Court File and Parties

Court File No.: Brampton 63/08 Date: 2012-04-30 Ontario Court of Justice

Between:

Ethyl Pedersen Applicant

— And —

Kim Bjerre Pedersen Respondent

Before: Justice J.A. Maresca

Heard on: March 23, 2012

Reasons on Summary Judgment Motion released on: April 30, 2012

Counsel:

• Anita K. Kania for the applicant
• Kim Bjerre Pedersen on his own behalf
• Douglas J. Millstone for the Office of the Children's Lawyer, legal representative for the children

MARESCA, J.:

Introduction

[1] These are my reasons on a motion for summary judgment brought by the Applicant which seeks sole custody of Daniel Pedersen, born […], 2005 and an order for supervised access to the said child by the Respondent. The Applicant withdrew her claim for child support on January 24, 2012.

Background

[2] This matter came before the Court by way of application filed January 11, 2008. The Applicant, Ms. Pedersen, sought orders for, inter alia, custody of Daniel Pedersen, born […], 2005 and Erika Pedersen, born […], 1997, supervised access to the Respondent, Mr. Pedersen, and child and spousal support. In his Answer, filed February 15, 2008, Mr. Pedersen sought sole custody of the said children, or in the alternative joint custody with liberal unsupervised access, and child support.

[3] Ms. Pedersen filed an emergency motion for temporary sole custody, as she was concerned that Mr. Pedersen was having so much difficulty coming to terms with the separation, that he was unable to protect the children, particularly Erika, from his distress, or to assist them with theirs. Indeed, Erika began spending alternate weekends with her father, and she eventually went to live with him. She became increasingly hostile towards her mother. She felt that her mother had chosen her new partner over her daughter, and was unable to cope with those feelings on her own. Unfortunately, Erika has never participated in counselling with her mother to deal with those feelings.

[4] After hearing motions for temporary custody of the children brought by both parents, orders were eventually made that Erika reside with her father, and that Daniel reside with both parents on an alternate week basis. Counsel, Mr. Millstone, was appointed to represent the children.

[5] At the time the Application was commenced, Mr. Pedersen was employed and earning approximately $65,000 per year, according to his financial statement. By November 2010, he was receiving social assistance and was living in a motel room with Erika; Daniel would also stay with them in the motel room during his weeks with his father.

[6] On January 22, 2010, Justice Dunn heard another motion by the Applicant for sole custody of Daniel and supervised access between Daniel and his father. The Applicant's position was supported by Mr. Millstone, who filed materials on the motion from the clinical investigator assisting him. That motion was dismissed for a number of reasons: essentially, it was determined that there was no clear evidence that Mr. Pedersen was actively alienating Daniel or Erika from their mother. The Court was reluctant to disturb a status quo that had developed, on the eve of trial. The matter was adjourned to the audit list in preparation for trial.

[7] The matter was removed from the trial list on July 29, 2010, as Mr. Pedersen was not ready to proceed to trial. Both he and Mr. Millstone were hoping the matter could be settled without a trial; Ms. Pedersen was not optimistic, and objected to the matter being removed from the list. Mr. Pedersen began living in a motel room with the children. The Peel Children's Aid Society (the Society) was asked to investigate the situation. The Society found no child protection issues.

[8] As no formal assessment of the family had ever been done, a referral was made to the Thistletown Regional Centre, a children's mental health facility, for a five day, residential assessment of the family. Largely out of the concerns raised by the assessment team, based upon their intensive assessment and treatment protocol with the parents and the children, Daniel was placed temporarily in the care of his mother, with access to his sister and his father supervised by the Society.

[9] On September 21, 2011, the parties, Mr. Millstone and Society counsel attended before the Court. Mr. Pedersen indicated that he was unsure whether he would consent to a Parenting Capacity Assessment, and wished to retain counsel. He was advised that if he did not wish to participate in a Parenting Capacity Assessment, the next date, November 9, 2011, would be a trial management conference.

[10] On November 9, 2011, Mr. Pedersen appeared without counsel, advising that he had a legal aid certificate. The matter was adjourned to January 9, 2012 for a trial management conference, and the parties were ordered to serve and file trial management conference briefs.

[11] On January 9, 2012, the matter was before the Court for a trial management conference. Mr. Pedersen did not attend, nor did he advise as to why he would be absent. He failed to comply with an Order of the Court that he file a trial management conference brief or a doctor's note explaining why he had not attended the previous appearance. He did not provide a copy of a legal aid certificate which he was ordered to serve and file, after advising the court on several occasions that he would be retaining a new lawyer. A possible summary judgment motion was scheduled for March 23, 2012, and a copy of the Court's endorsement was ordered to be sent to Mr. Pedersen by court services. The case was adjourned to January 24, 2012.

[12] Mr. Pedersen did not attend court on January 24, 2012. He did not file his trial management conference brief or any of the other materials he was ordered to file. He sent no word to the Court to advise that he would be absent. The matter was adjourned to March 23, 2012 for a summary judgment motion. A copy of the endorsement was mailed to Mr. Pedersen.

[13] The motion for summary judgment was filed by Ms. Pedersen on March 20, 2012. An affidavit of service of the motion on Mr. Pedersen personally by Ms. Pedersen at the offices of the Society on March 6, 2012, was filed. The affidavit indicates that the Society sent the materials back to Ms. Pedersen's counsel's office, indicating that they had been left at the Agency's offices. The documents were then mailed to Mr. Pedersen by Ms. Kania's office on March 16, 2012, and an affidavit to that effect was sworn by Ms. Kania's assistant.

[14] Mr. Pedersen, who attended at the motion on March 23, 2012, advised that he was not served at the Society offices on March 6, 2012, and that he only received the documents two days previously. He was given leave to submit his unsworn materials on the motion. Submissions were heard on behalf of the mother and the father. Mr. Millstone conveyed Erika's wish to speak to me directly, and I spoke with her in his presence. Mr. Millstone made submissions on behalf of both children. I reserved judgment on the motion; these are my reasons for my order.

[15] The children have been in the centre of this maelstrom for more than four years, and it would not be an exaggeration to say that they have suffered enormously throughout that time. They need a resolution to this dispute.

[16] In bringing this motion for summary judgment, Ms. Pedersen argues that there is no triable issue in this case. She submits that Erika, at 15 years of age, will make her own decisions about where she will live, and how she will spend time with each parent. Erika has essentially been doing exactly that since 2010. Ms. Pedersen argues that there is no possibility that the parties can jointly parent Erika or Daniel, and after four years of acrimonious litigation, there is little to suggest otherwise. She says that the risk that Daniel will be placed by Mr. Pedersen in the same intense loyalty conflict that has plagued Erika if he is permitted to live with his father, or even to have unsupervised access to him, is so high as to render the outcome of a trial on custody or access to Daniel a foregone conclusion.

[17] Mr. Pedersen, on the other hand, argues that the issues of custody and access, at least to Daniel, are triable issues. He points to the letters from the Society, dated September 21, 2011, February 2, 2012 and February 7, 2012 as supporting his contention that there is inconsistency between the assessment completed by the Interface Program at Thistletown and the reports of the Society. He argues that the Society workers have led him to believe, in the course of oral communications, that he is an outstanding father, and does not understand why the Society has not stated that opinion in writing. It is his view that the answer to that question would be found in the course of a trial.

[18] Mr. Millstone, on behalf of the children, submitted that an order of custody of Erika to Mr. Pedersen and of Daniel to Ms. Pedersen was inevitable in the circumstances of this case. He argued that access between Mr. Pedersen and Daniel should be supervised, given the conclusions reached by Thistletown. He pointed out that Mr. Pedersen continues to live in a single room in a motel with Erika, as he has done for the last 16 months, which is not an optimal place for a child to be raised. He further pointed out that Daniel has lived with his mother since last summer, and appears to be thriving in her care. He suggests that Mr. Pedersen would require far more than a parenting course to be able to adequately provide for Daniel's emotional and psychological needs, given the Thistletown findings.

The Law

[19] Rule 16 of the Family Law Rules codifies the procedure set out in the caselaw on the issue of summary judgment in family cases.

[20] The Ontario Court of Appeal in Mendez v. Mendez (October 22, 1996), Doc. CA C22694 established that summary judgment is an available remedy even in hotly contested custody and access cases, where a party's chances of success were "negligible". Where the outcome is a foregone conclusion, an order for summary judgment must be made. Persaud v. Persaud (December 15, 2008), Doc. FS-08-0367-00 (Ont. S.C.J.). Rule 16 sets out the test in this way:

16(6) No Issue for Trial – if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [emphasis added]

[21] It is not 'any' issue which must be contested in order for a trial to be ordered; it must be an issue that is material to the decision. While the motions judge is not to make findings of credibility on a motion for summary judgment, only factual conflicts relevant to a material issue in the case will be triable issues. Barry v. Morgan (2005), 2005 ONCJ 146, 15 R.F.L. (6th) 55 (Ont. C.J.) Credibility issues in and of themselves will not be triable issues where there is no prospect of success at trial. Rodman v. Rodman (February 12, 1999), Doc. F164696 (Ont. Gen. Div).

[22] In a motion for summary judgment, each party must put his or her best case forward. Once a prima facie case for judgment has been made by the applicant, the respondent must adduce evidence which demonstrates that there is a genuine issue for trial. Blanket denials and mere allegations are not sufficient. Minawi v. Minawi (December 20, 2002), Doc. Toronto D2153/95-A A2 (Ont. C.J.).

[23] Another factor to weigh in determining whether summary judgment is appropriate is the well being of the children. Where litigation has dragged on for a lengthy period of time, and children need a resolution to the dispute, summary judgment may be appropriate. Similarly, where a trial would only serve to heighten the hostility and tension between the parties, to the detriment of the children, an order for summary judgment may be necessary to protect the children. Piceolo v. Picard (1997), 11 O.F.L.R. 45 (Ont. Prov. Div.).

Analysis

[24] The following is a summary of the material facts in this case. These parents have been litigating the issues of custody and access for more than four years. It is unquestionable that the children, Erika and Daniel, have been detrimentally affected by the level and longevity of hostility between their parents. Erika has chosen to deal with her anger towards her mother, and her concern for her father, by making the decision to reside with him, virtually since the parties separated. At 15, she continues to make that choice. While it is clear that Daniel loves his father very much, he has been living with his mother for nearly a year, and there is no evidence which challenges his mother's assertion that he is doing well in her care. There is no prospect that these parents are now, or will in the foreseeable future, be able to jointly parent the children.

[25] The only clinical assessment of the family was done by Thistletown Regional Centre's Intensive Family Therapy Unit. The report did not make recommendations regarding which parent should have custody; it did contain recommendations as to interventions and strategies that would be helpful for the family in order to heal. It is important to note that the assessment took place over a five day period, during which Daniel lived in the assessment home, 2.5 days with his mother, and 2.5 days with his father. While Erika was invited to participate in the assessment, she chose only to meet with the assessment team on three occasions: once with her mother; once with her father; and once on her own. She did not stay overnight at the assessment home, nor did she interact with the assessors for more than a couple of hours.

[26] It is abundantly clear from the assessment report that both children are deeply distressed by the conflict between their parents. It is also evident that Ms. Pedersen was able to parent Daniel appropriately, and could take and implement direction from the assessors as to how to better meet Daniel's emotional needs. It was reported that Daniel has a secure attachment to her, and that she was capable of helping him cope with his feelings about the separation.

[27] It is distressing to read the observations of the clinicians regarding Mr. Pedersen's ability to parent Daniel. He was reported to be unable to emotionally engage with Daniel, or to comfort or help him when he was upset. Mr. Pedersen rejected the suggestions made by the assessors, whether they related to the genesis of Daniel's stress and discomfort, Mr. Pedersen's role in adding to Daniel's emotional difficulties, or concrete ways he could meet Daniel's needs. The following excerpt from the Thistletown report encapsulates the position in which Daniel has been placed, and its effects on his mental health:

Daniel was observed to display some concerning behaviour during his time with his mother in the assessment house as Daniel was noted to relay inaccurate information to his father and Erika on the phone about his activities with his mother. For example, Daniel told his dad and Erika that he was in his pajamas and ready for bed when he was still playing and not changed for bed. He also indicated to his dad and Erika that he was in the house doing nothing when he was at the playground with his mother. When the therapists explored this with Daniel, he indicated that he was not "lying" but "changing words" so that his dad and Erika would not be mad that he was having fun with his mother. He also stated that he doesn't have fun with his mom's boyfriend as he is very worried that liking this person could make his dad and Erika very mad. Daniel's attempts to manage his stress related to anticipated anger from his dad and Erika have resulted in distorting his own reality and creating a false reality in order to attend to and avoid negative affect from his sister and father. This is exceptionally problematic for Daniel's mental health.

Daniel expressed further worry that the "mess" in his family would never change and stated that sometimes Erika is helpful to him by telling him to say that he does not want to be near his mom's boyfriend. He suggested that one way to "fix" the problem was for "daddy and Erika to get [him]." The therapists clarified if that meant that Daniel would no longer see his mother and Daniel stated that was correct.

Daniel expresses significant worry regarding his experience of Kim as angry or "mad" at him. He stated that Daddy and Erika were "kind of like criminals" as they could be mean to him, and tease him. He gave an example of them teasing him by stating they would go to the movies and leave him alone, which made him cry. He stated that he began the "word changing" as he felt that they were mad at him for having more fun at his mom's and that by changing words like "park" to "at home" it would not seem as fun and they would not be as mad. The therapists reflected to Daniel how hard he had been working to fix things in his family and he expressed that it was still not working and that he felt like he was "sideways or down". When asked how big his worry was that his dad would be mad at him, Daniel stated "it's huge, like 100". He expressed that he worried his "daddy will never listen to someone and stop, maybe to [the therapists] or the police". He relayed that Erika will try to help him with this by telling Daniel to say sorry to his father and give him a hug if he has gotten a time out for being loud when the T.V is on and dad is watching.

Ethyl provided Daniel with the message that it was OK for him to have feelings that were different than his dad and Erika's, however Daniel stated that he did not agree that his feelings could be different and that it was his "job to try and make everyone happy". Daniel was asked to "scale" his responsibility to making his family happy with "1" being not his job at all and "5" being very much his job. Daniel stated that with his mommy "it was a "1" that "mommy's number is always down and Daddy and Erika's number is always high."

Daniel's experience of the conflict and the strategies he has attempted to develop in response to this stress and what he experiences as powerful and angry feelings from his dad and Erika, as well as observations of Kim's strategy to minimize and dismiss these feelings result in Daniel currently being exposed to emotionally harmful experiences. These experiences indicate an avoidant attachment with his father, emotional neglect and role reversal all which can contribute to poor affect regulation, anxiety, behavioural presentations, poor school performance and poor peer relationships.

It should be noted that Daniel clearly experienced Ethyl as a safe and protective caregiver and easily sought her out to attend to his negative affect as well as dependency needs, Daniel's interactions with his mother were observed to reflect a secure attachment relationship.

Daniel is an open and easy to engage young boy who is experiencing significant struggles understanding and mitigating the ongoing conflict between his mother and father and mother and sister. Daniel has begun to display indicators of stress such as soiling, nightmares, regressed presentation under stress and most significantly systematically describing how he has begun to distort his own reality in an attempt to manage the negative affect he experiences in the care of his father and sister. Daniel clearly expressed his love for both parents and Erika and his desire to have time with all of the members of his family, however is being profoundly affected by the stress these dynamics are causing him.

[28] These same concerns were not found in Daniel's interaction with his mother:

Upon arrival of Daniel's mother he initially presented as sad and struggling to leave the care of his father, however once the transition was complete, Daniel became quite animated and engaging. Ethyl highlighted that Daniel had wet himself during the transition and noted that he wet himself two more times on the first day of her part of the assessment. Ethyl stated she understood this to be a symptom of stress for Daniel and attended to his physical care needs regarding his wetting.

Daniel became increasingly able to express his feelings to the therapists and to receive the emotional support and regulation his mother provided him. Ethyl validated for Daniel his frightening experiences he had witnessed between her and Erika as well as the police involvement and the ongoing conflict between she and his father. She stated to Daniel that he did not need to choose sides or choose parents, however Daniel expressed that he felt his dad and Erika were a team and that it was not fair to his mother that it was "two against one". Ethyl expressed to Daniel that they were not "teams" and that he did not need to be on her team to make it fair, and that she wanted to help him not "be in the middle". Daniel stated he did not think his mother was as strong as his dad and Erika and would not be able to "get me out of the middle". Daniel continued to express his worry to the therapists and his mother throughout his time at the assessment house.

Daniel was observed to express his negative and positive affect easily with his mother and sought Ethyl out for comfort and reassurance at times of stress or sadness. Daniel was observed to become somewhat regressed at times of stress, using a higher pitched voice and hiding his face in his mother's lap or against the couch. Ethyl was observed to respond to Daniel's negative affect effectively, offering verbal and physical reassurance which was effective in providing Daniel with comfort. Daniel expressed his difference of opinion easily with his mother and was observed to challenge rules and expectations in an age appropriate manner. Daniel explored many of the toys and games while in the care of Ethyl and appeared to become quite animated and verbally engaged in play with his mother.

[29] Due to the concern that Mr. Pedersen had "difficulty in recognizing and responding to Daniel's emotion care needs, and his limited reflective capacity", the clinicians recommended that he take part in a Parenting Capacity Assessment to "better understand his ability to engage in a process that would support his ability to attend to Daniel's affective care needs." [quotes taken from the Assessment Report of the Intensive Family Therapy Unit dated July 21, 2011]. In addition, the assessors had concerns with Mr. Pedersen's ability to plan and offer nutritious food for Daniel during the assessment period, despite the fact that the clinicians offered to buy foods that he requested.

Daniel displayed an avoidant attachment pattern in relationship to his father. Daniel was observed to minimize his own needs and feelings in the absence of affect regulation, validation and response from Kim. He isolated himself through independent play and was not observed to place demands on Kim to have his dependency needs met. Daniel was not observed to ask for snacks, drinks or play time with his father and did not express any negative affect in relationship to his father despite experiencing boredom, stress and worry regarding the conversations with the therapists. Daniel attempted to seek out comfort for sad and scared feelings from Kim, in a physical manner by moving closer to him and climbing on his lap, however these attempts were ignored or minimized and Daniel was observed to withdraw his attempt to receive comfort or affect regulation from Kim.

[30] Mr. Pedersen did not consent to participate in a parenting capacity assessment, despite the fact that Ms. Pedersen was willing to do so. The only evidence he offered on the motion for summary judgment to respond to the Thistletown report was the letters from the Society reporting on the supervised access visits. These letters were not attached to an affidavit, although several were contained in the continuing record. It is important to note that the Society was not conducting an assessment of any kind, and ultimately refused to supervise visits between Daniel and his father and Erika, as Mr. Pedersen and Erika were very vocal about their unhappiness with the supervision. There is nothing in any of the Society letters which addresses any of the concerns raised in the Thistletown report.

[31] In fact, Mr. Pedersen did not file any sworn evidence on the motion. He filed an 11 page, single-spaced document which he signed, but did not have sworn. Attached to this document was a portion of a printed email dated February 28, 2012, from T. Yu, Senior Service Manager with the Society to Mr. Pedersen; a printed email dated March 8, 2012 from Mr. Yu to Erika; and a printed email dated April 15, 2011 from Mr. Pedersen to Ms. Pedersen.

[32] This document was accepted into evidence, despite the fact that it was not sworn, and was shown to counsel only on the afternoon of the motion. In my view, it raises no triable issues. It consists mostly of denials of the evidence of Ms. Pedersen and unsubstantiated allegations.

[33] The quotations taken from the various Society letters were largely taken out of context. In several instances, Mr. Pedersen alleged that statements were made by the Society that simply did not appear in the letters. For example, Mr. Pedersen states in his unsworn document of March 22, 2012, paragraph 18A:

We attended court again on August 29, 2011 where the PCSA [Peel Children's Aid Society] was asked to present a report with their findings on the supervised visits as well as their recommendations. The Society presented their report and concluded by indicating that in their opinion the last visit on August 27th was to be the last and there would be no need to schedule any additional dates as they did not see the need for supervised visits.

[34] In fact, the letter from Carl Williams, child protection worker with the Society, dated August 29, 2011, stated as follows:

The Society was not able to fully assess any underlying issues concerning Mr. Pedersen's parenting approach nor did the visits allow for this. The Society expected that Mr. Pedersen would have demonstrated a wider perspective on his interactions with Daniel which would provide for a more fulsome assessment. However Mr. Pedersen did not provide that opportunity and it was therefore not possible to fully assess whether or not Mr. Pedersen lacked insight in Daniel's needs.

The Society was therefore not able to definitively conclude on the appropriate next steps.

[35] The final reporting letter from the Society, dated February 2, 2012, contains the following paragraphs:

E) The Society finds that the family requires the development of a long term access plan for Daniel and his father and his sister Erika. This is best developed by the family.

F) Ms. Pedersen has stated that she believes that access can be facilitated through a community access centre.

G) The Society's position is that, at this time, alternate access arrangements can be negotiated and this could include access at a community access centre. The Society also believes that the [Office of the Children's Lawyer] may be able to assist the family in the planning and arrangements for continued access. The Society has identified two access centres in the Region of Peel that may be suitable for the family's requirements. In this regard a brochure with the relevant information regarding the services provided and contact information about the access centres is hereto attached.

H) Notwithstanding the Society referring the family to a community supervised access centre, the Society has not taken a position on whether access should continue to be supervised. In this context, the Society believes that this decision is within the purview of the presiding judge and the family court.

J) In the final analysis, the Society has provided services to the family to the extent that it can. Nevertheless, Mr. Pedersen and Erika have not been satisfied with the services offered by the Society and there are limits in what the Society can provide to the family. The supervised access visits facilitated through the Society, have fuelled and triggered frequent and on-going complaints by Mr. Pedersen and Erika, about the level of service that the Society has afforded the family. This has seemingly diverted the family's attention away from the progress that they could have otherwise made. The Society opines that other community supports are now appropriate at this time and has taken the decision to close the file. In this regard the file will be closed on March 23, 2012. In the interim the Society has undertaken to continue to supervise the access visits until the stated closing date.

[36] The Society, by letter dated February 7, 2012, withdrew its consent to act as supervisor of access visits for the family.

[37] Another example of unsubstantiated assertions by Mr. Pedersen appears at paragraph 19 of his unsworn document of March 22, 2012:

19. Disagree. Only Thistletown recommended a PCA [parenting capacity assessment] test for the Respondent in their report. The PCAS has never concurred or sought an application for a PCA test for either parent…

In fact, in their report of Aug. 29, 2011, the Society stated as follows:

The Society was further directed to advise the court and the parties, as to its view on whether a Parenting Capacity Assessment (PCA) is recommended and necessary for Mr. Pedersen to undergo...."

Notwithstanding, Mr. Pedersen expressed no objections to a Parenting Capacity Assessment; Mr. Pedersen has indicated that he had previously consented to having such an assessment done.

The Thistletown report recommended that a PCA be done and the Society believes that the Court would likely benefit from such an assessment. In this regard, the Society recommends that Dr. Wittenberg conduct the assessment. The wait time for this assessment is presently between 2 to 3 months and the referral is presently being processed.

[38] A further example of Mr. Pedersen's unsupported allegation is contained in paragraph 57 of his document:

I have repeated this over and over again, I have not prior to or during the supervised visits attempted to brainwash Daniel in any fashion. I have not attempted or requested Sole Custody, I have not sought supervised visitation nor tried to limit the time Daniel spends with his mother...."

Mr. Pedersen's Answer in these proceedings, filed February 15, 2008, specifically seeks sole custody of both children, and joint custody in the alternative.

[39] Mr. Pedersen argues that there are triable issues in this case, particularly with respect to ongoing access with Daniel. With respect, I disagree. Given that Mr. Pedersen continues to reside in a motel room, takes no responsibility for the ongoing hostility between the parties, and has not been able to assist his daughter to deal with her intense loyalty conflict, a determination of custody of Daniel is a foregone conclusion. Mr. Pedersen has presented no plan for Daniel's instrumental or emotional care. He has not filed any reliable evidence which materially challenges the Thistletown report. None of his submissions deal with the concern that if unsupervised access to Daniel is granted, Daniel will once again be placed in an untenable loyalty bind.

[40] In my view, the only reasonable result possible in this case is that Erika continue to reside with her father; that Ms. Pedersen have sole custody of Daniel; and that Daniel's access to his father be supervised.

[41] I have had the privilege of meeting with Erika on several occasions during the course of this litigation, at her request, and with the consent of her counsel. It is clear to me, particularly from our last meeting, that Erika is very worried that she will be prevented from having a strong relationship with her brother. While she has not articulated this to me directly or through her counsel, I strongly suspect that she would like to heal the breach with her mother, but does not know how to approach that without betraying her father or giving up her feelings of hurt at her mother leaving the family home.

[42] In my view, these children have been living in a situation of intense conflict for far too long. Their need to have this matter resolved far outweighs any benefit that a trial might bring.

[43] Based upon the above, the following final order will issue:

1. The Applicant Mother shall have sole custody of the child Daniel Pedersen, born […], 2005.

2. The Respondent Father shall have sole custody of the child Erika Pedersen, born […], 1997.

3. The Applicant Mother shall have access to Erika at such times as she and Erika agree.

4. The Respondent Father shall have access to Daniel a minimum of two hours per week. Access shall take place at a supervised access centre, unless the parties agree in writing that access may be supervised by a mutually agreeable third party in another location.

5. The Respondent Father shall bear all costs associated with the provision of services by the supervised access centre.

6. Should the Respondent Father bring a motion to change this order in the future, evidence of the following may be filed to support a material change in circumstances:

   a. That Erika and her mother have attended joint counselling for at least three months, and that their relationship has begun to heal;

   b. That he has attended individual counselling to address the ramifications of the separation on him and on the children; and

   c. That he has moved to appropriate rental accommodations.

7. Daniel shall have access to his sister Erika a minimum of four hours each week, such access to take place in the community.

8. Access between Daniel and Erika shall not take place in the Respondent Father's residence, and the Respondent Father shall not be present at this access.

9. Times, dates, and locations for the access between Daniel and Erika shall be arranged between Erika and the Applicant Mother, either by telephone, email, text message, or in person.

10. The Respondent Father shall ensure that individual counselling continues to be available to Erika.

11. The Applicant Mother shall ensure that Daniel has access to individual counselling as required.

[44] It is my understanding that the Applicant Mother will arrange for joint counselling for herself and Erika, and will make ongoing offers to Erika to participate in such counselling. I further understand that the Applicant Mother will take Erika's wishes into account when choosing a counsellor.

[45] It is my sincere hope that Mr. Pedersen will take personal counselling to understand his reactions to his separation, and the effect those reactions have had on the children. I urge that he will be able to help Erika reconcile with her mother, and that eventually both children will be able to have a normal, healthy relationship with both parents.

Released: April 30, 2012

Justice J.A. Maresca