Court Information
Court: Ontario Court of Justice File Number: Brampton 14-174-00 Date: December 9, 2015 Judge: Justice Philip J. Clay
Parties
Applicant: Lynne Koleszar Respondent: David Reddy
Counsel:
- Mr. Jeff Rechtshaffen, for the Applicant
- Mr. Robert McQueen, for the Respondent
Heard: December 2, 2015 Reasons for Judgment Released: December 9, 2015
CLAY J.:
MOTION
1This matter concerns a child whose access to his father was terminated by his mother in January 2014. Almost two years is a very long time in the life of a now 10 year old child. I have set out the procedural background to this matter as it may serve as a cautionary tale for everyone involved in the resolution of access disputes. There were many reasons why it took such a long time to have this matter adjudicated. Well-meaning interventions failed. Delay always works more in favour of one party's position than the other. It rarely, if ever works, in favour of the child's best interests.
Procedural Background
2On February 5, 2014 the Applicant mother ("the mother") brought an Application for custody, child support and a no access order respecting the child JK born XXXX XX, XXXX. She also brought an emergency motion seeking a no contact order between the Respondent father ("the father") and the child. That order was not granted. The father was not represented by counsel at the time. He did not file an Answer until September 23, 2014. He stated that he would consent to a child support order but that he wanted access.
3The first effective case conference did not then occur until November 12, 2014. The court has subsequently learned that the mother and the child moved from the Region of Peel to the Region of Durham in September 2014. At the case conference a consent order was made that the Office of the Children's Lawyer ("OCL") be asked to investigate, that the father undergo a hair follicle test, that some third party records be released and that the father pay table child support according to the Child Support Guidelines. The matter was then adjourned to February 26, 2015 on the basis that if the OCL were involved there would be a further case conference and if they were not, that the father had leave to bring a motion for access to the child.
4The father retained counsel and on February 26. Mr. McQueen attended to advise the court that the OCL was involved and the parties sought an adjournment to May 11, 2015. On that date Mr. McQueen advised that the OCL clinical investigator Ms. Janice King-Watson had been unable to complete her work as she had yet to have an observation visit with the father and the child in the father's home. The mother had taken the child to hospital for a psychiatric evaluation after the child had met with the father and the investigator in her office. The mother would not permit the father to see the child even in the presence of the investigator. An order was made to adjourn the matter to July 20 at 9:00 a.m. and to grant leave for an access motion on September 4, 2015.
5On July 13, 2015 the court received the uncompleted investigation report from the OCL. The report stated that the majority of the clinical investigation had been done but the investigation had ended because the mother had withdrawn her consent to participate in the process. On July 20, 2015 a consent order was made for extensive third party production from all of the physicians, psychologists and social workers the mother had taken the child to see. Leave was granted for an assessment pursuant to s. 30 of The Courts of Justice Act. The matter was adjourned to the existing motion return date of September 4. On September 4, 2015 counsel advised that rather than seeking an assessor they had opted to try therapeutic reintegration between the father and his son with therapist Ms. Shelly Polak. Mr. McQueen was concerned with preserving a date for a motion in the event that the therapy was not productive. A motion date was set for October 27 and another date was booked for December 2, 2015 in the event that the court granted leave on October 27 for a motion concerning access over the Christmas school vacation. The October 27 motion date was vacated as Ms. Polak was involved and no motion had been brought.
6The father then brought his motion for access returnable on December 2. In his materials he advised that Ms. Polak had withdrawn from the therapeutic access process. He sought mid-week evening and alternate weekend overnight access and a block of access over the Christmas school vacation. The mother responded with a motion for increased child support and her affidavit stating that access was not in the child's best interests.
7I refused to hear the motion for increased child support given that no leave had been granted for that motion and there was a temporary order in place. I heard the motion for access and reserved my decision.
ISSUES
Is an order for access in the best interests of the child at this time?
If access is in the child's best interests what terms should be imposed?
THE LAW
8The law applicable to any motion for access is set out in the s. 24 of the Family Law Act, R.S.O. 1990, c.F.3 which reads as follows:
Merits of application for custody or access
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
EVIDENCE
Evidence Not in Dispute
9The parties both worked at Bombardier Canada and became very good friends. In the course of their friendship the mother disclosed to the father that she was in the midst of a very difficult separation from her same sex partner C.L. and she was fighting in court to maintain contact with her step-daughter J.L., C.L.'s biological child. The father disclosed that he would like to have a child as he was not in a relationship at the time and had no children. The parties agreed to have a child together. They had sex, the mother conceived and their son JK was born on XXXX XX, XXXX.
10While their versions of the level of involvement the father would have in parenting differ somewhat the differences are not material to the resolution of this matter. He was very supportive to the mother during the pregnancy. He took her to her ultra-sound appointments and to the hospital when she went into labour. They reached a verbal agreement that the father was not required to pay any child support and that he would be able to have contact with the child. Over time the father's contact gradually expanded to the point where he had alternate weekend access. The mother was financially and emotionally exhausted with her litigation with her ex-partner and ultimately consented to having no further contact with J.L.
11The parties remained good friends until they each entered into relationships with new partners. In early 2012 the father met his current partner D.B. and they began living together in September 2012. When this litigation began the mother was in a relationship with E.M. In late August 2014 the mother moved in with E.M. and her two children. They have recently separated.
12The father used to have a serious problem with alcohol. In 1983 he was driving while impaired. He had a head-on collision with another driver and the passenger in the other car died. He was convicted of criminal negligence causing death and was sentenced to three years in prison. The father told the mother early in their friendship that due to that history he would no longer drink alcohol or drink very little alcohol (the evidence was not clear). The mother said that the father's expanded contact with JK over time came about because she saw that he was not drinking and that he was leading a responsible life.
13The mother expressed concern to the father when he began his relationship with D.B. because in her view D.B. drank alcohol to excess and she thought that the father was drinking more as a result. Notwithstanding her stated concerns the father continued to have alternate overnight weekend access to JK until December 2013. Other than a day visit in 2014 and a visit in April 2015 with the OCL clinical investigator there has been no access since that time. At this point the evidence diverges.
Access Termination
14Mr. McQueen referred to the affidavits of both parties and said that the history of the case is critical. Prior to January 2014 the child and father had a close and loving relationship. He noted that the mother's affidavit stated that the father/son relationship was without conflict until November 2013. The father's evidence was that even if the mother had expressed some concern over his resumption of the use of alcohol she did not take any steps to change the access. He went on a long trip to Thunder Bay with JK in the summer of 2013. He had an extended visit with his son over the Christmas school holidays in 2013.
15The father said that the mother told him in November 2013 that she wanted to reduce his access time from overnight to day access because JK was not feeling safe at his home. When he refused, because he thought the visits were going well, she became angry and said that she would go to court and ensure that he only had supervised access.
16In November 2013 the mother did not tell the father why his son might feel afraid at his home. When access was terminated in January 2014 he was not aware of her specific concerns. The mother simply said that JK had not wanted to see his father after the Christmas holiday visit. The mother said she did not know why JK did not want to go. When the then 8 year old child told the mother that he did not want to go for access she cancelled it.
17The mother brought this Application on February 5, 2014 and brought a motion, without notice, seeking an order that the father have no access with the child. At the time she alleged that the father was drinking alcohol to excess. She alleged that she could smell alcohol on his breath mixed with mouthwash. She further alleged that the father had recently told JK that he could come to live with his father when he became 13 years old. She said that this statement had caused her son a great deal of anxiety. She said that JK now refused to attend visits. The motion was denied.
Physical Abuse Allegations
18On March 21, 2014 the mother amended her application. She added to her grounds for a no access order the allegation that the father and his partner D.B. had a violent argument on Dec. 26, 2013 in the course of which the father charged into the child's room, grabbed the child, choked him, shook him, picked him up and threw him on the floor. She said that the child hurt his right arm and had a bump on the back right side of his head. The mother said that JK did not disclose any allegations of physical violence to her until later in February 2014 after she had issued her application. She stated that the child told her that he was frequently physically disciplined but never in public and never in the presence of anyone other than D.B.
19After the disclosures were made the Peel Children's Aid Society (CAS) became involved and the York Regional police conducted an investigation (as the mother lived in Brampton and the father in York region). They interviewed both the father and the child. The father denied any physical discipline or abuse. The police closed their investigation and their report stated that the allegation of physical abuse of the child was "unfounded." The mother remained convinced that JK had been physically and emotionally abused.
20The mother attached to her affidavit records from the Peel CAS investigation. The Case Analysis sub-section contained the following summary:
During the initial interview on February 20, 2014 JK made no disclosure of physical discipline. He reported that he gets time out. Also JK reported that he did not miss his daddy because he is mad at him because he told me that he was going to take him away and he wants to live with his mom. However when JK was interviewed for the subsequent referral on March 20, 2014 JK made disclosures about his father physically abusing him.
21The mother stated that JK's statements to the Peel CAS worker prove that JK had not told her that he was being abused when she initially denied access due to the concerns regarding alcohol and JK's unwillingness to see his father. The father stated that JK's statements prove that when the mother could not initially obtain an urgent order to stop his access she manipulated their son into making up allegations of physical violence to ensure that access would be stopped.
22The mother stated that the child's disclosure to her in late February explained so much. She had noted after picking him up on December 29 that JK had a bruise on the back of his head and that he had a sore arm and leg and had trouble playing soccer. His refusal to see his father after the holiday made sense to her once she became aware that the father had hit JK.
Alcohol Abuse Allegations
23The initial reason given by the mother for wanting to remove overnight access in November 2013 and her initial application seeking supervised access focused on her allegation that the father was drinking alcohol again and may be drinking and driving. Unfortunately although this matter was before the court in February 2014 the father did not retain counsel and did not take active steps to have the access issue addressed until November 2, 2014. At that time he consented to an OCL order, and did not oppose the mother obtaining leave for CAS records. To address the mother's allegation of excessive alcohol use and drinking and driving he consented to a hair follicle test and to providing his Ministry of Transportation record.
24The hair follicle test was not done for nearly three months. The mother alleged intentional delay, the unrepresented father said he did not see any e-mails from her counsel giving him the laboratory details. When finally done the test showed alcohol use in the moderate range which the mother said is not an issue for most people but was concerning given the father's criminal history and his promise to her not to drink at all when caring for his son. The father said there should be no concerns as he is on blood thinners for a medical issue and he cannot drink much alcohol and he never drinks and drives.
The Child's Behavioural History
25The OCL report sets out that JK had had behavioural issues for some time. Due to reports of his aggressive behaviour with other children at his school the mother accepted a referral for JK to the Peel Children's Centre ("PCC"). Their March 11, 2013 intake report was filed. The mother had told them that JK had seen a therapist from the Hincks-Dellcrest Center in Toronto for a few years. She admitted that JK had "witnessed lots of verbally aggressive altercations" during the mother's relationship with C.L. It was reported by the mother that JK was "traumatized" by his step sister J.L. who was 2 years older as she was verbally and physically aggressive towards JK during visits. When those visits ended the mother reported that JK missed his sister and cried all the time about that loss. The PCC intake interview with the mother showed that even in March 2013 the mother thought that JK was often worried that bad things will happen to loved ones and that he will be separated from loved ones. He sometimes felt hopeless and seemed unhappy, sad or depressed.
26In March 2013 JK was having regular overnight access with his father. The mother did not report any problems in the father/son relationship. As noted above the mother had no issue with father until November 2013 when she said that she became concerned about his alcohol use. There were no concerns about JK having anxiety or behavioural issues due to access visits until December 2013.
27The mother continued with counseling at the PCC in the spring of 2014. The last session between the PCC counselor Frank Ennis and the mother and child occurred on June 24, 2014. In that meeting the mother shared that her former partner C.L. was very violent and her ex's new girlfriend threatened to shoot her. Her ex-partner was charged. JK witnessed the incident. In that same note the mother said that JK does not miss his father. She expressed disappointment that the father did not meet her expectations and that JK did not have the kind of male role model she wanted for him. The mother moved to a rural property in the Port Perry area in the late summer of 2014 and Mr. Ennis had no further involvement with her.
The Family Doctor
28The mother produced a letter from her former family doctor Dr. P.C. Yau dated July 15, 2015. He confirmed that JK had been "in clinical contact with him" since December 29, 2006. The doctor said that the mother had brought JK in to see him on March 3, 2015 because JK had been fearful of visiting his biological father. She said that JK had become anxious and moody. The mother went back to see Dr. Yau after the April incidents described below. The doctor viewed the records and then stated that he believed JK had suffered abuse at the hands of his father and that he was "concerned" that JK will suffer significant mental and physical harm if he "comes under the custody" of his father. Mr. McQueen stated that no weigh should be placed on this letter because Dr. Yau had been disciplined by his college and was not credible. To be clear the mother did not file the letter with her affidavit. It was produced as part of the disclosure brief filed by Mr. McQueen on consent of Mr. Rechtshaffen. The letter is referred to herein only because it shows that soon after the mother was made aware of the OCL involvement and just prior to Ms. King-Watson's first interviews with the parties the child was brought by the mother to a doctor. This led to notes being made of the child's statements to the doctor.
The OCL Office Interview
29Ms. King–Watson, the clinical investigator in this matter had obtained information from collaterals and interviewed the parties and the child. She could not proceed to complete her report because the mother withdrew her consent. Her uncompleted report dated July 2, 2015 sets out the party's background and relates their respective views of JK's relationship with his father.
30On April 16, 2015 Ms. King-Watson the OCL investigator arranged a visit at her office between the father and the child. She reported that JK turned his back to his father at the beginning of the visit. The father asked him to play a game. After some time ignoring him when Ms. King-Watson joined the game JK finally pulled his chair close to his father around the table and played the game. Ms. King-Watson said the child acted in a way that indicated he enjoyed the interaction. In fact when the visit was over and the mother arrived JK said in her presence that he wanted to stay a little longer. Ms. King-Watson noted a disapproving look on the mother's face at this statement but JK did not notice that. He stayed a little longer and he skipped down the hall as he left the office to re-unite with his mother. Ms. King-Watson stated that when JK left her office with his mother he showed no signs of any distress.
31The mother stated that as soon as JK got in her car he became very upset. He started banging his head and picking at his arms and saying that he wanted to kill himself. The next day, April 17, she took him to the emergency department of the Lakeridge Health Centre. It appeared from the psychiatrists report that the mother and child were seen together. JK told the doctor that he did have thoughts of stabbing himself with a knife and he did scratch himself the day before. He told the doctor that his father drank alcohol and that the last time he visited him (December 2013) his father had tried to choke him although he could not say what had precipitated the incident. He also said that his father was trying to take him away from his mother and this caused "a weird feeling in his tummy" as his mom "was always there to take care of me" and "who doesn't love their mom." The psychiatrist was told that the father had attended at JK's school and as a result the child reported a fear that his father would try and kidnap him. As JK was calm, even bored, at the end of the interview he was released home.
32The party's affidavits addressed the school incident referred to above. It occurred after access termination when the father went to the child's Brampton school to speak to the principal. The mother had alerted the school that the father might try and kidnap his son so the school called the mother and she called the police. It was clear that the father was simply trying to obtain information and there was no plan to take his son but JK related this to the psychiatrist as an ongoing worry.
33Ms. King-Watson had arranged for an observation visit at the father's home on April 25. The mother said that this could not happen as JK was very afraid of his father and that even thinking of having access to him caused severe anxiety, suicidal ideation and self-harming behaviours. Mr. Rechtshaffen wrote to Ms. King-Watson's OCL supervisor to report his client's concerns about the investigator forcing JK to spend time with his father by "locking" him in her office with him. She said the child had been "tricked" into going into her office to see his father and that he did not have a good time. The mother went so far as to have JK write a letter to her counsel which was attached to her affidavit. That letter was not sent to the OCL but counsel asked that the supervisor intervene to stop the scheduled April 25 visit.
34The April 25 visit with the father was cancelled and Ms. King-Watson thought that the time made available could be used for her observation visit of JK in his mother's home. She attended at the mother's home and in the course of the meeting suggested that supervised visits to the father continue. The next morning the mother found approximately 50 bloody Q-tips in JK's bedroom. He had picked at his ears and caused damage to one of his ear canals. The next day the mother took JK back to Lakeridge where they met with a psychiatrist. The mother told the psychiatrist that JK had done quite well between the April 17 hospital attendance and April 25. However when JK was told that he would be seeing his father again he went into a tailspin. The psychiatrist told the mother that if the visits were this stressful for the child they should not happen and JK was told about his "rights" and that he could not be forced to see his father.
35The mother made a number of complaints about Ms. King-Watson's alleged bias towards her as a lesbian woman and about her unprofessionalism and competency. She stated that she could not trust the investigator and she withdrew from the OCL process.
The Psychologist
36The mother then made an appointment with a psychologist Ms. Helen Daymond. She had an intake appointment with her on April 28, 2015. Ms. Daymond's letter of July 10, 2015 was attached to the father's affidavit. The mother told Ms. Daymond about the hospital visit due to self-harming behaviour. Ms. Daymond saw JK on May 5 and May 20 and said that he had made statements consistent with what he told the Lakeridge psychiatrist. She noted that she had not met the father and therefore she was unable to comment on the father/son relationship. She also noted that the mother told her that JK was on a wait list for Kinark Child and Family services.
Therapeutic Integration
37On September 4, 2015 counsel advised the court that they had agreed that Ms. Shelly Polak would be retained to meet with the father and the child in a process that was described as therapeutic intervention. On October 27, 2015 Dr. Rebecca Wray a physician in Port Perry wrote a letter to the "Reunification Therapist." In that letter she wondered if JK might have Post Traumatic Stress Disorder. She said that JK:
… is experiencing increased angst and worry since he has initiated reunification therapy. He is very worried about the prospect of meeting with his father again; he worries that he will be taken from his mother and not see her again.
Dr. Wray stated that she had made an appointment for JK to see Dr. Ledger a child psychiatrist at the end of November. She asked that any plan for reunification be put on hold until after that appointment.
38On November 6 Ms. Polak sent an e-mail to counsel in which she advised that she had had two meetings with the child. She had received correspondence from the mother advising that she needed to take JK to an emergency crisis worker at the hospital and that she was on a wait list for JK to see a psychiatrist. Ms. Polak set up a teleconference with counsel for November 11. The end result was that Ms. Polak withdrew her services.
Sexual Assault Allegation
39On November 12, 2015 the father received a call from Durham CAS requesting an interview with him and his partner D.B. in connection with an allegation made by the mother that D.B. had had sexual contact with JK. The father and D.B. attended the interview on November 18, 2015. The father stated in his reply affidavit of December 1 that at the conclusion of the meeting the CAS worker Ms. Shamon wished them luck. It is noteworthy that the mother's affidavit contains no reference to any alleged sexual assault of the child by D.B., that the call to the CAS was made one day after Ms. Polak expressed serious concerns about the mother's motivations and almost two years after JK last had contact with D.B.
40Mr. Rechtshaffen took the position at the motion that to grant unsupervised visitation without a therapeutic integration process could be emotionally devastating for the child. He did not want Ms. Polak to withdraw. In fact he had written to her and pleaded with her to continue. He said that his client now saw the "big picture." Ms. Polak responded in an e-mail of November 30 and referenced the actions of the mother in taking JK to the emergency room after a meeting with her, in having Dr. Wray write to ask her to hold off services and in contacting the Durham CAS. She said:
It will be difficult for her to establish rapport with JK and for this to be a successful therapeutic treatment based on what has already transpired. I wonder the message JK has received about me and this process prior to Ms. Koleszar seeing the "big picture."
SUBMISSIONS
41Mr. McQueen said that the evidence showed that the mother acknowledged that JK had a good relationship with father until the fall of 2013. At that time the mother raised concerns about his use of alcohol and in November 2013 she wanted the father to give up overnight access in favour of day access. When the father refused to do so, the mother made good on her threat to take steps to ensure that the father's access would be supervised. Mr. McQueen noted that the child had had many behavioural issues in the past and had received counseling at Hincks-Dellcrest in Toronto and the PCC in Brampton. There was never any suggestion before December 2013 that the child's behaviours were in any way attributable to his father's behaviour or to how he was treated by his father.
42Mr. McQueen stated that the logical inference from the sequence of events was that the mother decided in November 2013 that the child should spend less time with the father. When the father did not agree to this she began a campaign to alienate the child from the father. He said that the child had already undergone a lot of trauma in his life with the mother's abusive relationship with her ex-partner and his loss of a close relationship with his step-sister. The child had a fear of loss or abandonment and the mother played upon that fear. She convinced the child that his father was trying to take him away from her to the point that the child became obsessed with the father's statement over the Christmas holiday that JK could choose to live with him once he was 13. She convinced JK that his father would come to his school and try to kidnap him. She kept JK away from his father so that she could completely control the information that he was receiving about his father.
43Mr. McQueen noted that there was no evidence that the father had abused the child in any way other than the mother's statements. He noted that the child did not make any statements about physical abuse until he had not seen his father for a number of weeks. Mr. McQueen effectively said that the mother took the child to doctors and counselors in a self-serving effort to have corroboration of the child's statements. What is remarkable was that every third party professional who only heard from the mother and the child expressed concern about ongoing contact with the father. Every third party professional who also met with the father had concerns about the source of the child's statements. This included the Peel CAS, the York Region police, Ms. King-Watson and Ms. Polak. Every one of them had all met with the child privately and none of them were prepared to rely on the child's statements of abuse as a reason to limit the child's contact with the father.
44Mr. McQueen said that the mother was manipulative and vindictive. He said she was determined to shut JK out of his father's life. Mr. McQueen said that there was no evidence that JK was at any risk of physical or emotional abuse in the care of his father. He said that there was no need for supervised access. The April 16 interview with Ms. King-Watson made it clear that after some initial discomfort JK was able to relax and enjoy time with his father.
45Mr. Rechstaffen said that there were three possibilities. They were that:
JK was never abused but to appease his mother he states that he was but he still wants to see his father.
JK was abused by his father but was ashamed to report it and he does not want to be abused again.
JK has been coached by his mother into believing that he was abused and he is now afraid to go to his father's home.
46Mr. Rechtshaffen addressed the third possibility first. He said that the evidence did not support a finding that the mother would intentionally take steps to cause her child to become anxious and fearful. To the contrary she was sensitive to her child's behaviours and when they were concerning she sought help. She had taken her son for counseling in Toronto and Brampton and every time his school recommended help for his behaviours she followed up.
47Mr. Rechtshaffen said that the mother did not seek out opinions just to justify her actions. He said that when she initially wanted to have day access only it was because of statements her son made about his father's increased drinking. In December 2013 she wanted to stop access because her son told her that he was afraid that his father would take him away from her. She did not make allegations of abuse in her first application to court because she was unaware of any abuse. It was only after JK's disclosures in late February 2014 that she connected the head bruise and sore leg observed on December 29 with the incident her son described.
48Mr. Rechtshaffen said the mother did not simply keep the child from the father. She began a court application and pursued counseling for her son. She did not stop counseling once access was discontinued. Mr. Rechstaffen said that the mother did agree to third party intervention that had a goal of trying to re-unite father and son. He admitted that the mother might have been hypersensitive to Ms. King-Watson's statements to her and overly concerned that the investigator had not reviewed all collateral evidence before she saw the child. Mr. Rechtshaffen said that the mother did not expect JK's extreme reaction after the interview. He said that any concerned parent would have taken the child to the hospital if he was acting the way she described. He noted that despite the history of behavioural issues JK had not expressed suicidal ideation before the April 16 interview.
49With respect to the first possibility posed above Mr. Rechtshaffen said that there was no reason for JK to make up allegations of abuse just to appease his mother. He did not disclose any abuse until after the access had already stopped. If he felt that his mother did not want him to attend access he did not need to express the details of an incident over the holidays.
50Finally with respect to the second possibility Mr. Rechstaffen said that if the father did physically abuse his son the court should not risk a re-occurrence by ordering unsupervised access. He noted that the injuries observed by the mother on December 29 were consistent with JK's eventual disclosure in an emotionally safe environment. He stated, quite correctly in my view, that the credibility of a disclosure is not impacted by the fact that it was not made at the first available opportunity.
51Mr. Rechtshaffen said that he believed that therapeutic integration was needed but as it was not immediately available the only safe alternative was to order supervised access.
ANALYSIS
52The manner in which this matter has progressed has meant that any access order that I make will likely result in some serious anxiety for this 10 year old child. That is most unfortunate but to make no access order would be to extinguish any chance for a healthy father/son relationship.
Evidentiary Findings
53The evidence was clear that JK has some significant emotional and psychological issues that have manifested themselves in behavioural problems for quite some time. He had been in counseling almost continuously since approximately 2010. He had experienced changes in residence, changes in schools, and the complete loss of a relationship with his step-sister.
54The evidence was also clear that until November 2013 the mother saw the father as a positive influence in JK's life. The father's access had gradually expanded and by that time he was seeing his father every alternate weekend and they had holiday visits. If the father's involvement in JK's life had been anything but positive one would expect that some mention of that would have been made in the many records of the treatment teams that had seen him over the years.
55In late August 2014 the mother moved from Brampton to a rural property near Port Perry with her then partner E.M. In the fall of 2014 for the first time the mother expressed concerns to the father about his alcohol consumption. At that time she sought to change the overnight weekend access to day access. It could just be coincidence that the mother's desire to limit the father's time with his son came at about the same time that she had formed a new family relationship in a new home with her partner. The father did not see it as a coincidence. He was not prepared to give up overnight time with his son.
56I accept the father's evidence that he did not physically abuse or even physically discipline the child at his residence during the Christmas school holiday. JK may well have fallen and bumped his head thereby accounting for the bruise his mother said he had. I note that JK's statements about the alleged incident become more dramatic with each re-telling. His latest recounting was that D.B. wanted the father to hurt JK and kept saying "hurt him, hurt him" as the father assaulted him.
57The mother said that the child's wish to spend less time with his father changed after the holiday to his insistence that he did not want to see his father again. Mr. Rechtshaffen was correct in his submission that the mother had a long history of seeking help for her son when he had problems. However when the 8 year old child allegedly told her that he did not want to see his father she did not seek help. She did not see this as a problem at all. She did not contact the father to discuss their son's statements. She did not talk to his teacher's or seek out help from the counselors that she so readily found on all other occasions. The mother's reaction to what she said JK told her was to terminate all access. Other than a brief day visit in January 2014 the father has not had a visit since December 29, 2013.
58To refer to Mr. Rechtshaffen's possibilities theory, either the child said he did not want to see his father or the mother brainwashed the child into saying he did not want to see his father. If it was the former then the mother seized on what should have been a very concerning development and used it to justify terminating the access she had already wanted to significantly reduce. If it was the latter and the mother had manipulated or coached the child into these statements then any profession of concern on her part for her son's well-being ring hollow.
59On the basis of affidavit evidence only I am not able to make a finding that the mother coached the child to make these statements. However, I do agree with Mr. McQueen's submission that it is very noteworthy that the CAS, the police, the OCL and the party's chosen therapist were not prepared to rely upon the child's statements to recommend limits on his contact with the father. They had the opportunity to interview the mother, the father and the child. With the exception of the police, who were looking for evidence of a crime, all of the others have a mandate to protect children and promote their best interests. I would expect them to err on the side of caution if they felt that the child was at any risk.
60There is strong evidence that the mother took active steps to undermine any effort to have the father/son relationship repaired. She made unfounded complaints to the CAS, she took the child to the hospital after all contacts with the investigator and the therapist and she obtained self-serving letters from doctors and psychologists who knew only her version of the facts and had never met the father. Her latest gambit in making a sexual interference complaint against D.B. is beyond the pale and speaks to a level of desperation that only supports the father's central argument that she will do anything to sever his relationship with JK.
61There is a great deal of evidence that suggests that the mother has sabotaged the father/son relationship. Where the mother's statements are inconsistent with the reports of Ms. King-Watson I accept the investigator's evidence. The mother has a motive to characterize their interactions in a way that supports her argument that the father should not have contact with the child. Ms. King-Watson is a neutral professional retained by the OCL to assist the court. The mother has a right to dispute the OCL's report and OCL recommendations are just that, recommendations. It is the court's ultimate responsibility to determine if the recommendations are supported by the evidence. In this matter the mother made no effort to work with the OCL investigator. The fact that she did the same thing to the therapist Ms. Polak demonstrates that the mother was not interested in the court having any information that she could not control.
62I have not ignored the fact that the child did make very concerning statements to the Lakeridge hospital psychiatrist. The very fact that the child would make statements such as he thought of killing himself and that he believed that his father will hurt him the next time he sees him caused counsel to come to the view that professional help with the re-integration would be helpful. Notwithstanding that she agreed, through counsel, to the involvement of Ms. Polak the mother's undermining of that process demonstrated that she was not at all concerned about the child's negative view of his father and not at all interested in having her son resume contact with him. To the contrary the mother stated that JK had done quite well since the access had stopped. She said that his anxiety only became a problem again once the possibility of some resumption of contact was raised. If this is true, and I do not know that it is, the only thing that would explain it is that when the child does not want to see his father the mother is happy and when the child wants to see him the mother is unhappy. As JK now lives only with his mother her emotional state would be very much intertwined with his own. Even if the mother is not directly coaching him, JK might well have figured out that to keep his mother happy he cannot see his father.
63The interconnectedness of the mother and the son's emotions is very apparent throughout the evidence. When JK was with Ms. King-Watson and his father he left happily. The mother reported that just minutes later he was distraught. Ms. King-Watson had noted that the mother was noticeably disappointed when JK wanted more time with his father. JK could not help but be aware of how his mother felt about his contact with his father. It is perhaps unusual for a child to respond as dramatically as his mother reported but then again only the mother really knows what he said and did. JK did make statements to the Lakeridge psychiatrists and others as to what happened at the interview. I have accepted Ms. King-Watson's version of what occurred and to the extent that JK's statements differ from what she said happened then I do not accept his statements. I note that JK is 10 years old and he had met with numerous counselors and therapists since he was an infant. JK ultimately leaves everyone's office and goes home with his mother. He might well have worked out what he needs to say.
64It is noteworthy that after years of conflict with her ex-partner the mother felt that the only way she could obtain emotional peace was to completely terminate her relationship with her step-daughter J.L. Doing so left JK with a profound sense of loss. It is possible that the mother has come to believe that completely severing a child's relationship with the other parent is preferable to managing that relationship. It is also possible that JK's expressed anxiety about the loss of a relationship with his mother has its genesis in the loss of the step-sibling relationship. It may well be that JK has come to believe that he had to make a choice between his mother and his father. The mother's statements and actions over the last two years have no doubt reinforced that feeling. JK's primary parent is his mother in the sense that he has always lived with her and she has always been his sole provider. It is completely understandable that he would be loyal to her and do what she wants him to do.
Supervised or Unsupervised Access
65At the end of the day it is not necessary to determine why JK feels as he does. The only issue before me is whether it is in JK's best interests to have supervised or unsupervised access to his father at this time. I am persuaded that JK's stated fears of contact with his father are a product of his mother's manipulation of him. Even the mother admits that there was a good relationship between father and son until November 2013. The father knows how to parent effectively. There is no independent evidence that he poses a risk to his son either physically or emotionally. That said it would have been preferable for the resumption of access to have occurred with the assistance of an experienced therapist such as Ms. Polak. If I thought that there was any possibility that the mother would not try and undermine such a process or if I felt that JK would feel able to express himself freely I would order a gradual resumption of contact that would include updates on the access progress by a qualified professional. Unfortunately that option is not available at this stage. The resumption of contact has been delayed for far too long already. Further delay will permit the mother's alienating behaviour to continue unchecked. I am encouraged by the fact that even after 18 months of his mother's manipulation JK was able to enjoy some time with his father on April 16.
66In many cases supervised access orders are made not because of any concern that the visiting parent will actually harm the child but because of a concern that if an objective person is not observing it can be alleged that the visiting parent tried to harm him. I am well aware that if access is not supervised the mother and/or JK may make allegations of harm. If they are made they will be investigated.
67I am of the view that supervised access is only to be used as a stepping stone to unsupervised access or, if it goes poorly, to no access at all. Given the history of this matter I am convinced that no matter how many positive supervised visits occur the mother will not be persuaded that visits should become unsupervised. She is either determined to sever the father/son relationship out of spite or because she has actually convinced herself that the father really is a risk to her son.
68JK is only 10 years old. He has not seen his father since he was 8 years old. Since then he has been interviewed on numerous occasions about his father. He needs time alone with his father to have a real opportunity to get to know him again. He will then be able to form an independent view of him. That is the only way that a healthy father son relationship can develop.
Terms of Access
69The father sought access every Tuesday from 3:30 p.m. to 7:30 p.m., every alternate weekend from Friday at 3:30 p.m. to Sunday at 7:30 p.m. and access over the Christmas school vacation from December 23 to January 3 (the father's employment holiday time). While I find that it is critical that the child have unsupervised time with his father as soon as possible I find that the father's submission fails to properly take into account the current reality of the situation. The child is adamantly refusing to see his father. He has acted out at school, after the interview with Ms. King-Watson and after meetings with Ms. Polak. As noted above there are likely complex reasons for his behaviours. However at this juncture it appears to be inevitable that JK will become very anxious about pending access visits, that he will display behaviours consistent with anxiety even fear, that the exchange at the time of access will be extremely emotional and that, at the very least, the first few hours of the first access visit will feature a very non-compliant child who will insist upon immediately being returned to his mother's care. I sincerely hope that I am wrong with these predictions but the evidence leads me to no other conclusion. An access plan must be developed that takes into consideration these realities. I find that the father's plan does not adequately do so.
70Firstly, I will not order mid-week access on these facts. The child will likely be anxious throughout his school day. There will be a difficult exchange. There would be at most three to four hours of visit time over dinner. To order such access would be counter-productive to the end goal of a long term healthy relationship between father and son.
71Secondly, I find that given JK's extremely negative views about spending time with his father that he needs to spend as much time with his father as reasonably possible in the next two months. In this way he will be able to actually be able to make his own observations and draw his own conclusions about his father. The latter half of the one office visit with Ms. King Watson gives me hope that after a few hours of tension, or even hostility, JK will settle down and be able to have a generally positive time with his father.
72I do not think anyone can predict how long it might take for access to become normalized. I find that if the father and the son spend full weekend time together this will give the relationship a fair chance to develop. There was a good relationship between them just two years ago. There is an opportunity for a good relationship to be rekindled if the contact is for a reasonable block of time unencumbered by school or work schedules and where there is a long gap between parental exchanges of the child. I find that JK should be with his father from Fridays at 5:00 p.m. to Sundays at 7:00 p.m. on December 11-13, and December 18-20. There will then be the Christmas holiday access set out below and then access the weekend of January 15-17 and every alternate weekend thereafter. This schedule will result in the father having JK with him on the weekend of February 12-14 and as February 15 is Family Day JK will stay with his father until 7:00 p.m. that day.
73Finally, I find that the father's proposal for access over the Christmas period is unrealistic and not sensitive to the child's needs. The reality is that the primary parental figure in JK's life is his mother. It appears that somehow JK has come to believe that he cannot love both his mother and his father and that he must choose between them in some way. This attitude needs to be corrected. However his feelings about his father will not be positive if he perceives that his father is trying to keep him away from his mother on Christmas Eve and Christmas Day. JK is only 10 years old. He needs to be in his own home with his primary parent at this important time. Nothing good will be achieved by requiring that he go to his father's home from December 23 to the end of the school holiday. However, the school vacation is an excellent opportunity for the extended block of access time that I find is critical to potentially changing JK's attitude towards his father. I find that JK should be with his mother from Dec. 20 at 7:00 p.m. to December 28 at 1:00 p.m. His father should then have a block of time from December 28 at 1:00 p.m. to January 3 at 7:00 p.m. In this way the school holiday will be divided fairly evenly.
74As noted above I expect that exchanges for access could be problematic. My preferred solution would be to have JK exchanged through a supervised exchange program. If the parties were still in Peel I would make that referral immediately. However I do not have evidence about the availability of the exchange program in Durham for the hours of access that I will order. In anticipation of this I asked counsel during submissions as to an appropriate place for access exchange in the event that I made an access order. Both parties thought that the best location would be the north Durham police station which the mother stated was only 5 minutes from her home in the Port Perry area.
75I do not think it is necessary to insist that a police officer be present for each exchange. That is not their job and JK should not see that his parents need police enforcement of access. The main responsibility will be on the mother to ensure that JK leaves the exchange point with his father. This may mean that she will have to turn her back on her son and leave once the father is there to pick him up. JK's loyalty to his mother will likely mean that he will not be willing to leave her and go to his father. The situation should be treated no differently than that of a parent dropping an unwilling child off to their first day of school or daycare. They may be crying and insisting that they do not want to go but they will leave their mother when she makes it absolutely clear that they are to go in to the school/daycare with their teacher or care giver. The mother must not do or say anything that reinforces JK's anxiety or fear. The father will have to assuage JK's anxieties being ever careful never to blame the mother in any way for how JK is feeling.
76At the end of access visits when JK is back in his mother's care she must not initiate any questions about his time with his father. She should be open to listening to what JK might say and she may ask clarifying questions. To ensure that JK does not feel any pressure to make reports that his mother might want pending the next court date the mother is not to take JK to any counselor, mental health professional or doctor with the exception of attendances for physical health emergencies. Clearly I cannot, and should not, make an order that prevents either party from contacting the Durham CAS if they feel that JK is in need of protection. Having said that if either party makes a report for any reason whatsoever they shall immediately contact their counsel who shall contact opposing counsel with details of the complaint.
ORDER
The father David Reddy shall have access to the child JK born XXXX XX, XXXX as follows:
a) Friday December 11 at 5:00 p.m. to Sunday December 13 at 7:00 p.m.
b) Friday December 18 at 5:00 p.m. to Sunday December 20 at 7:00 p.m.
c) December 28 at 1:00 p.m. to January 3 at 7:00 p.m.
d) Friday January 15 at 5:00 p.m. to Sunday January 17 at 7:00 p.m. and every alternate weekend at the same times. Provided that on the Family Day weekend the access shall be extended to Monday February 15 at 7:00 p.m.
The parties shall exchange the said child for access at the North Durham police station in Port Perry Ontario.
The Durham Regional Police, the York Regional Police, the Ontario Provincial Police and any other police force in Ontario shall enforce this access pursuant to s. 36 of the Children's Law Reform Act.
Neither party shall speak negatively about the other party to the child or permit anyone in their presence to do so.
Neither party shall take the child to a counselor, mental health professional or doctor with the exception of attendances for physical health emergencies.
If either party makes a report to a child protection agency concerning the child or encourages any other person to do so, for any reason whatsoever, the reporting party shall immediately contact their counsel who shall contact opposing counsel with details of the complaint. Counsel shall then request that the child protection agency provide a letter to be filed in court on the return date setting out what, if any, involvement they have with the child.
This matter is adjourned to February 2, 2016 at 9:30 a.m. in courtroom 208 for a Case Conference.
Released: December 9, 2015
Justice Philip J. Clay