2011 ONSC 2042, 2011 ONSC 2042

CITATION : J.M. v. S.A. , 2011 ONSC 2042 COURT FILE NO.: 28266/06 DATE: 20100401 SUPERIOR COURT OF JUSTICE - ONTARIO RE: J.M. v. S.A. BEFORE: Fragomeni J. COUNSEL: J.M., Applicant In Person Martha A. McCarthy, for Respondent, S.A.

E N D O R S E M E N T [ 1 ] Order to issue as follows: 1. abridging the time for service and filing of this Motion and permitting this Motion to be heard on an urgent basis before the Respondent attends a Mandatory Family Information Session, and before a Case Conference; 2. granting leave to question J.M. and D.D.; 3. adjourning this Motion pending the completion of Questioning of J.M. on his Affidavits sworn March 16, 2011, and pending the completion of Questioning of D.D. on her Affidavits sworn March 7 and March 16, 2011; 4. continuing the March 3, 2011 Order of Justice Coats such that the Applicant’s access to the two children of the marriage, namely S.M. born November […], 1998 and D.M. born September […], 2000, be suspended pending further Order of this Court following the hearing of a Case Conference; 5. that the Applicant attend for psychological and psychiatric testing by Dr.

Graham Glancy pursuant to s. 105 of the Courts of Justice Act , with costs of such examination to be paid by the Applicant; 6. that the Applicant attend for a substance abuse assessment by Dr. Steven Melemis pursuant to s. 105 of the Courts of Justice Act , with costs of such examination to be paid by the Applicant, and after the assessment, that the Applicant attend ongoing monthly random alcohol testing at such dates and times as directed by the assessing doctor; 7. that this Motion be returned following: a. The completion of Questioning of J.M. and D.D.; b.

The completion of psychological and psychiatric testing as set out in paragraph 5; c. The completion of a substance abuse assessment as set out in paragraph 6; and d. The hearing of a Case Conference.

8. approval of this Order as to form and content is dispensed with; 9. the parties shall file written submissions on costs within 10 days. Reasons [ 2 ] This matter was before the Honourable Madam Justice Coats on March 3, 2011. Present at that attendance were: J.M., the Applicant (J.M.) Janet Moss – Duty Counsel S.A., the Respondent (S.A.) and her counsel, Martha McCarthy M. Pallett from the Halton CAS. [ 3 ] The entirety of Justice Coats’ endorsement is as follows: I have read the Motion Record. I am satisfied that the matter is urgent. Ms. Pallett was here re request for CAS records. The parties have both signed a consent re CAS file and Ms. Pallett has them. A

summary letter will be produced. The Niagara police have consented to release their records (see email filed). Peel Police have not opposed the request. No response from Halton police. In the circumstances, order to issue per draft order filed which I have signed. In my view it is in the children’s best interests to suspend access pending receipt of police and CAS records. There was an alleged very serious incident on February 21, 2011. The records are necessary. It is also necessary for J.M. to file responding material. In the interim the safety of the children is a paramount consideration.

The Motion is adjourned to March 30, 2011 at 10 a.m. The issue of supervised access is to be spoken to before me on March 9, 2011 at 10 a.m.

The Applicant shall serve and file his responding motion material on or before March 16, 2011. [ 4 ] On March 9, 2011 no agreement had been reached so Justice Coats adjourned the issue of access to March 30, 2011. [ 5 ] Since the attendance before Justice Coats on March 3, 2011 the following additional Affidavits have been filed: Affidavit of J.M. sworn March 16, 2011 Affidavit of J.M. sworn March 16, 2011 Affidavit of D.D. sworn March 16, 2011 Affidavit of S.A. sworn March 25, 2011 Affidavit of Sarah Young sworn March 29, 2011. [ 6 ] The March 25, 2011 Affidavit of S.A. is at Tab 11 of the Continuing Record.

The following information is included and attached to Tab 11: The Halton Regional Police Service and the Niagara Regional Police Service records; a

summary of the Halton CAS involvement; a copy of the Halton Regional Police Records with respect to the incidents on November 28, 2010 and January 21, 2010 (Exhibits B and C). The Niagara Regional Police Records with respect to the February 21, 2011 incident is Exhibit D. The CAS

summary letter is attached at Exhibit E. Exhibit F1 is the April 8, 2008 report of Dr. Ted Horowitz. Exhibit F2 is the update report of Dr. Ted Horowitz. [ 7 ] I share Justice Coats’ concern that the matter is urgent. [ 8 ] I now have the further benefit of the CAS records and the police records that were not available for Justice Coats. I also agree

with Justice Coats that in the interim the safety of the children is a paramount consideration. [ 9 ] In her March 25, 2011 Affidavit, S.A. sets out the particulars of the recent events as follows: Re: January 21, 2011 at paragraphs 17 to 21; Re February 15, 2011 at paragraphs 22 to 24; Re: February 21, 2011 at paragraphs 25 to 31. I will not reproduce all of these paragraphs in these reasons. There is no doubt that the incidents are troubling and of great concern to this Court. I do however, wish to reproduce paragraphs 25 to 31 regarding the February 21, 2011 incident: 25.

Five days later, J.M. was arrested for public intoxication while the children were left unattended in the middle of the night in a hotel room in Niagara Falls. 26. The occurrence reports from the Niagara Police provide as follows:

a) S.M., D.M., and their cousin K.G. advised the police that J.M. left the room at approximately 11:30 p.m. and said he would be back shortly with snacks for them but never returned (Exhibit D, page 15);

b) The police were contacted at 1:02 a.m. (Exhibit D, page 6);

c) Casino security originally believed that J.M. may have been injured and called an ambulance. The police were advised by the ambulance staff that J.M. had no medical issues, was intoxicated, was fighting with security and had threatened the ambulance crew (Exhibit D, page 6);

d) J.M. was seated in a wheelchair, slouched, being loud, and smelled strongly of an alcoholic beverage, especially when he spoke. He was swearing at the Casino security and was overly belligerent (Exhibit D, page 6);

e) The police learned that J.M. was at a local establishment and consumed an unknown amount of alcohol to a state of intoxication. He attended the Casino and passed out on the gaming floor. He was observed by Casino Security attempting to place coins in the bottom tray of a slot machine (Exhibit D, page 6); and

f) J.M. was unsteady on his feet and had to be escorted to a police cruiser to prevent him from falling over (Exhibit D, page 6). 27. Police Constable Robinson’s notes (Exhibit D, page 21) provide that J.M. was obviously drunk, and reeked of booze. His speech was slurred and he was slouched in a wheel chair. He was loud and obnoxious. The notes further provide that J.M. was pretending that he was never at the Casino and advised that he was at the strip club. 28. The CAS was again contacted following this incident and met with our family (CAS

summary letter, Exhibit E, page 11). They met with J.M. on March 7, 2011 (Exhibit E, pages 12 and 13. He advised the worker that he left the children unattended with the intention of going out for a cigarette, that he was experiencing the effects of drinking too much caffeinated Diet Cola earlier that evening and decided to have a drink at Hard Rock Café in hopes that this would help him to sleep. 29. He advised the worker that he went to the Hard Rock Café and had a double shot of scotch, then went to his car for a cigarette, and then went back to the Hard Rock Café and had another double shot of scotch.

He also advised the worker that this took 20 minutes. J.M. shrugged his shoulders when the worker suggested that he was planning to gamble in the casino rather than return to his room. 30. J.M.’s account to the CAS does not match the police notes. For example, the police were not called until an hour and half after J.M. left the hotel room, but J.M. tries to suggest that he was only going to be gone for 20 minutes. He also told the police that he went to the strip club, but told CAS he was at the Hard Rock Café.

31. While I do not believe that J.M. only had two double shots of scotch, it is concerning that he disclosed that he had the equivalent of 4 shots in 20 minutes.

I do not think that Seven’s account of these events was honest and his affidavit provides little or no detail of what actually happened. [ 10 ] In her March 1, 2011 Affidavit, after describing the Niagara Falls incidents, S.A. states at paragraph 15: The girls have told me that during the Niagara Falls weekend, their father said to them that he would jump off the falls if he could not see them anymore. [ 11 ] In his March 16, 2011 Affidavit, J.M. responded to this statement by S.A. as follows: although this may not be the most appropriate comment to make, it does, however, tell the children how much they mean to me and how much I love them. [ 12 ] I find this statement by J.M. troubling.

I cannot see how under any circumstances such a comment made to his children would be appropriate. [ 13 ] Eileen Ormond, the children’s counsellor and the director of New Dawn Counselling in Mississauga, deposes in her Affidavit sworn March 2, 2011 the following at paragraphs 28 to 31: 28. I understand that S.A. is seeking to have J.M.’s access to the children suspended. I support this decision. I believe that S.M. and D.M. are at emotional risk, with possible physical neglect and risk, in their father’s care. 29.

S.M. has continued to worry and be hyper-vigilant regarding her father’s health and well-being, as is indicated in her above behaviours and she is now concerned that he has a drinking problem and is suicidal. This year, she has struggled with bullying issues at school (being the victim) and has expressed having difficulty being assertive, particularly with her father and peers. She is maturing and re-assessing her father’s capacities and beginning to think for herself. She is consistently communicating with her mother.

Her coping mechanisms have improved, but I still have serious concerns regarding the continuing effects of her father’s behaviour on her, in both the short and long term. 30. Alarmingly, D.M. is now showing the same symptoms that S.M. had at her age. In the last year, D.M. has exhibited a significant increase in worrying and reports of unhappiness, which is uncharacteristic of her positive, easy going personality. Her suicidal ideation is of grave concern and is being carefully monitored.

Her increased difficulty sleeping, both at her mother’s place and much more so at her father’s place is also symptomatic of excessive worry. These were symptoms that her sister S.M. had when I first began working with her. It is alarming that D.M. is now exhibiting many of the same problems that S.M. has struggled with. 31. Additionally, in my clinical judgement, I do not believe that suspending J.M.’s access will cause the children undue emotional harm. Both children have expressed ambivalence towards their father due to their realistic understanding of his limitations to care for them adequately at this time.

I will continue to provide the children with therapeutic support to further comes to terms with the current reality. I have no doubt that their mother will do the same. [ 14 ] J.M. states, in his March 16, 2011 Affidavit the following, in part: Paragraph 23: I agree that I have placed my children at risk as a direct result of my behaviour; I have never intentionally done so. Paragraph 21: I have a history of struggling with mental health issues (depression) and most recently substance abuse

Tab 8 Paragraph 27: I agree that as ‘substance use’ alcohol use has become more constant my parenting practices havesuffered. I understand that this has had an impact on how my children perceive their care, supervision and access time with me. [15] In her March 25, 2011 Affidavit, S.A. sets out the following at paragraphs 61, 62 and 63: 61. J.M. has no ability to meet the children’s wants and needs and no ability or desire to control his damaging behaviour.

He ignoredCAS’ direction in February about not drinking while caring with the children and instead only days after his meeting with CAS he wasarrested for public intoxication after leaving the children alone at a hotel in the middle of the night. After the last court attendance, whenJ.M.’s access was suspended, he texted our daughter to ask to speak to her. I cannot stress enough that we have now had almost six yearsof J.M. breaching arbitration awards and court orders and ignoring the direction and recommendations of various professionals, includingDr. Horowitz, Ms. Ormond, and the CAS. 62.

Our children have suffered years of emotional abuse, anxiety and associated physical complaints at the hands of their father. Ibelieve that with the current state of J.M.’s alcoholism, they are also at risk of physical harm in his care. Their lives are being severelyand unnecessarily impacted. Enough is enough. This needs to stop. 63. Both S.M. and D.M. are doing well given the circumstances. They are having a period of peace with no pressure from J.M. totake sides. They are visibly relieved not to have to deal with J.M.’s behaviour and what they refer to as “the stuff.” You can see thechange in them.

The stress that accompanied the days leading up to their visits with their father has diminished. I want to ensure that thispeace is not disturbed prematurely. [16] J.M. advised the court on March 30, 2011 that both he and D.D. consent to attending for questioning. [17] On the record before me I am satisfied that the order of Justice Coats that access be suspended is appropriate and necessary. Itis not in the children’s best interests in the present circumstances to see their father. I am not satisfied that continued access is risk free tothe children.

I agree with the position of the mother that the opposite is true. Continued contact with the father at this time will causefurther trauma to these children. I also agree with the mother that the children must now have a period of peace and stability. [18] A psychological and psychiatric assessment and a substance abuse assessment is necessary to assist the court in properlyassessing how and when access can be arranged.

Without these independent assessments the court cannot consider what is in the bestinterests of the children as it relates to their relationship with their father. [19] Section 105(2) and (3) of the Courts of Justice Act states:

(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order theparty to undergo a physical or mental examination by one or more health practitioners. Idem

(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this sectionshall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there issubstance to the allegation. [20] The mother also files in support of her position the case of Rogers v. Rogers, (NWT SC), [1991] N.W.T.R.146 (S.C.).

At paragraph 17 the court sets out the following: I agree that the rationale for the granting of an order of the kind here sought, in a child custody case, cannot rest on thepossibility that the person applying for custody might falsify or exaggerate an injury or some mental loss or deterioration arising from anaccident. The rationale must instead be that such a person might deny even to himself or herself, and seek to conceal from the court,some mental problem serious enough to be likely to render that person unfit to have custody of a child.

The interests of children are to bevalued at least as highly as those of plaintiffs in personal injury actions. The interests of children are in any event paramount in custodydisputes such as the present. [21] In her March 1, 2011 Affidavit, S.A. states this at paragraph 25: I believe that the children are in danger while in J.M.’s care and that his access should be suspended until informationfrom the Children’s Aid Society and the Police has been disclosed and details of the most recent events have come to light.

I alsobelieve that in the bigger picture this Honourable Court should be looking at whether access is in the best interests of the children andwhat access arrangement best suits our children’s needs. Part of that, in my view, should involve a psychiatric assessment and addiction

counselling. My children should not continue to be exposed to J.M.’s destructive behaviour. They have lived through enough over the last six and a half years. J.M. has had every opportunity, in fact he has been given many second chances. Two assessment reports and two arbitral awards, following lengthy hearings, have indicated to him that his behaviour was harming the children. And yet he will not stop. The police and the CAS have been involved repeatedly in our family. They, too, keep giving him “one more chance.” In my view, it is time to stop focussing on J.M.’s needs and feelings.

It is time to protect the children. They have spent more than half of their childhood in the middle of conflict, being afraid as a result of the things their father says and does, in counselling to help them cope with their relationship with their father. They are entitled to some peace and to a childhood with a semblance of normalcy. [ 22 ] I am satisfied on the record before me that the relief requested by S.A. is necessary and appropriate and in the best interests of the children. ___________________________ Fragomeni J. DATE: April 1, 2011 CITATION : J.M. v.

S.A. , 2011 ONSC 2042 COURT FILE NO.: 28266/06 DATE: 20100401

SUPERIOR COURT OF JUSTICE - ONTARIO RE: J.M. v. S.A. BEFORE: Fragomeni J. COUNSEL: J.M., Applicant In Person Martha A. McCarthy, for Respondent, S.A. ENDORSEMENT Fragomeni J. DATE: April 1, 2011