T.L.L.L. v. J.J.L., 2015 MBCA 68

Citation: T.L.L.L. v. J.J.L., 2015 MBCA 68 Date: 20150707 Docket: AF14-30-08299 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Madam Diana M. Cameron BETWEEN : ) T. L. L. L.

L. (T.L.L.) ) on her own behalf ) (Petitioner) Appellant ) No appearance ) for the Respondent - and - ) ) Appeal heard: L. (J.J.) ) June 15, 2015 ) (Respondent) Respondent ) Judgment delivered: ) July 7, 2015 CAMERON J.A. [ 1 ] This is an appeal by the appellant (the mother) of the dismissal of her motion for variation of a custody order which granted sole custody to the respondent (the father) with supervised access to the mother. [ 2 ] She also appeals the dismissal, in part, of her application to vary a prevention order issued in 2012 pursuant to The Domestic Violence and Stalking Prevention, Protection and Compensation Act , C.C.S.M., c.

D93 (now named The Domestic Violence and Stalking Act ). Among other things, that order prevented her from having contact and communication with her children outside of the supervised access approved in the custody order. Of note, the motion judge, on the consent of the parties, did vary the prevention order to remove the eldest child, who has since attained the age of 18 years. In all other respects, the mother’s motion relating to the prevention order was dismissed. [ 3 ] At the hearing of this appeal, the mother represented herself.

The father, who also did not have counsel, sent a letter to the court indicating that he would not attend the appeal, but would be available should the court require him. Rather, he simply relied on the written material he had filed with the court. [ 4 ] Regarding the custody order, the motion judge found that the mother had not proven a material change in circumstance. He held that, despite the fact that she had attended psychotherapy sessions, she had not demonstrated that she recognized how her conduct could affect her children in a negative way. [ 5 ] The standard of review is one of deference.

A decision regarding custody should not be overturned in the absence of a material error, a serious misapprehension of the evidence or an error of law. See Boryskiewich v. Stuart , 2014 MBCA 77 ; and Delichte v. Rogers , 2012 MBCA 105 . [ 6 ] The mother argues that an order of supervised access is normally intended to be of limited duration. She asserts that the custody order occurred more than five years ago and the passage of time constitutes a material change in circumstance that the motion judge erred in failing to consider.

She also remarks that her children are much older now than they were at the time the order was made. In light of this, she argues that the motion judge failed to consider the children’s views concerning custody and access. Further, she observes that her eldest child, having turned 18, is no longer subject to the custody order.

She states that she has been having regular contact with this child without incident and the court should consider this as evidence that she has addressed any previous concerns regarding her conduct and its effect on the well being of her children. [ 7 ] The mother also submitted that the father was not complying with the conditions as to access in relation to providing

her with telephone access and certain other conditions. I note that the mother has filed a motion asking that the father be held in contempt for failing to comply with those conditions, but the motion judge (not the same as in this proceeding) refused to allow the motion to continue until appropriate materials were filed. Since litigation is proceeding with respect to the issue of the father’s non- compliance with access conditions, it would not be appropriate for me to comment further on that matter in this appeal. [ 8 ] This is not the first time the mother has appealed a refusal to vary the same order.

In 2013, this court dismissed another appeal by the mother of a dismissal of her motion to vary the custody order (see 2013 MBCA 27 ). [ 9 ] In 2013 MBCA 27 , the court reviewed the extensive history of litigation between these parties. It remarked that the custody order resulted from the trial judge’s conclusion that the mother lacked insight as to the effect that her conduct had on her children. In fact, the trial judge requested a psychiatric assessment from the mother. The mother did not obtain such an assessment and for that reason, in part, her earlier motion to vary was dismissed.

In upholding that decision, this court found no error in the determination that (at para. 25): …. … “[T]he mother needed to demonstrate that she was capable of changing her dysfunctional behaviour and demonstrate insight into the harm that she had caused the children before it would be in their best interests to have unsupervised access.” ( 2012 MBQB 175 at para. 2 ). [ 10 ] As the court observed in 2013 MBCA 27 , it was concerning that the mother continued to make allegations that her children had been sexually abused, despite the fact that experienced investigative agencies had failed to discover any evidence of abuse. [ 11 ] The court also noted that the mother’s supervised access had been terminated by the Winnipeg Access Centre on the basis that she had refused to follow the rules.

While the court understood her concerns regarding supervised visits, it also stated that, “she must understand that at this point in time, compliance with the rules and evidence of mental health counselling are the only path back to the possibility of unsupervised access with her children” (at para. 29). [ 12 ] Although her appeal in 2013 MBCA 27 was dismissed, the court recognized that the mother had begun a course of psychotherapy with a mental health professional and observed that perhaps this could assist her in gaining insight and making change. [ 13 ] In the present motion, the motion judge considered the report from the mental health worker who had completed the course of psychotherapy with the mother.

However, he held that it had not convinced him that the mother had changed. In reaching this conclusion, the motion judge considered her conduct since the dismissal of her appeal in 2013 MBCA 27 . While he mentioned a number of litigation events, there are two that are particularly relevant. [ 14 ] First, on June 27, 2014, the mother was found to be in contempt of court as a result of a series of breaches of the custody order.

Although not specifically mentioned in the reasons of the motion judge, a review of the court file shows that these breaches occurred while the mother was taking psychotherapy and continued for months after she had completed it. They included her engaging in clandestine meetings with her youngest child.

In addition, the mother purchased an iPod for her youngest child through which she sent him over 80 messages while using a pseudonym to avoid detection. [ 15 ] The second event of concern is that in July of 2014, just four and one-half months prior to the hearing of the motion to vary that is the subject of this appeal, the mother made an ex parte application for a protection order on behalf of her children. In that application, she alleged that the father committed physical abuse, psychological abuse and forcible confinement against the children.

Furthermore, her application included allegations that the father had sexually abused the children. These were the very same allegations that were previously found to be unsubstantiated. [ 16 ] The passage of time and the wishes of children of a certain age might, in some cases, constitute a material change. However, based on the above events, such is not the case here. The material change required in this case does not involve the views of the children. The materials filed by the mother evidences that they love her and want to see her.

Rather, as earlier stated, the material change must be in the mother’s insight into how her behaviour can negatively affect her children and their best interests. Therefore, I see no error in the motion judge’s conclusion that a material change in circumstance has not been shown. [ 17 ] With respect to the prevention order issued in 2012, the motion judge noted that the mother did not have to prove a material change in circumstance. Rather, he stated that he simply needed to be satisfied that it would be fit and just for him to make such an order.

He held that, in light of the history of this case, it should not be varied with respect to the two youngest children. I see no error in that determination. [ 18 ] Therefore, for all of the reasons above, the appeal is dismissed. In light of the fact that the father did not request costs in the proceeding appealed from, nor in this proceeding, no order of costs will be made. J.A. J.A.

J.A.