Court File and Parties

Court File No.: FS-16-3621-0002 Date: 2024-11-15 Ontario Superior Court of Justice

Between: Norman Gregory Thomas Lidstone, Applicant And: Chrystal Mary Anne Simonar, Respondent

Counsel: Self-Represented (for Norman Gregory Thomas Lidstone) Self-Represented (for Chrystal Mary Anne Simonar) Lindsay D. Marshall, Counsel for the OCL

Heard: August 9, 2024

Before: Varpio J.

Reasons for Decision

[1] Pursuant to the final order of Gareau J. dated December 15, 2017, N.L. (the “Daughter”) and H.L. (the “Son”) live with Mr. Greg Lidstone (the “Father”). Ms. Chrystal Simonar (the “Mother”) seeks to change that final order.

[2] There are three discrete issues at play:

1. The viability of week-about parenting;
2. The possibility of shared decision-making; and
3. Mandatory “reunification therapy”.

[3] The parties have been before the court for approximately eight years.

[4] A number of orders have been made regarding this matter, the vast majority of which are orders dismissing motions brought by the Mother.

[5] Ms. Barbara Simonar (the “Grandmother”) also brings an application wherein she seeks to have defined parenting time with the children.

[6] The children were represented by the Office of the Children’s Lawyer (“OCL”) in this matter. Evidence was called by the OCL and the children made submissions to the court through counsel.

[7] I hereby order that the Father shall retain decision-making authority for the children on a final basis. The children will reside with the Father on a final basis. I also hereby order that the children shall have parenting-time with the Mother and the Grandmother at the children’s discretion, all on a final basis. I also dismiss the Mother’s motion to force the children to attend mandatory reunification.

[8] The Mother and the Grandmother’s motions are dismissed.

[9] The mother shall seek leave of the court prior to filing any motions.

Evidence

Procedural History

[10] This matter has a tortured history, some of which I will reproduce in order to give background to my decision. Tragically, the file has an eight-volume continuing record.

[11] The Mother hails from Cold Lake, Alberta. She was working in Fort MacMurray in the late 2000’s when she met the Father. The daughter was born in Sault Ste. Marie in 2008. The son was born in Cold Lake in 2012.

[12] The parties’ relationship failed in the mid-2010’s and they separated. They consented to a final order before Gareau J. on December 15, 2017 wherein the parties agreed that they would have joint custody of the children, the children would reside in Sault Ste. Marie, Ontario, and they would reside equally with either parents on a week-about basis.

[13] The Mother was not able to make this arrangement work. Less than seven months after Gareau J’s final order, the Mother brought a motion to change the final order, seeking sole custody and permission to move the children to Alberta.

[14] On May 27, 2019, Chiappetta J. released reasons after days of trial. Chiappetta J. held that it was in the children’s best interests to remain in Sault Ste. Marie and to reside with the Father on a primary basis.

[15] In August 2021, the parties agreed to permit the Mother to take the children to Alberta for a two-week vacation. After the two-week vacation, the Mother did not return the children to Sault Ste. Marie. The Father brought an emergency motion to have the children returned to his care and, on September 24, 2021, I granted an emergency motion suspending the Mother’s parenting time. I ordered that the children had to be returned to Sault Ste. Marie.

[16] On September 28, 2021, the Mother advised the Father that she would not comply with the court order and would not return the children to Sault Ste. Marie.

[17] On October 5, 2021, a high-conflict situation occurred at the Athabasca Children and Family Services office when the Mother refused to hand the children over.

[18] She took the children to a hotel.

[19] On October 6, 2021, the RCMP and the local Fire Services forced entry into the hotel and retrieved the children.

[20] The parties have previously agreed that this incident was highly traumatic to the children.

[21] The children were returned to Sault Ste. Marie. The Father retained primary residence and the Mother has had very limited access to the children ever since.

[22] By my count, the Mother has brought five motions to change my order rescinding the Mother’s parenting time. These motions resulted in some increased access, but said access has fallen short of the week-about access sought by the mother. On September 8, 2022, Stothart J. denied the Mother’s motion for increased parenting time. The Mother had claimed that the Father had unreasonably withheld access to the children either by missing supervised access times at the access centre, or by unreasonably rejecting third-parties to act as supervisors for said access.

[23] Since that time, the Mother has had another child. The children therefore have a young sister.

The Grandmother’s Application and Affidavit Evidence

[24] On August 26, 2022, the Grandmother filed an application seeking parenting time for herself. In her materials, she described her relationship with the children as being strong, but now more distant since the Father has engaged in parental alienation. The Father has allegedly driven a wedge as between the children and the Mother and the Grandmother. He engaged in abusive conduct such as denigrating the Mother and/or Grandmother thereby causing the children to not wish to see either woman.

[25] In her submissions, the Grandmother described the children’s indigenous heritage. As a result of the Grandmother’s submission, the children would appear to be eligible for Metis status.

The Mother’s Evidence

[26] The Mother filed considerable affidavit evidence in this matter. She deposed that she no longer wishes to move the children to Alberta. Rather, she would like to see the children on a week-about basis and have joint-decision making authority with the Father. She deposed that the children have, on a number of occasions, been with the Mother without supervision and that these visits have gone well. [^1] As such, the Mother believes that it is in their best interests to have a mandatory week-about parenting schedule so that the children can maximize time with both parents in an attempt to ensure the best emotional development of the children.

[27] The Mother filed an affidavit describing the evidence of a social worker. The clinician effectively indicated that the family would benefit from reunification therapy wherein the family acted as the client, as opposed to the individuals within the family serving as clients. In other words, the therapist in such therapy has the ability to force the children and the Father to engage in therapy irrespective of their individual wishes which will hopefully foster a better mother/child relationship.

[28] The Mother also filed evidence suggesting that the children have missed a number of school days since they began residing with the Father. The Mother specifically pointed to the fact that the Father has signed the Daughter out of numerous Grade 9 classes, which is not a good phenomenon. There are a total of 197 such missed classes.

[29] The Mother filed evidence and made submissions that the children are being alienated by the Father’s actions. She deposed that the Father has attempted to turn the children as against the Mother by twisting words and withholding access that would otherwise be in the children’s best interests.

The Father’s Evidence

[30] The Father filed evidence indicating that the children have largely maintained a solid routine and that he meets their needs as best he can.

[31] The Father minimized the issues about the children missing school by indicating that the school records “missed classes” multiple times per day, thereby artificially increasing the number of missed classes.

[32] Finally, the Father denied ever unreasonably withholding access from the Mother.

The OCL

[33] Mr. Jason Millward is a clinician with the OCL. He prepared a report and testified before me. He indicated that he met with the children on thirteen occasions and that their views and preferences are clear and consistent.

[34] Mr. Millward indicated that the children have a good level of maturity, are articulate and have insightful views of their respective situations. The Daughter would rather not attend at the OCL. The Son is more “happy go lucky” but presented solid levels of insight.

[35] They both wish to have a meaningful relationship with the Mother but they do not want a set schedule for parenting time. They wish to have a flexible schedule, set at their discretion.

[36] With respect to reunification therapy, the children do not wish to participate. The Daughter would consider individual therapy for herself.

[37] The children were clear that they do not wish to have discrete parenting time with the Grandmother, although they would be content that the Grandmother be present for the Mother’s parenting time.

[38] With respect to parental alienation, Mr. Millward indicated that he saw no evidence of same. In fact, the children voiced concerns that in fact it was the Mother and the Grandmother who were speaking ill of the Father, and not vice versa.

[39] The Mother cross-examined Mr. Millward about his visits, his opinions and the gathering of relevant documents but this cross-examination did not yield relevant evidence.

Analysis

The Law

[40] Pursuant to section 29(1) of the Children’s Law Reform Act¸ a court shall not make an order that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[41] In Gordon v. Goertz, [1996] 2 S.C.R. 29 at paras. 10 and 13, the Supreme Court of Canada set out a two-stage test to be applied in determining whether an existing order should be altered. That test is:

(1) The party seeking the variation must demonstrate a material change in the child’s circumstances that was not foreseen or could not have been anticipated at the time of the order; and (2) If a material change has not been proven (and only then), the arrangement can be reviewed on the best interest test.

[42] In Persuad v. Garcia-Persuad, 2009 ONCA 782 at paragraph 4, the Ontario Court of Appeal held that a material change is:

(1) One that amounts to a change in the condition, means, needs or circumstances of the child and/or parents’ ability to meet the child’s needs; (2) Materially affects the child; and (3) Was either not foreseen or could not have been reasonably contemplated by the judge who made the order.

[43] The court’s primary consideration in determining whether a parenting order or contact order should be varied is the best interests of the child. In considering the best interests of the child the court is to consider all factors related to the circumstances of the child, giving primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[44] Given the age of the children, their views and preferences need to be considered and given appropriate weight.

[45] I am also required to consider the children’s need to be engaged with their indigenous culture.

[46] Although the rules allow for a grandparent to seek parenting time with a child, such relief is not presumptive: see Chapman v. Chapman, 2021 ONCA 197 at para. 22.

Application to this Case

[47] The Mother and the Grandmother’s applications fail for a number of reasons.

[48] No evidence was filed indicating that there has been a material change. Accordingly, the motion is dismissed.

[49] Even if I am wrong in that regard, and irrespective of the need to prove a material change as per Gordon v. Goertz, week-about parenting, joint-decision making, and reunification therapy are not in the children’s best interests.

[50] First, I accept the evidence of the OCL clinician that the children do not want a change from the status quo. Given the ages of the children, this position must be given meaningful weight, especially when I consider the file’s unfortunate history.

[51] Second, I accept the OCL’s evidence that it is the Mother and the Grandmother that have engaged in parental alienation by speaking negatively of the Father. This finding is consistent with the Mother’s forceful parenting actions.

[52] Given the foregoing, it must also be noted that the children have been subjected to never-ending court proceedings, OCL interviews and the like. This is surely something that has taken a toll upon the children such that their resilience is constantly being challenged. I feel for the children in that no young person should ever have to be involved in a stream of court-ordered processes.

[53] The genesis of this court-ordered intrusion into the children’s young lives is the fact that the Mother consistently comes before the Court despite the fact that her unwillingness to abide by a final order led to an unnecessary and traumatic event in Alberta. The trauma associated with this event must be incredibly high, and forcing the children to repeatedly engage in court proceedings, court-ordered therapy and the like would not be in their best interests as it will undoubtedly exacerbate the pre-existing damage caused by the Mother’s obstinance.

[54] The children do not wish to participate in reunification therapy and they do not wish to live with the Mother. Given the Mother’s conduct in this protracted litigation, this is not surprising. The children are teenagers. They are beginning to become adults. They do not need to have therapy forced upon them in a situation where they may not be ready to deal with the trauma caused by the Mother’s actions. The children’s opinions in this regard are consistent with common sense and are to be afforded weighty consideration given their age and maturity.

[55] They have good reason not to want to live with the Mother. Her conduct has damaged the children’s emotional and psychological stability. Thus, and notwithstanding the other issues that I must consider (the need to learn about their Indigenous heritage, the need to develop a family bond with their youngest sister, etc.), the overriding concern in this matter has to be the fact that the Mother’s conduct may have caused serious psychological and emotional damage to the children, irrespective of whether she feels that she has justification for her conduct. Living with the Mother when the children do not wish to do so would undoubtedly cause the children more harm in that their mental and emotional stability will be threatened.

[56] Much the same rationale applies to the Grandmother’s application. The children do not wish to have devoted parenting time with the Grandmother because they have indicated through the OCL that the Grandmother speaks ill of the Father while in the children’s presence. Given the considerable damage that was undoubtedly done to the children’s psyche during this court process, it would behoove both the Grandmother and the Mother to refrain from engaging in speaking ill of the Father as he appears to be the primary source of stability in the children’s lives.

[57] Therefore, and without belabouring the point, the best interests of the children are clear and obvious: They should reside with the Father, the Father should have exclusive decision-making authority for the children, the Mother will have parenting time at the discretion of the children, the children are not to partake in any therapy unless they so choose and the Grandmother can enjoy parenting time with the children when the children choose to see the Mother.

[58] Any other result focusses on the needs of the adults, and not the needs of the children.

Leave to Bring Further Motions

[59] Rule 14(21) of the Family Law Rules states:

If a party tries to delay the case or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court’s permission. O. Reg. 114/99, r. 14(21).

[60] In this case, the Mother has used the court system not to advance the children’s best interests, but to pursue her vision of what she would like.

[61] The Mother’s litigation history suggests that she will continue to file motions at an elevated rate.

[62] As such, the Mother will seek leave of the court prior to filing any further motions in this matter because:

1. The Mother’s litigation conduct is such that she has become a vexatious litigant;
2. The children have reached an age where their views and preferences are increasingly determinative of the litigation results; and
3. My order in this matter is consistent with the views and preferences of the children.

[63] I note that Rasaiah J. has previously made such an order. I hereby make that order on a final basis.

Conclusion

[64] The Mother and the Grandmother’s applications are dismissed.

[65] The children shall reside with the Father.

[66] The Father shall have decision-making responsibility for the children.

[67] The children shall have parenting time with the Mother at their discretion. The Grandmother may be present for same, but will not enjoy defined parenting time of her own.

[68] The Mother will seek leave prior to bringing any future motions.

[69] The parties will schedule a one-hour appearance before me to deal with costs and any support issues that remain outstanding.

Varpio J.

Released: November 15, 2024

Footnotes

[^1]: These visits have been with the Father’s permission and have not violated any court orders.