supervisor. A half hour conference will also be scheduled in July, 2014 and a two day hearing in November, 2014. If the parties are able to resolve matters on their own, they may do so. For my part, I want to ensure that I resolve the issue of Mr.

S’s supervision as promptly as possible. There has been far too much delay. [ 97 ] It is not my intention that this matter will be subject to perpetual review. The reviews so far have lacked sufficient focus to create a degree of finality. [ 98 ] Mr. S’s counsel will prepare the orders. This must be done as quickly as possible. The children’s access with their father has been significantly impeded by the delay in preparing orders. _______________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia Date Comment October 2010 Ms. S terminates Mr. S’s access. February 2011 Ms.

S begins application at court. October 11, 2011 In court, parents agree to supervised access. January 10, 2012 Court receives order for supervised access. February 1, 2012 Order for supervised access sent to Veith House. February 10, 2012 Mr. S’s intake meeting at Veith House. March 8, 2012 Ms. S’s intake meeting at Veith House. March 21, 2012 All children attend. Mr. S gives children cards. 1 March 28, 2012 Visit cancelled so parents can attend settlement conference. April 4, 2012 All children attend. 2 April 21, 2012 All children attend.

Good-bye hug 3 May 5, 2012 All children attend. 4 May 26, 2012 All children attend. 5 June 9, 2012 All children attend. 6

June 23, 2012 Older two children don’t attend. Ms. S tells Ms. Richard “[S] and [N] did not want to come. They learned that since they were over 12 they did not want to come. [Ms. S] said they found this out from CAS worker.” [R] tells Mr. S the older two “did not want to come that they found out they did not have to come. S is 14 and N is 12. 7 July 14, 2012 Older two children don’t attend. 8 July 28, 2012 Oldest child doesn’t attend. Notice that Ms. S will be away for “most of August” so no visits.

Children and father hug. 9 September 1, 2012 No visit – Veith House closed (Labour Day) September 8, 2012 All four children attend. S leaves early to go shopping with Ms. S. 10 September 15, 2012 No visit – neither parent attended. Presumably they forgot that the

schedule had changed. September 22, 2012 Ms. S cancelled visit. Children have lice. M September 29, 2012 Older two children don’t attend. 11 October 6, 2012 No visit – Veith House closed (Thanksgiving) October 13, 2012 Ms. S cancelled visit. Children have lice. M October 20, 2012 Older two children don’t attend. 12 October 27, 2012 Ms. S cancelled visit because children have another activity. M November 3, 2012 Ms. S and children failed to attend. M November 10, 2012 No visit – Veith House closed (Remembrance Day) November 17, 2012 Mr. S was sick (Ms.

S called to cancel for him) F November 24, 2012 Older two children don’t attend. Mr. S has cards for all. 13 December 1, 2012 Younger son attends alone (younger daughter is sick). 14 December 8, 2012 Visit cancelled ? December 15, 2012 Older children don’t attend. 15 December 22, 2012 Older children don’t attend. There are Christmas gifts and hugs. 16 January 5, 2013 Discussion about alternating visits between younger two, thereby reducing Mr. S’s visits with each child by half. Younger son attends alone. 17 January 12, 2013 Younger daughter visits alone. 18 January 19, 2013 Ms. S cancelled visit.

She and children away for weekend. M January 26, 2013 Younger son visits alone. 19 February 2, 2013 Younger daughter visits alone. Mr. S says “I love you”. 20 February 9, 2013 Cancelled because of weather February 16, 2013 Younger son visits alone. 21 February 23, 2013 Younger daughter visits alone. Gift given. 22 March 9, 2013 Younger son visits alone. 23 March 16, 2013 Ms. S cancelled because she and children are sick. M March 23, 2013 Mr. S cancelled because he is sick. F March 30, 2013 No visit - Veith House closed (Easter) April 6, 2013 Mr. S cancelled F April 13, 2013 Mr. S cancelled F April 20, 2013 Mr.

S cancelled (notation says “homeless”). F April 25, 2013 Veith House withdraws its services because of the frequency of short notice cancellations. April 30, 2013 Parents return to court and agree to order resuming supervised access. July 10, 2013 Court receives order for supervised access. September 18, 2013 Younger daughter visits alone. 24 October 2, 2013 Ms. S and younger child fail to attend. M October 16, 2013 Mr. S fails to attend F November 6, 2013 Younger son visits alone 25 November 20, 2013 Younger two children attend. Children hug father. 26 November 28, 2013 Mr.

S cancels (sick) F December 12, 2013 Younger two children attend. 27 In the final column I have indicated responsibility for a canceled visit: M means Ms. S canceled the visit and F means Mr. S did. Otherwise, the number in this column is a cumulative count of the number of visits which occurred.