Court File and Parties
COURT FILE NO.: 885/18 DATE: 2020-06-16 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
F.K. Applicant – and – A.K. Respondent
Counsel: Ms. N. Matthews, for the Applicant Mr. R. Wasserman, for the Respondent
The Children’s Aid Society of Hamilton Respondent Mr. J. Bland, Counsel for the Respondent (present only at the outset of the motion)
HEARD: June 12, 2020, via Zoom Video Conference
JUDGMENT
THE HONOURABLE MR. JUSTICE A. PAZARATZ
1What’s better for two young children desperately in need of professional counselling?
a. Being on an endless waiting list in the city where they spend 50% of their time with one parent?
b. Or actually receiving those urgently-needed services in the city where they spend 50% of their time with the other parent?
2And while we’re asking obvious questions: What’s better for two young children repeatedly interviewed by Children’s Aid about one parent’s always-unverified allegations of abuse by the other parent?
a. Should they be interviewed privately and confidentially (as always permitted by the accused parent)?
b. Or should the children be aware that one parent is listening to every word they tell the investigator (as required by the accusing parent)?
3If I tell you that the parent who wanted to keep the troubled children on waiting lists is the same parent who insists on monitoring what they tell their child protection worker – you’ll likely understand why I am so worried about these children that I allowed this motion to change to proceed on an urgent basis.
4Insofar as parental insight and judgment are among the central issues, it is necessary to review some of the relevant background.
5Note to reader: To protect the confidentiality of the children, I will not identify the parents’ names. I have changed the names of the children (rather than refer to them by initials, which can be difficult for the reader to follow).
6I reviewed the following materials prior to receiving submissions on June 12, 2020:
a. May 22, 2020 Applicant’s Notice of Motion
b. May 22, 2020 Applicant’s Affidavit
c. May 28, 2020 Respondent’s Notice of Cross-Motion
d. May 28, 2020 Respondent’s Affidavit
e. June 3, 2020 Applicant’s Affidavit
f. June 3, 2020 CAS Protection Worker Katie Royle’s Affidavit
g. June 11, 2020 Respondent’s Affidavit.
h. June 11, 2020 Applicant’s Affidavit
i. June 11, 2020 Respondent’s Affidavit.
7The family:
a. The Applicant father is 32 years old.
b. The Respondent mother is 31.
c. They have two children: an eight year old boy, Norman, and a three year old daughter, Nancy.
8The relationship history:
a. The parties met online in February 2011.
b. They were married on January 31, 2015.
c. They separated on July 2, 2018 following an argument which resulted in the mother being charged with assaulting the father.
9The father says the mother was verbally and at times physically abusive throughout their relationship.
a. He says on one occasion the mother got violent, scratched his neck causing him to bleed, and attempted to strangle him.
b. He says on the date of separation the mother hit and choked him in front of neighbours when he confronted her about her excessive partying and drinking.
c. The mother denies ever being violent. She was charged with assaulting him. She completed a partner violence program and was placed on a peace bond for 12 months.
10About nine months ago -- on the eve of a scheduled custody trial – the parties resolved all issues on a final basis by way of Minutes of Settlement negotiated when the parties had counsel. Those Minutes came to be incorporated into the final order of Justice Bale dated August 13, 2019. But within months the mother brought a motion to change that order, and now both parties say the order needs to be changed for the sake of the children.
11The August 13, 2019 order included the following terms:
a. “The parties shall share joint decision-making regarding the education, health and religion of their children.”
b. “The parties shall make day to day decisions regarding the children…while they are in their respective care and they shall be respectful of the established routines of the children to ensure consistency and stability for the children.”
c. “The parties shall follow all directions of all professionals involved with their children…including but not limited to family doctors, counsellors, teachers and paediatricians.”
d. The parties are to share equal time with the children on a two-week rotating schedule which includes alternate weekends and sharing of weekdays.
e. Exchanges to occur at school or daycare, or otherwise at a Tim Horton’s parking lot in Hamilton (everyone resided in this city at the time).
f. Provision for additional time-sharing regarding special occasions, Mother’s Day, Father’s Day, birthdays, vacations, etc.
g. “The parties shall communicate with each other in a child focussed and respectful manner at all times.”
h. “Neither party shall speak negatively of the other party to and/or in the presence of the children and shall encourage others to do likewise.”
i. No child support currently payable based on the parties’ incomes.
j. Annual financial disclosure.
k. No costs.
12In October 2019 – about two months after that Hamilton-based joint custody/equal-timesharing order was granted -- the mother relocated to Dunnville, Ontario. The travel time between Hamilton and Dunnville by car is almost an hour.
a. The father says the mother’s relocation to another community had not been discussed when the parties consented to the August 13, 2019 order.
b. He says even after the order, the mother gave him no forewarning about the move.
c. The Children’s Aid Society of Hamilton (CAS) says it had been working with the family for more than a year, and the mother gave them no forewarning that she was moving.
d. However, the mother insists she told both the father and CAS about the move ahead of time.
13Immediately upon relocating to Dunnville, the mother filed an Application and emergency motion in Cayuga, seeking sole custody, primary residence and child support.
a. At that point the August 13, 2019 final order was less than three months old.
b. At a Cayuga Case Conference on November 26, 2019, the parties consented to the proceeding being transferred to Family Court in Hamilton, with costs being reserved.
14The first appearance of the mother’s motion in Hamilton was supposed to be January 9, 2020. But even before that date arose, the mother took unilateral action which resulted in the father presenting me with an ex parte motion on the morning of January 8, 2020.
15The father’s January 2020 affidavit materials set out the aforementioned background, and then described a recent problem:
a. After the Christmas school break the mother refused to allow the children to return to the father during his times.
b. The mother advised the father that the children disclosed that he had been abusive with them and she reported the disclosure to Hamilton CAS.
c. She told the father that CAS had instructed her not to let the father see the children until they completed their investigation and authorized him to have contact. She said she was withholding the children pursuant to specific instructions from CAS.
d. She also confirmed that she had attempted to transfer the older child from his school in Hamilton to a school in Dunnville. She sent the father an e-mail saying she had the right to change the child’s school because he was now going to be living with her and she wanted him to go to school in the community she had recently relocated to.
16The father brought an ex parte motion seeking to restore equal time sharing and to prevent the mother from changing the older child’s school and the younger child’s daycare (which was also in Hamilton).
a. I declined to deal with the matter without notice to the mother.
b. I stood the motion down and directed father’s counsel to telephone the mother and ask that she come to court right away.
c. Fortunately, the mother came to court late in the morning.
d. I stood the matter down over the lunch hour to allow her to consult with duty counsel.
17During the lunch hour on January 8, 2020 two things happened. The mother spoke to duty counsel. And more importantly, the father’s lawyer obtained an extremely helpful letter from CAS which contradicted the mother’s version of events.
a. The January 8, 2020 CAS letter confirmed that the mother had made a referral.
b. But CAS spoke to the child and there had been no disclosure of anything inappropriate.
c. CAS had not taken a position in relation to custody or access.
d. CAS never told the mother to deviate from the existing equal time order.
e. CAS never told her to keep either child away from the father.
18The father’s materials also included an earlier letter from Hamilton CAS dated December 27, 2019, addressed to both parents. It dealt with the mother’s desire to transfer Norman to a school in Dunnville, in the middle of the school year. CAS had been working with the family, and the letter included the following:
a. Norman should continue in a specialized counselling program at his current school in Hamilton.
b. He had only recently started the program and he was now familiar with the staff.
c. It would be difficult for Norman to leave the program where he was being supported and monitored.
d. Staff in a new school might not fully understand his needs right away.
e. Norman needs counselling.
f. Norman wants to please both parents and he is struggling with the ongoing conflict between his mother and father.
g. CAS was making a referral to a specialist for Norman.
h. The letter also noted that Nancy would benefit from continuing in daycare as it would allow her to socialize with peers.
19So, between the two letters, CAS was unequivocally saying:
a. They never told the mother to keep the children away from the father.
b. They have no concerns about the father.
c. It really isn’t a good idea to pull Norman out of the school in Hamilton where he’s getting much-needed help.
20After the lunch break the mother reviewed the January 8, 2020 CAS letter with duty counsel. She insisted the letter was wrong and that she had been instructed to withhold the children. But she signed Minutes of Settlement restoring equal time-sharing and confirming that the older child’s school would not be relocated from Hamilton.
21I will reproduce my January 8, 2020 endorsement – distributed to the parties while they were in court – because it provides important context in terms of recurring issues which pre-dated the January 9, 2020 motion – and issues which have resurfaced within this current motion:
Jan 8/20 Emergency Motion Endorsement 885/18
Matthews – Applicant (present) Saenz – DC – Respondent (present)
1 This was an emergency motion brought by the father seeking compliance with a consent order dated August 13, 2019. That was only a few months ago.
2 At the time both parents were living in Hamilton and the order provides for equal time and equal decision making.
3 The Respondent mother subsequently moved to the Dunnville area. She commenced a motion to change in Cayuga. That motion went through some case management and ultimately the court in Cayuga transferred the matter back to this court.
4 The First Appearance is set for January 9, 2020 at 9 a.m.. In light of today’s developments, that First Appearance is vacated and the matter is adjourned to February 27, 2020 at 10 a.m. to be spoken to.
5 This emergency motion was brought by the father because earlier this month the mother retained the children and attempted to change the child Norman’s school from Hamilton to the Dunnville area.
6 Fortunately the mother attended today. Understandable she needed an opportunity to see duty counsel, and the matter was held down during the lunch hour. Prior to the break the mother indicated that she had withheld the children because there had been a disclosure of sexual abuse by the father and she had been advised to keep the children while the investigation is underway.
7 When we returned after the lunch break, the mother attended with Mr. Saenz as duty counsel.
8 Ms. Matthews produced a letter from Hamilton CAS which she had secured over the lunch hour. The letter dated January 8, 2020 sets out that the Society takes no position in terms of custody and access. It says the Society “at no point during its involvement advised either parent to act in contravention of the current Family Court order”. It noted that the Society received concerns from the mother about the father, but the child did not disclose any child protection concerns about the father to the Society worker. “At this time, there is no reason for the mother to withhold access to the father.”
9 The mother has not had an opportunity to file responding materials. If this matter can be diffused it may not be necessary for her to file responding materials on this motion. She indicated that the contents of the CAS letter differ from the oral information she received from the Society. For the moment, I must accept the contents of the CAS letter, particularly since they appear to be consistent with an earlier CAS letter dated December 27, 2019. The current CAS letter is also consistent with the final order which the parties consented to only a few months ago, when both parties were represented by counsel.
10 The parties have apparently agreed to resume the time sharing schedule where they left off. This is appropriate. I would very strongly urge everyone not to unilaterally deviate from the court order again.
11 The child Norman is to be returned to Armstrong school. This is also appropriate. Again, I would urge everyone to leave school arrangements in place until there is further agreement or court order.
12 The mother says she cannot afford to continue to send Nancy to daycare on her days. She says she has lost her subsidy after moving to the Dunnville area. Ordinarily I would require that the status quo be reinstated immediately, but it would appear that the mother hasn’t been taking Nancy to daycare on her days for perhaps a couple of months. Notwithstanding the Society’s recommendation that daycare is good for Nancy, since the most recent status quo (acquiesced to by the father) is that the child has not been attending daycare on the mother’s days, I will not order that this be reinstated at this emergency motion. This matter may be revisited.
13 I wish to emphasize to the parties however, that the court is unimpressed with how all of this has evolved. Perhaps this can be a learning experience. We don’t like parents unilaterally making changes to court orders. Today’s problems may be resolved relatively painlessly, but I would anticipate that if it happens again there will be a fundamental question about whether joint custody/equal time is a reliable arrangement.
14 Order minutes excluding paragraph 6.
15 The Applicant seeks $1,500.00 costs. Mr. Saenz proposes that there be no costs or limited costs, noting that the mother attended immediately and the matter was resolved quickly.
16 Costs are intended to accomplish a number of objectives, and in this case one of the most important objectives is to encourage reasonable behaviour and discourage unreasonable behaviour. In my view the mother’s unilateral action which led to today’s emergency motion was absolutely unwarranted. As a court system we cannot allow parties to pick and choose when they intend to obey orders – especially orders that were recently consented to. More importantly, where a court orders joint custody and/or equal time sharing, any unilateral disobedience of the order is not only unfair to the other party, but it is extremely prejudicial to the emotional well-being of the children.
17 Ms. Matthews’ request for $1,500.00 costs is in my view is very reasonable given the complexity of the issues and the skill with which she brought the matter to court. I will however take into account the mother’s financial circumstances.
18 The Respondent shall pay to the Applicant costs of today’s attendance in the sum of $1,000.00 inclusive of HST and disbursements.
19 I wish to warn the Respondent now however. If she does anything like this again, she should be worried not only about a larger costs order. She should be worried about whether the children will be entrusted into her care.
20 We won’t tolerate self-help.
22My warning to the mother in paragraph 19 could not have been more clear.
23Unfortunately, there have been numerous problems since January 2020 which caused the father to bring an emergency motion dated May 22, 2020. Among the relief requested by the father:
a. Interim without prejudice primary residence of the children.
b. Mother to have access on alternate weekends from Fridays after school until Sundays at 7:00 p.m.
c. Access exchanges at Central Police Station in Hamilton.
d. Father to keep mother updated as to the children’s medical and other appointments.
e. Father to be permitted to arrange counselling for Norman.
f. Both parties to follow the instructions and directions of medical doctors and counsellors.
g. Neither party to expose the children to adult situations, including domestic violence, yelling, shoving and sexually inappropriate conduct or conversation.
h. Costs to be reserved.
24Based on the father’s accompanying affidavit, as Triage judge on May 22, 2020 I issued an endorsement determining that the father’s motion was presumptively urgent and that it could proceed.
25This led to the mother bringing a cross-motion for urgent relief including:
a. Dismissing the father’s motion with costs.
b. Requesting involvement by the Office of the Children’s Lawyer (OCL) for both children.
c. Timesharing exchanges to take place midpoint between Hamilton and Dunnville.
d. Parties to follow the recommendations of the children’s physician Dr. Maracle, or any other doctor or therapist.
e. Neither party to speak negatively about the other in the presence of the children.
f. Striking two exhibits from the father’s materials as a result of hearsay.
g. A case conference to be arranged prior to the motion being heard as it is not urgent.
h. Questioning.
i. Costs.
26The father had named CAS as a party in relation to his motion (to obtain access to CAS records). As a result, CAS worker Katie Royle filed a lengthy affidavit which was quite helpful.
27I will briefly review the information set out in the respective affidavits.
28The father’s affidavit of May 20, 2020 included the following information and allegations:
a. Historically and continuing to the recent past the mother has made numerous false allegations against the father. She has manipulated Norman into making false statements about the father abusing him.
b. From the very outset when CAS became involved (prior to the existing final order) the Society investigated and did not verify any allegations of abuse by the father.
c. The mother recently caused Norman to tell CAS that the father was abusing him and his sister. The Society again investigated and ultimately issued a letter dated April 28, 2020 which expressed strong concern about the mother’s role in manipulating and pressuring Norman to make seemingly meritless allegations against the father.
d. The father insists that each and every allegation the mother has made about him abusing one or both of the children is false – but the mother keeps coming up with more allegations, which only exposes the children to needless stress because they constantly have to be re-interviewed.
e. Norman is so stressed that on one recent occasion when the mother wanted the boy to claim the father hit him, Norman suddenly told the CAS worker that the father does not hit him and that it is the mother who hits him. Norman then retracted that allegation and confirmed that nobody hits him, and he’s just trying to say what he thinks his parents want him to say.
f. The father is very worried about both children. Norman in particular requires services for his mental and emotional well-being.
g. The mother consistently undermines the father’s efforts to obtain supports for the children, including counselling for Norman and speech therapy for Nancy.
h. The mother pretends that this is a dispute about selecting the city in which counselling is to occur. But the reality is that the mother has rejected and cancelled ongoing counselling in Hamilton, while arranging no viable alternatives. She is simply rejecting the Hamilton counselling services because the father picked them.
i. The mother constantly draws the children into the conflict between the parents. She is pressuring them to take her side and to verbalize false allegations. The children need to be shielded from this emotional abuse.
j. It is in the best interests of the children that they reside primarily with him and that he be allowed to arrange counselling for them.
k. The father attends school at Mohawk College under the Second Career Program.
29The father’s May 20, 2020 affidavit included as an exhibit a detailed and troubling letter dated April 28, 2020 from CAS worker Katie Royle, addressed to both parents. Royle filed a sworn affidavit confirming the accuracy of all of the contents of that letter. I will deal with Royle’s affidavit separately. But this is a helpful point in the analysis to outline the information CAS presented to the parents as of April 28, 2020.
30Royle’s letter included the following statements and information:
a. The letter was in response to the mother’s allegation that the father had harmed the children.
b. The allegation was investigated. It was not verified. “There was no apparent evidence of harm to the children.”
c. On March 16, 2020 the mother called CAS and said the children had bruises on them when they came to her home from the father’s home. She shared no specific information nor was there an allegation that the children had been harmed.
d. On April 17, 2020 the mother said her family doctor had contacted Royle with concerns. But Royle received no messages from the doctor until April 26, 2020 when Dr. Maracle left a message asking to speak generally about Royle’s involvement.
e. When Royle spoke to Dr. Maracle on April 28, 2020, the doctor did not report any concerns about injuries to the children. But the doctor continued to be worried about the emotional well-being of the children as a result of the conflict between the parents.
f. On April 17, 2020 Royle called the mother to check in. The mother then reported that when the children had returned to her home on April 15, 2020 they had bruises and they told the mother that the father, his partner and the paternal aunt were hurting them.
g. The mother also said the children told her that the father puts baby powder in his nose, which implied that the father was engaging in substance use.
h. The mother said her own mother had called Royle to express concerns, but Royle said she received no such call.
i. On April 17, 2020 Royle attended the mother’s home. The mother wanted to listen to and record Royle’s interviews with her and the children. Royle advised that the Society does not participate in recorded interviews.
j. They agreed that the mother would listen through an open window, while Royle interviewed the children on the porch.
k. Royle observed and interviewed both children.
l. Nancy had no apparent injuries. When the mother was informed of this, the mother produced undated and unclear photographs that she said were of injuries to the children after visiting their father.
m. When Royle interviewed Norman, he appeared to be aware that the mother was listening. Before Royle asked any questions, Norman looked at the open window and spontaneously stated that his father hit him and he had bruises.
n. When Royle asked Norman if what he said was true, Norman leaned out of view of the open window and shook his head from side-to-side, indicating “no”.
o. At that point Norman indicated he wanted the window closed so he could speak privately.
p. Royle sent the mother a text message to close the window. Royle agreed she would allow the mother to continue to listen to the interview through her cell phone.
q. Once Norman thought the mother wasn’t listening, Norman denied that anyone was angry or hit him or his sister at the father’s home. He said his three-year-old sister said the marks were from the father but this was not true.
r. Norman denied any concerns about his care by his father, apart from yelling which he did not describe as harmful.
s. On April 28, 2020 Royle interviewed both children at the father’s home. Norman immediately told Royle that the mother hit him.
t. When Royle asked if he was being told to say that someone was hitting him or felt that was what he should be saying, Norman described making such statements as a result of feeling stressed and obligated to make reports.
u. Norman then stated clearly that there has never been a time when physical discipline was used by either the father or the mother.
v. Norman said he is aware that the parents do not like each other, and he experiences stress and confusion as a result.
w. Norman said he was happy when he was born, but since then he is no longer happy. Remember: this is an eight-year-old boy.
x. Royle stated in her letter that the Society remains involved as a result of ongoing worries that the children are being exposed to conflict relating to the custody-access dispute.
y. Royle reminded the parents that Norman has previously expressed thoughts of self-harm and appears to experience significant anxiety.
z. The father disclosed that Norman has been attending for counselling in Hamilton, but the mother was unaware of this.
aa. Royle concluded her letter by urging the parents to stop being hurtful and uncooperative toward one another because such behaviour “is emotionally harmful…and causes long-lasting damage (to children).”
bb. Royle noted that the father had also enrolled Nancy in a speech development program – again without the mother’s knowledge. Royle urged the parties to communicate better and ensure that the children obtain the counselling and professional assistance they both require.
cc. Royle provided contact information for a number of programs the parents should consider – including counselling for themselves, to gain insight into the impact they are both having on their children’s well-being.
31The mother’s affidavit of May 27, 2020 included the following information and allegations:
a. She disputes most of the father’s allegations. She also disputes much of the April 28, 2020 CAS letter.
b. She has just given birth to a third child, of her current relationship.
c. She is on maternity leave from her employment as a registered Early Childhood Educator specializing in special needs children.
d. The mother denies she was aggressive in the relationship. She says the father was physically, verbally and emotionally abusive. She was only defending herself.
e. She admits she was charged with assaulting the father. But she says a Crown witness subsequently recanted; she consented to a 12-month peace bond; and the charges were withdrawn. She has no criminal record.
f. She denies the father’s allegation that she relocated from Hamilton to Dunnville without warning or discussion. She says she told the father she was moving because she was pregnant and could no longer afford to live in Hamilton.
g. She says she commenced a motion to change in Cayuga in November 2019 after the father administered cannabis oil to the child Norman, and he announced he would no longer co-parent or consult her.
h. She denies ever coaching Norman to fabricate allegations against the father. To the contrary, she says the father coached the boy to make up untrue allegations of abuse against the mother’s partner.
i. She says CAS didn’t respond in a timely way when her family physician Dr. Maracle called them on numerous occasions between February and April 2020.
j. She says she has audio tapes which will prove Royle’s letter does not accurately set out the worker’s conversation with the mother or Norman.
k. She acknowledges that Norman has made separate allegations against each parent and that Norman subsequently denied that either parent had physically disciplined him. The mother insists Norman’s exoneration of the father is a lie, but Norman’s exoneration of her is the truth.
l. In a confused narrative the mother says she has made “every effort to have services rendered for each of the children.” She says she and the father initially agreed services should occur in Haldimand, but the father subsequently withdrew his consent. So she refused to consent to services being provided in Hamilton.
m. The mother admits however that services for the children are not actually available in her area because of the COVID-19 situation. Programs in her area are on hold with no tentative return date. The children would be on a waiting list in Haldimand or Niagara until at least September 2020. Possibly longer.
n. She made exactly the same complaint the father made: She couldn’t enroll the children in local services because the other parent wouldn’t consent.
o. She says the father’s decision to unilaterally enroll the children in services in Hamilton was inappropriate and contrary to the August 13, 2019 order which gave the parties equal decision-making authority.
p. She has always followed professional advice. She has always tried to co-parent with the father, but he won’t cooperate. The father refuses to follow professional advice.
q. She feels eight-year-old Norman is being manipulated and bribed by the father. She wants the OCL to represent the child or conduct an investigation.
r. She has never observed any reluctance on the part of the children to return to her residence after their time with the father.
s. In January 2020 she misunderstood that CAS told her to keep the children from the father if they reported abuse.
t. Three-year-old Nancy displayed sexual acts in December 2019 which she reported to the Family doctor and CAS. Nancy also disclosed that “daddy is mean and hits her.”
32The mother attached an unsworn lengthy “timeline” as an exhibit. It was not a helpful document and the CAS worker swore that it was filled with inaccuracies.
33The mother attached a number of unsworn letters to her affidavit. These included a March 17, 2020 letter from family physician Dr. Kelly Maracle. The father did not object to the letter being produced. The letter included the following:
a. Dr. Maracle has been the family physician for the mother and both children since July 2017.
b. The physician has no concerns with the care that the mother has provided for the children.
c. The mother attends all appointments as required; she follows through with recommendations; and she advocates for the children.
d. The mother is actively pursuing resources for the children to help them with their physical and emotional needs.
e. Both children require services outside of Dr. Maracle’s Port Colborne office which they have not been able to access due to parental discord.
f. Norman requires mental health counselling and Nancy requires access to a speech language pathologist. Both parents have acknowledged that these services are required.
g. The doctor is concerned that services have not been arranged because the parents could not reach agreement.
34The father’s reply affidavit of June 3, 2020 included the following information and allegations:
a. He again denied the mother had discussed relocation prior to her move to Dunnville.
b. He denied ever coaching the children to make any negative or accusatory comment about the mother.
c. He recently took Norman to a drop-in counsellor because the boy was getting agitated about returning to the mother’s house. He informed CAS. However, the mother contacted the facility and demanded that they not provide Norman with counselling.
d. The mother has not suggested or offered any counselling solutions. She simply says the children are on waiting lists for professional services in Haldimand or Niagara, and she would prefer that they wait indefinitely rather than participate in professional services already in place in Hamilton. (There is no COVID-19 waiting list for such services in Hamilton.)
e. Norman was supposed to see his Hamilton mental health counsellor again on June 3, 2020 but the mother called and cancelled that appointment. She stated that she has joint custody and she does not consent to counselling in Hamilton.
f. He was shocked when he learned the mother was alleging he had physically and sexually harmed Nancy. He absolutely denies this, and has never observed any sexualized behaviour by the child.
g. He is very worried about both of his children. He feels the mother is compounding their problems through her malicious behaviour, rather than assisting in getting them professional help.
35CAS child protection worker Katie Royle filed a lengthy June 3, 2020 affidavit which included the following information:
a. She was replying to the first affidavits filed by each of the father and mother.
b. She has assumed carriage of this file since February 12, 2020.
c. With respect to historical domestic violence between the parties, in June 2018 CAS received a call from the police investigating a verbal domestic. No charges were laid. But on July 2, 2018 police called again regarding another call. The police officer advised that the mother “was very aggressive and began to scratch and hit the dad”. The mother was charged.
d. While the mother now alleges the father physically, verbally and emotionally abused her, CAS has no evidence of this. The mother never previously reported it to the Society; to police, or to counsellors.
e. With respect to the issue of whether the mother provided notice that she was moving from Hamilton to Dunnville: CAS had a worker assigned to the family at the time. There is no notation that the mother ever notified CAS that she was moving. At one point a CAS worker tried to set up a home visit, unaware that the mother had already moved into her partner’s home in Dunnville. The mother advised that she was not willing to meet with the worker and directed the worker to contact her lawyer. On November 14, 2019 the mother requested that her file be transferred to Haldimand & Norfolk CAS.
f. The mother has made many reports that the father, the paternal aunt, and the father’s partner physically harmed the children. “Any and all allegations have not been verified.” The children’s doctor has never seen any bruises on the children that she would be concerned about.
g. The father has made no allegations against the mother. CAS verified only once in 2016 that the mother used inappropriate discipline by putting soap in Norman’s mouth.
h. CAS currently has no concerns that the children are being physically harmed by either parent or adult in their respective homes.
i. However CAS and the children’s doctor are concerned that the children are providing information to CAS based on what the other parent would like to hear. This is more evident at the mother’s home where Norman is aware that the mother is listening to Royle’s private interviews with the children. CAS is worried Norman is making allegations based on knowing that the mother is listening. He provides answers to reflect the mother’s expectations “rather than the truth of the situation.”
j. In contrast, in the father’s home the children feel more free to speak openly as all the adults in his home provide a private environment for Royle to speak to the children. “There is a very clear difference around the body language and comfort level of the children when they are at the mother’s compared to the father’s.
k. Royle re-stated and expanded upon the narrative in her April 28, 2020 letter – the incident where Norman spoke to Royle nervously, knowing the mother was listening through a window. “It was very clear to me that he was very worried about telling the truth while knowing his mother was listening.”
l. With respect to Nancy’s need for speech support services: The father has been taking Nancy to Early Words since January 2020. When she found out, the mother was upset she hadn’t been informed. The mother was upset the father took Nancy to Early Words. So the mother cancelled Nancy’s attendance at Early Words. Royle then learned that Nancy actually had an appointment at Early Words scheduled in September 2019, before the mother moved from Hamilton. The mother was aware of the appointment but did not take the child and declined to reschedule.
m. As a result of parental deadlock, Nancy is not currently on any waiting list and she is not receiving any service. Nancy cannot communicate well. She is unable to communicate in a language that is understood. She is currently enrolled in a French daycare in Hamilton, but she cannot speak properly in either French or English. Her speech ability is not what would be expected of a three-year-old.
n. The mother has acknowledged to CAS that Norman requires counselling. She has repeatedly reported that she wants him to get help and she will do what is in the best interests of the child. Nonetheless, when the mother found out in late May 2020 that the father had arranged counselling in Hamilton – and that it had been ongoing since February 2020 -- she immediately called and instructed the counselling agency to stop seeing Norman. The counselling service quickly contacted CAS to express concerns about the mother’s decision, because they say Norman requires ongoing therapy. They expressed concern that the mother would not permit Norman to attend his next scheduled counselling appointment on June 3, 2020. The mother was aware of this, but she still refused to allow Norman to attend.
o. Both parents have recently expressed concern to CAS about Norman displaying signs of panic attack-like symptoms and being very distressed during times of transition between pick up and drop offs. The child will make allegations of feeling unsafe in both parents’ care.
p. During the summer of 2019 the mother reported that Norman expressed suicidal ideation and brought him to McMaster Children’s Hospital. The school has expressed concern to CAS during the past year that Norman had challenges managing his emotions and at times would have melt-downs at school and be aggressive. Dr. Maracle expressed concerns to CAS that she is very worried about Norman’s emotional well-being.
q. Norman has stated to Royle that he was happy when he was born but he is no longer happy. He says he is confused and stressed and no longer experiences any happiness.
r. Dr. Maracle shares the Society’s concern that the parents are more focussed on developing evidence for their court case than focussing on what is in the best interests of the children.
s. Dr. Maracle advised that in 2019 there was an incident in which the father attended an appointment with the children, but he was unaware that the mother was also attending. The mother wasn’t supposed to be having any contact with the father as a result of the assault charge against her. The father reported that he felt unsafe so he called the police while at the doctor’s office. The children were exposed to this conflict and police attending.
t. The parents have been unable to address straightforward health issues. Both parents claim Norman is passing very large bowel movements at the other parent’s home. This is the result of inadequate diet or failure to administer Restoralax when he experiences constipation (caused by his medications). The mother has been removing the child’s bowel movements from the toilet, measuring them, and then sending the father and the CAS worker pictures of the bowel movements as evidence of the problem. Royle said Dr. Maracle found the mother’s behaviour “concerning and unnecessary.”
u. Because of the extreme conflict between the parents; the difficulties with transitions; and the inconsistent parental environments and expectations, CAS recommends that the children should reside primarily with one parent and that same parent should make major decisions.
v. CAS has no protection concerns preventing either parent from being the primary caregiver.
w. But CAS has had a more effective and engaging working relationship with the father. The mother had significant conflict with a previous CAS worker, and she has at times been uncooperative with CAS. The Society is concerned that Norman reported that the mother did not like the previous CAS worker and “she got her fired.”
x. CAS is concerned that the mother admits recording pick up and drop offs and all conversations with professionals and interviews with the children. “This creates an environment of stress and distrust which the children are exposed to.” CAS feels the father has been more receptive to Society direction.
y. The mother’s various behaviours create concerns about the mother’s judgment and her ability to place the children’s needs first.
z. While the father requests an order that neither parent make inappropriate statements to the children, CAS does not feel the parents are able to follow this direction.
aa. Each parent should engage in individual counselling to gain insight into their behaviour and how it impacts on their children.
bb. Royle reviewed her April 28, 2020 letter and confirmed that it is entirely accurate.
cc. CAS investigated the mother’s allegation that the father had given Norman cannabis oil. In October 2019 the father said the parents had agreed to take Norman off medication due anger and violence issues. The father said the mother informed him that she had given cannabis oil to Norman and that he was doing well.
dd. Royle denied the mother’s allegation that Dr. Maracle had called CAS “numerous times between February to April 2020”. On February 3, 2020 the mother withdrew her consent for a CAS worker to speak to Dr. Maracle. On February 27, 2020 Dr. Maracle left CAS a voice message expressing disappointment that the parents had not arranged counselling for Norman.
ee. Royle said she understood the mother’s frustration that the father had arranged mental health counselling for Norman and speech therapy for Nancy, without informing her. But CAS feels the mother was wrong to immediately cancel all counselling for both children, when she found out about it. The counselling was underway. It was helping the children. The mother may not have approved of counselling taking place in Hamilton, but she was not proposing any alternative counselling immediately available in her jurisdiction. The mother acknowledged that comparable counselling in Haldimand could not be commenced until the COVID-19 situation is resolved. It would have been preferable to allow the children to continue to benefit from ongoing counselling, while future changes to counselling were discussed.
ff. While the mother says Dr. Maracle has expressed concern about the father’s parenting, Royle quoted Dr. Maracle as expressing concern about both parents exposing the children to emotional harm – not one more than the other.
gg. After the mother alleged the father was inappropriate when communicating with her, Royle asked both parents to include her in all communications between them. During her involvement, Royle has had no concerns with the nature of the father’s communication with the mother.
hh. Royle disagreed with the mother’s suggestion that Norman feels he needs to say certain things against the mother in order to get rewards from the father. Royle said both parents place Norman in a position where he must say things he feels each parent wants him to say. Norman is under so much pressure that he doesn’t feel safe to disclose his concerns to either parent, teachers, CAS, or others. Both children have been interviewed by police, CAS workers and other professionals so frequently that it has eroded their ability to trust.
ii. While the mother denied any knowledge of the father saying Norman wanted to contact CAS because he didn’t want to return to the mother’s home, Royle said she specifically spoke to the mother about this on May 22, 2020. Royle informed the mother Norman was very distressed transitioning into her care.
jj. Royle challenged the mother’s statement that CAS told her it was her choice to keep the children from the father if they reported abuse. Royle stated she never said this to the mother, and there was no indication in the file that any Society worker told her this.
kk. The mother alleged the father withheld the children from her on May 14, 2020. Royle clarified that this was the night the father contacted the Society’s after-hours service because Norman was distraught. Norman didn’t want to go to the mother’s residence indicating that the mother makes him lie.
ll. While the mother claims the breakdown in the co-parenting relationship is the father’s fault, CAS and Dr. Maracle feel both parents are contributing equally to the problem. Both are exposing the children to emotional harm. However, Royle noted that the father takes some responsibility and demonstrates some insight. In contrast, the mother takes no responsibility for her contributions and refers to the father by his surname, not as the children’s father.
mm. While the mother alleges the father is unable to make appropriate decisions for the children, the Society is equally concerned about the mother’s ability to make decisions that are in the best interests of her children. As the Society involvement has continued, the Society has developed more concerns about the mother’s judgment.
nn. Royle investigated the mother’s allegation that the father allows Norman to play inappropriate video games. Royle reviewed the list of all games the child plays or is exposed to. None of them are concerning.
36On June 4, 2020 this matter was scheduled for a Case Conference before me. For a number of reasons, counsel were not required to file briefs; I did not participate in any settlement discussions; and I gave no opinions or recommendations.
37Fortunately the parties were able to narrow the issues by consenting to the following order which I granted:
a. On a temporary without prejudice basis, the Applicant father may arrange all necessary professional counselling or therapy for both children, without the consent of the Respondent mother. He shall keep the Respondent fully informed immediately upon enrolling the children in any counselling or professional programming, and he shall keep her informed in writing as to the progress of any such professional assistance for the children. The Respondent mother shall be entitled to communicate directly with all such service providers in relation to the children. She may obtain information and participate in the counselling, but she will not have the authority to change or cancel any professional assistance arranged by the Applicant.
b. Both parties shall immediately execute such authorizations as may be required to allow all service providers involved in either child’s life to release information jointly to the parties about the child or parental involvement with the child. This shall include authorizations in relation to any children’s aid society; any medical facility or personnel; any educational or daycare facility; and any recreational or other agency.
38At the conclusion of the June 4, 2020 court attendance, the mother took the position that her concession on the counselling issue meant that there were no remaining “urgent” issues which required immediate attention. The father insisted however that the issues of timesharing and the children’s primary residence still needed to be addressed quickly.
39Given the serious allegations in the father’s materials, and the Society’s warning that the existing residential arrangement was causing extreme stress for Norman in particular, I agreed that the balance of the motion needed to be dealt with quickly.
a. I set the motion down to be heard the following week, allowing the mother time to file further reply material.
b. Counsel acknowledged that I was neither seized nor excluded from hearing the motion.
c. As it happens, it was fortuitous that the motion returned to me for determination. I had previously dealt with this file both at the January 8, 2020 emergency motion, and also in a May 22, 2020 Triage endorsement. There is a significant advantage to high conflict parenting disputes being assigned to a single judge, to promote consistency and efficient use of judicial resources.
40The mother filed a reply affidavit dated June 11, 2020. The mother repeated many of her allegations and denials as set out in her earlier affidavit. I will set out the information and allegations which properly constitute “reply”:
a. She denied she had done anything inappropriate in relation to counselling for the children.
b. She repeated her allegation that she has complied with Justice Bale’s August 13, 2019 order. She said it was the father who created problems by consenting to the children getting counselling in her area, and then revoking his consent.
c. She noted that CAS confirms she is an “equally good mother” and they have no protection concerns preventing either parent from caring for the children.
d. She noted that Dr. Maracle’s March 17, 2020 letter confirms she is a loving and caring mother.
e. She admitted she has acted inappropriately, but said the father has also acted inappropriately. She said his behaviours and refusal to follow joint decision making triggered her reactions. She promised she would not act inappropriately in the future.
f. She suggested the parties divide up decision making responsibility: The father could decide health issues and she would decide educational issues.
g. She admitted she didn’t allow the children to speak to CAS privately, but she said in September 2018 – a year before the final order – she allowed Norman to speak privately to another therapist. She also allowed Norman to speak to Dr. Maracle privately.
h. She said she was frustrated when she contacted agencies arranged by the father, and they didn’t provide her with information about how the children were doing.
i. She said she didn’t take Nancy to the September 2019 Early Words appointment because of the failure of the parties to reach agreement about such counselling.
j. She confirmed that she has never alleged that the father sexually harmed the children. But some of Nancy’s behaviour caused her to be concerned that the young girl might have inadvertently witnessed some sexual behaviour.
k. She said neither CAS nor the father informed her that the children had been receiving counselling in Hamilton until May 22, 2020. She denied being responsible for their services being cancelled thereafter.
l. She said she did not dispute most of CAS worker Royle’s affidavit, but she wanted to clarify certain information.
m. She insisted that in October 2019 she told her previous CAS worker that she was pregnant and would be moving to Haldimand region the following month with her partner.
n. She said she only listened in on Royle’s interview with Norman because Norman wanted her to.
o. She said she took a picture of Norman’s unusually large bowel movement because CAS had asked her to make note of the size, and she felt a photograph was the best way to do so.
p. She said she has installed video cameras in her home and audio recording devices on her phone because of harassment by the father. She said the children are never made aware that conversations are being recorded.
q. She agreed with the Society’s recommendation that both parents need personal counselling.
r. She said her understanding is that Dr. Maracle contacted CAS more often than Royle appeared to be aware of.
s. She denied that on May 13, 2020 Norman was distressed about transitioning into the mother’s care. She said Norman told her that the father is making him lie.
t. She suggested that with CAS having concerns about both parents, the OCL should conduct a clinical investigation to find out what’s really going on.
u. She said the father is not filling Norman’s prescriptions.
41As it happens, each parent also filed very brief updating affidavits dated June 11, 2020 in relation to arrangements the father has made for counselling for the children, pursuant to my June 4, 2020 order. Today’s endorsement is not impacted by those updating affidavits. It is reassuring that counselling is again underway.
42The mother’s cross-motion includes a request that the OCL become involved, either to provide legal representation for the children or to prepare a s.112 report pursuant to the Courts of Justice Act. Her lawyer submitted that the court should adjourn the father’s request for a change in the residential regime until after the OCL has responded and provided information about the children’s views and preference and any recommendations.
43For a number of reasons, I decline the request for OCL involvement at this time.
44With respect to legal representation:
a. At age three, Nancy is too young to have her own lawyer.
b. In other circumstances, having a lawyer for eight-year-old Norman might make sense.
c. But the Society’s materials clearly identify that both of these children have already been interviewed by strangers too many times, largely as a result of the mother’s repeated – and consistently unverified -- complaints to CAS.
d. There’s a difference between giving children the opportunity to be heard – and placing them in a situation of compulsion to verbalize exactly what they think someone expects them to say.
e. Even when they perceive no parental pressure, multiple interviews by strangers can be fatiguing and confusing for young children, and yield diminishing returns. Understandably, children start to wonder why adults keep asking the same questions, when their answers don’t seem to change anything.
f. But Norman and Nancy have been so deliberately drawn into the adult conflict that there’s little likelihood an inquiry into their views and preferences would be a benign undertaking.
g. In this motion, one of the most serious and immediate concerns is the prolonged and relentless pressure Norman has experienced to say what he thinks each parent wants him to say. This is particularly the case in relation to the mother, who keeps causing him to be interviewed, and then openly monitors and seeks to record everything he says.
h. Norman’s confidence and comfort level to speak honestly has now been so compromised that giving him a lawyer would not only be unproductive – it would be counter-productive. It would simply compound and prolong the unbearable pressure this little boy is already struggling with. And for what purpose? We would wait at least weeks for the child to participate in yet another stressful interview. And at this point, the reliability and spontaneity of anything he might say to a lawyer would be suspect.
i. As often happens in high conflict custody cases, alienating parental behaviour can seriously undermine opportunities to ascertain a child’s real views and preferences.
j. In Norman’s case, he must be relieved of any sense of responsibility that it is up to him to fix the mess his parents have created.
45With respect to the mother’s alternate request for a s.112 investigation by a social worker:
a. It would be time consuming to find out whether the OCL would even agree to such involvement. They likely wouldn’t, given the active CAS file.
b. Even if the OCL agreed to assign a social worker to prepare a report, it would take many more months for any feedback.
c. Inevitably, a s.112 report would tell us some things we already know: The parents should stop exposing the children to adult issues. Both children desperately need professional help for their respective serious problems. The parents also need their own counselling to understand the impact of their behaviours on the children.
46In this case, even if we had the luxury of time – which we don’t – I do not believe any form of OCL involvement would be necessary or appropriate at this stage.
47Both parties have brought motions seeking a variation of the parenting provisions set out in the August 13, 2019 final order. However, as things have unfolded they disagree about whether anything more needs to be changed at this stage in the proceeding.
a. The father seeks a temporary variation of time-sharing on an urgent basis. He says for the sake of the children we need to move quickly.
b. In contrast the mother now wants to proceed slowly. She says the only urgent issue has been resolved, because she has now consented to the father setting up counselling for the children. She says the broader issue of changing the time-sharing schedule is not pressing, and it’s too complicated to be determined based on untested affidavit materials.
48To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz, [1996] 2 S.C.R. 27.
49The first step: There must be a material change in circumstances since the last order was made.
a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.
b. The change must materially affect the child.
c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S., 2011 SCC 64.
d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.
e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485.
f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.
50The second step:
a. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child.
b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 ONSC 22571; Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.
c. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz, [1996] 2 S.C.R. 27; Young v. Young, 2003 ONCA 3320.
d. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz, [1996] 2 S.C.R. 27; Rigillio v. Rigillio, 2019 ONCA 548.
e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz, [1996] 2 S.C.R. 27.
51The Divorce Act does not set out a detailed list of factors to be considered when determining the best interests of a child. To assist in the analysis, courts frequently refer to the best interests’ criteria as set out in section 24 of the Children’s Law Reform Act.
52The added complication: the father seeks a temporary variation of a final parenting order. This requires that the court conduct an even more stringent analysis:
a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.
b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery; Gordon v. Gordon, 2015 ONSC 4468; Oickle v. Beland, 2012 ONCJ 778.
c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.
d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order -- in the appropriate circumstances. Stokes v. Stokes, 2014 ONSC 1311; Huliyappa v. Menon, 2012 ONSC 5668; Clements v. Merriam, 2012 ONCJ 700.
e. But the evidentiary basis to grant such a temporary variation must be compelling.
f. The court must start with the aforementioned two-part material change in circumstances analysis.
g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.
h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.
i. The court must be satisfied that the child’s best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.
j. The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.
k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.
l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.
m. On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.
53In this case, I have no hesitation in finding that there has been a material change in circumstances; that the best interests of the children are no longer served by the provisions of the August 13, 2019 order; and that both children have come to experience such significant – and ongoing -- harm that immediate rectification is required.
54The existing parenting regime is simply intolerable. The children need immediate protection and resolution in their lives.
55The obvious starting point: Both of these children are experiencing extreme emotional or developmental issues which have deteriorated during the 10 months since the parties consented to an “equal everything” order.
a. Norman is desperately in need of mental health counselling.
b. Nancy is desperately in need of speech therapy.
c. These problems were already known to the parents in August 2019 when they consented to the co-parenting order.
d. The neglect – and aggravation – of each child’s problems is shameful, and must not be allowed to continue.
e. Norman urgently needs relief from the relentless stress.
56It is tragic and mind-boggling that these children have suffered serious prejudice as a result of a petty turf war between the parents about the city in which therapeutic services would take place.
a. The affidavits set out confusing versions of who consented to what counselling; who revoked consents; who tried to set things up; who tried to cancel things; and why each parent feels the other is to blame for the impasse.
b. What foolish distraction.
c. Any sensible, child-focussed parent would have immediately recognized that the only thing that mattered was to arrange help for these children as quickly as possible.
d. The location should never have become the stumbling block. But it became a “control” issue.
57For clarity: neither parent had a stronger basis to insist that services had to be arranged in their community.
a. The parties have joint custody. Equal decision making in every respect. Less than a year ago they consented to a final order that says they “share joint decision-making regarding the education, health and religion” of their children. So neither has ever had the right to impose their decision on the other. They were supposed to cooperate.
b. The children spend exactly equal amounts of time with each parent. Originally both parents lived in Hamilton so the children spent 100% of their time in this city. Since the fall of 2019 when the mother relocated, the children have spent 50% of their time with the mother in Dunnville, and 50% of their time with the father in Hamilton. Norman still attends school in Hamilton, but in every other respect the children are equally connected to both communities.
c. And there is no suggestion in the materials that the quality of professional services for the children is markedly different in either parent’s community.
58Basically, each parent’s proposal for services had equal merit. Except for one very important difference:
a. Services proposed by the father in Hamilton were actually, immediately available.
b. Services proposed by the mother closer to Dunnville were not immediately available.
c. In Hamilton there was no waiting list. Both children would get immediate help.
d. In Dunnville, early in the year all programs were placed on hold as a result of COVID-19. There was an indefinite waiting list. Neither child would get any help for the foreseeable future.
59Neither parent is perfect here. I absolutely agree with the Society that both parents have contributed to the conflict and the problems the children have experienced. Both parents must assume responsibility for the complete breakdown in the joint custody/equal-timesharing regime.
60But many of the decisions the mother has made – on the counselling issue, and more generally – raise serious concerns about her motives; her parental insight; her candor; and her ability to prioritize the children’s needs over her own convenience and spite toward the father.
a. The mother consented to a joint custody/equal timesharing order in August 2019 when everyone lived in Hamilton.
b. She knew the children were Hamilton-based. That Norman attended a Hamilton school and Nancy attended daycare in this city.
c. Within months she took steps to unravel many of the stabilizers and connections in the children’s lives.
d. She moved to Dunnville. She must have foreseen that creating a driving distance of up to an hour between households would seriously strain an equal timesharing arrangement which entailed frequent exchanges.
e. The mother initially stated her motive for moving to Dunnville was because it was cheaper than Hamilton. But she provided no evidence to verify financial necessity. She subsequently acknowledged that she moved because she was pregnant, and she was relocating to join her new partner at his residence in Dunnville. The mother’s affidavits include inconsistencies about when she moved, why she moved, and what she told people.
f. Since then the mother has been making a concerted effort to make the children completely Dunnville-based, and extinguish their connections with Hamilton – and with the father.
g. Before she relocated, the family was working with Hamilton CAS. And before that the Catholic Children’s Aid Society of Hamilton. But around the time she was moving, the mother terminated any cooperation with CAS. She refused to meet with CAS and told a worker to contact the mother’s lawyer. She then sought to have the file transferred to the Haldimand-Norfolk CAS agency – even though the Hamilton Society was already familiar with the family, and best equipped to assist the children.
h. The mother says she knows Nancy has speech problems, and that she has been trying to arrange therapy for her daughter in the Dunnville area. But the mother knew Nancy needed speech therapy even before her move to Dunnville. The mother admits the Society’s evidence that she failed to take Nancy to a scheduled appointment with the Early Words Center in Hamilton in September 2019, and she declined to reschedule the appointment. The mother’s reply affidavit says she didn’t take Nancy to get speech therapy because she didn’t think she had the father’s consent. But a detailed letter from Early Words dated February 10, 2020 sets out that the mother set up the September 19, 2019 appointment because she knew Nancy had a serious problem; the mother then left a message wanting to reschedule the appointment; the speech program kept trying to re-schedule with the mother but she didn’t respond; and the mother never did reschedule an appointment. When the mother learned on February 4, 2020 that the father had taken Nancy to Early Words for an initial assessment on January 29, 2020, the mother advised that she wanted Nancy to receive speech therapy from an agency in Haldimand-Norfolk. The mother had placed Nancy on a waitlist for services in her jurisdiction on January 24, 2020. But the wait list in the mother’s jurisdiction was a full year, whereas Nancy could be seen in Hamilton immediately.
i. Within months of consenting to the August 13, 2019 final order in Hamilton, the mother brought a motion in Cayuga seeking to change everything in her favour. She not only wanted sole custody, but she didn’t want the father to have any access. She requested “all rights for decision making”. She didn’t want to exchange financial information. But she wanted child support.
j. Parents should be careful when they fill in their wish list on a Notice of Motion. The fact that this mother wanted this father to have no access to these children – speaks volumes.
k. The mother’s November 1, 2019 affidavit in support of her Cayuga motion included a horror story of bald allegations about the father: The children were unsafe and at risk in his care. He was violent and abusive to the children. He wasn’t properly caring for them, and wouldn’t send them to school. He threatened never to return them. He told them all sorts of things which were frightening and upsetting the children. He neglected their medical needs. The children are afraid of him. Etc. Etc. Etc.
l. But notably, in her most recent materials the mother seems to have quietly abandoned many of those alarming complaints. And the mother’s November 2019 description of the father is conspicuously inconsistent with the evidence of CAS; Dr. Maracle; and the agencies with whom the father has been diligently trying to arrange help for the children. Indeed, the evidence suggests the mother is the one who engaged in the types of dangerous and inappropriate conduct she alleged of the father. She’s the one who was charged with domestic violence. She’s the one who kept the children away from the other parent. She’s the one who prevented Norman from attending school. She’s the one who prevented or delayed the children getting professional help.
m. The evidence strongly suggests that in November 2019 the then-self-represented mother simply filed a handwritten affidavit filled with lies, in an effort to undo a recent “Hamilton order” because it interfered with her plans for a new life in Dunnville.
n. After her relocation to Dunnville, the mother continued her pattern of making serious allegations against the father to CAS. In January 2020 she withheld the children from the father, claiming it was based on CAS instructions while the Society investigated serious concerns about the father. However, as set out in my January 8, 2020 emergency motion endorsement, I accept the evidence of the father and the Society. No misconduct or inappropriate behaviour was verified. And the Society never instructed the mother to withhold the child from the father. To the contrary, CAS specifically told the mother there was no basis to deviate from the existing equal-time order. I had no hesitation in concluding at the time that the mother’s actions constituted the worst kind of strategic, self-help by a parent.
o. Even if one were to accept the mother’s explanation that she “misunderstood” the Society’s position about withholding the children from the father in January 2020, that still wouldn’t explain or justify the mother’s simultaneous effort to unilaterally transfer Norman from his school in Hamilton to a new school in Dunnville. Even without special circumstances, there could have been no possible justification for changing the child’s school in the middle of the academic year. But Norman had special circumstances which the mother ignored. The mother was already well-aware that Norman is a very troubled, emotionally unstable child – so much so that when she lived in Hamilton, Norman was taken to a hospital emergency ward as a result of suicidal ideation. The mother was aware – as set out in the December 27, 2019 letter from CAS – that Norman was enrolled in a specialized counselling program at his Hamilton school; he was benefitting from the school counselling; and it would be unadvisable for Norman to be removed from a program where he is being supported and monitored. And yet she still tried to remove him from a beneficial school situation, unilaterally, and with little apparent regard for the disruptive impact of her actions.
p. In that December 27, 2019 letter CAS also suggested Nancy would benefit from continuing in daycare as it would allow her to socialize with peers. But after the mother relocated to Dunnville, during her 50% of the time she stopped sending Nancy to the Hamilton daycare center where the child had been doing well. The mother said it was too far to drive from Dunnville – which, of course, was an entirely predictable consequence of moving to Dunnville.
q. While the mother’s affidavits challenge many specific allegations made by the father and CAS – cumulatively the evidence paints the unmistakable picture of a controlling woman whose sense of unabashed entitlement has displaced any insight into the impact of her behaviour on her children.
r. I’m not even going to try to dissect the months of communications and miscommunications between the parties on the topic of arranging counselling. When the mother relocated to Dunnville she frustrated some professional connections already being arranged in Hamilton. Thereafter, she insisted that all counselling for the children had to be in her geographic region – even though it soon became evident that no counselling was immediately available for the children in her geographic region. The father went ahead and finally arranged counselling for both children in Hamilton in February 2020. The mother is absolutely correct that the father should have told her about this. The mother should have had every opportunity to fully participate. But I accept the evidence of the father and the Society that counselling was necessary and that – however it was arranged – it was benefiting the children. I also find that when the mother found out about the Hamilton counselling on May 22, 2020, she immediately took the position that the counselling had to stop (which, sadly, it did). She didn’t wait to find out if the counselling was actually helping.
s. While the mother is to be commended for finally agreeing – during a court attendance on June 4, 2020 – that the father would be permitted to return both children to counselling in Hamilton, I remain profoundly concerned about the mother’s complete lack of insight in stubbornly insisting for many months that counselling could only happen on her terms or not at all.
t. Similarly, while I agree with the Society’s characterization that both parents have displayed poor judgment in failing to shield the children from the adult conflict – I also find that that the magnitude of inappropriate and stressful messaging has been much more concerning and destructive on the part of the mother, and particularly in relation to the child Norman. I am concerned about the number of times she has made complaints to CAS about the father or his family members, only to have every one of those complaints determined to be “unverified”. I accept the evidence of CAS about the mother’s insistence that she control, attempt to record, and otherwise monitor the Society’s interview with Norman. (Note to parents: Please put your video and audio recorders away – nothing you record is likely to outweigh the bad impression you’re making.) I accept the evidence that Norman has felt enormous pressure by the mother to make allegations against the father, and that the younger child has also been encouraged to do so (obviously subject to her age and significant communication problems). I accept the evidence that Norman is under less pressure by the father who allows Norman to speak privately with the Society. And I am especially concerned that the mother was compounding Norman’s mental health problems at precisely the same time that she was needlessly delaying mental health counselling for him.
61The tragedy here is that all of the very real harm which the children have experienced could and should have been avoided.
a. The father and mother are both described as good parents.
b. Dr. Maracle described the mother in very positive terms. She does a lot of things right.
c. The Society says both parents are equally capable of caring for the children.
d. And as separated parents, the father and mother had every opportunity to make things work. All they had to do was comply with the August 13, 2019 order; communicate effectively and in good faith; and prioritize the needs of the children.
e. But sadly, they have not made parenting decisions consistent with the expectations when Justice Bale made the consent joint custody/equal-time order.
f. And we have reached the stage where the complete breakdown in the parenting arrangement has been so destructive for the children – particularly Norman – that it cannot be allowed to continue.
g. Co-parenting has been a disaster.
62I agree with the Society’s suggestion that the equal time-sharing arrangement between two households which are distant -- both physically and philosophically – is no longer viable, and urgently needs to be corrected.
a. I agree with the suggestion that the children need to have one primary residence. The frequent transitions between hostile and inconsistent households has been emotionally devastating for Norman.
b. I agree with the suggestion that one parent should be entrusted with authority to arrange all necessary professional assistance for both children. Joint custody is more than a reward – it’s a responsibility. (I am mindful that our terminology will soon be changing – but whatever we call it, decision-making cannot be shared if it breeds conflict and stalemate.)
c. And quite independently of any recommendation by the Society, I have no hesitation in concluding that primary residence and primary parental authority should at this time be entrusted to the father.
d. While both parents have contributed to the conflict, there are distinct reasons to have more confidence in the father – and more concern about the mother.
e. I am encouraged by the father’s commitment to consistency and therapeutic assistance for the children. He has shown greater sensitivity and awareness with respect to the children’s emotional needs, and he has made his home a more supportive and less stressful place for them. And I accept the Society’s description that he has been more cooperative with the agency, and that he has shown at least some insight into his own responsibility for problems.
f. In contrast, I continue to be worried about the mother’s overwhelming lack of insight and awareness with respect to some shockingly poor decisions concerning the children. She appears to presume that she can do whatever she wants, with no repercussions. Her “I won’t do it again” apology had some credibility at the January 8, 2020 emergency motion. But at this point her actions have eroded any sense of trust.
63The mother’s counsel submitted that changing timesharing would be excessively harsh, and that less disruptive options would be equally effective. He suggested the court could simply impose specific terms prohibiting the parties from engaging in an enumerated list of objectional behaviour.
a. In some situations, court ordered specification of exactly what parents are supposed to do and what parents are not supposed to do, is helpful and effective. Some families benefit from that clear guidance and structure.
b. But this is a motion to change a final order based on minutes of settlement prepared by the parties when they had counsel. The parties chose a detailed collection of laudable terms – things like “communicating respectfully” and “not speaking negatively” and “making decisions jointly” and “ensuring consistency and stability for the children” and “being child-focussed”, etc. – and then the father proceeded to ignore some of that language and the mother proceeded to ignore most of that language.
c. Courts are not babysitters. Judges should not have to tell parents repeatedly: “Don’t do stupid things that hurt your children.” Either parents get it. Or they don’t.
d. In this case, the mother’s pattern of troubling behaviour is so pervasive that it is unrealistic to hope that a collection of “behave yourself” terms will result in the kind of immediate correction which these children urgently require.
64I am mindful that altering an equal time regime has many implications and requires the utmost caution and care.
a. As stated, there is evidence that the mother’s basic parenting skills are quite good. Not better than the father’s – but equal to the father’s.
b. The children are used to spending significant periods of time with the mother. The maximum contact principle requires that children have as much contact with each parent as possible, so long as such contact is consistent with the best interests of the child.
c. And I am mindful that the mother has just given birth to another child. Norman and Nancy have a baby sibling, and it is important that they be allowed to share the excitement of new family experiences.
d. There are many positive aspects to the children spending significant time with the mother.
65But it’s not the positives that require urgent attention.
a. Sadly, there are also some extremely negative aspects to the children spending significant time with the mother.
b. She has been abusing her time with the children.
c. She has been abusing her authority over the children.
d. She has engaged in overt parental alienation.
e. She has abused Norman emotionally – and she appears to be oblivious to all the things she’s done, and all the things she should have done.
f. Some of CAS worker Royle’s descriptions of the mother’s insensitivity to Norman’s emotional state are cringe-worthy. It makes absolute sense that Norman describes that there is no happiness in his life. And that has to change.
g. So my decision to deviate from the existing equal time arrangement entails a delicate balancing act.
h. I want to reduce opportunities for the children to experience or perceive negative impacts from the mother, while at the same time allowing opportunities for the children to maintain (or develop) a more positive, stress-free relationship with her.
66As an aside, I might comment that I am skeptical about the mother’s most recent proposal that decision making should be divided between the parents. She suggests the father should decide health issues, and she should decide education.
a. Delineating specific areas of exclusive parental authority can be appropriate where the court has equal confidence in the decision-making ability of both parents – or perhaps where the court concludes that each parent has particular insight on specific topics. D.G. v. A-G.-D., 2019 ONCJ 43.
b. But in this case the mother’s consistently poor and self-centered decisions leave me with no confidence in her decision making ability, either generally or in relation to a specific topic like education.
c. And a division of decision-making authority in a Parallel Parenting regime still requires at least a rudimentary level of communication, which is completely lacking in this high conflict family situation. Montforts v. Clarke, 2019 ONCA 723.
d. The mother already consented to a temporary order that the father will decide therapeutic issues for the children. That’s not a concession. It was inevitable.
e. Her recent request for authority over education issues appears to be a transparent attempt to give her the right to transfer Norman’s school from Hamilton to Dunnville.
f. For clarity: even if equal time had been maintained, there would have been no basis for the mother’s attempt to transfer Norman to school in Dunnville. It was a bad idea when the mother tried to do it unilaterally in January, and it’s still a bad idea. Although COVID-19 has temporarily suspended school attendance, Norman was thriving in a supportive school environment in Hamilton. When school resumes, he should return to school in Hamilton.
g. And having identified that the children’s primary residence is to be with the father in Hamilton, there would be even less justification for letting a mother in a different city decide education issues.
67Finally, an issue has arisen in relation to Dr. Maracle, the physician for the mother and the children.
a. The mother relied heavily on recommendations and observations she attributed to Dr. Maracle.
b. The father’s counsel suggested that Dr. Maracle’s observations should be given little weight because the physician was mostly just hearing the mother’s side of the story.
c. In fairness, I found Dr. Maracle’s letters and the information attributed to her by CAS to be quite helpful, balanced, and insightful.
d. To the extent that there was confused controversy about whether a parent consented to counselling and whether a parent revoked or withheld consents to counselling, it would appear that sometimes the mother didn’t share certain information and documents with the doctor.
e. But I find that the physician was pretty quick to identify that the real problem here was the complete breakdown in communication and cooperation between the parents – and that both parents were responsible for the unconscionable delay in getting professional help for the children.
f. The mother wants Dr. Maracle to continue her role as the children’s physician.
g. The father wants the ability to select a new doctor for the children, particularly if they are going to be in his care, and he’s going to have decision making authority over health-related issues.
h. I am very reluctant to interfere with an existing doctor-patient relationship, particularly where the doctor appears to have been giving exemplary service to these two children.
i. And I am mindful that the court should limit itself to only those changes which are absolutely necessary, when dealing with a temporary variation of a final order.
68But we’re left with a very practical problem (and in family court we have to consider the practicalities of parenting).
a. Given the temporary nature of this order, it is unclear how long the children are going to be residing primarily in Hamilton with the father. It will at least be measured in months.
b. Pursuant to the existing final order, the children were spending half of their time with the father in Hamilton. And having some sense of the issues on this file, I can’t imagine that they will ever be spending less than 50% of their time in Hamilton.
c. The problem is that Dr. Maracle’s office is in Port Colborne. That’s an even longer drive from the father’s residence than Dunnville.
d. These children have a lot of issues which will likely require an above-average number of visits with their doctor. And by definition, many trips to the doctor arise when someone isn’t feeling well. Especially in the case of young children, travel to the doctor when you’re sick should be as short as possible.
e. Accordingly, without requiring or even recommending it, I will authorize the father to change the children’s doctor to a physician closer to his residence, if he deems it necessary. This is a purely geographic decision, without any negative inference about Dr. Maracle’s involvement with this family.
69Finally, the father has requested that timesharing exchanges should continue to be in Hamilton, but that the location should be changed to the Central Police Station in downtown Hamilton.
a. On the first point – the city where exchanges should occur – I agree that exchanges should continue to be in Hamilton. The mother had requested that the exchange location be changed to a mid-point between Hamilton and Dunnville. But I don’t believe this would be fair. “Mid-point” transfers between two cities require a great deal of co-ordination and frequently lead to situations in which children spend unnecessary time waiting for someone to arrive at the meeting spot. More to the point, the mother is the one who unilaterally relocated to Dunnville. Presumptively, a parent who creates a significant distance between households should assume responsibility for the distance they created.
b. On the second point – exchanges at a police station – I have absolutely no idea why parents think this is a good idea. The messaging to children is horrible (instantly heightening anxiety that one of their parents might do something very bad and get in trouble with the police). By definition, police station lobbies often include personalities and situations children really shouldn’t be exposed to. And it’s not like the police really want you there (officers are busy; they’re not expecting you; it’s not a child-friendly environment; and if officers engage in any conversation with the parents, children are likely to hear things they shouldn’t hear).
c. The mother suggests that since school and daycare exchanges are not currently available, they should just keep meeting at a Tim Horton’s. The father says he wants witnesses to discourage more false allegations against him.
d. For the moment, I will let the father decide which public place he proposes. I would hope that after this temporary endorsement the parties will both understand that the court really isn’t going to put up with any more nonsense.
e. If the exchange location continues to be a problem, the matter can be returned to my attention and I will likely consider exchanges at an institutional facility (which will impact the parties both financially and with respect to available exchange times).
70Temporary order:
a. The joint custody and decision-making provisions of the order of August 13, 2019 are suspended.
b. The children Norman and Nancy shall reside primarily with the father at his residence in Hamilton.
c. Commencing Thursday June 18, 2020 the mother shall have access to the children on alternate weekends from Thursday at 5:30 p.m. until Sunday at 5:30 p.m. If either child has a professional appointment on the Friday, the father may provide the mother with one week’s advance notice that the three-day weekend will commence on the Friday at 5:30 p.m. and run until Monday at 5:30 p.m. If this order is still in effect when there is an actual resumption of physical attendance in school, the alternate weekends shall be from Friday at 5:30 p.m. until Sunday at 5:30 p.m.
d. The mother shall be entitled to select an extra three-day weekend in each of July and August 2020, subject to any scheduled vacation plans of the father. The father shall be entitled to one week of vacation time (7 days) in each of July and August. He shall notify the mother of his selected weeks (not to interfere with her alternate weekends) no later than June 26, 2020. The mother shall then notify the father of her selected extra weekends by July 2, 2020.
e. The mother may have electronic access to the children on every second day that the children are not physically with her. At the very least the electronic access should be in the form of a telephone call of not less than 20 minutes during the evening. The electronic access should frequently include a video component such as Facetime or Skype.
f. The mother shall assume full responsibility for transporting the children at the beginning and end of her visits. Access exchanges shall be at a public place identified by the father (once the location is identified it should be used consistently). Preferably this will be at a child-friendly location such as a fast-food restaurant. If the father concludes that the only acceptable location is a police station, this may be used as a last resort. But in that event exchanges are to occur outside of the police building, and if either party is dissatisfied with this term in relation to the use of a police station, the matter may be returned to my attention. Exchanges are to be brief and the parties are not to engage in any unnecessary communication during exchanges.
g. There is to be no video or audio recording of the children’s interaction with the other parent, or access exchanges.
h. The parties shall communicate by e-mail (even if any arrangements are made by telephone, they must be confirmed by e-mail). Messages shall be brief, efficient, and child-focussed. Except in emergencies, e-mails should be generated not more than one every two days, and e-mails should be responded to within 12 hours of receipt.
i. The Applicant father may arrange all necessary professional counselling or therapy for both children, without the consent of the Respondent mother. He shall keep the Respondent fully informed immediately upon enrolling the children in any counselling or professional programming, and he shall keep her informed in writing as to the progress of any such professional assistance for the children. The Respondent mother shall be entitled to communicate directly with all such service providers in relation to the children. She may obtain information and participate in the counselling, but she will not have the authority to change or cancel any professional assistance arranged by the Applicant.
j. Both parties shall immediately execute such authorizations as may be required to allow all service providers involved in either child’s life to release information jointly to the parties about the child or parental involvement with the child. This shall include authorizations in relation to any children’s aid society; any medical facility or personnel; any educational or daycare facility; and any recreational or other agency.
k. The father may arrange all necessary services for the children including medical, educational, religious and social. He shall keep the mother fully informed as to the particulars of all agencies or professionals involved. The mother shall be entitled to communicate directly with all such third party service providers, but she shall not have the authority to change or cancel their involvement.
l. After September 1, 2020 counsel may arrange a return event. If both parties agree that a Settlement Conference is appropriate, they may arrange one before another judge, to take place after September 1, 2020. Otherwise, the next attendance shall be “to be spoken to” before me, after September 1, 2020.
m. If there are any residual issues other than costs, counsel should contact the Trial Coordinator within the next seven days to arrange a date to be spoken to (by Zoom).
n. If only costs need to be addressed, written submissions are to be filed on the following terms:
i. Father’s written submissions (maximum 3 pages of narrative, and five pages of attachments) by July 10, 2020.
ii. Mother’s written submissions (same maximums) by July 24, 2020.
iii. Father’s reply submissions (if any – maximum 2 pages in total) by August 7, 2020.
Pazaratz J.
Released: June 16, 2020
COURT FILE NO.: 885/18 DATE: 2020-06-15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: F.K. Applicant - and - A.K. Respondent The Children’s Aid Society of Hamilton Respondent
REASONS FOR JUDGMENT The Honourable Mr. Justice A. Pazaratz
Released: June 16, 2020
