Court File and Parties

Court File No.: D71110/14 Date: May 11, 2015

Ontario Court of Justice

Re: Nadine Ayanna McKoy – Applicant And: Wayne George McKoy – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Brian Hall - for the Applicant
• Pauline Malcom - for the Respondent

Heard On: April 9, 2015

Decision on Temporary Motion

Introduction

[1] This is a motion by the Respondent Wayne McKoy ("the father") for expanded access to the children Amaya Marley McKoy ("Amaya"), born October 31, 2009, and Taj Marshall McKoy ("Taj"), born August 18, 2012, to include overnight access.

[2] The Applicant Nadine McKoy ("the mother") opposes the motion and seeks an order that the current access continues.

[3] The mother also seeks an order that she be permitted to change the current counsellor.

Background

[4] The parties were married on July 31, 2009, and separated on March 20, 2014.

[5] The parties are the biological parents of the children Amaya and Taj.

[6] Amaya has Russell Silver syndrome. The main feature of this genetic condition is short stature and a petite body. Sometimes low blood sugar, digestive issues and low muscle tone can also be features. Children with Russell Silver syndrome are at significant risk for motor and cognitive delays and learning disabilities. Speech delay is also common and about half of children with Russell Silver syndrome require speech therapy.

[7] Taj has no medical conditions.

[8] After the separation, the mother moved with the children to a new home in Scarborough.

[9] The father resides with his new partner, their son, and her son from a previous relationship, in Markham.

[10] The mother is employed as an elementary school teacher.

[11] The father is employed as a correctional officer in an adult correctional facility and prior to this was employed as a youth service officer in a youth detention facility. He has no criminal record.

[12] The father's partner is employed as a sales director. She has no criminal record, no mental or physical health issues.

[13] The father is current with his child support payments of $1,644.00 per month. There is no history of any violence or abuse in the marriage.

[14] The parties agree that they are both good parents, but there is a dispute as to their respective roles during the marriage.

[15] At the case conference before me, on December 4, 2014, the parties entered into a temporary without prejudice consent that formalized the access provisions that have been in place since the separation. The father's access schedule is on alternate weekend day visits on Saturdays and Sundays from 10:00 a.m. to 4:00 p.m. and every Wednesday from 3:45 p.m. to 5:25 p.m.

[16] The parties also agreed to mutually choose a counsellor for the children and if they were not able to agree, a Form 14B was to be submitted to the court. Any cost after the use of the parties' benefit was to be paid proportionally. The parties also entered into a consent child support order.

[17] On March 2, 2015, the parties attended another case conference before me and entered into a further consent that provided that, as the father was on paternity leave until July 2015, the mother was to notify him of all medical and dental appointments so that he could attend. The mother was also to advise the father of any new professionals involved with the children and sign any necessary releases so he could obtain information and speak directly to the children's service providers. It was agreed that the mother could enroll the children in spring and summer swimming and T-ball, and enroll Amaya in three separate one-week summer day camp programs and continue her ballet classes for spring 2015.

[18] As the mother was not prepared to increase the father's access, a date was set for a contested motion.

[19] Counsel for the mother was requested by the court to obtain an updated report regarding Amaya's medical condition. That report dated April 8, 2015, was filed on consent on this motion.

[20] At the conclusion of the case conference, father's counsel orally brought a motion that I recuse myself from hearing as I had made recommendations on the issues of access. I indicated that counsel could bring a formal motion if she wished to pursue the issue. However, I reminded counsel that I had been clear with the parties that any decision on the motion would be based on the motion materials and that the court's views about access could change based on the evidence presented on the motion.

[21] I am bolstered in the view that the case management judge can adjudicate temporary motions by the recent statement by the Ontario Court of Appeal in the case of Gallicano v. Faber supporting active case management and permitting judges to seize themselves of cases. As stated by the court at paragraph 15:

It [active case management] permits reasonably quick access to justice before a judge who is familiar with the facts and with the parties. It is proportionate within the meaning of r. 2(3) [Family Law Rules] since the frequent resort to the court in high conflict cases would otherwise rapidly consume too many judicial resources judge after judge is forced to learn the details of an ever-burgeoning file.

[22] The father relies on his Notice of Motion and affidavits sworn February 11; his reply affidavit sworn March 2, 2015; a supplementary affidavit sworn April 6, 2015; affidavits of his friend Andrea Cain, sworn April 6, 2015 and the affidavit of Kimberley Charles, sworn April 6, 2015. Ms. Charles is the mother of the father's son Tareq Charles-McKoy.

[23] The mother relies on her responding affidavits sworn February 24, and April 2, 2015, and affidavits of several of her friends Colleen Reid, sworn March 26, 2015; Janna Solomon sworn April 1, 2015, and Eliza Gibson sworn April 6, 2015. An affidavit of counsel's assistant attaching several medical reports is also filed.

Medical and Professional Evidence Regarding Amaya

[24] The mother relied on several reports. The report of Dr. Castagna, who is a pediatric neurologist, dated March 25, 2013, states that Amaya was at risk of a learning disability and needed to be monitored as she entered school and may require a psycho-educational assessment.

[25] Dr. Velsher is a genetic pediatrician. In her report dated September 23, 2013, she noted that children with Russell Silver syndrome can be "infantilized" by their teachers and peers, with lower expectations placed on them because of their petite size and that this may result in lower scholastic achievement. She suggested that as children with this syndrome are at risk of developing cognitive issues, a psycho-educational assessment be arranged and evaluation regarding the need for an individual educational plan.

[26] Dr. Velsher sees Amaya annually to assess how she is doing and to provide updating information. Her updated report of April 8, 2015 was filed on this motion. Her report states as follows:

Amaya is doing well. She is small, but near the low normal range for her age. She was on Periactin to increase her appetite, but no longer needs this medication. She is on no other medications when I saw her in my clinic at North York General Hospital on Nov. 13, 2014.

Amaya had a developmental assessment in February 2013, and was found to have low average language comprehension. Her attention span was short and she was easily distracted. She was also noted to have mild difficulty with motor planning for new skills. She was noted to be at risk for learning disability, with low scores in visual spatial skills and working memory.

Amaya will benefit from ongoing assessments through school, and an individualized education plan, as required. She will also benefit from having clear and consistent routines at home and in school.

[27] In October 2014, the mother noticed that Amaya would "zone out" periodically. The frequency of these episodes increased and these episodes were also noted by Amaya's occupational therapist and teacher. She was referred to Dr. Pamela Cooper who is a pediatric neurologist. In Dr. Cooper's report of February 5, 2015, she diagnosed Amaya with "absence seizures," and placed her on anti-seizure medication. Her report also states that Amaya can go back to her regular activities, but should not be left alone in the bathtub. Dr. Cooper will continue to follow Amaya on a regular basis. Based on the history provided by the mother, Dr. Cooper states the mother noted no other concerns other than some intermittent bedwetting that the mother attributed to the stress of the separation and difficulty of the transition from the two homes. It was noted that Amaya is meeting her developmental milestones and although she was one of the youngest children in her senior kindergarten class, she was managing to keep up and no special educational plan was in place. An occupational therapist was monitoring Amaya due to concerns about her fine and gross motor skills.

[28] A report of Dr. Margaret Gan-Gaisano dated March 31, 2015, was also filed. Dr. Gan-Gaisano is a pediatrician who has followed Amaya since she was 15 months old for failure to thrive and short stature. She confirms that Amaya receives an injection of a growth hormone six times a week as it has been proved to help with improving her height. She will require this treatment until she is 14-15 years old and will be monitored every three months. Blood work and bone age x-rays are done every six months. Her weight gain continues to be slow and it was recommended that high energy dense food be offered to her.

[29] The final paragraph of Dr. Gan-Gaisano's report states:

Amaya will continue to have challenges in her growth and need close supervision and treatment. As with all children, a routine schedule with appropriate guidance and care will support a healthy environment for them to thrive well.

[30] Despite the consent signed by parties in court on March 2, 2015, that the mother would provide releases to permit the father to contact Amaya's treatment providers, the signed releases were not provided until April 2, 2015. The father spoke to Dr. Gan-Gaisano on April 6, 2015, who confirmed that her report of June 25, 2014, that stated that it was important for Amaya to follow a routine so as not to interrupt her treatment, was not meant to indicate that Amaya was not to have overnight access. Dr. Gan-Gaisano added a handwritten note to her report of March 31, 2015, that reads:

To clarify my statements regarding a routine schedule for a child care this does not exclude father's visit and involvement.

[31] The father deposes that despite that late receipt of the consent, he also managed to speak to the nurse in Dr. Cooper's office who confirmed that Amaya's medication was controlling the seizures and that no special skills were required to administer the medications. The diagnosis or medication was not a reason for Amaya not to have overnight access.

[32] The father also deposes that he spoke to the occupational therapist that there was no indication that Amaya could not have overnight access as a result of the therapy she was receiving.

[33] The mother filed a letter from Amaya's senior kindergarten teacher dated September 29, 2014, stating that she has noticed that there had been a significant change in Amaya's demeanor particularly when she arrives at school in the mornings; she is much more subdued and sad at times. The father raises issues with respect to this letter based on a discussion his counsel had with the teacher who confirmed that she never advised the parents of her concerns, never advised the principal or recommended any counselling. The teacher also confirmed that she had written the letter as the mother came to discuss changes in Amaya's life and requested she write the letter and that she had no idea the letter was to be used for court.

[34] The father filed Amaya's junior kindergarten report and her most recent senior kindergarten report. No concerns are noted on either of those reports.

Evidence Relied Upon by Father

[35] The father bases his request for expanded access on the following facts:

a) During the relationship, he was actively involved in the lives of the children; the supporting affidavits support this;

b) During the relationship, he would drop off and/or pick up Amaya from daycare; cared for Taj when the babysitter/nanny was not available; took the children to their doctor/pediatrician appointments and Amaya to her extracurricular activities;

c) He is aware of all of the issues that affect the children's lives; his inability to attend professional appointments is a result of the mother's scheduling appointments without his input; if he has a lack of information it is because the mother has delayed in executing a consent for the release of information from third parties to him;

d) Since the separation, the mother has refused to voluntarily increase access and there is no professional evidence to substantiate that normalizing access would not be in the children's best interests;

e) The mother has impinged on even his limited time with the children by registering Amaya in extracurricular activities during his Sunday access without consultation; the consent the parties signed on December 4, 2014, provided that Amaya could continue her ballet classes; the classes had previously been at 10:00 a.m.; the mother, without consulting with the father, registered Amaya in ballet classes about a month later that started at 11:15 a.m. and then refused to negotiate any changes to the father's access times, which the father wished to change from 10:00 a.m. to noon; in view of the logistics of the transportation arrangements father's time with Amaya is reduced by two hours;

f) The mother arranged for Amaya's counselling to take place on Wednesday evenings which was agreed to be father's mid-week access and the mother is also requiring the children's nanny to be present, although this was not a part of the December 4 consent; as father's access is only for 45 minutes and the counselling sessions are for one hour, the father's time with Amaya is spent in transporting her and his time with Taj is spent in the counselor's waiting room;

g) His efforts to have regular telephone access to the children has been restricted and thwarted by the mother;

h) The children have a strong bond with him and enjoy the time they spend with him, his new partner and her children;

i) He has never witnessed any concerning behaviours by the children during their time with him and seem to have adjusted to the separation; and

j) If he had overnight weekend access he could accommodate Amaya's ballet classes, but as the trip would start from his home it would eliminate the amount of time the children spend in the community centre waiting for the class to begin; it would also allow the children an opportunity to enjoy more quality time with him and permit him to more easily plan outings and activities; overnight mid-week access would also allow him to accommodate any counselling appointments and also improve the quality of these visits.

Evidence Relied Upon by the Mother

[36] The mother bases her position not to expand access on the following facts:

a) During the relationship she was the primary parent; this position is supported by the affidavits filed by her friends; the father followed her direction and was a fall back if she was unable to meet the children's needs;

b) The father does not fully appreciate the full extent of Amaya's diagnosis and in particular, that it is not just about her short stature;

c) She is concerned that the father is not able or willing to address concerns with respect to Amaya's gross and fine motor skills and bed-wetting; she is concerned that father will not follow through with the recommendations of the occupational therapist;

d) She is concerned that the father will not be able to deal with Amaya's seizure issues and notes that although this occurred in December 2014, he did not follow through until January 2015;

e) The father does not understand the importance of Amaya having a good, nutritional diet and she has concerns about the children being given Kraft dinner and taken to McDonalds; the father has never given Amaya her hormone injections;

f) The father does not understand the importance of Amaya's ballet classes and the benefit to her and only focuses on the inconvenience to him; the ballet times were not changed by the mother but as a result of Amaya being older and her class being as another time;

g) The mother has only requested the nanny accompany the children on Wednesdays with the father as it is her responsibility to pick up Amaya from school and give them a healthy snack; to help maintain a routine she remains with the children;

h) Taj has serious sleep issues and is waking in the night; the mother has tried to engage the father in discussions about this and the necessity of a nap, but the father will not respond to her and does not ensure that Taj has a nap when he is with him;

i) The father does not respond to her emails and as a result there is a lack of communication between them.

Legal Considerations Regarding Access

[37] Section 24 of the Children's Law Reform Act ("CLRA") sets out that the court must make custody and access orders in the best interests of the children. This applies to both temporary and final orders. The court considered the relevant best interests criteria set out in 24 (2) of the CLRA which reads as follows:

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[38] Children should have maximum contact with both parents if it is consistent with the children's best interests. This principle is applicable in provincial case pursuant to the CLRA even though this concept is not specifically articulated in this legislation.

[39] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction.

Analysis

[40] I have considered and applied these principles on this motion. I have also considered the case law submitted, however as cases with respect to custody and access are fact driven, I do not intend to review the cases, but do note that they support the general principles outlined above.

[41] I have also considered that there is a considerable amount of hearsay in the affidavits especially with respect to the father's discussions with various treatment providers. Hearsay is of course permissible on temporary motions in accordance with Family Law Rules 14 (19). In this case, at least one of the doctors, Dr. Gan-Gaisano, has clarified her position in writing after the discussion with the father. I accept the evidence as deposed by the father as it also appears consistent with the reports filed; none of which opine on the issue of overnight access. The father's affidavit also discloses a telephone discussion between his counsel and Amaya's teacher which calls into question the weight to be put on the letter filed by the mother. I put no weight on the letter as it does not assist the court in the issues to be determined and further, it appears to be contradicted by the school report cards.

[42] It is clear that both parents love and care for the children and that the children love both of their parents.

[43] There is a dispute between the parents regarding the extent of the father's involvement in the lives of the children prior to the separation. Based on the evidence, there is nothing to suggest the father was not actively involved in the children's daily lives and was aware of Amaya's diagnosis and her treatment needs. However, for the purposes of this motion, I do not need to determine the exact extent of his involvement. The role each parent takes when a relationship is intact is a result of a variety of reasons, many of which are practical, especially when both parents work. Such as which parent has a more flexible schedule and can pick up or transport a child or which parent is able to take an extended maternity leave. The roles may change after separation. It is clear that since the separation, the father wishes to be involved in the children's lives. He appreciated the need for a transition period so that the children could adjust to their parents living in different households and that he is now in a new relationship and has another child.

[44] The father at this time is not disputing that the children remain the primary care of the mother, but after over a year since the separation, he is seeking to expand and normalize his access.

[45] I do not accept that there is any evidence to suggest that the mother is attempting to "alienate" the children from the father. I find that constant use by counsel and litigants of allegations of parental alienation does nothing to further the litigation and on the contrary interferes with the parties' ability to discern the problems and find positive solutions without using such labels.

[46] In this case, the mother is obviously concerned about Amaya's condition and sincerely believes that she is the only parent that understands and can manage medical appointments, medications and other treatments. She can be seen as being overly protective and micromanaging and questioning every aspect of the care the father is providing. It is understandable that she would be cautious about any changes in the children's routines.

[47] The mother is concerned about the father's ability to follow the instructions of the doctors regarding giving Amaya her hormone injections, ensuring she takes her medications, is fed nutritional meals and that he follow the suggestions of the occupational therapist regarding exercises at home. Based on the evidence on this motion, there is nothing to suggest that the father is not as capable as the mother of meeting Amaya's needs during his time with the children or that he would not do so. Some of the difficulties in the past have been the father's inability to access all of important information about Amaya's needs and his inability to attend her appointments. However, once the father obtained the proper releases of information, he followed up immediately.

[48] The current access arrangements make it more difficult for the father and the children to enjoy quality time together and make it harder for the father to attempt to follow the children's routines, such as napping or having nutritional meals. The current access arrangements do not allow sufficient contact between the children and the father. Although it is important for Amaya's development to continue with ballet classes and other activities to strengthen her gross and fine motor skills and for her to continue her counselling, the current schedule is hectic for the children and significantly shortens the time the father has with the children.

[49] The mother maintains that the children are having a difficult time with the separation and that it is manifesting itself in behaviour and sleeps difficulties. It is her position that at this time the children are not yet ready for overnight access.

[50] Amaya is doing well in school and is not having any adjustment issues. She has some accommodations as a result of her small stature and is receiving occupational therapy every three weeks. She is able to manage with the regular school curriculum.

[51] None of the reports regarding Amaya indicate that she is having any severe reaction in her bedtime routine except for a reference to occasional bedwetting. Further, Amaya is seeing a counsellor so any difficulties she is having with the separation are being dealt with and as the parents are also meeting with the counsellor any recommendations will be discussed with the parents. There is nothing in any of the reports filed to suggest that there should not be overnights as a result of Amaya's condition or treatments.

[52] With respect to Taj, there are no medical reports to substantiate the mother's evidence that he is having serious issues with his sleep. I find it strange that the mother would not have, at the very least, discussed this issue with his doctor. I find that on the evidence, that is not reason that the father is not as capable as the mother of dealing with any sleep difficulties Taj may have if he spends overnights at his father's home. I would recommend that both parents meet with his doctor to discuss nighttime strategies and a consistent routine at both homes.

[53] I find that the evidence presented supports the father's position that the children, after over a year of day access to their father, are ready for expanded overnight access. In almost all cases children benefit with having a loving relationship with both parents and with a parenting plan that ensures the children spend as much possible time with the non-custodial parent as is consistent with their best interests. The father is more than capable of dealing with any medical or behavioural issues the children have or any issues that may arise in transitioning from day access to overnight access. The mother has not rebutted the presumption that such normal access is not appropriate.

Mother's Motion to Change Amaya's Counsellor

[54] The mother filed a Notice of Motion to cease Amaya's counselling with Stella Kavourkian and involve both children in counselling through Aisling Discoveries Centre. A brochure from Aisling is attached.

[55] Father's counsel submits that the motion is not properly before the court as no affidavit is filed in support of the motion. I also note that the Notice of Motion does not refer to what evidence is being relied upon in support of the motion.

[56] Despite the procedural irregularities, I intend to briefly deal with the motion as both parties have referred to the issue in the affidavits filed and further, it is important for the best interests of the children to clarify this issue.

[57] Subsequent to the court attendance on December 2014, the parties jointly agreed to retain Ms. Kavourkian as a counsellor for Amaya to assist her with dealing with any emotional difficulties as a result of the separation. Ms. Kavourkian has begun to see Amaya once every two weeks and will not provide any reports for court purposes. She is also planning to meet with both parents.

[58] Both parties agree that Ms. Kavourkian told them that Amaya was slow to open up to her, but that was not unusual.

[59] It is the mother's position that the therapist should be changed now because:

a) There is a strong possibility of Amaya having a learning disability and she should not have to miss school to attend appointments;

b) Ms. Kavourkian's office is 30 km away from the school and it takes, in rush hour, 45 minutes not 20 minutes as alleged by the father; Aisling is located close by Amaya's school;

c) The counselling costs $150 per hour, whereas Aisling's is a free service;

d) Taj should be getting counselling as well; he could participate in counselling at Aisling and it also offers family counselling;

e) If the mother is required to take Amaya to counselling it is very disruptive to her work schedule; and

f) Ms. Kavourkian advised the mother that Amaya is a very social child and it would not be a problem to change to a new therapist.

[60] I put no weight on the statement attributed to Ms. Kavourkian as the pivotal issue on the motion is changing therapists, and the father disputes that this would be in Amaya's best interests.

[61] I find no merit in any of the mother's reasons for changing therapists. There is no issue with respect to payment as the father has agreed that after using both parties' extended medical benefits, any extra cost would be shared. The parties retained Ms. Kavourkian and were aware of the distance. There is evidence that she has evening appointments so that Amaya would not have to be removed from school. Taj is not yet three years old and there is no evidence that counselling is needed or warranted. There is no information as to when counselling could even begin at Aisling.

[62] I agree with the father that it is ironic that that the mother has placed so much emphasis on the need for routines and consistency and yet is proposing a change of Amaya's counselling when she has just started to develop a trusting relationship with her therapist and when she will be advising the parents about next steps.

Summary

[63] In summary, the father's motion for increased access will be allowed and the mother's motion to change Amaya's counsellor is dismissed. Various issues such as telephone access and the need for better communication were addressed during the motion and for assistance to the parties, the order will also deal with these issues. Although both parties were prepared to consider using a communication book that passed back and forth between the parties, generally this is not an effective method of communication. Depending on the details the primary parent expects to be included in the communication book, writing in the communication book during the visit can distract from the quality of the visit and the amount of time spent with the children. A much better method would be the use of the Family Wizard, but as this option was not addressed during submissions, I will encourage the parents to investigate this option.

[64] Order as follows:

1. The Respondent shall have access to the children, Amaya Marley McKoy, born October 31, 2009, and Taj Marshall McKoy, born August 18, 2012, on alternate week-ends from Friday after school to Sunday at 4:00 p.m. and every Wednesday from after school to Thursday morning when the father shall return the children to school and/or daycare provider. The access shall follow the current schedule in place and the current pick up and drop off arrangements shall continue;

2. Either the Applicant or the Respondent may designate another person to pick up and/or drop off the children;

3. The Applicant will not enroll the children in any extra-curricular activities except as already agreed pursuant to the court order of March 2, 2015, and any further activities shall be agreed upon in advance and in writing;

4. The Respondent shall ensure the children attend any scheduled extra-curricular activities during his time with the children;

5. The Respondent shall have telephone access to the children on Mondays and Thursdays between 6:30 to 7:00 p.m. for a total of not more than 10 minutes;

6. The Applicant shall have telephone access on Wednesday between 6:30 p.m. to 7:00 p.m. for a total of not more than 10 minutes;

7. Neither party will contact the other parent or the children during their week-end time with the children except for an emergency;

8. Amaya shall continue in counselling with Ms. Kavourkian until the parties mutually agree that such counselling is no longer necessary. The parties will attempt to arrange Amaya's counselling sessions with Ms. Kavourkian after the school day and not during the Respondent's Wednesday access; the parties shall each share transporting Amaya to her counselling sessions namely, each will transport her once every two weeks if sessions continue to be once every two weeks; if the sessions can't be changed from Wednesday evenings, the Respondent will be responsible for all transportation;

9. The parties will discuss with Ms. Kavourkian if counselling for Taj is recommended, and if so, make the necessary arrangements;

10. The parties will investigate the use of Family Wizard as a method of communicating with each other;

11. The children will spend Mother's Day with the Applicant from 10:00 a.m. to 4:00 p.m. and Father's Day with the Respondent from 10:00 a.m. to 4:00 p.m. regardless of the regular schedule;

12. The terms of the temporary orders of December 4, 2014, and March 2, 2015, shall continue except as varied by this Order.

[65] If the parties cannot agree on costs, counsel for the Respondent shall submit brief cost submissions not to exceed three pages with any offer to settle and bill of costs attached within 30 days and the Applicant shall submit brief cost submissions not to exceed three pages with any offer to settle and Bill of Costs attached 30 days thereafter.

Justice Roselyn Zisman

Date: May 11, 2015