Court File and Parties

Court File No.: Cambridge 01-3028-01 Date: 2013-01-09 Ontario Court of Justice

Between: Dan Lawrence Fannon, Applicant

— And —

Lisa Spooner, Respondent

Before: Justice P.A. Hardman

Heard on: October 16 and 17, November 21 and December 15, 2012

Decision regarding Motion to Change released on: January 9, 2013

Counsel:

• Dan Lawrence Fannon on his own behalf
• F.M. Andrade for the respondent
• W.G. Brownell for the Office of the Children's Lawyer, legal representative for the child

HARDMAN J.:

INTRODUCTION

[1] The mother brought a motion to change the access by the father to their son AES in an order made June 8, 2001 by this court from generous structured access to no access or access in accordance with the child's wishes. In that same motion she sought to have the child support in the August 22, 2001 order of this court adjusted to guidelines based on the father's earnings but that issue has been resolved.

[2] The father initially sought enforcement of the order.

[3] The only issue before the court for trial is the issue of access.

[4] The motion to change was issued by the court on July 30, 2010. The evidence of the trial was heard October 16, 17 and November 21, 2012 with submissions on December 15, 2012.

[5] The mother was represented by counsel and the child AES born April 9, 1998, now fourteen years of age, was represented by counsel through the Office of the Children's Lawyer. The father represented himself.

EVIDENCE

Background

[6] The parents met and dated for a year. While the mother testified that the father was not initially happy about her pregnancy, after AES was born, the father showed clear interest in the child. The parties never resided together and the child always remained in the primary care of the mother.

[7] There was disagreement between the mother's evidence and that of the father as to the mother's reluctance to allow the father to be involved initially but ultimately as noted in the order made in 2001, the father became a regular part of the child's life through access.

Early Access Issues

[8] The mother testified that in 2005 at the age of seven the child was saying that he did not wish to see his father. Access was stopped for a little while but resumed again after court action taken by the father and continued until 2009. The mother testified that at times she had to coax him out the door and that although he did not want to go, she made him attend access with his father.

[9] In December 2009, the child attended an access visit with his father and after that visit he refused to go. The mother therefore enrolled AES in counselling with a psychologist DH in February 2010. The mother told the clinical investigator that the counsellor was engaged to help identify any trauma the child may have suffered in access as well as to help repair the father's relationship with the child. She also said that the child would have an opportunity to deal with the issue of his high anxieties.

[10] Essentially the psychologist concluded that there had not been any traumatic incident during access. Further, there was no suggestion of suicidal or self-harming behaviours.

[11] Since January 2010, access has been sporadic.

CLINICAL ASSIST

[12] The OCL had a clinical assist and therefore Glory To testified during the proceeding. In his evidence he confirmed his understanding of some of the issues that had occurred in the last few years. He noted that there was a falling off of access when the child was about five years of age but that after the father brought a motion for a finding that the mother was in contempt it resumed. The father enjoyed alternate weekend access travelling with his father to his home in London or to his paternal grandparents' home in Oshawa.

Mr. To concluded a number of things from his investigation:

• AES is an excellent student academically and behaviourally.
• There had been no traumatic incident during access.
• The child enjoyed the nature of the activities that he participated in during access just not always the duration of the same.
• The child spent time in counselling arranged by the mother as a result of his decision not to attend access after the visit in December 2009. He noted that the counsellor had found that the child suffered from "unnecessary anxieties".

[13] Mr. To testified that it was in any child's best interests to have a relationship with both his mother and his father. Mr. To made it clear that he did not think that the child should be given a choice by the mother or the father as to whether or not he was to attend access. He said that this position that he must attend access should be put to the child in a "gentle" way and if done properly, it would not undermine the trust that the child has in his mother. He drew a parallel with parents insisting that children attend school and take medicine when they are sick.

[14] Mr. To told the court that any unresolved feelings that AES may have for his father will not help the child's long term emotional development.

[15] Mr. To said that while speaking on the phone twice a week does support a relationship between the father and the child, he said that it is a different relationship. He said that while the mother had made efforts to support the child, he felt that the mother should not be saying that it is okay not to have access. He said that the mother should be persistently encouraging him to have access. He testified that the father was sceptical about the mother being encouraging about access.

[16] Mr. To noted that AES was a cautious child around him and the OCL but did not note any of the anxiety addressed in the counselling report. However, he acknowledged that he had no reason to suspect that the anxieties did not exist. He pointed out that controlling a situation may be one of the ways that AES deals with his anxieties.

[17] When asked by the father, Mr. To acknowledged that it was part of a parent's responsibility to introduce a child to new activities and interests but he cautioned that that should not include "scary" things. He acknowledged that given the regular visits with the father coupled with the child's expressed love for his father, the child's reluctance to visit is unusual.

[18] Mr. To said that the mother could and should do more in a persistent way to get the child to go for access. He said that the mother said that she would support the child's wishes but did not say that she would support the access. He said that the child needs a clear message from her that she wants him to attend access and that she and the father are not at war with each other. The child needs to see the mother and the father united on this issue in order to help the child's anxieties.

[19] The investigator told the court that the child said some of the activities went on too long but the child may or may not have been accurate. He said that he would prefer that a child's telephone conversations were not taped and acknowledged that if the child knew it could affect the level of trust between the father and the child.

[20] Mr. To said that counselling would be helpful to continue to address the child's anxieties as well as counselling of the father and the child to assist them to better understand each other.

[21] He said that access should occur in small steps and that both parents must insist that the child attend counselling.

THE FATHER

[22] The evidence establishes that the father has been very interested in his child and his child's wellbeing almost throughout his life. He has paid child support. He had an ongoing relationship with his son until something started going wrong in 2009. The father and mother testified that something had changed over a number of months. The father said that AES seemed more withdrawn and less eager to participate. The allegation that the child was told that he could not call his mother arose in December 2009; shortly thereafter the child refused to see him.

[23] With the help of the OCL and Mr To, trial access was recommenced but once again the child did not wish to do it again.

[24] The father is not blameless in the problems that have happened. He has been frustrated with the child's decision and put him under pressure about why he did not want to go to access. Further he does not seem to understand that this child may have different interests that he does. While I have not met the child, the evidence would suggest that the father and son are different in personalities. The father's frustration at the son's lack of interest in activities may have caused the child to feel somewhat bullied by the father.

[25] The father is right that the child should be encouraged to try new activities but at the same time he needs to ensure that he is paying attention to how AES is reacting to the activity. Certainly both parents should be concerned if the child wants to do nothing but play video games.

[26] Certainly I am not in a position to state that the raft was safe as the father noted or "scary" rotten as AES told his mother. However, given the father's evidence regarding the bike riding, it is clear that AES is exaggerating the flaws in his father's choice of activities. It does not appear likely or even possible that he and his father went for an eight hour bike ride.

[27] However, although adventures are a great opportunity to share, the father has to recognize that he will have to build some trust with his son.

[28] During his evidence at trial, the father demonstrated his somewhat rigid approach regarding parenting. Some time ago it appears that he concluded that his son was not very outgoing and he determined that it would be good for him to participate in a team sport. While such an experience may have been of benefit, it appears that his son is not interested in being involved on a team. Despite learning that AES was going out for track and field, the father was not satisfied.

[29] The attitude expressed by the father in court on this issue would not be conducive to a positive and nurturing relationship with a child. The father should be focussed on being supportive of a child during their limited time together, instead of implying that the child was not living up to his expectations.

[30] The father has demonstrated that he has a difficult time not expressing his frustration to the child about the child's decisions despite the court's admonition not to do so to in an attempt to help make the access successful. In 2011, he was warned by the court prior to some trial access not to challenge the child but he did anyway and upset the child a great deal. Indeed, as the child put it, the father sometimes does not know when to stop.

[31] The father has to take responsibility for his part in the problem. He should not be critical of or challenge AES at any time. He should not focus on the fact that the child is perhaps different from the way he is; instead, he must celebrate his son and his time with him, paying close attention to what his son, now fourteen, is interested in.

[32] It is understandable that the father might be concerned about a child who seems to want to call his mother excessively during access. This situation was confirmed by the paternal grandparents. However, his response to the situation exacerbated the problem.

THE MOTHER

[33] Certainly the mother has been the primary caregiver to the child and it would appear that they have a close bond. While she testified that she did want AES to go to access, I agree with the view of Mr. To that she has been too passive in this regard. Her view of the lack of importance of the father in the son's life has been reflected in her decisions around access.

[34] When there were issues of interpreting the court order, the mother insisted on the interpretation that reduced the father's time. At Christmas without a thought as to the order, she committed to taking AES away over Christmas Day not just once but every year. Her explanation makes it abundantly clear that she feels that it is important for the child to be around her family but not the father's.

[35] The maternal grandmother testified as well. It was her evidence that when she was busy making plans for her family including AES to be away over Christmas, she had not considered that maybe the paternal side of the family would like to see the child at Christmas as well. It seems extraordinary that neither the mother nor her mother had thought about this especially in the face of a court order. It would appear that they in fact relied on the child refusing to attend access in order to support the violation of the court order.

[36] Given this approach, it may well have been the child's conclusion that full participation in the mother's family would be enhanced by his severance from his father's side or that at least being involved with his father was not important.

[37] In his response to the motion to change access, the father noted that even before the interruption of the access by court order, the mother consistently refused to allow any extra vacation days to be added to his weekend or to expand his two week summer access by three days. In 2004, the mother made it clear that she had no interest in having AES, then age six, return phone calls to his father unless the child asked.

[38] In looking at the mother's affidavit filed in support of the motion to change, the mother referred to four situations that made the child feel unsafe: not being able to telephone his mother, a child exposing himself, a child poking him in the ribs and being made by the father to ride a "rotting log" down the river.

[39] The first issue, being able to call, is concerning, not so much because the child said that he was not allowed, something that the father denied, but rather that a child of his age would feel the need to stay in such regular contact with his mother. The second concern happened a long time ago when AES was very young and unless the matter was being raised by the mother in her home, one would not have expected that exposure to continue to be an issue for the child.

[40] The third is so trivial—being poked in the ribs—that frankly it deserves little comment. The rotting log incident is one that the child has clearly blown out of proportion given the evidence before the court.

[41] It appears that the message that his involvement with his father is not important has not been lost on the child. He may feel that he cannot have a connection with both his father and his mother. It is possible that the child feels that he is expected to be critical of the time he spends with his father and therefore embellishes his reporting to his mother. He may consider that to feel otherwise about access would be disloyal to his mother and her family. It is of note that the investigator said that the mother must convey to the child that the parents are not at war, a perception that certainly could lead to the child feeling that he has to choose sides.

[42] Obviously these are conclusions generated to explain the child's unusual behaviour towards his father. The mother has suggested that the child's reluctance to attend access is simply the normal change that occurs when children get older and become teenagers. However, that is certainly not the case here.

[43] The child was not a teenager but only eleven when the problems with access started. Further, there was no suggestion that he is heavily involved with his peers, reluctant to spent time with either parent. The situation with this child is not the usual, something pointed out by Mr. To.

[44] Further this child is struggling emotionally. I found it concerning that there was little recognition by the mother that AES was not as grounded and secure as one might expect him to be having grown up with the stability of his mother, family and even a father and family. He has what the counsellor called "illogical anxieties", not just about access with his father but other issues as well. This child clearly needs emotional support to cope confidently with his environment, including his access with his father.

[45] He had an existing relationship with his father. He was not a stranger to him in any way. Yet he felt that he needed to call his mother numerous times. Further when he did call after the father was not present, the mother, instead of encouraging him to stay, came to pick him up in London. There was no urgent need to do so; nothing had happened. The child's only concern was not being allowed to call his mother, something denied by the father. But once the mother was on the phone with the child, she should have insisted on speaking to the father without the child to clarify the situation.

[46] It was hard to tell from the evidence what the child exactly said on the phone during the taped conversation with his mother at the Christmas access at the paternal grandparents'. However, any reference to anything suggesting suicide should be considered a very "red flag". Yet somehow the focus is not on the issue of the child's emotional health but instead on the access.

[47] There is no evidence that the child needs to call his mother during the day at school. I am quite sure that if the child did so in a manner that disrupted his school performance, the mother would take it seriously and make sure that AES understood that such contact needed to stop and would ensure that any support he required to do so was in place.

[48] Therefore the fact that the child calls his mother, indeed feels that he needs to call his mother so often during access, suggests that:

• the child feels that he is expected to call his mother;
• the mother does not dissuade him from calling; and/or
• the mother has not provided the encouragement that the child needs to continue the relationship with his father that is in the child's best interests.

[49] The absence of any traumatic incident explaining the child's reluctance to attend access leaves open the very real possibility that the child's anxiety was based in part on his perception that he needed to stay close to his mother. It is not clear how that might have happened but it may be a factor.

[50] Mr. To said that he was concerned about the long-term emotional well-being of the child. I share that concern. This child needs to be able to function in the world with confidence; he needs to be able to relate to others without the mother's intervention.

[51] It is most unfortunate that the mother allowed the child access to the court papers. The references in those papers to the father's concerns about AES' mental health were very upsetting to the child. This was not the father's doing but the mother's. The evidence that the mother and maternal grandmother left the room without the papers to discuss those papers behind closed doors did not make much sense. The fact that the mother did not at least hide the papers also suggested that she was not child focussed and did not care if he saw them.

[52] Unfortunately the child was very hurt about the father's expressed concern in those papers about the child's mental health.

[53] Faced with the issues around AEC and access at the end of 2009, the mother quite properly put the child in counselling with a psychologist, DH, in February 2010. It appears from DH's credentials filed with the mother's material that part of her private practice was to assist in expressing children's wishes as well as therapy for children, adolescents and adults. However, despite the father's expressed interest in being part of that counselling, that never happened although the father certainly made attempts to contact the counsellor.

[54] It is most unfortunate that the counselling did not happen in 2010 to assist the father and AES. The mother stated that it was her understanding that the father tried to stop the counselling, something denied by the father. The email dated February 2, 2010 that the mother filed with her material instead confirms the father's desire to straighten this out in counselling. Why that did not happen is not clear.

THE CHILD

[55] While calling him a child, it is certainly true that at the time of trial AES was fourteen years of age. He is bright and articulate and is doing well in school.

[56] Although somewhat unusual for a young person over the age of ten, AES did appear to miss his mother during access and wanted more than usual telephone contact with her during access. Further, there is some suggestion that he has been more timid than other children in his response to activities such as snowmobiling.

[57] While there is no "overt hostility" between the parents as confirmed by Mr. To, the parents do not communicate well. Also, according to the information that he provided Mr. To, AES did not like the conflict between the mother and the father. Further he is not happy that the father blames the mother for AES not wanting to attend access. These comments would suggest that AES has been exposed to the issues between these parents.

[58] The child told Mr. To that while he loved his father and wanted access, he did not like prolonged activities, the father's lack of sensitivity and the blaming of his mother. He also said that he did not think that his father would change.

[59] While it is true that the child's decision not to attend access was not overnight but developed over time, it does not change the impact on his best interests. As noted in submissions by the OCL, while the child wants to have access but have some control over access, AES has not been able to bring himself to say when and how he wants to see his father.

ATTEMPTED SETTLEMENT

[60] It is clear from the evidence that there were a number of attempted settlements between the parties. While normally the court does not hear about these except in a consideration of costs, counsel for the mother has asked the court to find that the father agreed to a settlement offer and make that order. The father was in the court's opinion deliberately vague about what he did and did not agree to in the course of attempted settlement. He said that he would not have agreed with the one proposal as it did not prohibit the mother from moving the child's residence. However, it appeared that there was the addition of a notification clause to allow him to pursue a remedy in court if the mother tried to move the child.

[61] It is open to the court to make the order requested but I am not prepared to do so given the confusion over the proposal, the unrepresented status of the father and the best interests of the child. In my view, the proposal does not reflect the concerns raised at trial regarding what order would be in the best interests of the child.

[62] During his cross-examination regarding the settlement proposal, the father expressed concern about the mother leaving the province to live in British Columbia where some other members of her family live. He submitted that such a move would permanently foreclose any possible relationship with his son. At the father's request, there was a temporary order made to address the issue during these proceedings.

[63] It was the evidence of the mother that she did not intend to move. Indeed she is on disability and therefore there would be no career concerns supporting any suggested relocation. Also the maternal grandmother with whom the mother and child reside testified that they were not considering moving and that such a move would not be in the child's best interest.

OTHER EVIDENCE

[64] There was evidence from the father and his parents regarding a picture depicting the father and son that was supposedly delivered to the mother's home and returned due to a reluctance to have it displayed in the home. While the paternal grandparents' evidence sounded convincing, the issue was completely denied by the mother and maternal grandmother.

[65] The differences in the evidence of the paternal grandmother and grandfather would be those generally expected in the accounts of two witnesses of an event that occurred some time ago. Indeed there were aspects of the evidence that seemed to be very credible. However, the denials also were unshaken in cross-examination. This situation makes it problematic for the court to rely on one version or another of the events.

[66] It is not in the circumstances of this case necessary to rely on the evidence of the mother and grandmother's refusal to hang the father's picture in the house to conclude that the mother and the maternal grandmother were not focussed on the importance of strengthening and preserving the child's relationship with his father. That has already been noted in the other evidence before the court.

CONCLUSION

[67] There have clearly been bad decisions made by both of these parents, decisions that have sadly affected the relationship between this father and son.

[68] Unfortunately their positions remained diametrically opposed regarding the evidence. On any number of issues, they disagreed about what had occurred: ticket at graduation, number of access visits, videogames and so on. The mother considers that the father is all about and only about control and is completely responsible for the problems between himself and his son. The father thinks that the mother has deliberately and systematically worked on the child to alienate him from the father. The reality clearly lies in between their positions. Both have made mistakes that have contributed to the problem.

[69] Obviously as noted by the father in 2010 and the investigator's report, counselling may be of assistance to repair the problems that have developed between the father and the son. In any counselling, the father will need to be mindful that the counsellor is the one who determines how that counselling is to proceed. He must understand that it is a process which may have the counsellor seeing the child and the parent separately before they are together. The father's attitude must not be impatient, frustrated or controlling for the intervention to be successful.

[70] The mother needs to recognize that she must take a more active role regarding the encouragement of AES to see his father and have a relationship with him. This includes the expectation that he will participate in counselling to help the two of them understand and be more responsive to each other so that she is not faced with this issue again.

[71] AES has expressed frustration that his father blames his mother for the breakdown in access. He has a role to play in changing that perception by participating both in counselling and access. He needs to take responsibility under this order to ensure that the access happens, hopefully with a renewed enthusiasm on his part.

[72] The father must take every opportunity to make it clear to AES that he loves him just as he is and show that love by developing a relationship based on mutual respect and non-critical two-way communication.

[73] In his submissions, the father acknowledged reluctantly that he cannot expect the court to order the child to attend access as before with the child attending at his home in London as per that court order. However, he wants the court to make an order for counselling and access in such a way to ensure that it happens.

[74] The mother wants the matter to end: she wants a court order that allows the child to decide. She does not want an order that will form the basis for the father to bring yet another contempt motion. The mother's concern about being subject to further contempt proceedings is premised on the fact that she has no control over the child and that he is unresponsive to her direction, something not borne out by the evidence before the court. The mother's erroneous position for three years that the child should be able to choose has contributed to the problem facing the court; this position must change.

[75] Counsel for the child has underlined that it is not in the child's best interest to have the arrangement of access left up to the unfettered discretion of the child. That position is supported by the evidence of the clinical assist prepared by Mr. To. The OCL asked the court to provide a "road map" for the family regarding access and counselling.

[76] The child has a lot to lose if this order does not result in a renewed effort on the part of all those involved to make access work. He will not have a relationship with his father or his paternal side of the family including his grandparents. He will not have the opportunity to experience the different activities and adventures that might be available to him with his father. To suggest that telephone access is enough for a relationship is not in the child's best interests. There needs to be an effort to make it more. It is up to the adults to make this happen.

[77] The father needs to recognize the mistakes that he has made and acknowledge the positive efforts made at times by the mother to make access happen. He needs to embrace the fact that his son is an individual perhaps with different interests than himself. The father must inform himself about age-appropriate activities. It may make sense that a child of fourteen may now be more focussed on getting a licence that riding a bike. He may now be at the age where operating a snowmobile would be of interest to him. He needs to work this out with his son. Further, the father must not be dismissive of his son's views and preferences when it comes to scheduling access and activities.

[78] The mother needs to accept the importance to the child of renewing the child's connection with the paternal side of the father and help make that happen. She must ensure that she does not advertently or inadvertently tighten the ties between her and the child in a manner that makes it more difficult for the child to step out of her sphere of influence and grow in a relationship that includes his father.

ORDER

[79] The order of this court dated June 8, 2001 is amended as follows:

1) The access contained in paragraph 2 of that order is deleted.

2) The father is to have access as follows:

a) Once every month to be scheduled between the father and the child for a period of at minimum of four hours;

b) Father's Day;

c) Christmas Day in odd-numbered years and New Years Day in even-numbered years;

d) Thanksgiving Day in even-numbered years;

e) Easter Day in odd-numbered years; and

f) Such other access as agreed by the parents and the child.

3) The child shall provide to the father the date proposed for the monthly access as well as an alternate date by the first of each month. Should the father be unavailable for both dates proposed due to employment or a commitment that cannot be changed, then he shall provide at least two alternatives dates and the child shall pick at least one for the access.

4) Should the child not provide the dates proposed for the monthly access, then the father shall propose two dates and the child shall pick one and notify the father.

5) Should there be no agreement as above, then the father shall have access the last Saturday of the month from 11 am to 3 pm.

6) The arrangement of the access dates and times as well as pick-up/return details shall be made between the father and the child and confirmed in writing through email.

7) The father shall set up counselling for himself, the child and the two of them where appropriate to work on the issues of their relationship. The father shall organize the counselling at his expense or through any program available to him through his work. He shall confirm the details with the child and the mother. The mother shall assist in ensuring that the child attends for counselling that is arranged.

8) The mother and the father are to notify each other in writing 60 days prior to any change of residence.

9) The child's residence is not to be moved from the Regional Municipality of Waterloo without written consent of the father or further order of the court.

10) Both parents are to ensure that the child is not exposed to any negative remarks regarding the other or the other's family.

Released: January 9, 2013

Signed: Justice P.A. Hardman