Court Information
Court File No.: Toronto D72209/14 Date: April 4, 2018 Ontario Court of Justice
Between: Natnale Berhanu, Applicant — AND — Linda Awanis, Respondent
Before: Justice Roselyn Zisman
Heard on: November 28 and 29, 2017 and March 12, 2018
Reasons for Judgment released on: April 4, 2018
Counsel
Natnale Berhanu ……………………………………………………………on his own behalf
Sage Harvey counsel for the respondent
Introduction
[1]
Introduction
This was a focused trial on the issues of the Respondent's (mother) wish to relocate with the children to Niagara Falls and the issue of the Applicant's (father) access and the logistics of access to the two twin children of the relationship, Jada Berhanu and Moriah Berhanu born April 2, 2013 (Jada and Moriah or the children).
2At the outset of the trial, the father consented to an order that the mother be permitted to relocate with the children to Niagara Falls. The trial therefore proceeded only on the issue of the father's access and details with respect to location of access exchanges and who would be responsible for transportation.
Position of the Parties
[3]
Position of the Parties
At the outset of the trial, it was the position of the mother that the father should have access on every Saturday and Sunday from 10:00 a.m. to 4:00 p.m., that he should be responsible for all of the transportation and that for the first 8 weeks he should exercise access at a supervised access facility in Niagara Falls. The mother also proposed that the father have regular telephone access to the children with a cell phone provided by him. Further, the mother proposed that the father have access in alternate years on the children's birthdays, every Father's Day and Christmas Day, additional access as agreed and any overnight access at the discretion of the mother.
4The father submitted an access plan that would gradually expand his access to include overnight and holiday access. He submitted that if the children refused to attend access that a neutral third party be retained to facilitate access and that the cost would be shared or paid solely by the mother. He also sought make up access. He submitted that initially he would be responsible for all transportation but then the parties should meet halfway in Oakville for access exchanges.
Background
[5]
Background
The parties have known each other since high school. They were married on December 17, 2013 and separated on November 8, 2014. The father worked full-time and also had a part-time job as a soccer coach on weekday evenings and week-ends in order to meet the family's needs as the mother was home full-time. The parties frequently fought about the father's long hours, their financial situation and the father not being available to assist the mother.
6After a heated argument on November 8, 2014 the father left the home as he felt that exposing the children to such an unhealthy environment was not good for the children. When the father tried to return he found the locks changed and was told that he was no longer welcome.
7The parties have different versions of what then transpired. The mother deposes that the father was uninterested and did not see the children for the first few months even though she would call him to ask about when he wanted to see the children. The mother also deposed that he provided no support.
8The father deposes that he tried every means of communication to contact the mother and to see the children. The father denies that he did not financially assist the mother. He continued to pay the rent for their apartment for several months and bought the children food, milk, diapers and clothes. He provided receipts for these purchases and proof of his attempts to see the children. The father deposes that when the mother came down to the lobby to pick up things he bought he would ask to see the children and she would say that he had abandoned them, he was not their father and she would make sure that the children would never be in his life.
9The father commenced an Application on December 12, 2014 alleging that the mother was refusing him access and brought an urgent motion returnable January 6, 2015 for temporary access. The parties reached a temporary without prejudice consent that the father exercise access on Mondays from noon to 2:00 p.m. and on Saturdays from 3:00 to 5:00 p.m. By that time the father had not seen the children for 69 days.
10The parties returned to court for a case conference on February 17, 2015 and reached a further consent that continued the father's access as previously agreed upon. On a final basis the parties agreed that the mother would have custody.
11Subsequent to this order, both parties alleged that the other parent missed or cancelled access. The father alleged that he requested make up visits when the mother cancelled the visits that she refused to provide him except around a court date. The mother also made allegations that the father was not properly caring for the children during his access time. She alleged that the father used physical discipline, slapped the children, left them unattended, did not properly feed them and generally neglected them.
12The mother served a motion returnable on July 15, 2015 that requested the father's access be reduced to once every two weeks for two hours. On consent that motion was adjourned several times.
13On May 30, 2016 the father's motion for increased access to 12 hours a week and mother's motion to decreased access to 2 hours a week was argued. Justice Spence, who was the case management judge, noted in his endorsement that despite the mother's allegations of improper care by the father she did not report any concerns to the children's aid society. He noted that both parties had agreed to the current order and that neither party had satisfied the court that there should be a temporary change pending a trial. Accordingly both motions were dismissed and the status quo arrangements continued.
14On September 26, 2016 at a settlement conference, the parties agreed on a temporary basis that as of October 2016, the father's access would be every Tuesday and Thursday for 3 hours, as of January 2017 access would be increased to 4 hours on every Tuesday and Thursday and as of April 1, 2017 increased to 5 hours every Tuesday and Thursday. The parties also agreed that the children spend 4 hours from 11:30 a.m. to 3:30 p.m. with the father on Father's Day, further time on Christmas, New Year's Day, the children's birthday and other additional access as may be agreed. The parties settled child support on a final basis.
15On February 10, 2017 the father brought an urgent motion to prohibit the mother from relocating the children's residence to Niagara Falls or otherwise outside of the City of Toronto pending trial. The father alleged that the move was a further attempt in the mother's continued effort to interfere with his relationship with the children. A temporary without prejudice order was made for non-removal and the motion was then adjourned to February 16, 2016 before the case management judge.
16The mother deposed that she advised the father in December about the move but the father deposed that the mother advised him "out of the blue" on February 2, 2017 that she was moving with her parents to Niagara Falls. On February 3, 2017 the mother's counsel confirmed that she was moving at the end of the month as her parents bought a home in Niagara Falls. There was evidence that the mother and her parents were all named on the apartment lease where they had resided in Toronto and all 3 signed the termination of the lease on December 12, 2016.
17After hearing the contested motion, Justice Spence ordered that the mother be prohibited from relocating the children's residence and that the police be ordered to enforce the order.
18Justice Spence held that if the move was allowed the father would not be able to exercise his current access. He held that the mother delayed in advising the father of her move and there were no compelling or urgent reasons to permit the move on a temporary basis. Further, Justice Spence held that it was the mother herself who orchestrated the plan and then submitted that there was urgency to permit her to move. The mother was ordered to pay costs fixed at $5,000 at the rate of $500 per month.
19There were several other attendances for further settlement conferences, to deal with procedural issues and a contempt motion filed by the father against the mother.
20On November 9, 2017 Justice Spence refused to a further request by the father to adjourn the pending trial and to appoint counsel for the children as the case had been before the court for 3 years and there was no reason for the children to continue to be in litigation particularly as the mother had been prohibited from moving out of Toronto.
21The trial therefore proceeded before me on November 28 and 29, 2017. In accordance with orders made for the trial, both parties' evidence in chief was by affidavit and they were subject to cross-examinations. Only the parties testified.
Summary of Relevant Evidence at Trial
[22]
Summary of Relevant Evidence at Trial
Subsequent to Justice Spence's order prohibiting the mother from moving to Niagara Falls, the mother and the children moved into a discount motel where she continued to reside. The mother deposed that the motel was a terrible living environment for the children, only about 100 square feet with no kitchen, there was exposure to smoke inhalation and it was located in an unsafe area. The mother paid a daily room rate of $65 to $70 with applicable taxes. Accordingly, the mother was paying about $2,200 per month to reside in these accommodations. The mother explained that her parents helped her with the rent as her only source of income is social assistance. The mother testified that she either had to move into a shelter or live at the motel as it was all she could afford. However, the father produced evidence of rental accommodations in Toronto that were available for less than $2,000 per month.
23The mother blamed the father for not showing any empathy towards the well-being of the children and stated that he told her that the children were surviving and that this was her punishment and they deserved to live in a motel. The father denied that he made these comments.
24The father continued to exercise his access without any particular problems.
25However, on April 2, 2017 which is also the children's birthday, the mother testified that the children were playing when the father arrived. When the father tried to pick up the children, they started to cry as they did not want to go with him and rather than speak calmly with them, he proceeded to forcibly throw the children into the car. He also smashed his cell phone by throwing it near the mother's face after yelling and screaming at her.
26The father, on the other hand, denies the mother's description of the incident on April 2nd although he does admit that he was upset that the mother was interfering with his access. He testified that when he arrived for his visit, Mariah was agitated and started to cry and scream. He put Jada in the car but when he picked Mariah up, the mother snatched Mariah from him. When he tried to put her in the car, the mother refused to help him. Once he put Mariah in the car the mother bent her head into the car to kiss the children and he felt the entire incident was orchestrated. His cell phone rang and then Mariah again began to scream. He could not turn it off and he threw it and it smashed.
27The mother contacted the police. The police report indicates that the mother advised that there was no assault or threats by the father against herself or the children but that she was disturbed by his erratic behaviour. The police followed up and both parties reported that things had calmed down and they were going through the family court process and were satisfied that the case be closed. The police also reported the incident to the children's aid society.
28After this incident the father exercised access a couple of weeks later and was able to put the children into the car, they went to his home and had fun. However, the children began to refuse to go with the father and the situation became progressively worse. The father testified that since the court refused to let the mother move to Niagara Falls, his relationship with the children has deteriorated and he believes that the mother is brainwashing the children.
29The mother deposed that since the April 2nd incident the children have been afraid of the father. She deposed that the father does not make any genuine attempt to interact with the children and often only says "hi girls" while video recording them and the children often scream and run back inside the motel saying they are scared of the father and then the father leaves after about 10 minutes. The mother also alleged again that in the past the father has used inappropriate discipline including yelling at the children, slapping their hands and pinching them. It was not clear if she felt this was another reason the children are afraid of the father.
30As of May 2017 the father has not had any access to the children despite his attendance for access as the children have refused to go with him. The father testified that he has tried to make suggestions of fun things they can do, he has brought toys and candy but the children still refuse to go with him.
31The father described a typical access visit as him attending at the motel, the mother brings the children to the rear entrance of the motel but will not hand the children over to him. The father asks her to help him put the children into the car, but she refuses. The mother does not tell or encourage the children to go with him. When the father asks her to tell the children to go with him, she tells him that she will not put words into the children's mouths. The mother speaks to the children in a language he does not understand. The children refuse to go and the mother stands by and lets the children make the decision not to go. According to the father the children say things such as, "You left us in the motel; you are bad, police will come and get you; I don't want to go anywhere with you; stop talking to mommy; don't talk to me; stupid; shut up; don't touch me." They continuously use the word "never" and scream for no reason. The mother did not dispute that the children make such statements or act in this manner.
32The father agreed that since the April 2nd incident he has been videotaping the visitation, as the police advised him that he could do so. He testified that he wished to protect himself from any further false allegations being made against him as the mother had called the police twice against him. He testified that he is afraid of trying to put the children into the car, as he is afraid the mother will accuse him again of grabbing them. He has even been reluctant to touch or have any physical contact with children for fear that the mother will make further false allegations against him.
33As a result of the April 2nd incident, the children's aid society conducted an investigation. The children's aid society completed its investigation and sent a closing letter dated May 23, 2017. The society confirmed that it had concerns about the children being exposed to conflict between the parties. The society recommended that access exchanges take place in a public place and that conflict between the parents be minimized. It also recommended that both parents ensure that neither they nor any other adult speak negatively about the other parent in the children's presence or hearing. Further, the society recommended that until the mobility issue was resolved the mother should obtain more suitable accommodations for herself and the children rather than the motel where they were residing. When asked why she did not comply with the children's aid society's recommendations, the mother testified that they were only recommendations and not a court order. She also testified that the motel was a public place and continued to maintain that she was encouraging the children to attend access.
34The father deposed that the mother did not comply with the consent order of September 26, 2016. An especially hurtful incident occurred when she did not make the children available for Father's Day. When he called to advise he was at the motel for the 11:30 a.m. pick up in accordance with the court order, the mother sent a text that she was not at the motel and would have to reschedule which was never done. The mother testified that she made a human error and "forgot" it was Father's Day.
35At the end of the trial, counsel for the mother modified his position and submitted that based on the evidence, it was clear that third party intervention and counselling was necessary as despite the mother providing the children to the father, there was a serious break-down in the relationship between the children and the father.
Temporary Order
[36]
Temporary Order
At the conclusion of the trial, I took the unusual step of only making a temporary order. I endorsed the following:
In view of the fact that I only intend to make a temporary order today it is not my intention to review the evidence. I do not intend to provide details with respect to my concerns about the credibility of either parent except to comment that I have some doubts that the mother is doing what is required of her to encourage a relationship of these young children with their father. On the other hand I agree with the mother that the father coming to the visits with a video camera or phone pointed at the children is not helpful and may be scaring the children.
I am concerned that neither parent has presented a plan that will overcome the children's present reluctance to see their father. There has not been any attempt at third party intervention and simply to leave this situation up in the air is not in these children's best interests.
The mother lays all of the blame on the father and does not see that she can do more to assist the children in re-establishing a relationship with the father that she has testified she views as important. Whereas the father does not seem to have any concrete ideas of what he can do other than continue to show up, video the children and make offers to buy them things or take them places. I am also concerned that the present location of the exchange is not conductive to a pleasant situation for the children. If the mother is unable to help the children go on visits with their father then the father may be required to hire a professional third party to assist him in a reunification plan with the children. A child care worker or someone from a company such as Brayden supervised access or a similar organization in Niagara Falls would be appropriate. Although the father will be required to pay for the cost of this service initially and on a without prejudice basis, if it is my finding that the mother has not co-operated or followed any recommendations that have been made, then I will consider submissions that either the mother be responsible for the full cost or half of the cost of such services. It is my expectation that the mother as the custodial parent has a responsibility to ensure that the children go on the visits.
Therefore it is my intention to make a temporary order today and then resume the trial in March for further evidence only with respect to how access has progressed before a final order is made. I will then make a decision based on my findings as to my assessment as to which parent is complying with my temporary order.
37I then made the following temporary order:
On a without prejudice basis, the mother shall be permitted to relocate to Niagara Falls with the children.
As of Saturday December 2, 2017 the father will have access to the children on Saturdays from 1:30 p.m. to 4:30 p.m. the pick-up and drop off shall be at the YMCA in Niagara Falls at 7150 Mont Rose Road. The father shall not video or otherwise record the children. The father may bring a third party to the visit.
If the mother has not moved to Niagara Falls by this Saturday, the exchange shall take place at a nearby mall or a McDonald's indoor playground.
If after the first visit, the children will not exercise access to the father, the father will obtain the services of a qualified professional through a private supervised access service. Although this is strictly not an order for supervised access for convenience it will be referred to as such. The father may employ such a service even if the children do agree to attend access in order to obtain assistance in rebuilding his bond with the children and in order to obtain help with caring for the children. The father shall initially be responsible for the cost of such a service on a without prejudice basis but the court will retain the discretion to determine that the mother should be responsible for the full or half of the costs depending on the court's assessment as to whether or not the mother is or has in the past interfered with the re-establishment of access.
If counselling is recommended to facilitate the relationship between the children and the father, the father shall be able to arrange such counselling in Niagara Falls and the mother will sign any necessary consents and facilitate the children attending.
There shall not be any cancellation of access by the mother or father unless there is a doctor's note that the children or either of the patents is too ill to attend access or in the event of hazardous driving conditions. If either party is required to cancel a visit a text message shall be sent to the other parent. At this time there will be no make-up visits.
As of Saturday January 26th 2018, the parties shall meet at the food court in the Oakville Mall at 240 Leighland Avenue in Oakville. The mother will be responsible for dropping off and picking up the children at the mall. The hours of the visit shall remain from 1:30 to 4:30 p.m.
The trial will resume in March 12, 2018 at 10:00 am. Each parent shall provide updating evidence about the access visits, provide copies of any texts between them with respect to cancelled visits, any reports regarding the access or counselling and evidence with respect to compliance with this order.
Costs are reserved.
Summary of Relevant Evidence on Resumption of Trial
[38]
Summary of Relevant Evidence on Resumption of Trial
Both parties filed further affidavits on the resumption of the trial and were cross-examined.
39After the temporary order the first visit occurred on December 2, 2017 at the YMCA. The mother deposed that despite her encouraging the children to go, the visit again did not go well and the children were crying, screaming and refusing to go with the father. She deposed that the children were being "tortured".
40The father testified that at the first visit the mother would not take the children into the YMCA but stood at the gate and that she told the children if they wanted to go they should go ahead. He did not see the mother put in any effort or hear the mother encourage the children to go to him.
41After the first visit, the mother's counsel corresponded with the father and suggested that the father's access be suspended until counselling could be arranged by Pathstone Mental Health but provided no details about a timeframe or details with respect to what services could be provided.
42The father advised mother's counsel that he was retaining the services of Brayden Supervised Services (Brayden). However, despite the court order that permitted the father to select the third party to assist with access, the mother's counsel then questioned if Brayden was appropriate as it had no physical location in Niagara Falls and then suggested Abma Counselling for "complete family counselling." Again no details were provided.
43After some further delay by the mother, she signed the necessary intake forms and Brayden arranged for intake appointments, explained the therapeutic access program and developed a service plan. The parents agreed to an 8 week plan. In the report filed, Linda Evans, the service director for the Therapeutic Access Program (TAP) describes the program as follows:
TAP is designed to reconnect children with their estranged parent in a safe and positive way through therapeutic games and activities. Also to facilitate positive experiences between the parent and the child.
44There were many discussions about where the visits would take place despite the order that as of January 26th the exchange were to take place in Oakville which was half way between the parties' residences. The mother was insistent that access take place in Niagara Falls. The father then agreed to the mother's request and as Brayden did not have a facility in Niagara Falls a room at the YMCA was rented.
45The first visit was scheduled for January 20, 2018. The father was to arrive at 1:00 p.m. and the mother and children at 1:30 p.m. so that the parents would not have contact. Instead of following the plan outlined the mother arrived with the children a half hour early which then meant that the parents had contact.
46With a great deal of effort, the Brayden supervisor was able to persuade the children to go with the supervisor and mother into the visit room. The supervisor asked the mother to leave the room and tell the children she would be back. Mariah began to scream that the mother not leave, but Jada went in to the visit room with the supervisor and then Mariah joined. As instructed, the father joined them. Although initially apprehensive, both children interacted with the father, held his hands, gave him hugs, called him, "Daddy", all through various activities. According to the Brayden report, both daughters appeared comfortable with the father, sat beside him eating snacks and smiled and jumped up to hug their father and gave him a kiss on the cheek and said good bye.
47The Brayden supervisor explained to the mother that the children were responsive and interactive and managed well without crying or screaming.
48At the next scheduled visit on January 28, 2018, the mother and children were not at the front door in accordance with the service plan and instead were sitting at a table. As soon as the children saw the supervisor, they began to cry. Mariah screamed, "No Mommy no, I'm not going with her" and hid behind her mother. The supervisor told the mother to explain to her daughters that the supervisor was a friend, a safe person and there was no need to be afraid. The mother explained this but Mariah continued to scream and hide away. Jada began to warm up to the supervisor. The supervisor tried to explain to the mother that she needed to be firm and convincing when explaining to her daughters that they would be fine and must go with the supervisor. The mother explained that she was trying but her daughters were not listening to her. The supervisor observed that Mariah had no tears. The children were running around the YMCA and when the supervisor approached them to settle down, they screamed. But during the time when they were screaming they were smiling and started to play. After about an hour of the supervisor trying to engage the children, they were able to go into the visit room with her. When the supervisor encouraged the children to take their jackets off, Mariah screamed and ran towards the mother and Jada did the same but only after Mariah did. When the children seemed to settle, the supervisor asked the mother to leave the room and to stand at the door to listen but out of sight. The mother complied for a while but then was in full view for her daughters to see her at the window. The children kept running to the window, screamed "Mommy" and shouted but still without tears. The supervisor ended the visit as the children were too distressed.
49The supervisor explained to the mother that success depended on the active and positive input from both parents. Therefore the mother had to trust the supervisor, talk positively about the visits, take a firmer approach in guiding her daughters and to be genuinely invested in making the visits a success for the daughters with their father with positive comments and conversation. The mother said that she wanted the father to be part of the daughter's lives and that she was willing to so what was needed to make this happen.
50The supervisor concluded that the first visit indicated that the children could interact with their father but on the second visit they were unable to get beyond the transition from their mother to the supervisor.
51After the second visit, the supervisor consulted with the director, Ms Evans and their team with regard to next steps. As the priority of the visits was safety, on January 29, 2018 Ms Evans emailed both parents to advise that the Niagara YMCA was too public for the children which made it difficult for the children to be contained safely. There were complaints from other families because the children were crying and the mother was unable to calm the children down. Ms Evans confirmed that the role of the supervisor was not to force the children into the visit but the supervisor needed to connect with the children and required the help of the custodial parent. As a result Brayden wished to change the location of the visits to the Brayden Family In-Centre in Burlington.
52The next day, on Tuesday January 30, 2018, the mother emailed the Ms Evans giving an entirely different version of events about the visit and stated that she had witnessed the TAP supervisor use "physical force" on her daughters to keep them in the visit. As a result of these allegations Brayden terminated their services.
53The mother's counsel then corresponded to the father and again suggested that the parties retain the services of Abma Counselling Services in Niagara Falls for family counselling. Mother's counsel suggested that the parties contact Abma to inquire what services they offer. According to the father, he contacted Abma and was advised that it did not offer counselling to such young children and recommended Accendus Group.
54The father then retained the services of Accendus group to provide a reintegration process and assistance with his access.
55Mary Jo Franchi-Rothecker of Accendus Group wrote to counsel for the mother and confirmed that she had contacted ABMA counselling to determine if they would work as a reintegration team. She was advised that they do not do reintegration work and do not do reports for the court. She believed that they would be a good resource for therapy for the children if it was determined that they require therapy. She offered to co-ordinate the reintegration process with therapists who may be selected for the girls. She confirmed that she and Gregory Koval would work as a team with the family and she attempted to set up a meeting with the mother.
56Both the mother and her counsel dispute the correspondence sent by Accendus Group that they were unresponsive with attempts to connect with the mother and counsel. Mother's counsel has alleged that the Accendus group and in particular Ms Franchi-Rothecker has misrepresented her contact with his office.
57Further, the mother deposed that she was concerned about the ability of the Accendus Group to act in an impartial way as it was prepared to be retained on a unilateral retainer by the father rather than a joint retainer as Brayden had required. There were also issues raised by mother's counsel as to whether or not Ms Franchi-Rothecker who was corresponding with the mother and her counsel was qualified to provide counselling in situations where children are resistant to access.
58On the basis of the temporary order that provided that the father had the right to retain a third party to assist with access, Ms Franchi-Rothecker and Mr. Koval attended on two occasions to observe the father's visit with the children.
59The brief report of their observations noted that the children did not scream when they saw their father and there were no outward signs of distress. But the children appeared clingy and dependent on the mother and detached from their father. The father tried to interact with the children. A detailed plan was sent which included that the two member team would meet with both parents and obtain the background information and also that the expectation would be that another adult bring the children to the exchange with the father and leave shortly after.
60The mother deposed that she has brought the children for access every Saturday and despite her best efforts to force the children against their will to have access they were still refusing. She again deposed that the children were resistant due to the incident on April 2nd, 2017 when the father was physically and verbally aggressive to herself in front of the children and also to the children. She deposed that although the father was no longer videotaping the visit, he brought a friend who did so. The mother also deposed that the father's friend came with her twins who were considerably older that her children and they forced the children to take certain gifts that they did not want. The mother accused the father of shouting at her and threatening her.
61The father denied the accusations made by the mother about his behaviour. He deposed that neither he nor his friend videotaped the visits and that he thought it might help to have his friend bring her 10 year old twins to interact with the children. He denied that he made threats, negative comments about the mother or refused to feed them as alleged by the mother.
62When the trial resumed, the mother has not yet met or signed an intake form with Accendus Group. Both the mother and her counsel have had a conflictual and antagonistic relationship with that service. The mother deposed that she felt Ms Franchi-Rothecker was "harassing" her by attending to observe a visit and take notes without even having met with her or arranging for her to sign an intake form.
63The mother deposed that the parties should instead jointly retain the services of Jacqueline Vanbetlehem as a parenting co-ordinator and for reintegration services and that future access to be made in consultation with Ms Vanbetlehem. The mother deposed that as the father had already paid Accendus Group $2,745.00, he had the resources to be able to pay for the services of Ms Vanbetlehem also.
64It was the father's evidence that the court order permitted him to retain a third party without any input of the mother and he therefore had the authority to retain services of Accendus Group without the input of the mother. It was his position that this was just another example of the mother delaying and interfering with his attempts to reconnect with his daughter.
65Although the father was reluctant to retain yet another service, in submissions he was agreeable if there was no delay. With respect to payment the father's position remained the same that the either the mother pay as she was responsible for the children being resistant to having access or that the cost be shared.
Applicable Legal Principles
66In accordance with section 24 of the Children's Law Reform Act any orders for access must be made in the best interests of children.
67Children should have maximum contact with both parents if it is consistent with their best interests. This principle applies even when the child is reluctant to see a parent. Maximum contact principle also applies under provincial cases, even though not specifically set out in the Children's Law Reform Act.
68A custodial parent has an obligation and responsibility to ensure that children have contact with their other parent. It is not acceptable for a custodial parent to say that a child does not wish to see their other parent or to leave such a decision up to a child especially a young child.
69As stated by Justice Woollcombe in the case of McClintock v. Karam at paragraph 39:
Parents governed by access orders cannot simply leave access up to the children: Hatcher v. Hatcher (2009), 2009 CanLII 14789 (ON SC), 68 R.F.L. (6th) 179 (Ont.S.C.) at paras 27-28. As Mossip J. observed in Reeves v. Reeves (2001), 102 A.C.W.S. (3d) 1116 (Ont.S.C.) at para. 38, "any support and encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children". Parents must do what is good for their children -- including sending them to school, to the doctor or dentist or to the other parent -- even if the child would, left to his or her own devices, make a different choice.
70In the case of Goddard and Goddard the Ontario Court of Appeal also considered the issue of a custodial parent's obligation to ensure that a child have contact with her other parent in the context of an appeal from a finding that the mother was in contempt of an access order.
71In that case the child was 13 years of age and the court held at paragraphs 28 and 29 that:
Although a child's wishes, particularly the wishes of a child of S.'s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child's best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent "has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order": Quaresma v. Bathurst, [2008] O.J. No. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 CanLII 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 CanLII 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup.Ct.).
No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant's failure to do all that she reasonably could: she failed to "take concrete measures to apply normal parental authority to have the child comply with the access order".
72In this case, neither party took issue with the jurisdiction of the court to order the parties to attend for therapeutic reintegration counselling. I find that such jurisdiction can be found in sections 24 (2), 28 (1) (b) and 28 (c) (vii) of the Children's Law Reform Act. The criteria for a court making an order for such therapy are set out in the decision of Justice Jarvis in Testani v. Haughton.
Analysis
[73]
Analysis
In this case the children are only 3 years old and one would have thought that the custodial parent would have a great deal of authority to require the children to attend access visits with their father.
74This case is extremely concerning as although the mother has repeatedly stated that she wishes the children to have a relationship with their father, I find that she has not taken any concrete steps to encourage or promote that relationship. Even if the children were frightened by the April 2nd 2017 incident, I would have expected the mother to reassure the children that a similar incident would not re-occur or otherwise encourage and require the children to attend visits with their father. Based on the evidence that I accept I find that there is no reason for these children to be estranged from their father.
75I find that the mother has engaged in a course of conduct that has ensured that the children will not have a relationship with the father and has made unfounded allegations against him. Although the mother has complied with the court order to bring the children to access visits she has been either unwilling or unable to separate herself from the children and actively encourage them to have a relationship with the father. The mother testified that the father should put more effort into establishing a relationship with the children however, it is difficult to conceive what else he could have done. Despite the children's rejection of him, he has been attending at access visits and attempted to retain third party professionals to assist him.
76I did not find the mother a credible witness and where her evidence differs from the father's evidence I prefer his version of events as generally they were corroborated by documents, third party observations and simply made more common sense than the mother's version of many of the events.
77I make these findings based on the following evidence:
a) After the separation, the mother did not voluntarily permit access and the father was required to commence a court proceeding;
b) After the separation, the mother portrayed the father as abandoning the children and not providing any support for her and the children. But the father attempted to see the children and provided proof that for several months after the separation he paid the rent and provide supplies for the children;
c) The mother made unfounded allegations about the father's treatment of the children during access visits including physically harming and neglecting them. Yet these concerns were not reported to the children's aid society and when it suited her the mother offered daily access to the father if he would agree to her moving to Niagara Falls;
d) The mother made arrangements to move to Niagara Falls without prior notice to the father showing a total disregard for his relationship with the children. I specifically reject her evidence that she advised the father verbally she was moving. This matter was already before the court and it is unbelievable that the mother would not have provided this important information in written form;
e) Once the court order prohibited the mother from moving, the mother began a course of behaviour to punish the father by interfering with his relationship with the children;
f) Although the mother deposed that the father was violent with her and the children during the incident of April 2, 2017, the subsequent police report does not support this. I find that the mother exaggerated the seriousness of this incident;
g) The mother did not comply with the recommendations of children's aid society with respect to changing the location of the access exchange to a public place, or with her need to encourage the children to have a relationship with their father or with moving out of the motel;
h) The mother provided no third evidence to substantiate her claim with respect to her inability to find appropriate accommodations rather than continuing to reside with the children in a one bedroom motel and then she blamed the father for having no empathy for the plight of the children. Whereas, the father provided evidence that there were apartments available at less than the $2,000 per month the mother was paying for the motel. I find that the mother was prepared to deprive the children of appropriate living conditions to further her case that she be permitted to move;
i) Based on the statements of the children that they blame the father for being required to live in a motel. I draw the inference that such young children could have only made these statements as a result of hearing their mother or third parties in their presence make such allegations;
j) The mother alleged that she did not have access to a car so that she could assist in transporting the children. However, the father saw the mother driving and frequently saw the maternal grandfather's car outside her motel. The maternal grandfather attended court with the mother but did not file an affidavit or testify to corroborate the mother's statement that she did not have access to his car. I draw an adverse inference from the fact that he did not corroborate the mother's evidence;
k) The mother initially submitted that the father have his first 8 weeks of access at a supervised access facility in Niagara Falls before there was any expanded access without any details as to when supervised access might be available. This showed a complete disregard for a delay in re-establishing his relationship with the children;
l) The mother did not comply with many of the guidelines and instructions of Brayden with respect to how the visits were to be conducted. She did not attend at the appropriate time, at the agreed upon location and did not keep out of the sight of the children when instructed to do so. The mother did not fully co-operate or encourage the children to trust the supervisor so that the supervisor could facilitate access with the father;
m) The mother sabotaged the involvement of Brayden as a result of the serious allegation made by the mother against the supervisor using physical force against the children. The mother never reported her concern to the police or the children's aid society. In view of the fact that Brayden supervises many other children and is a resource used by the courts and many other families, I would have expected the mother to report her concerns if they were legitimate. Further, the complaint about the supervisor being physical with the children only came after it was recommended that the location of visits be changed and after Ms Evans, the director of Brayden was critical of the mother's behaviour;
n) The mother thwarted the involvement of Accendus Group even though the father was given the authority to retain a third party supervisor. This caused further delay in assisting the children to commence exercising access to the father;
o) Despite the court order giving the father the authority to retain a third party to assist him with access, the mother first attempted to ask the father to just suspend his access and recommended that Pathstone and then Abma counselling be involved. Further, the mother offered no evidence to refute the father's information and that of Accendus Group that Abma counselling did not do reintegration therapy or therapeutic access. The mother was content to simply suspend the father's access for an indeterminate amount of time with no concrete plan or any details about what services Pathstone or Abma counselling could offer to assist or when their services would be available;
p) The mother then proposed that Ms Vanbetlehem act as a parent co-ordinator and commence reintegration counselling and that any future access be made in consultation with Ms Vanbetlehem with no regard for the fact that the court had already ordered access to the father. The mother did not provide any evidence as to when Ms Vanbetlehem might be available again showing a complete lack of concern that the father's would not be having contact with the children; and
q) Despite the fact that the father had already spent $1,022.89 for the services of Brayden and $2,745.50 for Accendus, the mother expected that he should be entirely responsible for the fees of Ms Vanbetlehem.
78I find that in this case it would be very beneficial that reintegration therapy and some form of therapeutic access continue to take place. In the first therapeutic access visit arranged by Brayden some contact was established between the children and the father. If that process had been allowed to continue I feel fairly certain that on the resumption of this trial, all issues would have been resolved.
79In submissions I advised the father that I was concerned that unless the mother was supportive and trusted the professional retained to assist with the reintegration of the children that the process was doomed to failure in view of the evidence with respect to the termination of Brayden's services and the mother's antagonism towards the Accendus Group. However, although mother's counsel had proposed Ms Vanbetlehem be retained there was no evidence that she was available to begin therapeutic reintegration therapy without delay or that she or an associate would also be able to engage in therapeutic access in accordance with the outstanding access order. If she was available and able to provide these services then I indicated that I would consider an order appointing her. The father agreed that he would be prepared to agree as long as there was no delay and the access order continued.
80I indicated to both parties that I was prepared to permit mother's counsel to submit a Form 14B with further evidence with respect to Ms Vanbetlehem's availability and the extent of the services she was prepared to offer.
81I further ordered that if Ms Vanbetlehem was not available then within 1 week the mother was to contact Accendus Group, arrange an intake appointment and sign any necessary forms so that therapeutic access could commence at a location of their choice and by any method deemed appropriate.
82The mother's counsel submitted a further affidavit and confirmed that Ms Vanbetlehem was not available to conduct therapeutic access. The affidavit continues to be extremely critical of the Accendus Group.
83Mother's counsel then proposed Stephen Cross who is a qualified social worker be jointly retained. There was confirmation that Mr. Cross was available and was prepared to assist with the reintegration process. A copy of Mr. Cross' curriculum vitea together with his retainer agreement was provided. He appeared to be qualified to conduct reintegration therapy and assist with therapeutic access.
84The father also submitted a further affidavit and objected to yet another person being proposed by the mother as this was another example of the mother alienating the children from him and another attempt to delay the process. He had immediately corresponded with Ms Vanbetlehem to ascertain her availability and it seems he did so prior to mother's counsel contacting her. The father found out that she had no information about their case and in any event was not available. It was his position that pursuant to the order he should be entitled to proceed with the Accendus Group and that the mother should co-operate. He further deposed that although he had consented to the mother moving to Niagara Falls he would like to withdraw his consent and have the children move back to the Toronto region so he could have more access and he now wished to apply for joint custody.
85Despite the father's legitimate concerns I ordered that within 7 days the parties jointly retain Stephen Cross to commence reintegration therapy and that both parties be responsible for half of his retainer of $4,500. I further ordered the parties complete an intake form and arrange to meet with Mr. Cross either jointly or separately in accordance with his preference. The current access order was to continue and the access exchange would continue to be in Oakville although Mr. Cross could change the exact location. If any clarification of the order was required the parties and mother's counsel were to attend before me the following week.
86I made this order as it became clear that the case was unravelling and that although I appreciated the father's frustration nevertheless unless the mother is prepared to fully co-operate and be engaged in the reunification process it will not be successful. Given the animosity and distrust by the mother and her counsel of the Accendus Group I anticipated that their involvement would backfire on the father and not be helpful.
87The father requested a further court attendance. The father and mother's counsel attended before me on March 26, 2018 and confirmed that the retainers had been provided to Mr. Cross. The father simply sought assurance the mother was not pursuing an order that Mr. Cross act as a parent co-ordinator but that he would be assisting with the court ordered access in the way that Brayden had attempted to do. He also sought clarification as to the issue of the funds he had already spent on Brayden and Accendus and when the case would return to court. He was advised that those issues would be dealt with my decision.
88I am hopeful that the involvement of Mr. Cross will repair the damage that has been done to the relationship between the father and his children. However, if the mother does not fully co-operate with this process then the court may be required to take more drastic steps such as requiring the mother to move the children's residence closer to the father or even a change of custody. It is for this reason that I intend to remain seized of this case so that either party can bring a motion to change the outstanding orders before me.
89With respect to the costs already incurred by the father, I find that the mother should be responsible for the full cost of Brayden as she sabotaged that process. With respect to the costs incurred with respect to Accendus Group it may be that there was some misunderstanding or miscommunication between Ms Franchi-Rothecker and the mother and her counsel. Although not the father's fault, I find that it would be unfair to require the mother to pay the full cost incurred by the father. I also find that those costs appear to be quite high considering their involvement. Therefore I will only require the mother pay half of that cost. With respect to the ongoing fees of Mr. Cross both parties will be jointly responsible for these fees if they exceed the present retainer.
Conclusion
[90]
Conclusion
This was a highly unusual trial that requires ongoing scrutiny to ensure that the best interests of these young children are protected. Although the father has not been perfect, he has tried his best to re-establish a relationship with his children and he has followed the advice of the professionals he has retained. The mother has been given several opportunities to assist in repairing the children's relationship with their father but for the reasons outlined in this decision has not on her own or with the assistance of professionals been willing or able to do so. Based on the evidence it does not appear that the children require individual counselling or therapy but simply need the assurance of the mother that it is acceptable for them to have a relationship with their father.
91The involvement of Stephen Cross is now the last chance for the mother to show that she truly wishes the children to have a meaningful relationship with their father. If the mother does not follow the guidelines for the reintegration process or tries to also sabotage Mr. Cross' involvement then more drastic steps will be necessary to ensure that the children have a relationship with their father.
92If the reintegration process is successful, the parties should attempt to arrange expanded access on a schedule that is consistent with the age and stage of development of the children to include overnight and holiday access. If they are unable to reach an agreement, then either party may return this matter to the court.
Final Order
[93]
Final Order
There will be order as follows:
1. The Respondent will be permitted to move the children's residence to Niagara Falls but without prejudice to the Applicant's ability to require her to return to this jurisdiction if there is a breach of this order or if it is in the best interests of the children to do so.
2. The parties shall continue to engage Stephen Cross for reintegration therapy and to assist with the Applicant's access to the children Jada Berhanu and Moriah Berhanu born April 2, 2013 on every Saturday from 1:30 p.m. to 4:30 p.m.
3. There will not be any cancellation of access by the Respondent unless there is a doctor's note that the children or the Respondent are too ill to attend or in the event of hazardous driving conditions. If either party is required to cancel an access visit, a text message or email shall be sent to the other parent with as much notice as possible. If the Respondent cancels a visit there shall be a make-up visit within the following two weeks. If the Applicant cancels a visit there will not be any make-up visits.
4. The parties shall fully co-operate with Stephen Cross and follow his recommendations. If he recommends that the children require individual therapy the parties will co-operate in arranging such therapy and being jointly responsible for any costs.
5. Any further costs for Stephen Cross' services shall be paid jointly by both parties.
6. The Respondent shall be responsible for dropping off and picking up the children at a location in Oakville chosen by Mr. Cross or once his involvement terminates at a public location chosen by the Applicant.
7. The Respondent shall pay to the Applicant the costs of the services of Brayden Supervised Services in the amount of $1,022.89 and half of the costs of the services of Accendus Group of $1,372.75 for a total of $2,395.64. This amount to be paid at the rate of $200 per month commencing June 1, 2018.
8. If the services of Stephen Cross do not result in the Applicant being able to exercise access without the assistance of a third party professional, Mr. Cross shall prepare a report for the court outlining his involvement and recommendations for next steps. The parties shall be jointly responsible for the cost of such a report.
9. Either party shall have leave of the court to bring a motion to change the outstanding order with respect to access and custody, if they are unable to agree. A court date shall be obtained by means of a Form 14B being sent to my attention.
10. I shall remain seized of this case until April 2020.
94There were mixed results in this case, as the mother was successful on the issue of her move and the father was more successful on the issue of access. There were also findings that the mother has acted unreasonably with respect to the attempts by the father to establish access with the assistance of a third party professional.
95However, if either party is seeking additional costs and if the issue of costs cannot resolved between the parties, the Applicant shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 14 days. Counsel for the Respondent shall submit his written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 14 days of receipt of the Applicant's costs submissions. All submissions to be filed with the trial co-ordinator.
Released: April 4, 2018
Signed: Justice Roselyn Zisman
