Court File and Parties

COURT FILE NO.: FS-14-81793 DATE: 2020-04-03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

James Scot Thomson Applicant

Shawn Philbert for the Applicant

• and -

Jill Fleming Respondent

Faryal Rashid for the Respondent

HEARD: April 2, 2020 (by teleconference)

URGENT MOTION FOR ACCESS

Baltman J.

Introduction

[1] The Applicant (“Scot”) moves for urgent relief, seeking a resumption of access to his 7-year-old daughter, Kaelin. Despite numerous court orders permitting him regular overnight access, Scot has not seen Kaelin since June 24, 2019, when a physical altercation occurred (involving both parents and Kaelin) during an access transition. Since that time, the parties have, through their lawyers, been unable to agree on the terms for access renewal.

[2] Given the serious health risks posed by the COVID-19 pandemic, the regular operations of the Superior Court of Justice have been suspended. [1] At this stage, only the most urgent matters can be heard. That said, because of the very negative effects of wrongful, prolonged parental estrangement on a young child, I find this case meets the threshold for urgency.

[3] Counsel’s materials in support of this motion were filed electronically, and this hearing was conducted and recorded on an Ontario government teleconference line.

Background

[4] Scot and Jill married in June 2012. Kaelin was born shortly after, on October 6, 2012. The parents separated in May 2014.

[5] This has been a very high conflict separation. The parties have been in litigation since Kaelin was 2 years old. Each party is now on their third lawyer. There has been an extensive s. 30 assessment, several therapeutic efforts, and a period where CAS was involved. Currently, the CAS file is closed and Kaelin is seeing a therapist.

[6] There were also numerous court attendances, resulting in a series of orders from various judges regarding residency and access. The consistent thread in those orders, and the arrangement in place as of June 20, 2019, stipulated that Kaelin was to live primarily with Jill, with Scot granted regular overnight access, both on weekends and mid-week.

[7] On June 20, 2019, the parties attended a settlement conference with Justice Kurz. In addition to the access previously ordered, Kurz J. stipulated that each parent may have a telephone call with Kaelin for 5 minutes on any evening that she is staying overnight with the other parent. Pivotal to this motion, he also ordered mediation:

Within 14 days the parties shall select a mediator/communication counsellor for the parties to assist them in their communications regarding parenting of Kaelin. If one is not chosen, on consent, within 14 days then the default shall be Lourdes Geraldo. Costs of this counsellor shall be shared equally. [my emphasis]

[8] On June 24, 2019 – a mere 4 days after the conference with Kurz J. – Scot’s access dissolved following an incident at his home during an access transition. Predictably, the parties have very different versions of what happened and who was to blame. As I am primarily concerned about Jill’s behaviour on this occasion, I will set out what is undisputed by her:

• Jill drove Kaelin over to Scot’s house for an overnight access;
• Upon arrival, Kaelin, who was seated in the backseat, got out of the car;
• Scot took Kaelin into his arms and proceeded to carry her into the house;
• Kaelin became upset and began to cry;
• Scot continued inside the house and closed the front glass door;
• Jill took Kaelin’s suitcase and teddy bear from the car and brought them to the front door;
• Upon seeing Jill through the glass door, Kaelin, who was visibly upset, asked to say goodbye to her. Jill then asked Scot if she could kiss Kaelin goodbye;
• When Scot refused, Kaelin broke free of him, ran out the door past Jill and got back into the car;
• Jill raced back to her car;
• Neighbours who “witnessed” the incident called 911;
• Jill and Kaelin were taken by ambulance to Credit Valley Hospital.

[9] I shall comment later about Jill’s role in this incident.

[10] While at the hospital, Ms. Erin Powley, a “crisis intervention worker”, became involved. She noted that Kaelin was brought to the hospital “by her maternal grandparents”. In her report, she documented a physical altercation involving both the parents and the paternal grandmother, who was present at Scot’s house the day the incident occurred. While in the physical presence of her maternal grandparents – who reside with Kaelin and her mother - Kaelin told Ms. Powley that she saw her father and paternal grandmother assault her mother.

[11] Significantly, although the police arrested all three adults, following an investigation, none of them were charged.

[12] Since that incident, Scot has not been afforded any access whatsoever. Jill posits that Kaelin was so traumatized by Scot’s alleged misbehaviour during the June incident that any subsequent access is inconceivable. She procured a two sentence “report”, dated July 24, 2019, from Kaelin’s paediatrician, Dr. Leah Harrington, stating that Kaelin is “suffering from anxiety” following the “alleged assault” on June 24, and therefore she should “remain at home with her mother until such time that counseling is provided to address the anxiety that this child is experiencing.”

[13] At some point in the fall of 2019, Kaelin began therapy with Ms. Powley, the same social worker who assessed her on the day of the alleged assault. In response to this motion, Jill produced a report from Ms. Powley dated March 11, 2020, in which she reports “concerning behaviours as described by Kaelin’s mother and maternal grandparents” (my emphasis).

[14] I shall have more to say about both reports below.

[15] In October of 2019, Scot retained new counsel, Mr. Philbert. On October 15, 2019, Mr. Philbert wrote to Jill’s counsel, Ms. Rashid, seeking her client’s cooperation with the mediation order made by Justice Kurz. In their subsequent exchanges, counsel disagreed on the implementation of that order, with the result that there is still no mediator in place.

[16] Scot now seeks to ease back into a regular access schedule. He proposes that over the next 4-6 weeks, he have access through FaceTime, and thereafter resume access in person on a graduated basis. Jill maintains he should have absolutely no communication with Kaelin unless and until her therapists say she is ready for it. Importantly, Jill has not brought any motion to vary either the numerous orders granting Scot access or Justice Kurz’s Order to engage a mediator.

Submissions and Analysis

[17] As noted, in support of her position on this motion, Jill relies primarily on: a) the brief letter from Dr. Harrington, b) the report from Ms. Powley, and c) the effects of Scot’s alleged misbehaviour during the June 24 access visit upon Kaelin. I shall first address the reports and then comment upon Kaelin’s refusal to see Scot.

a) The reports from Dr. Harrington and Ms. Powley

[18] Putting aside that neither document is properly in evidence – having been introduced simply as exhibits to Jill’s affidavit – I have serious reservations about the usefulness of either.

[19] Dealing first with Dr. Harrington’s letter, I note the following:

• She is not a mental health expert;
• Other than mentioning “anxiety”, she gives no reasons whatsoever to justify the extreme measure of Kaelin “remain[ing] at home with her mother”;
• While she recommends against going outside the home, she does not address FaceTime or telephone access;
• In any case, the counseling that she stipulated should precede any access has in fact been in place for many months.

[20] Jill attempts to justify her reliance on Dr. Harrington’s advice based on Justice Tzimas’ Order of April 5, 2019, which stipulated that “Both parties shall follow any written recommendations and any changes to those recommendations they receive from Dr. Harrington.” That reliance is misplaced. That term is one of several consecutive terms in Justice Tzimas’ Order addressing her concern over Kaelin’s serious asthmatic condition, including that Dr. Harrington “shall continue to be the child’s primary care physician” and that both parties will procure and comply with her recommendations on any medications Kaelin requires for her asthma. There is no basis whatsoever to suggest the court then contemplated that Dr. Harrington might also wade into the mental health field.

[21] Turning to Ms. Powley’s report, I have grave concerns about it as well. First and foremost, her perspective is very one-sided. Not only was she initially brought in as a “crisis intervention worker” on Kaelin’s behalf, all her information has come exclusively from Kaelin, her mother, and the maternal grandparents. As she states at the outset, the “reported concerning behaviours” (i.e. crying, hiding, fear that Scot will show up unexpectedly or hurt Jill) are “as described by Kaelin’s mother and maternal grandparents” (my emphasis).

[22] Second, not only has Ms. Powley never met with Scot, she is disingenuous about her attempts to contact him. She concludes her report by stating that she has tried “connecting” with Scot over the “past few months” without success, because it “would be helpful to understand his perspective [and] his hopes as far as any future relationship with Kaelin.” She fails to mention, as she acknowledged in an email to Jill on August 6, 2019, that Scot emailed her back then “requesting to be involved with her therapy” and “requesting an appointment to speak with me further about it.”

[23] Given that Ms. Powley’s report is dated March 11, 2020, it is clear that it was procured and prepared expressly for this motion. And yet knowing that was its purpose, as she must, Ms. Powley misleadingly suggested that while she had tried to contact Scot, he never reciprocated.

[24] Third, nowhere in her report does Ms. Powley address any means of encouraging Kaelin to consider reconnecting with her father, even on a limited, graduated basis. The sessions appear to entail Kaelin reporting her fears about her father and repeating things her mother has told her about him. The “coping strategies” consist mostly of deep breathing, positive self-talk, and reassurance techniques.

[25] Fourth and finally, Ms. Powley expresses no concern over the fact that Kaelin is apparently being influenced by her mother, in particular that Kaelin “knows a lot” about threats to her safety (such as when Scot or her paternal grandmother call or email Jill) because “My mom tells me because she has to. Can you make them [her father and paternal grandmother] stop calling?”

[26] For those reasons, I see no basis in either Dr. Harrington’s note or Ms. Powley’s report to justify the complete termination of access that Jill brought about.

b) Kaelin’s “refusal” to see Scot

[27] Scot recognizes that the June 2019 incident was traumatic for Kaelin, and therefore access needs to be resumed gently and cautiously. That is why he has proposed an initial resumption of access by daily FaceTime, with the goal of a gradual move to physical access after a few months have elapsed and in accordance with any safety concerns related to COVID-19.

[28] Jill nonetheless states that when the issue of Scot’s access is even raised, Kaelin “cries, screams, hits, has panic attacks and exhibits extreme anxiety.” To that I have several responses.

[29] First, it is highly likely that that reaction is, if not encouraged by Jill, at least tolerated. It should not be. Our Court of Appeal has observed that a parent has a positive obligation to ensure that a child complies with an access order. While parents are not required to do the impossible in order to avoid a contempt finding, they are required to do all that they reasonably can: Godard v. Godard, 2015 ONCA 568, at para. 28.

[30] In this case, it is clear that far from trying to encourage any resumption of access, Jill is firmly opposed to it. Jill is far away from doing all that she can. It is therefore no surprise that Kaelin is resistant as well.

[31] Instead of condoning Kaelin’s resistance to access, Jill has a responsibility to strongly persuade her to participate. As Mossip J. observed in Reeves v. Reeves, [2001] O.J. No. 308 (S.C.), at para. 38:

Based on a significant number of studies and case law in this area, any support or 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. Children do not always want to go to school or want to go to the dentist or doctors. It is the responsibility of good parents to ensure the children go to school, go to doctors, and go to the dentist. Good parents manage their children’s health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.

[32] Second, Jill attributes much of Kaelin’s fears to the June incident, clearly blaming Scot entirely for what happened. She ignores the fact that she bears significant responsibility for its outcome, in at least two respects:

1. It was highly foolish of her to move toward the front door when Kaelin could still see her. This predictably encouraged Kaelin to believe that her mother would “rescue” her, and disrupted the transition process. If her purpose was to insure Kaelin had her suitcase and teddy bear for the overnight stay, she could have simply placed them on the lawn, or waited until Scot and Kaelin were out of view and left them outside the front door.
2. Once she was at the door, she should not have sought to kiss Kaelin goodbye, irrespective of what Kaelin wanted. Again, that is highly disruptive to the transition process, as it prolongs the necessary separation. She could and should have said goodbye to Kaelin before Scot approached the car.

[33] For those reasons, while undoubtedly both parents could have behaved better, I find Jill’s actions played a significant role in triggering the mêlée that ensued.

[34] Third, Jill has delayed and frustrated Scot’s numerous efforts to try to address this problem by obstructing the mediation ordered by Justice Kurz. In the weeks subsequent to that Order, the parties did not agree on a mediator. Although the Order stipulated that Lourdes Geraldo was to be retained if the parties could not agree, on July 23, 2019, Jill advised through her counsel that Ms. Geraldo was not acceptable because of an alleged conflict.

[35] Few details of the alleged conflict were then disclosed. During submissions on this motion, I was told that it was based on Ms. Geraldo’s Facebook friendship with Andrea Barclay, a therapist who previously penned a report critical of Jill. In other words, because Ms. Geraldo was friendly with someone who did not support Jill, Jill lacked confidence in her as a neutral mediator. Instead, Jill proposed three other individuals as mediators.

[36] The upshot of all of this is that Jill is in breach of two separate court orders. First, there has been an outright refusal of access for nine months, contrary to numerous court orders that stipulated regular, overnight access for the father. Second, she ignored Justice Kurz’s requirement to retain a mediator. Once the parties could not agree on a mediator, and she rejected Justice Kurz’s fallback designate, the onus was on her to seek to vary the Order rather than simply ignoring it or proposing substitutes.

[37] Since then, the world has been rocked by a pandemic. It will eventually realign, but in the meanwhile, children, more than ever, need regular, supportive contact with both parents and they need their parents to co-operate toward that goal. While Scot bears some of the responsibility for the current stalemate, I find that much of it lies with Jill’s irrational conviction that access should not resume at all and her cavalier disregard of Justice Kurz’s mediation order.

[38] Jill argues that because Scot previously delayed bringing this motion, he cannot now claim it satisfies the “urgency” requirement for cases being heard during the COVID-19 pandemic. Through her counsel, Ms. Rashid, she asserts that it should await a “proper hearing”.

[39] I find that Scot did not delay this matter. Contrary to Ms. Rashid’s assertion that Scot’s counsel first notified her in January 2020 that he intended to bring this motion, Mr. Philbert in fact wrote to her on October 15, 2019, advising that because of Jill’s non-compliance with Justice Kurz’s mediation Order, he had instructions to bring a contempt motion. In the hope of averting that, he requested Jill’s agreement to retain Ms. Geraldo, as stipulated in Justice Kurz’s Order. No agreement was forthcoming. The motion was then set to proceed in January, but due to scheduling conflicts, was adjourned to March. Then COVID-19 arrived and the March hearing was cancelled. Overall, that delay cannot reasonably be attributed to Scot’s actions.

[40] Moreover, in my view, this case clearly satisfies the kind of exigency stipulated in the Superior Court’s directive for the COVID-19 pandemic, which includes “urgent issues that must be determined relating to the well-being of a child, including essential medical decisions or issues relating to the wrongful removal or retention of a child” (my emphasis). Here, without apparent justification, a 7-year-old child has neither seen nor spoken to her father in nine months. That plainly constitutes wrongful retention of a child.

[41] As I noted above, in recognition of his prolonged separation from Kaelin, the need for sensitivity before in-person access can resume, and in light of the safety concerns associated with COVID-19, at this stage Scot is seeking only FaceTime access. I find that position eminently reasonable. Very recently, a similar order was made in a case involving supervised access: Gesualdi v. Cope, File #FS-35362/13, March 30, 2020 (Gibson J.).

[42] In addition to that, it is critical that the parties engage immediately in the mediation counselling that Justice Kurz previously ordered. I recognize that because of the COVID-19 pandemic, family counsellors are not currently conducting in-person meetings. However, many are doing so by video or teleconference. This option should be vigorously and collaboratively pursued.

[43] Although Jill’s reasons for rejecting Ms. Geraldo did not impress me, it is particularly important in this case that the parties move forward together and with open minds, unconcerned about any external alliances. In that vein, both counsel agreed during submissions that Mr. Steven Cross is also capable, and a suitable choice as the default mediator should I maintain the existing mediation order.

Conclusion

[44] I therefore order the following:

1. Beginning immediately, Scot shall have access to Kaelin for between 5 and 15 minutes each evening, between 7:00 p.m. and 7:15 p.m., via FaceTime (or some other virtual means), to be initiated by Scot;
2. Jill shall take all necessary steps to facilitate that access and to promote Kaelin’s full participation;
3. The parties, with the support of their counsel, shall immediately take concrete, collaborative and vigorous steps toward a mutually acceptable mediator/conciliator. If one is not chosen, on consent, within 7 days, then the default shall be Steven Cross;
4. This motion shall be returnable before me on Thursday, May 28, 2020 at 9:30 a.m., by teleconference, in order to address the issue of in-person access, and any other matters arising out of the implementation of this order;
5. Given the breaches of court orders outlined above, Jill shall pay costs of this motion fixed at $5,000 inclusive. That amount, which I consider extremely reasonable, was the sum requested by Mr. Philbert. Indeed, given the importance of this matter, had he requested more, I might have considered it. It shall be set off against the cost award of $4,000 ordered against Scot by Tzimas J., with the result that Jill shall pay $1,000 to Scot. Unlike Justice Tzimas’ award, which was payable in any event of the cause but only at the conclusion of the trial, Jill shall pay the $1,000 forthwith, in order to drive home the need for immediate compliance with the steps ordered above.

Final Comment

[45] Despite the contentious and turbulent history on this file, on this teleconference both counsel conducted themselves with civility and professionalism. The court is grateful to them and encourages them to continue in that vein.

Baltman J. Released: April 3, 2020

COURT FILE NO.: FS-14-81793 DATE: 2020-04-03 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: James Scot Thomson Applicant - and – Jill Fleming Respondent URGENT MOTION FOR ACCESS Baltman J. Released: April 3, 2020

[1] See https://www.ontariocourts.ca/scj/covid-19-suspension-fam.