Court File and Parties
Court File No.: Brampton 1465/02 Date: October 22, 2012 Ontario Court of Justice
Between: Anthony Phillip Vucenovic, Applicant — And — Jessica Lilian Rieschi, Respondent
Before: Justice M. B. Pawagi
Heard on: August 28, 29, 30 and September 5, 2012
Decision given: September 6, 2012
Reasons for Judgment released: October 22, 2012
Counsel:
- Anthony Phillip Vucenovic, Applicant, Self-represented
- Jessica Lilian Rieschi, Respondent, Self-represented
PAWAGI J.:
1: NATURE OF THE CASE
1This case is about a 10-year-old girl, Emilee Martina Rieschi, born […], 2002, who has been the subject of a custody battle since she was five months old. Both custody and access have changed through these turbulent ten years, sometimes by agreement, sometimes by contested motions. This is the first time the matter has proceeded to trial. Before this court is Mr. Vucenovic's Motion to Change the Order of Justice Wolder dated June 21, 2006 which granted, on consent, joint custody to the parties with primary residence to Ms. Rieschi and alternate weekend access to Mr. Vucenovic.
2Mr. Vucenovic's Motion to Change, dated March 17, 2009, initially sought only to vary child support and enforce access. However, by the time the trial was heard, the situation had changed drastically. Emilee had been placed in the temporary sole custody of her father on May 6, 2011 with access to her mother, first supervised and then gradually increasing to a shared arrangement where she was with her mother 40 per cent of the time. Then on July 22, 2012, she ran away from her father's home, and since that time has resided with her mother, in breach of the temporary order, and refused to see her father at all.
3At trial, both parties were seeking sole custody. And while each party had a plan for some access to the other; it was clear that the choice before the court was much starker: Whichever parent Emilee resided with, she could not, for very different reasons, have access to the other.
4The trial was completed on September 5, 2012, the second day of the new school year. The parents now reside in different jurisdictions which meant the custody order would determine which school Emilee would attend. Given the urgent need for finality and stability for Emilee's custody and schooling, I gave my decision orally to the parties and Emilee in court on September 6, 2012, placing Emilee in the sole custody of her father with no access to her mother; requiring that Emilee be enrolled in counselling; and providing for police enforcement, with written reasons to follow. I had asked that Emilee be brought to court for the decision due to the history in this case of the difficulty in this case of the difficulty or even impossibility of access exchanges.
5These are my reasons for that decision.
2: FACTS
(i) History of Legal Proceedings
November 21, 2002 — Mr. Vucenovic commenced a custody application, citing concerns about Ms. Rieschi's mental health, and obtained an emergency ex parte order for sole custody. Emilee was five months old.
December 30, 2002 — After a children's aid society investigation concluded that there were no protection concerns with either parent, the court made a temporary order of joint custody with Emilee residing with her mother during the week and with her father every weekend. Emilee was six months old.
November 12, 2003 — Parties signed a Separation Agreement providing for joint custody, with Emilee residing with her mother and having access with her father every weekend. Emily was about 1 year old. The Office of the Children's Lawyer had been involved and had reported to the court on July 4, 2003 that the matter was being resolved. On October 28, 2003, the matter was struck from the list as no one appeared in court and it seemed that the matter had resolved.
February 25, 2005 — The court file was opened again and the matter was transferred to Milton when Emilee was two years old. A temporary order was made to recommence access to Mr. Vucenovic in October 2005 when Emilee was three years old. The court documents recommencing the proceeding were not provided to the court in this trial as they were part of the Milton court file and were not contained in the parties' briefs in this proceeding.
June 21, 2006 — Justice Wolder made a final order on consent for joint custody, with primary residence to Ms. Rieschi and alternate weekend access to Mr. Vucenovic. Emilee was 4 years old.
March 17, 2009 — Mr. Vucenovic commenced his Motion to Change on the grounds that he has had no access for the past five months. Emilee was 6 years old.
May 6, 2011 — Justice Martin made a temporary order, following a contested motion, varying custody to Mr. Vucenovic. Emilee was 8 years old. Access to Ms. Rieschi was supervised at first and then gradually increased to a 60-40 shared arrangement.
July 22, 2012 — Emilee ran away from her father's home. She then resided with her mother with no access to her father. Mr. Vucenovic's emergency motion for the return of the child to his care was adjourned to the trial judge as the matter was scheduled for trial August 28, 2012. Emily was 10 years old.
(ii) History of Therapeutic Involvement and Assessments
a. Office of the Children's Lawyer
6After Mr. Vucenovic commenced this Motion to Change, the court requested the involvement of the Office of the Children's Lawyer. Clinical investigator Eileen Spraggett was appointed to prepare a report, pursuant to s. 112 of the Courts of Justice Act, which was provided to the court on May 10, 2010. She was not called as a witness at this trial.
7At the time Ms. Spraggett conducted her investigation, late 2009 and early 2010, Emilee was not having regular access visits with her father. Emilee was 7 years old at this time. Ms. Rieschi's position was that Emilee was refusing to see her father because she did not feel safe with him. However, Ms. Spraggett found that what Emilee said about the relationship between herself and her father did not correspond with what Ms. Spraggett observed when she saw Emilee with her father during an access visit.
8Ms. Spraggett noted the following during the visit she observed on October 24, 2009, where Emilee was at first tearful saying she missed her mother but then easily got involved in an activity with her father, stepmother and sisters:
- Anthony Vucenovic used a lot of humour with the children and the children laughed easily with him. Emilee seemed very comfortable with Anthony Vucenovic and sought him out and was affectionate to him. At one time the three children climbed on Anthony Vucenovic's back when he was bending down and cleaning the carpet. Emilee seemed to love the attention and laughed and smiled throughout. Anthony Vucenovic interacted warmly and with humour to Emilee and Erika and Veronika… Maria and Anthony Vucenovic interacted warmly with each other and with the children. Throughout the visit Anthony Vucenovic and Maria sat close to Emilee, Erika and Veronika, maintained eye contact with them and seemed attuned to their moods and needs. Emilee seemed comfortable, laughed easily and appeared to have a strong relationship with Anthony Vucenovic, Maria and the children.
9However, when Ms. Spraggett interviewed Emilee alone on November 1, 2009 and January 24, 2010, Emilee spoke entirely negatively about her father. Ms. Spraggett described what Emilee told her as follows:
She does not remember when her parents were together but she said she had a cat and her father killed it. Her mother told her that. Her mother told her that she and her father had a fight and that is why he left. She said her father never told her why he left.
Her father never plays with her and he often goes to work and she stays with Maria (her stepmother). They are not nice people and she does not like going there. Her father and Maria fight a lot and her father hit Erika and Veronika (her younger sisters). She is angry at her father because he is taking her mother to court and he does not want to pay child support. She said her mother told her this.
One time he grabbed her chin and shook it because she was crying and wanted to go home. She said her mother and grandmother would agree that he is not a nice person.
She does not want to see her father, Maria or her sisters. They are only half sisters, not real sisters. During her last visit she screamed and smashed his guitar. Her father does not really care about her and does not hug her or smile at her. She never loved her father, it was all an act. She stated repeatedly and forcefully that she hates him. If she has to visit her father she will scream again until she can get home to her mother.
10Ms. Spraggett reported what Emilee told her to the Children's Aid Society who investigated and did not verify any child protection concerns. Ms. Spraggett recommended joint custody with primary residence to Ms. Rieschi. She recommended that access between Emilee and her father be re-established through short frequent visits while counselling was in progress and then, after three months of counselling, to be expanded to alternate weekends.
b. Intensive Family Therapy Unit, Thistletown Regional Centre, Ministry of Children and Youth Services
11Despite the involvement and recommendations of the Office of the Children's Lawyer, regular access between Emilee and her father did not resume. From November 2009 until December 2010, Mr. Vucenovic did not see Emilee at all with the exception of three visits at Tim Horton's in the presence of Ms. Rieschi during the summer of 2010. Case management judge, Justice Maresca, referred the family to the Intensive Family Therapy Unit at Thistletown Regional Centre (hereinafter referred to as "Thistletown") for assessment regarding, among other things, the nature of the breach between Emilee and her father, how each parent contributed to or mitigated that breach and what is the most appropriate intervention to heal the breach and encourage a positive relationship between Emilee and each parent.
12A team of assessors at Thistletown conducted a five-day intensive assessment December 6 to 10, 2010, where they observed each parent with Emilee (Ms. Rieschi for the first 2 ½ days and Mr. Vucenovic for the last 2 ½ days). Emilee was 8 years old.
13Thistletown prepared a report about each parent dated December 30, 2010 and then an update about each parent's follow through dated July 21, 2011.
14Thistletown assessor, Catherine Borland-Kerr was qualified as an expert witness, on consent, in this trial, in the areas of assessing parenting capacity, child development and attachment, and developing treatment plans for children and families. She has a diploma (honours) in Child and Youth Work, a Bachelor of Applied Arts (honours) in Child and Youth Counselling and a Masters of Social Work and she has previously been qualified as an expert in the Ontario Court of Justice.
15She testified that during the assessment, Ms. Rieschi was preoccupied with her own anger rather than Emilee's needs. She testified that Emilee would minimize her own feelings and that her own feelings become secondary to her need to take care of her mother. For example, if Ms. Rieschi was upset, Ms. Borland Kerr recalled that Emilee would "try to get us to redirect or tell us why we were wrong about what we were worried about." Ms. Borland Kerr testified that Ms. Rieschi's anger was difficult even for the assessors to deal with.
16Ms. Borland Kerr testified that such behaviour puts Emilee at risk, as children who disregard their own feelings are vulnerable to having adults impose expectations on them. Such children are focused on taking care of grown-ups, not their own development, and are thus at risk of being in dangerous relationships because they are not attuned to whether these relationship are good for themselves. Ms. Borland Kerr testified that "Emilee dismissed her own feelings in an attempt to work on her mother's feelings and physical closeness. If mother was upset, Emilee would organize herself very quickly to try and take care of it."
17Ms. Borland Kerr described that when children have an anxious attachment to a parent, children worry about whether their own emotional needs will be met. They are not completely confident that the parent will attend to them in a way that will be helpful. They learn maladaptive coping strategies to get the attention they need: such as, dismissing feelings, or exaggerating them to gain attention. These are the strategies she observed in Emilee.
18In her report about Ms. Rieschi dated December 30, 2010, Ms. Borland Kerr noted that Ms. Rieschi often presented as defensive and/or dismissive of the concerns raised by the assessors and appeared unable to be self reflective and identify how some of her behaviour, even unknowingly, had potentially contributed to Emilee's confusion and worry about her father.
19The following are excerpts from Ms. Borland Kerr's report regarding Ms. Rieschi (whom she refers to as "Jessica"):
… she [Ms. Rieschi] continued to blame Anthony [Mr. Vucenovic] for the conflict and identify him as the cause of Emilee's refusal to attend access. Jessica continued to instruct the therapists to ask Emilee about the negative experiences she has had in her father's care. The team did explore these worries with Emilee who stated that within her father's home she felt she was mistreated when asked to take care of her siblings. With the support of the therapists Emilee also identified her more accurate worry that her father had "fallen out of love with her."
As interventions progressed, Jessica became increasingly defensive and began to make comments that blamed Emilee for not visiting her father. During one discussion, Jessica's voice became loud and harsh while stating it was "hard on [her] that Emilee won't go see her dad" to which Emilee responded appearing upset "it's not my fault." Jessica was unable to attend to Emilee's feeling and the therapists intervened to minimize the experience of blame. Jessica remained focused on how the therapists were upsetting her. The therapists intervened to assist Jessica to correct the message to Emilee and provide reassurance that it was not her fault.
Throughout the assessment, Jessica's preoccupation with her own anger and frustration regarding the court process, feeling blamed, and needing to attend the assessment, inhibited her ability to be emotionally attuned to Emilee. When direct discussion with the therapists ended, Emilee was often observed to seek out the therapists for support and social interactions as Jessica would withdraw to her room, talk on the phone or take personal breaks outside to smoke.
When therapists discussed with Emilee the possibility of repairing her relationship with her father, Emilee became very emotional. She stated no openness for any positive change. She said she did not trust her father and stepmother, they had been mean and hurt her and she no longer wanted any relationship with them. When asked about her sisters she was exceptionally dismissive and said she did not even recall one of their names.
Despite extensive involvement with this family in the past, Emilee appeared to easily dismiss her sisters' relevance. This was extremely concerning as it highlighted the developing confusions and possible distortions, Emilee's dismissive quality of her own feelings had. It also highlighted Emilee's need to continue to be close to her mother and loyal to her by minimizing her involvement with her father.
Throughout conversations with Jessica, it was observed that her frustrated and defended position was paramount. In conjunction with this, it was observed that Emilee displayed an anxious attachment toward her mother as she attempted to take on her mother's feelings, and took care of her mother's feelings, negating any feelings she may have experienced that were different. Hence, Emilee's attempts to remain engaged and ensure proximity to her mother was observed. Most significantly, Emilee may have refused a relationship with her father as she worried that it may have ruptured her relationship with her mother.
Emilee reported that when she is upset by her friends, she stops being friends with them. When this was explored she did not foresee any means of resolution. When a conversation with the therapist lead Jessica to become angry, Emilee absorbed her mother's upset and became angry and defiant with the therapist. Despite clear expectations from Jessica that Emilee would stay with her father for the second half, Emilee's behaviour escalated to yelling, demanding and refusing direction and support from her mother. Defiance and anger is a strategy to avoid sad, hurt feelings. A strategy that is likely to negatively impact all of her social relationships as she develops.
20In her report about Mr. Vucenovic dated December 30, 2010, Ms. Borland Kerr noted that the transition to the assessment of Emilee with her father was difficult at first. Emilee was upset, angry, rejecting, saying she hated her father and did not want to see him. Mr. Vucenovic reassured her that he loved her and missed her and would listen to her worries and work with the therapists. He brought photo albums, home movies and her favourite stories. Emilee at first refused to look, but then quickly settled in laughing and engaging with her father and appearing relaxed and comfortable with him. Emilee then greeted Maria and her sisters without hesitation and quickly moving into interacting with her younger sisters despite the extended break in access, and despite what Ms. Borland Kerr described as her sisters' accurate confusion, hesitancy and uncertainty. Ms. Borland Kerr noted that Emilee's rapid transition from upset to resolved was of concern as it showed she had limited insight into her own feeling and was indicative of "developmentally regressed coping strategies as she did not require the time or support that an eight year old child should need in order to move past such intense upset and angry feelings."
21Thistletown helped Emilee discuss her worries with her father. For instance, Emilee described that she did not like it when her father at one point in the past had squeezed her wrist as he attempted to get her to come with him for access. Mr. Vucenovic was able to apologize to her for how this made her feel. Emilee advised the team she had no other worries: "She said her father helped her upsets go away by doing things with her and that he made her feel happy and that he let her talk about who she missed and then made her feel better and hugged her."
22The Thistletown assessment's conclusions were that Emilee is insecure and anxious in her attachment to her mother and that she is preoccupied with her desire to remain physically close to her mother and ensure this relationship is not threatened and that as a consequence, Emilee has constructed a distorted sense of her father that allows her to disengage from him and remain engaged with her mother despite observations "that suggest no parenting behaviours on his part that support Emilee's rejection of him."
23The recommendations were that Ms. Rieschi would have to change her parenting behaviour to develop a secure relationship with Emilee and that without this change, Emilee would continue her maladaptive behaviour that will impede her ability to sustain a relationship with her father and likely negatively impact her ongoing social-emotional development and ability to develop healthy relationships with others. Ms. Rieschi would also need to become aware of her own frustrated and angry presentation to ensure that Emilee did not feel compelled to align with her mother's feelings and experiences about father that did not match Emilee's own experiences of her father.
24Thistletown recommended that there should be ongoing and liberal access between Emilee and her father; that her mother should have concrete expectations regarding Emilee attending access despite Emilee's presentation at the access exchanges; and that both parents should ensure that Emilee knows the other parent is necessary and valuable to her development and should support Emilee to work through issues with each parent.
25The report went on to state that if access with her father cannot be supported, there should be a change in custody as the current plan of Emilee not seeing her father "will elaborate her distortions about her father and increase her presentation of anxious/dependent proximity to her mother."
26Access was re-established following the Thistletown assessment and at first went well, but despite the work of the Thistletown team and the progress they noted Ms. Rieschi showing during the assessment, contact between Emilee and her father again terminated.
27On May 6, 2011, Justice Martin changed custody to Mr. Vucenovic following a contested motion. Access to Ms. Rieschi was at first supervised. Thistletown worked with the family after this change in custody. In their report dated July 21, 2011 they noted the following gains Ms. Rieschi had made:
- Ms. Rieschi is able to provide Emilee the message that she believed Emilee to be safe with her father and that it is important for her to have relationship with both parents. However she continues to struggle: For example, during one therapy session she became distressed about the length of time they had been apart and had difficulty regulating her distress in front of Emilee, increasing Emilee's distress and need to care for her mother. Emilee had described to the therapists earlier that she liked taking care of her mother and how she knows when her mother needs her to take care of her feelings. This leads to Emilee experiencing stress and problem solving by over-seeking proximity and being unable to tolerate separation from her mother. Recommendation for access to increase to overnights with goal of a return to a shared parenting plan provided that Emilee does not continue to display the difficulties or emotional stress experienced in the past.
28Thistletown also noted the gains that Emilee had made following the change in custody: Emilee was identified at school as "student most improved" and had not presented with any somatic symptoms such as stomach aches since the transition. Her transition has contributed to her experience of stability. She has been observed to seek out her father for comfort and reassurance and his accurate response to her distress and sadness has enabled her to present in a more age appropriate manner and continue to play and explore while in the family session.
29Ms. Borland Kerr testified that her observation was that Emilee was not using maladaptive strategies with her father. After custody changed, Ms. Borland Kerr noticed more developmentally appropriate behaviour in Emilee: For example, during counselling sessions she was disinterested in what adults were talking about, when before, she had been overly involved.
30Regarding Mr. Vucenovic's parenting, Ms. Borland Kerr noted that he was capable of attending to Emilee's needs, that he demonstrated an appropriate boundary of who was caregiver and who was child, and that Emilee had a secure attachment relationship with her father.
31Ms. Borland Kerr testified that Emilee's observed negative response to her father was in connection with her mother, not her father, and it is most difficult for a child to separate from a parent with whom they have anxious attachment. However, once separated the child is okay with the caregiver that gives secure caring. Ms. Borland Kerr testified that "I felt Emilee's physical and emotional needs were well met in father's care; mother had more difficulty in caring for Emilee's emotional needs."
32Ms. Borland Kerr testified that Emilee was not "traumatized" by the change in custody as Ms. Rieschi had suggested. Ms. Borland Kerr noted that while Emilee missed her mother, she continued to attend school, be a big sister, and express her feelings.
33Ms. Borland Kerr testified that in one counselling session after the change in custody, Ms. Rieschi described that Emilee had been "ripped from her" in Emilee's presence, causing Emilee to become distressed and start crying. Ms. Borland Kerr noted that Ms. Rieschi was saying such things even though the therapists were there and that this was an example of behaviour by Ms. Rieschi that leads to Emilee's maladaptive strategies. Ms. Borland Kerr noted that Ms. Rieschi's presentation (such as her anger) is hard for adults to regulate and so it is especially hard for a child.
34Ms. Borland Kerr testified that initially Ms. Rieschi said that she did not want Mr. Vucenovic in Emilee's life but that changed through the assessment. By November 2011, when Ms. Borland Kerr ceased her involvement with the family, Thistletown was pleased with the progress Ms. Rieschi had made. Thistletown recommended that access be increased in a cautious and gradual manner to ensure that Emilee's current experience of stability is not disrupted.
35Ms. Borland Kerr testified that the goal was shared parenting, provided that past issues did not continue, such as Emilee having difficulty with transitions and Emilee saying things were not okay with her father without being able to say why. Ms. Borland Kerr testified that Emilee thought things were moving too slowly, that she was always clear that she wanted time with both parents, and that she would say things like she wanted 50 per cent time with her parents. Access to Ms. Rieschi gradually increased, on consent, to overnights and eventually Emilee was with her mother about 40 per cent of the time.
36An updated report from Thistletown dated August 29, 2012 was proffered by Mr. Vucenovic and objected to by Ms. Rieschi. I am not accepting it as it was submitted at the last minute with no opportunity for Ms. Rieschi to consider it and cross-examine the author. Mr. Vucenovic submits it in order to explain why the family's involvement with Thistletown terminated. However, the parties agree that Mr. Vucenovic terminated the counselling with Thistletown in May 2012, and that he wanted to start it again in August 2012, but this time Ms. Rieschi refused.
c. Dr. Barbara Jo Fidler, Psychologist
37Ms. Rieschi sought individual counselling for herself with Dr. Fidler and attended six counselling sessions. Dr. Fidler did not meet with Mr. Vucenovic or Emilee. Her work was to assist Ms. Rieschi. Dr. Fidler was not called as a witness at this trial. Ms. Rieschi filed Dr. Fidler's reports with Mr. Vucenovic's consent. Dr. Fidler wrote two reports dated August 5, 2011 and November 9, 2011 in the form of letters addressed to Ms. Rieschi, wherein she summarized Ms. Rieschi's progress to her as follows:
You have reported that Emilee frequently asks to see you more and cries when it is time to leave you. You noted that she is crying because she does not want to leave you and anticipates missing you during the week, not because she does not want to be with her dad, stepmom or siblings.
You have become increasingly aware that being negative, angry or hurt where Emilee's Dad or the co-parenting situation is concerned can only impact Emilee negatively as it brings her into the middle of parental conflict.
We discussed the negative impact on Emilee of badmouthing or undermining her dad or stepmother, directly or indirectly, intentionally or unintentionally, and specifically how this has impacted on Emilee, including any possible effects on her self-esteem.
You have consistently expressed a strong view that Emilee needs all of her family, including you, her father, stepmother and siblings and both extended families. You want Emilee to have the benefit of both parents and to share her time equally with her father and you.
It appears that improvements have been made with the assistance of the court case management, your own individual therapy and self-improvement efforts and the family therapy at Thistletown. It is imperative that concrete efforts are made to develop a detailed parenting plan to prevent future and unnecessary parental conflict that if present will undermine the efforts and progress of all concerned to date.
d. Children's Aid Society Investigations
38Throughout the history of this case there have been numerous referrals to various children's aid societies, mostly regarding Ms. Rieschi's allegations against Mr. Vucenovic. None of the allegations have been verified. Evidence was provided at trial of the following investigations:
The first children's aid investigation took place at the end of 2002 in the first months of Emilee's life, and concluded that there were no protection concerns with either parent;
On May 19, 2009, Ms. Rieschi reported that in March 2009 Emily had disclosed to her an incident where Mr. Vucenovic put his hands in his pants and then touched his daughter Erica's face. This allegation was investigated and not verified (and later recanted by Emilee). Mr. Vucenovic raised concerns that Ms. Rieschi made the report two days after he had served her with his Motion to Change (May 17, 2009);
In late 2009, early 2010, Children's Lawyer Investigator Ms. Spraggett reported to children's aid the allegations Emilee had made about how she is treated in her father's home and the allegations were not verified.
Stephanie Mussio, intake worker, Children's Aid Society of the Region of York, testified that she investigated Ms. Rieschi's complaint on July 3, 2012 regarding inappropriate discipline and domestic conflict. Emilee alleged that her father and stepmother hit and push each other and call each other names, swear and spank her sisters and do not allow her to call her mother. Ms. Mussio testified that after she had finished speaking to Emilee, Emilee asked to speak to her again. Emilee recanted her allegations. Emilee also said that she lied in the past about her father putting his hands down his pants and then touching Erica's face. Emilee told Ms. Mussio that in past she had lied and exaggerated allegations so as not to be with her father.
Ms. Mussio also met with Ms. Rieschi and Emily following July 22, 2012, the date Emily ran away from her father's care. That meeting was truncated as Ms. Rieschi chose to leave. However, neither police nor children's aid found that Mr. Vucenovic had acted inappropriately on July 22, 2102.
e. Police Investigations
39The parties' history with police is similar to their history with children's aid in that charges have been laid in the past but there have been no convictions to date: March 31, 2001, both were charged with assault; April 21, 2003, Ms. Rieschi was charged with assault; and January 2005 Mr. Vucenovic was charged with assault.
40Most recently, on August 17, 2012, one week before the commencement of this trial, Mr. Vucenovic was charged with criminal harassment. This charge is pending. Again, the facts are not disputed. The reason Ms. Rieschi called the police was that Mr. Vucenovic appeared at her work place twice (and his wife appeared once) to serve her with his trial record and document briefs after she had expressly told him not to serve her at work. Ms. Rieschi said she felt she was being stalked, as she had not given him her work address, and it upset her to the point where it interfered with her ability to work. Ms. Rieschi testified that he made "a scene" and then explained, "By scene I meant it startled me and in turn startled my coworkers." Ms. Rieschi acknowledged that they did not say anything inappropriate to her or remain there longer than the few minutes it took to give her the documents.
41Mr. Vucenovic testified that they served Ms. Rieschi at work because she had moved and she had not given him her new address, and that there was not time to mail the documents as they were not ready until the deadline for serving had arrived. They were able to get the work address because Ms. Rieschi had called Mr. Vucenovic's wife from work in the past and she was thus able to find the address from the phone number. Ms. Rieschi also testified that her car had been tampered with, implying that it was Mr. Vucenovic's doing, but no evidence was presented regarding this allegation.
(iii) The Events of July 22, 2012
42Turning now to the events of July 22, 2012 which precipitated the most recent rupture in the relationship between Emilee and her father: The essential facts regarding July 22, 2012 are not in dispute. Mr. Vucenovic was driving his family home from church that day. Emilee was in the back seat with her two younger sisters and was arguing with one of them. Mr. Vucenovic asked Emilee to be quiet. Emilee continued to argue. Mr. Vucenovic pulled over, told Emilee to shut up and put his hand over her mouth. When he removed it, she began to yell again and he covered her mouth again. Emilee says he covered both her nose and mouth, he says he only covered her mouth.
43When they got home he told her to go to her room as she was in trouble. She refused. He grabbed her and put her in her room. She left her room and began to yell at him. He put her in her room again. She cut a hole in the screen of her bedroom window and jumped out (ground level) and went to neighbour's who called the police. Police attended and interviewed Emilee. Police noted that Emilee seemed physically fine, no marks and that Mr. Vucenovic did not use excessive force. They took her to Etobicoke General Hospital to speak to a crisis worker as she seemed to be very upset.
44Both parents' evidence is that the police and the children's aid society decided Emilee should go home with her mother as she was refusing to go with her father. It is not at all clear on what authority the child was released to Ms. Rieschi's care, since Mr. Vucenovic was not consenting to this and he had a court order for custody and it was not Ms. Rieschi's access weekend.
3. ANALYSIS
45It was not disputed that there has been a material change in circumstances since Justice Wolder's order was made, in that custody has been changed on a temporary basis. Thus, the issue before this court is what order would be in the best interests of the child.
46The best interest factors are set out in subsection 24(2) of the Children's Law Reform Act, and are considered in turn below.
(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
47There was a difference between the love, affection and emotional ties that was described, versus that which was demonstrated, between each party and the child. Both Ms. Rieschi and Emilee's descriptions of their relationship was very loving, affectionate and emotionally close. But what was demonstrated was that the attachment was an anxious one where Emilee was more focused on meeting her mother's emotional needs than the other way around. Meanwhile, both Ms. Rieschi and Emilee described Emilee's relationship with her father in very negative terms. But what was demonstrated was a loving, healthy attachment where her father was able to meet Emilee's emotional needs. Similarly, both Ms. Rieschi and Emilee dismissed any connection between Emilee and her sisters, that she did not care about them, that they were not her "real" sisters; but what was demonstrated when she was with her sisters was a loving sibling connection.
(b) The child's views and preferences, if they can reasonably be ascertained
48Emilee's independent views and preferences could not be ascertained as there was a disconnect between what she was saying about her father and sisters and stepmother versus how she was behaving when she was with them, as observed by both Children's Lawyer Investigator Ms. Spraggett and the Thistletown assessors.
(c) The length of time the child has lived in a stable home environment
49The last period of stability Emilee enjoyed was when she resided in the temporary care and custody of her father from May 6, 2011 to July 22, 2012, almost one year. She did well in his care and was recognized as the most improved student that year in her class at school. If she remains in her mother's care she would have to adjust to a different school and a different home environment as her mother has moved out of maternal grandmother's home and into her own home in Alliston. For example, Ms. Rieschi registered Emilee in a new school in Alliston and had her start the school year there even though it was during the middle of the trial about custody and access and she had no legal authority to do so and risked further disrupting Emilee once a final order was made.
(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
50While both parents are able and willing to meet Emilee's instrumental needs (food, clothing, shelter), Mr. Vucenovic has demonstrated he is better able to meet her emotional needs.
51Ms. Rieschi has demonstrated an inability to meet Emilee's emotional needs and an inability to support Emilee's relationship with her father. Mr. Vucenovic has demonstrated an ability to meet Emilee's emotional needs and to support her relationship with her mother.
52The July 2011 assessments from Thistletown and the August and November 2011 reports from Dr. Fidler, noted that Ms. Rieschi had made progress in the area of supporting Emilee's relationship with her father. However, Ms. Rieschi's own testimony at trial, as well as the testimony of her mother, Angela Rieschi, with whom she has resided until recently, demonstrated that this progress was illusory. Ms. Rieschi and her mother continue to believe it is unsafe for Emilee to have access to her father despite the professional evidence to the contrary. Ms. Rieschi and her mother also continue to involve Emilee in the dispute between her parents.
53Angela Rieschi testified about two incidents in May 2012, where she acknowledged speaking to Emilee about the dispute. When Mr. Vucenovic advised that Ms. Rieschi could no longer pick up Emilee after dance class on Mondays and drop her at his home because it was leading her to having a difficult time settling down to sleep on Monday nights, Angela Rieschi directed Emilee on phone to "tell him it's in the court order." On May 1, 2012, when Mr. Vucenovic served Ms. Rieschi with court papers following an access exchange, Angela Rieschi acknowledged calling out to Emilee, "See, it's never been us, Emilee, it's him."
54The main contradiction in Ms. Rieschi's position is as follows: On the one hand, she was able to convey to Thistletown and Dr. Fidler that she had learned the importance of supporting Emilee's relationship with her father. She was able to articulate to them that she understood it could be harmful to Emilee's growing up if she did not see her father. On the other hand, at the trial, her position that Emilee was not safe with her father was not just based on alleged incidents that happened in the past year, it was based on the entire history which demonstrated she had not made progress after all.
55Ms. Rieschi relied at trial on evidence and allegations that predated her work with Thistletown and Dr. Fidler:
She spent a large portion of her own testimony and her cross-examination of Mr. Vucenovic on an incident that occurred about ten years ago wherein he killed her cat. He admitted to doing so and testified that the reason he did so was that it had scratched Emilee and Ms. Rieschi refused to get it declawed.
She alleged that Mr. Vucenovic aggressively disciplines and "manhandles" Emilee. She testified, "You put your hands on her many times, you squeezed her arms. You are physical with Emilee you have been all these years. It has always been made known by Emilee her dislike for your aggressiveness." She said her support for their relationship is there, "but putting your hands on her anytime she did not agree is not being a nice person."
She continued to refer to allegations of mistreatment that were investigated and not verified by Children's Aid such as fights between Mr. Vucenovic and his wife (him locking her in the basement, him spitting on her, him smashing their wedding photos). She testified that after Emilee recanted she again asked Emilee about the allegations and asked her "to be truthful." She testified that Emilee was "tricked" into recanting.
56What Ms. Rieschi demonstrated is that she has not actually made any gains at all as a result of her counselling with Thistletown and Dr. Fidler regarding the importance of supporting Emilee's relationship with her father.
(e) The plan proposed by each person applying for custody of or access to the child for the child's care and upbringing
57The plan proposed by Mr. Vucenovic has been demonstrated as successful as he had her in his care for approximately the past year. The plan proposed by Ms. Rieschi is a new one, as she has now moved out on her own. In one respect it has already been demonstrated to be unsuccessful in that her plan is that Emilee would have regular access visits with her father and yet she has been unable to implement any access since Emilee began to reside with her on July 22, 2012.
(f) The permanence and stability of the family unit with which it is proposed that the child will live
58As indicated above, Mr. Vucenovic's family unit is permanent and stable while Ms. Rieschi has just recently moved from maternal grandmother's home to her own home.
(g) The ability of each person applying for custody of or access to the child to act as a parent
59The ability of a person to act as a parent includes their ability to support the child's relationship with the other parent. There is a line of cases where a custodial parent's inability to support the relationship between the child and the access parent has resulted in a change of custody, with no access to the former custodial parent (with some exceptions for the purpose of counselling):
In P.L.M. v. L.J., 2008 CanLII 35923 (ON SC), 54 R.F.L. (6th) 126 (Ont. SCJ), Justice Harper changed custody to the father with no access to the mother after finding that "the most important thing for these children is a period of time that relieves them from the "war" that has raged in their life for far too long." While many such cases involve findings of "parental alienation," Justice Harper noted that it was not necessary for his decision to engage in the controversy about the merits of this concept;
In A.G.L. v. K.B.D., 2009 CanLII 943 (ON SC), 65 R.F.L. (6th) 146 (Ont. SCJ), Justice McWatt changed custody to the father with no access to the mother after finding that the mother was unable to accept criticism and was unable to gain from the comments of people who disagreed with her; that there was no evidence to support the children's alleged fears of their father; and that the mother had no real plan for re-establishing and maintaining a relationship between the children and their father;
In J.K.L. v. N.C.S., 2008 CanLII 30289 (ON SC), 54 R.F.L. (6th) 74 (Ont. SCJ), Justice Perkins changed custody to the mother with no access to the father. Justice Perkins noted that he was not at all satisfied that the father will do anything to facilitate contact between the mother and the son if the status quo continued.
60Often cited in such cases are Justice Trussler's comments in Tremblay v. Tremblay, 1987 CanLII 147 (AB KB), 10 R.F.L. (3d) 166 (Alta Q.B.), paragraphs 9, 15 and 16:
I start with the premise that a parent has the right to see his or her children and is only to be deprived of that right if he or she has abused or neglected the children. Likewise, and more important, a child has a right to the love, care and guidance of a parent. To be denied that right by the other parent without sufficient justification, such as abuse or neglect, is, in itself, a form of child abuse.
The court should not automatically change custody if the custodial parent refuses access or otherwise interferes with the development of a normal parent and child relationship between the non-custodial parent and the child of the marriage. However, where the parent refuses access, serious questions are raised about the fitness of that person as a parent. The refusal to grant access after it is ordered is a change in circumstances sufficient to satisfy s. 17(5) of the Act.
In deciding questions of custody one needs to take into account the best interest of the child. It is in the children's best interests to live with the parent who is prepared to be co-operative with respect to access in cases where both parents can equally well look after the children or, even if there is a divergence in parenting skills, as long as the co-operative parent is fit to look after the children.
(h) The relationship by blood or through an adoption order between the child and each person who is a party to the application
61Emilee is equally related by blood to each party as they are her biological parents.
4. CONCLUSION
62It is clear that after considering all of the factors, it would be in the child's best interests to be placed in the custody of her father. With respect to access, it most unfortunately is clear that it would not be in her best interests to have access with her mother as it would undermine the stability of her placement with her father and inevitably lead to a complete rupture in her relationship with her father as it has several times in the past, including most recently in the summer of 2012.
63While Ms. Rieschi claims to support Emilee's relationship with her father, it is clear that she does not really want Mr. Vucenovic to have access to Emilee because otherwise, she would not keep focusing on allegations that he always "lays his hands on her [Emilee]." She cannot on the one hand profess a wish for Emilee to have regular access with her father while on the other complain at length about Mr. Vucenovic's deficiencies as a person and parent, including having him charged on the eve of this trial on spurious allegations of harassment, and expect to be believed.
64Furthermore, it would not even be enough to have supervised visits with counselling as that was already tried and proved an insufficient safeguard. Ms. Rieschi would first have to demonstrate through individual treatment that she has changed.
65I asked that Emilee be at court to hear the decision out of concern that the decision could not be implemented if she were in Ms. Rieschi's residence. There has been a sad pattern in this case of access exchanges involving great upset at first for Emilee or even sometimes proving impossible, as with the recent attempt at an exchange at a police station July 2012. That pattern was borne out again on September 6, 2012. While Emilee was at first hysterical at the thought of going with her father, she eventually went with him willingly.
66Emilee cannot be further subjected to the back and forth changes of custody, to the hysterical access exchanges, to this battle any further. She deserves stability, permanence and emotional security and she is most likely to achieve that in the care of her father with no access to her mother.
5: ORDER
(Issued and entered September 6, 2012)
The Applicant, Anthony Phillip Vucenovic, shall have sole custody of the child, Emilee Martina Rieschi, born […], 2002.
There shall be no access to the Respondent, Jessica Lilian Rieschi, pending further order of this court.
The Applicant shall enrol the child in counselling forthwith which shall not be terminated, pending further order of this court.
Peel Regional Police, Sheriff's Officers and/or such other law enforcement agencies as may have jurisdiction are hereby directed and authorized to enforce this order.
Pursuant to section 36 of the Children's Law Reform Act, police forces in the Province of Ontario, including but not limited to the Peel Regional Police, are directed and authorized:
a) To do all things that may reasonably be done to locate and apprehend the child, namely, Emilee Martina Rieschi, a girl, born […], 2002 and deliver her into the care of the Applicant, Anthony Phillip Vucenovic; and
b) To enter and search any place, at any time of day or night, where he or she has reasonable or probable grounds to believe the child may be, with such assistance and such force as are reasonable in the circumstances,
c) But this order to apprehend the child expires six months from the date of this order, unless extended or terminated earlier by further court order.
Reasons released: October 22, 2012
Justice M.B. Pawagi
