Court File and Parties

Ontario Court of Justice

Court File No.: Sault Ste. Marie 94/09

Date: 2015-04-01

Between:

Christina Olsen Applicant

— And —

Vincent Schiele Respondent

Before: Justice R. Kwolek

Heard on: March 19, 2015

Reasons for Judgment released on: April 1, 2015

Representation:

• Christina Olsen — on her own behalf
• Vincent Schiele — on his own behalf

KWOLEK J.:

Order Requested

[1] The respondent father in this case is seeking leave from the court to bring a motion to vary the order of Justice M. Dunn dated March 7, 2013. The order of Justice Dunn was made during the course of a settlement conference. One can only assume that such order was made on consent of the parties although the respondent father apparently denies that he consented to such an order.

[2] That order of Justice Dunn dated March 7, 2013 adjourned the issue of child support to May 28, 2013. At that time there was some issue with the respondent father attending court. He did not attend court on that date due to some apparent issues with the security officers at the entrance to the courthouse. In his absence, Justice Dunn made the following order without representations from the father:

"The respondent shall not be allowed to bring any further motion with respect to custody and access without leave of the court.

The respondent shall not bring any further motion with respect to child support until arrears of child support, which are at present $7361, are paid in full."

[3] The respondent father brought a motion to set aside the order of Justice Dunn dated May 28, 2013. That motion was dismissed by Justice Gregson on June 19, 2013. A notice of appeal was brought in the Superior Court on June 23, 2013 seeking to set aside that order. Apparently that appeal was unsuccessful.

[4] The respondent father therefore seeks relief from this court to grant him leave to allow him to bring a further motion to change Justice Dunn's order dated March 7, 2013 seeking additional access to their child Micheala Jane Schiele born February 12, 2008. That child is now seven years of age.

History of Court Involvement

[5] The parties separated in 2009 after an alleged physical incident involving the mother and father. Subsequent to separation, the father was charged with various criminal offenses, spent time in custody and pled guilty to a charge of breach of recognizance with the balance of charges being otherwise withdrawn or dismissed.

[6] Initially there were some restrictions on the ability of the father to communicate with the mother as a result of criminal release documents. The father's access to their child Micheala was initially supervised at the supervised access facility as set out in the order of Justice Renaud dated July 22, 2009. A final order of custody was granted to the mother in the order of Justice Kukurin dated December 14, 2009 with the father once again being granted supervised access at the supervised access facility. Other orders were made relating to child support payable by the father to the mother.

[7] The father commenced a motion to change on August 8, 2011. At that time he sought alternate weekend access and special holiday access as well as daily telephone and electronic access. In addition, he sought to terminate all child support payable by him claiming a lack of income. He had been previously ordered to pay child support in the amount of $199 per month. Although the father had counsel in the earlier proceedings, he now represented himself in the motion to change. In her response to the father's motion to change, the mother sought a dismissal of the father's motion alleging that there had been no material change which would warrant any change to the existing orders.

[8] A settlement conference was commenced before Justice Buttazzoni on January 20, 2012. At that time the judge's endorsement, in part reads as follows:

"Respondent/Applicant both agree to call SAF [Supervised Access Facility] … moving towards increased access at SAF before next settlement conference. Then at next settlement conference move hopefully to access at Respondent's sister's house and then ultimately unsupervised."

[9] The continuation of the settlement conference occurred before Justice Buttazzoni on February 28, 2012. At that time an order was made on consent which granted access as follows:

a) For a period of six visits, commencing on March 3, 2012, on alternate Saturdays from 10:00 a.m. to 4:00 p.m.;

b) Thereafter for a period of four visits on alternate Saturdays and Sundays from 10:00 a.m. to 4:00 p.m., to be reviewed thereafter at a further settlement conference on July 20, 2012.

c) The father's access was to be exercised at the home of his sister Sonja Plastino with exchange of the child to occur at the Supervised Access Facility.

[10] Two further orders were made on consent on May 16, 2012 by Justice Villeneuve:

1. The first order granted the father access to third parties involved with the child Michaela, including doctors, teachers et cetera.

2. The second order granted the father two additional periods of daytime access from 10:00 a.m. to 4:00 p.m. during the paternal grandmother's visit from Germany.

[11] A settlement conference continuation was held before Justice Buttazzoni on July 20, 2012. At that time the father was granted telephone access every Monday, Wednesday and Friday at 7:00 p.m. The hours of the access were increased slightly, subject to the availability of the Supervised Access Facility to accommodate the exchanges. The access was still to occur at the home of his sister Sonja Plastino unless:

"The Respondent has given the Applicant 24 hours notice of his intention to exercise the access at an alternate location and the Applicant consents to such a change of location. The Applicant's consent shall not be unreasonably withheld."

[12] In addition, on that date an order was made by Justice Buttazzoni appointing the Office of the Children's Lawyer in the usual form. At the end of the standard order there is room for the judge to make additional comments. Justice Buttazzoni made the following comments in that order:

"This case would greatly benefit from OCL intervention. The case involves access issues regarding a 4 year old girl. Both parties are alleging parental alienation. It is very difficult to assess what the child's wishes are with respect to access. The parents disagree on virtually every issue. The input from an independent third party would be of tremendous assistance and would likely go a long way to avoiding a lengthy trial."

[13] In advance of the preparation of the OCL report the father brought motions at tabs 25 and 27 of Volume 3 in August and September of 2012, seeking additional access including overnight access. The motions were argued before Justice Gregson on December 18, 2012. The OCL report had been filed with the court on December 12, 2012.

[14] On December 18, 2012, Justice Gregson ordered some additional daytime access from 12:00 - 7:00 p.m. on December 25, 28; January 1, 2; Family Day in February; March 12, 13 (part of March break); Easter Sunday; Father's Day. The father was for the first time permitted to exercise his access at his own residence and was also permitted to attend school property to attend activities there.

[15] Justice Gregson's endorsement read in part:

"This is a highly acrimonious matter and the parties are polarized in their position. The father claims parental alienation on behalf of the mother. The child is exhibiting concerning and alarming behaviours with both parents."

[16] The clinical investigator from the Office of the Children's Lawyer made the following recommendations:

1. The mother to have sole custody of the child. Joint custody was not recommended as parties do not get along.

2. The father's access was to remain as daytime access until three conditions were completed:

(a) the father was to stop posting on any blog or social media anything relating to this case;

(b) the father was to seek counseling services to assist him with moving forward and dealing with his past;

(c) the father was to participate in a parenting program.

[17] When those three conditions were met the father's access was to increase to one overnight and ultimately two overnight visits every other weekend. There was to be additional access during the summer and Christmas holiday.

[18] The OCL social worker also recommended that the mother seek counselling to assist her anxiety that she feels related to an increase in access. In addition, the mother was to make a referral for the child to see a counsellor to assist with the child's behaviors and make any further referrals or additional assessments.

[19] A settlement conference was held before Justice Dunn on January 30, 2013 and an order was made on that date granting the father additional access on every Wednesday evening with a suggestion that if the father enrolled in a parenting class; indicated willingness to disengage from his website; and took other counselling as suggested, overnight access may then be agreed upon.

[20] A further settlement conference was held before Justice Dunn on March 7, 2013. The order of Justice Dunn dated March 7, 2013, ostensibly made on consent, essentially implemented the recommendations of the Office of the Children's Lawyer for access without including the preconditions to the expansion of overnight access.

[21] Although the order of Justice Dunn appeared final on its face, she adjourned the child support paragraphs in that order to May 28, 2013 for review "once confirmation of the respondent's financial income for 2012 and 2013 is available."

[22] On May 28, 2013 counsel for the applicant was present and the respondent was not. Justice Dunn's endorsement in part reads as follows:

"Respondent is self-represented and is apparently refusing to enter the building as he will not go through the security checkpoint.

A final order was made on last date and this date was set only to review the child support amount. The respondent was to provide financial disclosure so that the court could assist [the] parties in ensuring that the accurate amount was ordered. Having not attended nor provided the financial disclosure the Respondent has made it that the court cannot provide that assistance. As a final order has been made this matter is now complete."

[23] The court also made an order restricting the father's ability to bring any motion with respect to custody and access and any further motion dealing with child support. He could not commence a custody/access order without leave of the court. He could not commence a motion dealing with child support without the arrears of child support being paid in full.

[24] There were no written Reasons provided in the endorsement record explaining the reason for restricting the respondent father's ability to commence a motion to change other than Justice Dunn's rather cryptic preamble that reads as follows: "given the history of this file".

[25] The respondent father then brought a notice of motion returnable on June 19, 2013 seeking to have Justice Dunn's order of May 28, 2013 "changed, withdrawn, or ordered invalid" and to schedule a settlement conference on the basis of "fraud, mistake, lack of notice".

[26] Justice Gregson heard the matter on June 19, 2013 and directed the father that he had to bring a motion to seek leave or pay the arrears in accordance with the order and dismissed the father's motion.

[27] The father then brought a notice of appeal of Justice Dunn's decision dated May 28, 2013 which he filed in this court at tab 10 of Volume 4 of the continuing record. There is nothing in the material filed to indicate that he was successful in his appeal, and given his new motion seeking leave pursuant to the order of Justice Dunn I must assume that the appeal was either dismissed or withdrawn.

[28] The respondent father is seeking leave to commence a motion to change to seek increased access to the child. The granting of leave is normally subject to judicial discretion.

[29] The continuing record in this case is four volumes thick. I will review the material filed to see if I should exercise my judicial discretion to grant the father leave to bring a motion to vary his custody and access provisions. In addition, I will seek to determine whether or not it appears that the moving party has shown prima facie that a material change in circumstances has occurred. If the material does not show any material change in circumstances that would be an important factor that I would consider in deciding whether or not to grant leave.

[30] In order to succeed on a motion to change, normally a two-step process occurs. The first step is to determine whether or not a material change in circumstances has occurred. If a material change in circumstances has occurred then the court would proceed to the second step to determine what the appropriate order or change should be. If a material change in circumstances is not proven, then the motion to change must be dismissed.

[31] Should the father be provided with an opportunity to return to court to seek an increase in his access at this time?

[32] The father alleges in his affidavit material that there is parental alienation of the child by the mother. He also alleges that during the mother's work schedule she uses caregivers other than himself. He indicates that he has made many requests for access in addition to what was specified in his court order, which does admittedly include the term: "such further and other access as agreed upon between the applicant and the respondent". He advises that these requests for additional and increased access have been denied. He also alleges that the child has told him that his mother hates him and the mother has made other negative remarks to the child (Volume 4, tab 13, paragraph 7).

[33] Further allegations of a material change in circumstances are set out in paragraph 14(b) of the affidavit of the respondent dated December 29, 2014 found at tab 13 volume 4. The father also alleges in his affidavit dated December 1, 2014, found at tab 11, volume 4, paragraph 15 that the child is cold and distant to him for the first 12 to 24 hours of his access and begins to engage with him and show signs of affection after that time period. He attributes that behaviour to the mother's efforts to alienate the child against him. The father also indicates that the child often requests to stay longer with him at the end of the visit. The applicant also alleges that the child has not been brought to a counsellor as recommended by the Office of the Children's Lawyer. The father would like the child to spend 50 percent of her time with him.

[34] With respect to those allegations, the mother alleges that she has granted some additional time for access to the father although she admits that she has not permitted additional overnight access; that the father is often late in returning the child at the end of access. She denies making negative remarks about the father to the child. The mother indicates that the child's behavior in her household is satisfactory. She has indicated that the child has been put on a waiting list for counseling but given her perceived low needs at this time has not yet seen a counsellor.

[35] On reading the report of the Office of the Children's Lawyer I note that in 2012, the father sought 50 percent of the time with the child. He expressed that during his time with the child she expressed hateful things to him such as "I wish you were dead" and would not let him touch her or speak to her. He also advised at that time the child was being cared for by the grandmother and mother's friend more than she was at home with the mother. He also stated that the child would not speak to him on the phone for more than a few seconds.

[36] The father acknowledged during his submissions that the child's behavior during visits at his home has abated somewhat and has improved. The child does not have as serious temper tantrums as previously demonstrated. It appears the child requires some time to warm up to the father after the commencement of the visits. Hopefully, the father is not unduly questioning the child about what is happening in the mother's household. This form of questioning, as observed by the OCL investigator, clearly made the child uncomfortable. The mother advises that there are currently no significant behavioral problems for the child in her household.

[37] Both parents describe this child as intelligent and outgoing. The mother filed the child's report card for November 2014 which is marked as Exhibit "A" to her affidavit found at tab 12. The progress report card shows that the child has excellent learning skills and work habits and the teacher, in that report, is very positive in his/her assessment of the child.

[38] The evidence would support that the child is thriving under the current custodial and access scheme. Both parties seem to acknowledge that their communication had improved somewhat since the making of the custodial and access order in 2013. Both also acknowledge that their ability to communicate with one another has significantly deteriorated since the respondent commenced this application seeking leave to bring a motion to change. Since December 1, 2014, the father has filed affidavits at tabs 11, 13 and 15. The mother has filed responding affidavits at tabs 12 and 14 and sought to file a further responding affidavit at court on March 19. I refused to allow the filing of her latest affidavit. This motion is not an actual contestation as to what changes should occur in access but whether or not the father should be granted leave at this time to commence a motion to change.

[39] I take it as a given that both of these parents love their daughter very much. Both parents want to spend as much time as possible with their child. The mother has to appreciate that the father's wish to spend more time with their daughter is not an unreasonable request and comes from a sincere desire to do what he perceives is best for this child and is fair to him as a parent. Bringing this motion is not, on its face, frivolous or vexatious.

[40] However, I am not satisfied that the father has demonstrated that there has been a material change in circumstances which would result in a change to the existing court order in the best interests of this child.

[41] In summary the following are my reasons for denying leave:

1. The child appears to be thriving in the current arrangement and her behaviour has improved over what it was when the order was made in March 2013;

2. The father's allegations of parental alienation are nothing new. If anything the father's actions appear to be doing more to alienate his relationship with the child than the actions of the mother.

3. The father's concern that the mother is using other caregivers is not a new complaint but a complaint that he voiced to the OCL clinical investigator.

4. The mother not agreeing to the father's requests for additional access would not be a basis for a change in circumstances where the mother is complying with the terms of the existing order and the father is reportedly regularly late in returning the child at the end of access.

5. The father's negative remarks and attitude directed to the mother continues to create a roadblock towards establishing a positive relationship in the future whereby the parents can work together in the best interests of the child.

6. The commencement of this process seeking leave has further damaged the relationship between the parents and focused them on seeking fault with the other parent rather than focusing on what is best for their child.

7. All of the above factors and evidence filed does not demonstrate any material change in circumstances which would result in a prima facie successful motion by the father to change the existing order.

[42] Therefore, this court will exercise its discretion and not grant the father leave, at this time, to bring a motion to change the order for access. I am satisfied that allowing the father to bring the motion at this time is not in the best interests of the child, and, in fact, would be contrary to the best interests of the child by further embroiling the child and the parents in contested court proceedings.

[43] I feel however, that I should make some comments with respect to evidence and statements that cause me some concern. The father complains that when he was more than 15 or 20 minutes late that the mother made a scene in front of the child and stated that she would call the police. The mother indicates that the father is regularly late in returning the child for access and on the one occasion, the father returned the child one hour late. The mother indicates she brought the child inside the home and then spoke to the father about her concerns regarding the lateness of the return of the child. Parents should be very careful when discussing issues relating to the child, ensuring the child is not present and won't overhear their discussions relating to these adult issues. This discussion should have occurred on a later date when the child was in school or elsewhere and would clearly not be present or potentially able to view or hear the dispute between the parents.

[44] I am also concerned the father is returning the child late, allegedly on a regular basis, later than scheduled or as set out in the court order without the mother's consent. The mother was described by the Office of the Children's Lawyer as being "overprotective". The father must appreciate the mother's sensibilities and realize that bringing the child back late causes stress for the mother. In addition, although the father also recognizes that the child is upset if he is returning her late, he does not return her on time knowing the discomfort this causes for the child. The father blames the child's discomfort on the mother. Does the father not have the insight to realize that if he returns the child late from access on a regular basis this may potentially undermine his relationship and trust with the mother and create additional stress for the child? Does the father not realize that placing a six or seven year old on the phone to request from the mother that access be extended is also not appropriate and places further stress on the child?

[45] In addition, the father has admitted to recording every telephone conversation he has with the child and records access. I questioned the father as to whether or not anyone expressed concern to him about his recording of all the conversations he has with the child on the telephone. The court looks very negatively on such recording of conversations with the child and actively discourages such activity. Such recording tends to embroil the child further in the course of the proceedings and is not seen as a healthy practice. The father's response was that he was recording these conversations in order to protect himself. I do not accept that recording of such conversations is necessary for his protection. At the same time, I note that the mother responds to the father's complaints about phone calls in paragraph 7 of his affidavit dated December 1, 2014, by responding in her affidavit dated December 5, 2015 at tab 12: "from a very young age, Michaela has placed all calls on speakerphone as a safety measure." I see no basis at this time for the necessity of Michaela to place her telephone conversations with her father on speakerphone and both the recording of those telephone calls by the father and the monitoring by the mother should be discontinued at this time.

[46] In addition, I am concerned about the allegations made by the mother at paragraph 8 tab 12 of her affidavit which indicates that the father has denied the mother telephone access while the child is in her care in contravention of the existing court order. The order should be complied with by the parties.

[47] The court is concerned with the father continuing to post personal and private information relating to the court proceedings on his website. The father knew that this was a concern of the Office of the Children's Lawyer. In fact, the clinical investigator of the Office of the Children's Lawyer suggested that there be a condition that the father stop posting on any type of blog social media anything related to this case or the mother or his daughter as a precondition to being granted overnight access. It appears that the father has continued to place material related to the court proceedings on his website which illustrates his lack of insight as to how this behavior may negatively impact on his relationship with the mother and ultimately with this child.

[48] I am concerned about the father's repeated comments about the mother that "she is a liar". Those comments appeared at tab 13 paragraphs 8 and 9. The father repeated these comments in his submissions and it is clear that at some point he advised the child that her mother was a liar. Such comments to the child once again place the child in a difficult position and potentially alienate the father from the child. The father does not have the insight to recognize that such negative comments about the mother place undue stress on the child and may hurt his relationship with his daughter. How can he expect the mother to work with him and use her discretion to grant him additional access if he continues to use inflammatory language and make negative comments about the mother?

[49] The attached exhibit "A" to the affidavit of the mother at tab 14 also causes the court great concern. The father wrote in the child's Journal, which is exchanged between teacher and the parent and is kept in the possession of the child the following: "alienating the child is child abuse please stop hurting the child with your narcissistic need to get back at the father through your child." It is ironic that the father alleges the mother is alienating the child against him, while the father lacks the insight to realize that writing these comments in the Journal will seriously damage and potentially further alienate his relationship with his daughter. The father blames the mother for alienating and affecting his relationship with their daughter when many of his actions cannot help but damage his relationship with Michaela.

[50] This court is very sensitive to access to justice issues and restricting a parent's ability to "have their day in court". However, proceeding to court at this time is clearly not in the best interests of the child, the father and the mother.

[51] A judge of this court, Justice Harvey Brownstone has published a book entitled: "Tug of War", which describes the reality of Family Court. I recommend that the parties read the book if they have not already done so. At page 12 of the book, under the subheading: "What's wrong with going to court" Justice Brownstone states:

"Why is litigation such a damaging and destructive way to resolve parental disputes? The answer is simple: the court system is based on an adversarial process in which "winning" is the object of the exercise. Parents who should be on the same team for their children's sake become hostile adversaries in the courtroom. They focus all of their attention and efforts on emphasizing each other's shortcomings and failings over the life of the relationship. …a lawsuit is a most unpleasant and highly competitive way to resolve a dispute. If the parties to a lawsuit have to keep dealing with each other for many more years, as is the case with parents, the effects of the litigation on their ability to do so amicably can be tragic and longlasting."

[52] I hope that the parents may still, after years of acrimonious disputes in the courts, both come to the realization that working together in the best interests of their child, is the best solution. This child was born to the mother who was not supposed to be able to have a child. The child is described in glowing terms by both parents. I hope that it is not too late for these parents to set aside their differences and their animosity for one another for their own sake and the sake of this child.

[53] The parties may speak to me on April 1, 2015 as to whether or not they wish to address the issue of costs of this motion. The motion at tab 10, volume 4 is otherwise dismissed.

Released: April 1, 2015

Justice R. Kwolek, Ontario Court of Justice