Court File and Parties

Ontario Court of Justice

Date: 2016-07-07

Court File No.: Halton 338/13

Between:

Pamela Robyn Lahey Applicant

— And —

Michel Gauthier Respondent

Before: Justice Marvin Kurz

Heard on: June 23, 2016

Reasons for Judgment released on: July 7, 2016

Counsel:

Brenda K. McKnight, for the Applicant
Michel Gauthier, on his own behalf, assisted by duty counsel

KURZ J.:

OVERVIEW

[1] This is a focused hearing to determine the access that the respondent, Michel Gauthier ("Mr. Gauthier" or "the father"), will exercise to the parties' 5 year old child, Charles-Alexandre Phillippe Gauthier ("Alexandre" or "the child").

[2] The father is seeking very broad access rights to the child, including a right of first refusal that I have already denied to him in a previous order. The respondent mother, Robin Lahey ("Ms. Lahey" or "the mother"), accepts the importance of Alexandre's relationship to his father. She is willing to agree to liberal access, but only on very firm and clear terms.

[3] On July 17, 2015, Justice Sheilagh O'Connell struck the pleadings of Mr. Gauthier, other than those related to access. She did so because of his history of litigation misconduct that I describe below.

[4] On March 3, 2016, at an uncontested trial, I granted Ms. Lahey sole custody of Alexandre and the sole right to make decisions regarding him. I also granted her the non-reciprocal right of first refusal to care for Alexandre if Mr. Gauthier is unable to do so for more than a three hour period. I did not grant him the same right if Ms. Lahey is unavailable. The issue of Mr. Gauthier's access was left to be determined at this hearing.

[5] I also found that the father was $16,465.00 in arrears of child support. I based his support obligations on his 2013 annual income of $94,203.76, the best and latest available information as to his current income.

[6] The applicant has filed a detailed affidavit, dated June 8, 2016, for this hearing. She has also filed her request to admit, dated May 18, 2016. Mr. Gauthier filed nothing in advance of the hearing. However I allowed him to file a response to the request to admit and to provide oral evidence at the hearing. Each party was allowed one hour to cross-examine the other. No other witnesses were tendered.

[7] On June 28, 2016 I released an endorsement setting out interim terms for access for the summer of 2016, with reasons and terms for a final order to follow. This endorsement contains those reasons and terms.

Litigation History of this Case

[8] This litigation has had a troubling history of misbehaviour by Mr. Gauthier that included:

(a) His refusal to pay child support, resulting in his imprisonment in enforcement proceedings brought by the Family Responsibility Office ("FRO");

(b) His similar refusal to obey any costs awards. He has failed to pay any of the $9,322.80 in costs awards made against him in this proceeding;

(d) An order that he post security for costs of $40,000.00, which he never obeyed;

(e) A finding that he was in contempt of the order of O'Connell J. of July 28, 2014. She found that he had purged his contempt but that the mother was free to renew her contempt motion if he willfully disobeys a court order again.

[9] In striking the pleadings of Mr. Gauthier, other than those related to access, O'Connell J. made the following findings:

(a) His failure to pay the child support set out in the consent order of January 29, 2014 was "willful and deliberate";

(b) His refusal to honour any of the costs orders made against him "…demonstrated a willful disregard for court orders";

(d) It is in the interests of the child and the parties "...to achieve finality and to limit the protracted, costly and unnecessary litigation in this case";

(e) This is an exceptional case where the father's pleadings, save those regarding access, should be struck.

[10] O'Connell J. also found no evidence that the father's access is being obstructed or denied by the mother. As she stated at par. 65 of her reasons of May 11, 2015:

The applicant has stated and acknowledged that despite the differences between the parties, the respondent is, in many respects, an excellent father and that he has a good and loving relationship with the child. The applicant has demonstrated throughout these proceedings that she recognizes the importance and value of Alexandre's relationship with his father and half-siblings.

Background

[11] The parties engaged in a relatively brief common law relationship, between September 14, 2010 and January 26, 2013. Their relationship produced one child, Alexandre.

[12] The father has two children from a previous marriage to Jennifer Coughlan (formerly Gauthier). They are: Nicolas, nine years old, born on October 20, 2006, and Sophia, eight years old, born on April 24, 2008. The father makes much of the need to have all three of his children together during access visits. He seeks to have his access to Alexandre parallel his access to Nicolas and Sophia. However he has not provided me with a copy of a current order that clearly sets out his access to Nicolas and Sophia.

[13] During this hearing, Mr. Gauthier made reference to a 2010 trial before Justice Bellegham of the Superior Court of Justice. He explained his view of certain events in the context of his proceeding against Ms. Coughlin. He encouraged me to review Bellegham's J.'s order of February 24, 2011. I have done so, as well as Bellegham J.'s reasons, which are relevant to my considerations as well, as I have set out below.

[14] Following a 12 day trial and in a very high conflict case, Bellegham J. gave Ms. Coughlin sole custody of their children. In granting limited access to Mr. Gauthier, Bellegham J. made some very critical findings against Mr. Gauthier. In essence he found that Mr. Gauthier was physically and emotionally abusive towards Ms. Coughlin and unable to subordinate his needs to those of his children. He found that Mr. Gauthier could not jointly parent his children and that his access had to be controlled.

[15] In this proceeding, Paul A. Ricketts, a social worker and experienced custody and access assessor, completed a court ordered custody and access assessment on July 14, 2014. At the time, Alexandre was less than four years old.

[16] Mr. Ricketts found that there were no emotional or psychological reasons to prevent either parent from caring for Alexandre. However the relationship between the parents, particularly since they separated, became "… extremely stressed." They are unable to agree about virtually any parenting issues.

[17] Mr. Ricketts opined that it is necessary for one parent, Ms. Lahey, to make the major decisions affecting the child. She should do so after consulting with Mr Gauthier. Further the parties require a clear parenting structure; a schedule that clearly lays out Alexandre's schedule.

[18] Mr. Ricketts recommended that Ms. Lahey be granted sole custody of Alexandre. He proposed that Mr. Gauthier be granted alternate weekend access from Friday at 1:00 p.m. until Monday at 9:00 a.m., to be extended to 5:00 p.m. on long weekends. Further, he recommended that the father enjoy one mid-week overnight and one further overnight visit on alternate weeks when the father does not have weekend access. Mr. Ricketts recommended that the father equally share the child's holidays and school P.A. days. He suggested that the parties use a parenting coordinator to resolve ongoing disputes.

[19] Justice O'Connell, the case managing judge in this case, followed many of Mr. Rickett's recommendations in a series of interim orders. On May 13, 2014, O'Connell J. granted the father the following access to Alexandre at a time that the child was not yet in school:

(a) alternate weekends from Friday at 1:00 p.m. to Monday at 9:00 a.m., which would be expanded to Monday at 1:00 p.m. on long weekends;

(b) one overnight per week from Tuesday at 4:00 p.m. until the following morning at 9:00 a.m.

[20] On November 21, 2014, O'Connell J. granted the mother temporary sole custody of the child. She made the order so that the mother could make the appropriate decisions affecting the child's health, medical, educational, religious and extracurricular activities, after consultation with the father.

[21] On May 11, 2015, O'Connell J. found that the father "…has failed to abide by the [access] schedule on a regular and consistent basis."

[22] As set out above, I granted the mother final sole custody of Alexandre on March 3, 2016, along with the non-reciprocal right of first refusal if Mr. Gauthier is unavailable to care for the child during any of his access periods.

Positions and Evidence Offered by the Parties

[23] Ms. Lahey wishes the access arrangements ordered by O'Connell J. to continue in a final order. She notes that it will mirror, as much as possible, Mr. Gauthier's access with the two children of his previous relationship, so that all three of his children can spend time together.

[24] The mother agrees that the father have roughly equal holiday access to the child. But she seeks an order that clearly specifies the father's holiday access times so that there is no conflict about them. The parties have had to acrimoniously negotiate holiday access each year. The mother does not wish this to continue. She wishes the father's holiday access, like the rest of his access, to be crystal clear, so that there is no room to argue.

[25] The mother complained about a number of the father's behaviours towards herself and the child. Her counsel's opening statement summarizes her concerns by referring to the father's:

… refusal to adhere to times set out in the current temporary access order, his bullying and intimidating behavior, his constant demands for additional access time, his manipulation of Alexandre, and his harassment and stalking behavior concerning when the Applicant is at work and when Alexandre is not in her direct care.

[26] The mother also protests that the father harasses her with emails in which he deprecates her and demands increased time with the child. She claims that he is constantly browbeating her about his desire for increased access, right of first refusal, and the right to decide on Alexandre's extra-curricular activities. She considers it a form of cyber-stalking.

[27] Ms. Lahey believes that Mr. Gauthier undermines her parenting of Alexandre and seeks to set up alternate parenting structures. For example she believes that he worked on the child to convince him to sign up for lacrosse, an activity she felt to be too dangerous for so young a child. However after he convinced Alexandre, she felt that she had no choice but to acquiesce. She feels that the father is unable to either work with her or to accept her authority as Alexandre's primary parent.

[28] The mother states that Alexandre has said many things to her that indicate that the father is involving him in his conflict with her. Alexandre has told her that she is a "mean mommy" for limiting his time with his father. He has accused her of responsibility for his father being jailed (through enforcement proceedings brought by the Family Responsibility Office, when Mr. Gauthier refused to pay child support). The mother reasons that she does not discuss such matters with Alexandre. She never told him that his father was jailed. Thus the child could only learn this information and be spurred to such a denunciation by his father.

[29] On the other hand, despite her conflict with him, Ms. Lahey does not oppose liberal access to Mr. Gauthier. She states that she encourages access. She has never questioned its utility. She offers what she believes to be the quantum of access that balances Alexandre's needs to continue a close relationship with his father and to maintain stability in his home life. She has even taken the step of working with Ms. Gauthier's ex-wife, Jennifer Coughlan, to align access so that all three children can see their father together.

[30] However the mother believes that it is necessary to have a rigid access schedule for two main reasons. First such a schedule will avoid conflict between the parties, which adversely affects the child. Second it allows the child the emotional stability that comes from clarity about his parenting arrangements. That stability is undermined by the father's tendency to choose when he will see his son, and his propensity to engage in conflict when he fails to get his way.

[31] For his part, Mr. Gauthier believes that Ms. Lahey's plan is overly rigid and controlling. He believes that he should, at the very least, be an equal parent to Alexandre. He claims that he was actually the child's primary caregiver prior to the parties' separation (even though both held full time jobs). He portrays himself as having been "stripped" of his parental rights by Mr. Lahey's machinations and the previous custodial orders of O'Connell J. and myself.

[32] Mr. Gauthier seeks maximum contact with Alexandre. Although I already refused to grant him a right of first refusal, he still challenges that ruling. He feels that the child should be with him any time that he is not in school or with his mother. He feels that the child would benefit from the education and coaching he could offer. That would be far superior to the mere "colouring", which he alleges to be the child's primary activity in after-school daycare.

[33] Mr. Gauthier rejects the notion that his request would be disruptive to the child. He insists that it is always in the child's best interests to be with a parent rather than a daycare provider or another relative. He is critical of Ms. Lahey for placing her needs before those of the child in her campaign to keep him from his father.

[34] Since the child is signed up for lacrosse on Tuesdays, Mr. Gauthier believes that he should prepare the child for his games. He could pick Alexandre up after school, work with him on his French, feed him, and then help prepare him for his game. He could even return the child to school the next day. He points out that Ms. Lahey no longer opposes Alexandre's lacrosse.

[35] The mother would only offer the child an inferior experience. She would keep him in daycare until she picked him up, fed him and then took him to the game (which Mr. Gauthier would attend). Alexandre would not get his father's salutary instruction or preparation.

[36] Mr. Gauthier also seeks the right to care for Alexandre on all school P.A. days. He states that he worked hard to get himself into a position that offers him the flexibility to take the necessary time off of work to do this. He shrugs off the mother's criticism that this flexibility comes at the cost of his support obligations or respect for court orders.

[37] Mr. Gauthier portrays the mother as being disputatious. He tried to settle this case but she was not responsive. He sent her an email offering her three different options to resolve the parenting issue. To him, it is an irrelevant detail that all three alternatives were variations on his insistence on a strict 50/50 parenting arrangement. He blamed the mother for the breakdown in negotiations that he described as a "farce".

[38] Mr. Gauthier stated that he accepts Mr. Ricketts' recommendations. It is the mother, he states, who refuses to follow the assessor's recommendations. But as he had to admit, Mr. Gauthier actually contested Mr. Rickett's recommendations. He was unwilling to accept the assessor's recommendations that Ms. Lahey have sole custody, primary residence and, primary decision making for Alexandre. However Mr. Gauthier did support the access recommended by Mr. Ricketts, which, he stated, echoes his access to his other children. It is somewhat broader than the access he presently experiences.

2010 Proceedings Before Justice Bellegham of the Superior Court of Justice

[39] During the course of his evidence, Mr, Gauthier stressed the need to align his access to Alexandre with his access to Nicolas and Sophia. Yet he failed to provide me with a current access order or agreement. Instead he invited me to review the order of Bellegham J. of the Superior Court of Justice in his proceeding against Ms. Coughlin. He claimed reliance on at least one of the recommendations of custody assessor, Dr. Irwin Butkowski, in that proceeding. I was also provided with a copy of the reasons of Bellegham J., which are reported at [2011] O.J. No. 3764 (S.C.J.).

[40] I have closely reviewed the reasons of Bellegham J. in Mr. Gauthier's proceeding with Ms. Coughlin. I have done so because of the obvious close connection between the two proceedings, one highlighted by both parties to this proceeding. That review has raised disturbing parallels between Mr. Gauthier's treatment of both Ms. Coughlan and Ms. Lahey, and his parenting of each of his first two children and Alexandre.

[41] In essence, everything that Ms. Lahey complains of (and more) in Mr. Gauthier's behaviour to her was previewed in his behaviour towards Ms. Coughlin. Each dispute they have had over parenting has its own antecedent in Mr. Gauthier's parenting of Nicolas and Sophia.

[42] Because, as Lord Byron one wrote, "[t]he best of prophets of the future is the past", it is most instructive to consider Bellegham J.'s thoughtful and considered findings. After a 12 day trial, this very experienced trial judge granted Ms. Gauthier sole custody of Nicolas and Sophie and the sole right to make all important decisions. In doing so, Bellegham J.:

(a) Found that this that was not a case for joint custody, a finding that Mr. Gauthier had conceded.

(b) Adopted the following, very adverse finding made against Mr. Gauthier by the highly respected psychologist and parenting assessor, Dr. Irwin Butkowski:

In this regard, it was the examiner's impression that Michel Gauthier experienced difficulty in separating his own needs from those of the children and in consistently placing the children's needs ahead of his own. ... His apparent anger and resentment toward Jennifer Gauthier, his apparent need for control, and apparent sense of entitlement raise serious concerns about his ability to actively, and without ambivalence, support the children in a relationship with their mother. In this regard, the potential of Michel Gauthier to engage in either conscious or unconscious efforts at alienating the children from their mother in the long term cannot be ruled out.

(c) Refused to grant Mr. Gauthier the mid-week overnight access he sought. In limiting his access, Bellegham J. found that:

Shared parenting is out of the question, and the children require a consistent parenting regime, in order to minimize the stress placed on them by the ongoing parental conflict with which they will have to contend for the foreseeable future.

and that it is:

… probable that Mr. Gauthier, rather than follow the routines set by the children's mother, would likely try to impose his own "parenting regime", to the extent the time with the children allows.

(d) Found that Mr. Gauthier consistently and "intolerably" brought the children back late from his access visits. That consistent and apparently intentional tardiness played an important role in limiting Mr. Gauthier's mid-week access.

(e) Ordered that, if the children are picked up late or returned late, Ms. Coughlan, in her discretion, may reduce his next access period by the same amount of time. Further Ms. Coughlin could even cancel his next visit if he were more than 15 minutes late.

(f) Explained the punitive consequences he was willing to impose on Mr. Gauthier's tardiness as follows:

The lateness issue in this case is simply intolerable. It will become exceedingly important in the years to come, as the children are required to be home doing homework and getting ready for bed, that Mr. Gauthier recognize, and accept, the limitations that are placed on his ability to carry on activities with his children during the mid-week access. … [I]t is in the children's best interests not only that they have some "contact" with their father, but that the contact does not unduly interfere with their regular routines.

(g) Found that Mr. Gauthier's egregious behavior towards his ex-wife made it necessary to limit his contact with his children. If the court did not do so, Mr. Gauthier would undermine the routines that Ms. Gauthier had worked hard to establish. Bellegham J. stated:

Mr. Gauthier's disrespect for Ms. Gauthier, and his ongoing anger and hostility towards her, coupled with the constant late returning of the children, his haranguing e-mails, and refusal to adopt her routines, tells me that this "to be hoped" for ideal can never be realized in the circumstances of this case.

(h) Rejected the father's request for a right of first refusal to care for the children when their mother is not available. The trial judge offered four reasons for this refusal. First, far from supporting his children's mother, there is a risk that Mr. Gauthier would use his added time to alienate them from her. Second, it would disrupt their routine. Third, it would create added opportunities for conflict between the parents. Fourth, Mr. Gauthier was inconsistent and unreliable in regard to pick-ups and returns of the children. He frequently and unilaterally changed those times to suit himself.

(i) Ordered Mr. Gauthier to pay to Ms. Coughlin the costs of that proceeding, which he fixed at $50,000.00.

[43] Mr. Gauthier remains in litigation with Ms. Coughlin. Following the Bellegham J. order, Mr. Gauthier brought a motion to find Ms. Coughlin in contempt and to change Bellegham J.'s order. Justice Lorna-Lee Snowie of the Superior Court of Justice ordered that he pay $59,500.00 as security for costs of that proceeding, which she found to be an abuse of process, as well as costs of $1,500.00. She scathingly wrote:

As a result of the 2010 trial in this matter, Belleghem, J. ordered that the father pay to the mother $50,000 for her costs. These costs were not paid and likely will remain unpaid. The facts are undisputed that the father cashed out his RRSPs and then declared bankruptcy. As a result, the mother will receive no more than 11,000 of the $50,000 owed... The father is currently approximately $9500 in arrears of child support. The father states that he has no assets to pay costs with.… In my opinion the father is using this court as a new forum for him to be able to continue to control and harass the mother. He is using this court as his playground. This is an abuse of process.

LAW

[44] This court's jurisdiction to deal with the issue of custody is found at s. 21 of the Children's Law Reform Act ("CLRA"). It allows, "[a] parent of a child or any other person" to "apply to a court for an order respecting custody of or access to the child …"

[45] Pursuant to CLRA s. 24 (1), the merits of an application for custody or access will be determined by the best interests of the child. CLRA s. 24 (2) sets out that a court shall consider all of the child's needs and circumstances in order to determine his or her best interests. They include:

(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;

(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) the plan proposed by each person applying for custody of or access to the child 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.

[46] Determining what is in the best interests of a particular child is an exercise specific to the circumstances of that child and family. As McLachlin C.J. noted in Gordon v. Goertz, [1996], 2 S.C.R. 27 at par. 49:

[e]ach case turns on its own unique circumstances and the only issue is the best interests of the child in the particular circumstances of the case. The focus is on the best interests of the child, not the interests and rights of the parents.

[47] As Zisman J. of this court points out in Duthie v. Junker, 2011 ONSC 298 (OCJ), the principle of maximum contact, enshrined in the federal Divorce Act but not specifically articulated in the CLRA, applies to cases under that provincial legislation. As she added at par. 57:

It is well accepted that it is in a child's best interests to have a loving and meaningful relationship with both parents. A child should be given the opportunity to know the non-custodial parent and to be a part of that parent's life and to have as much contact as is consistent with his best interests.

[48] In Milne v Milne, [2000] O.J. No. 142 (OCJ), Justice James Karswick determined that a court may restrict access if a parent uses it as an opportunity to denigrate or undermine the other parent. In Dixon v. Hinsley, [2001] O.J. No. 3707 (OCJ), Justice Marvin Zuker denied a parent access to his children when his long term attempts to draw them into his conflict with their mother caused them great stress. As Zuker J. stated at par. 55:

It is also not uncommon for individuals to berate their former partners when picking up or leaving their children. Such abusive post-separation conduct must be given significant weight in an application to terminate access.

[49] In Weare v. Naumann, 2014 ONCJ 58 (OCJ), Justice P.T. Bishop of this court found that a disrespect for court orders and a history of unreasonable parenting decisions are sufficient reasons to make or change a custody order. The fact that the party acting unreasonably has an equal ability to parent will not save them from a change in custody. That principle applies equally when the issue of access is at stake.

[50] The issues of access and payment of child support are usually considered to be separate ones. Generally a default in payment of support is not a bar to access. That is in part because access is the right of the child to experience the benefits of both parents, not the recipient parent. However there are exceptions, as set out by Justice John Kukurin in McGonegal v. Young, 2004 ONCJ 313 (OCJ) at par 17:

There could be reasons why non-payment of child support might be a factor that would be relevant to access. For example, where the payor expresses outright refusal to pay support, or where the non-payment creates actual financial hardship and deprivation for the child, these may be considerations in whether access or its enforcement is really in the child's best interests.

ANALYSIS

[51] In considering the history of both this litigation and that involving Mr. Gauthier's two eldest children, a clear pattern emerges. Mr. Gauthier feels that he is answerable to no one but himself. As an access parent, he arrogates to himself the right to make decisions that he is not entitled to make or which should be made with the other parent. He is not a "team player" who can work with the other parent of his child(ren) to best secure their best interests.

[52] Mr. Gauthier's references to the need for a child to spend time with a parent rather than a third party would ordinarily elicit a great deal of sympathy from the court. They accord with the maximum contact principle. But that principle must be subsumed to the overriding principle of the primacy of a child's best interests over those of any parent.

[53] If Mr. Gauthier were to gain the access rights he seeks, Alexandre could suffer emotional harm. Mr. Gauthier would have the opportunity to continually stir up trouble, whether by constantly haranguing the mother, disrupting Alexandre's routines, or ultimately utilizing the opportunity to turn the child against his mother.

[54] While the father denies having berated the mother, his emails attached to her affidavit for trial tell a different story. They show him constantly badgering her about time with the child. He wrote of her "cheating" the child out the right to be with his father and abusing all three of his children. He described her parenting as being "suspect" and falling "short of good parenting", a situation that he acerbically describes as "not surprising". He accused her of "…messing up Alexandre's life and his right to his father."

[55] In further emails to Ms. Lahey, Mr. Gauthier purported to dictate terms of access and professed even to speak for the child.

[56] While the father claims great scheduling flexibility to care for the child, I accept the mother's argument that this purported flexibility parallels his financial irresponsibility to his three children. While he has the ability to earn sufficient income to meet his financial obligations to his children and his former spouses, he has consistently refused to do so.

[57] Mr. Gauthier is an independent insurance broker. In early 2011, Bellegham J. assessed his 2010 income for support purposes at $123,000.00. However as O'Connell J. pointed out in her May 11, 2015 endorsement, his 2010 notice of assessment set his actual taxable income for that year at $195,801.

[58] O'Connell J. stated that Mr. Gauthier's subsequent notices of assessment set his income as: 2011: $88,733, 2012: $89,805, 2013: $94,203. He agreed to an order that he pay child support to Ms. Lahey on January 29, 2014. By November 21, 2014, he had failed to pay any support to Ms. Lahey, and was in arrears of $15,936.00.

[59] By this time, he had also filed a consumer proposal in which he was seeking to include a debt to Ms. Lahey of $32,000.00; ironically representing some of the money that she had lent him to defend the proceeding brought by his ex-wife, Ms. Coughlin. Mr. Gauthier also included in his proposal the unpaid $50,000.00 cost award that Bellegham J. had granted Ms. Coughlin. Mr. Gauthier entered into the consumer proposal shortly after the costs award was made.

[60] O'Connell J. considered Mr. Gauthier's history of non-payment of support for three children, his refusal to pay any costs awards made against him, and the prospect that Ms. Lahey would never recover any of her costs in this proceeding. She ordered him to post a further $40,000.00 as security for costs before he takes any further steps regarding his counter-application and motion to change in this proceeding. She then assessed $1,500.00 in further costs.

[61] If one were to add up all unpaid support, costs and security for costs he has been ordered to pay or post in regard to both matrimonial proceedings, the figure would total in excess of $150,000.00. He was jailed in enforcement proceedings involving both of his ex-spouses.

[62] On January 28, 2016 Mr. Gauthier was ordered to be jailed for three days for every missed support payment. He was spared a sentence of nine days in jail on April 21, 2016 when his cousin paid three months of his support obligations. If he fails to pay his arrears in child support owed to Ms. Lahey of $16,640.00 by July 21, 2016, he will be jailed for 60 further days.

[63] Mr. Gauthier assigned himself into bankruptcy on May 3, 2016.

[64] Mr. Gauthier's failure to pay support, in itself is not sufficient to deny or even limit his access to Alexandre. But it is part of a piece that represents his refusal to consider anyone's needs above his own. He does not feel that he is financially responsible for his son if he does not have control over the child. He would cut off his child's nose to spite the mother's face.

[65] I note that the father consistently returns the child to school without his school uniform. In his testimony, the father was contemptuous of the need for a uniform even though the child's school requires it. Alexandre often returns home wearing used clothing, rather than the clothing he wore when he left his mother's home. Please recall that, as both Bellegham J. and I previously found in fixing his support obligations, Mr. Gauthier is not a poor man. He brags about the flexibility that his job affords him.

[66] In addition, Mr. Gauthier consistently fails or refuses to return Alexandre on time as requested by the mother or in accord with court orders. He has offered various explanations for this misbehaviour. They centre on his judgment of what is in the child's best interests. For example, O'Connell J. ordered him to return Alexandre on Monday at 1:00 p.m. on long weekends. But he recently decided to return the child on the Tuesday following the Victoria Day long weekend.

[67] Mr. Gauthier justified his conduct with his determination that the Victoria Day weekend did not represent a "long weekend". It was, in his telling, a "holiday". He arrived at this unique contradistinction between long weekends and holidays because, he said, of something that Dr. Butkowski said in an assessment report in proceedings with Ms. Coughlin, not Ms. Lahey. The fact that O'Connell J. did not share in his idiosyncratic taxonomy of public holidays appears not to have bothered Mr. Gauthier.

[68] Similarly, last Christmas, there was no order for his access. Ms. Lahey nonetheless offered him generous holiday access. She agreed that he could take Alexandre from after school on the last day of school, December 18, 2015 until 10:30 A.M. on Christmas Day. After the child was in his care, Mr. Gauthier decided, without consultation, to return the child at noon. He dictated (a description he accepted in cross-examination) the return time because he had decided that was in the interests of his three children. Every time that he is with those children, he says, he decides what is in their interests.

[69] The pattern of Mr. Gauthier's behavior in regard to Ms. Lahey and Alexandre, which mirrors his behavior towards his first family, is as troubling as it is consistent. He believes that he possesses the unique ability to decide what is best for his children. Acting upon his unique judgment, he appropriates to himself the right to define the contours of his access. He ignores any voices, even judicial voices, which disagree with this self-regard. He is, in a word, ungovernable.

[70] The court cannot trust Mr. Gauthier to make decisions that are in his son's best interests. His eyes are too clouded by his own concerns. He is simply unable, or more to the point, unwilling to cooperate with Ms. Lahey. She has every reason not to trust him. She has no cause to rely on him. Her much criticized inflexibility makes sense as a necessary defence for both her and Alexandre from Mr. Gauthier's desire to control their lives.

[71] Mr. Gauthier's behavior threatens Alexandre's stability. His mother has created a consistent and child-centred regime for his care; one that even involves his recalcitrant father. It is one clearly in the child's best interests. But if Mr. Gauthier is granted the discretion or opportunity to disrupt the child's equilibrium, he will likely do so, harming the child.

[72] Mr. Gauthier is also at risk of confusing or even alienating the child from his mother. Mr. Gauthier has already initiated that process with the baby steps of aligning the child to his narrative of victimization. Recall that five and a half year old Alexandre has already blamed his mother for his father's incarceration in default proceedings over which she has little control. I accept Ms. Lahey's evidence that the child could only have learned of that incarceration and become convinced of the mother's culpability from his father.

[73] I conclude that Mr. Gauthier will undermine Ms. Lahey's parenting of Alexandre, to the child's great detriment, unless two things are ordered. First, there must be a clear and set schedule for Mr. Gauthier's access. Second, Ms. Lahey must be granted the discretion to appropriately apply judicially approved pre-determined consequences to Mr. Gauthier's breaches of access orders. Considering his respect for court orders, the only language he may understand is the loss of time with his son.

[74] Further I have considered the access recommendations made by Mr. Ricketts in his report of July 14, 2014. I do not feel bound to strictly follow them for a number of reasons. First they are only recommendations. Second, Mr. Rickett's report is almost two years old. At the time that it was written, Alexandre was not in school, as he is now. Mr. Ricketts did not have the benefit of the evidence of Mr. Gauthier's behavior over the past two years that I have cited above. He also does not appear to have the benefit of the findings of Justice Bellegham in the proceedings with Ms. Coughlin. Thus Mr. Ricketts was not aware of the full extent of the pattern of Mr. Gauthier's behavior towards the mothers of his children.

[75] For the reasons set out above, Mr. Gauthier's access to Alexandre will be more limited and clearly defined than the times suggested by Mr. Ricketts. I am basically continuing the status quo with a few tweaks to minimize contact between the parents. But I am making clear that the access must be very clear and predictable. In doing so, I am guided by the principle that access must be in the best interests of the child and not the parent.

[76] In that regard, Mr. Gauthier must be offered as little discretion as possible; any questions of discretion must be left in the hands of Ms. Lahey. She is far more capable than Mr. Gauthier of making decisions for the child that are not self-interested. She is better able than him to preserve the child's emotional equilibrium.

Access Order

[77] Accordingly I order that Mr. Gauthier exercise access to Alexandre as follows:

(a) On alternate weekends from Friday at 3:30 p.m., or after school or camp, to Monday at the start of school or camp, or 9:00 a.m. If the weekend falls on a long weekend as a result of a statutory holiday, then the father's time shall be extended to the Monday at 1:00 p.m. unless his access weekend falls on the September Labour Day Weekend when Alexandre shall be returned to the applicant mother by 7:00 p.m. on the Sunday evening;

(b) One overnight each week on every Tuesday from 3:30 p.m., or after school or camp, until the following morning at the start of school or camp, or 9:00 a.m.;

Christmas holidays in even-numbered years from December 25th at 10:30 a.m. to New Year's Day at 10:30 a.m. when the regular schedule shall re-commence. The mother shall have Alexandre in her care for the same uninterrupted period in odd-numbered years;
Christmas holidays in odd-numbered years from Friday on the last day of school before the break, at 4:00 p.m. until December 25th at 10:30 a.m. The mother shall have Alexandre in her care for the same uninterrupted period in even-numbered years;
March Break in odd-numbered years from Friday after school on the last day of school until Monday morning drop off when school resumes prior to 9:00 a.m. The mother shall have Alexandre in her care for the same uninterrupted period in even-numbered years;
Two non-consecutive two week periods during the school summer vacation. After the mother, by April 30th, has designated her two two-week uninterrupted vacation periods with Alexandre for that summer, the father, by May 30th, shall similarly designate two two-week uninterrupted periods. If the respondent's summer vacation period with Alexandre ends on the Labour Day Weekend in September, he shall return Alexandre to the Applicant by 7:00 p.m. on the Sunday of the long weekend;
In 2016, the father's summer access including four weeks vacation will be as set out in my June 28, 2016 endorsement.

(d) Alexandre shall be with the mother on all dates during July and August 2016 not listed above and from the September 5, 2016 return to regular schedule, commencing September 13, 2016.

(e) On Alexandre's birthday, September 16th, the father shall have Alexandre in his care in odd-numbered years and the mother shall have Alexandre in her care in even-numbered years from after school until 7:30 p.m. on a weekday, or 9:00 a.m. until 6:00 p.m. on a weekend.

(f) On Halloween, the father shall have Alexandre in his care in even numbered years and the applicant mother shall have Alexandre in her care in odd-numbered years from 3:30 p.m. or after school until the following morning at the start of school, or 9:00 a.m.;

(g) On Easter Weekend, Alexandre shall spend the weekend with the respondent father in even numbered years from Good Friday at 1:00 p.m. until Monday at 1:00 p.m. In odd-numbered years Alexandre shall spend the Easter Weekend with the mother from after school on Thursday until after school on Tuesday, when the father's Tuesday overnight access occurs.

(h) Alexandre shall reside each year on Mother's Day with the mother if he is not otherwise in her care from 7:00 p.m. the Saturday evening prior to Mother's Day until Monday at 9:00 a.m. or the commencement of school, and on Father's Day with the father from 7:00 p.m. the Saturday evening before Father's Day until Sunday night of Father's Day at 7:30 p.m.

(i) Unless the pick up or drop off times for the father's access with Alexandre occurs at the beginning or the end of a school or camp day, the mother shall deliver Alexandre to the father at all access times and the father shall return Alexandre to the mother after all access times. These arrangements shall be adjusted at the sole discretion of the mother.

(j) The father shall not take Alexandre out of his scheduled school or camp days at any time without the mother's written consent.

(k) If the father is more than fifteen (15) minutes late in returning Alexandre to the mother at the end of an access visit, his next scheduled access visit with Alexandre will be cancelled.

(l) Communication between the parties shall only be by email, unless the mother consents to otherwise from time to time and such communication shall be no more than once per week.

(m) The mother shall advise the father if she intends to change her home residence within 60 kilometres of the boundary of the Regional Municipality of Halton.

(n) If either part moves their residence, the mother or the father shall advise the other of the particulars of their new address and telephone number at least 30 days prior to their move.

(o) The Halton Region Police Service or any other police services where the child is located, shall do all reasonable things to assist Pamela Robyn Lahey, born January 3, 1980, to locate, apprehend and deliver the child, Charles-Alexandre Philippe Gauthier, born September 16, 2010, to Pamela Robyn Lahey to ensure compliance with the terms of access specified herein.

[78] In making this order, which is far less restrictive than it could have been, I must offer a note of warning to Mr. Gauthier. If he persists in maintaining the pattern that I have identified in this decision, he runs the risk of having his access to Alexandre further restricted. He cannot expect to be able to continue the same behavior while obtaining different results.

[79] Finally I order that I be seized of this case should it return to court. In light of the case management in this court set out in Family Law Rule 40, such an order may not be necessary. But because of the exceptional nature of this case, and in an abundance of caution, I make the order nonetheless. In doing so, I adopt the words of Lauwers J.A., writing for the Ontario Court of Appeal in D.G. v. A.F., 2015 ONCA 290. There he approved the practice of a judge making a final custody or access order seizing herself of the case should it return to the court. He wrote:

[13] However, nothing in the Family Law Rules precludes a judge from using her inherent jurisdiction, and the obligation to actively case manage under r. 2(5), to seize herself of a case. This is the best means of promoting the objectives of the Rules and ensuring that cases are dealt with justly as required by r. 2(3).

[14] In Norman v. Connors, 2010 ONSC 1975, [2010] O.J. No. 1564, at para. 34, Gordon J. noted that in non-unified Superior Court sites, litigants are sometimes denied the benefit of active case management as described in r. 39. Despite the lack of resources, he stated that the court must step in and impose case management, by relying on the general provisions of the Rules and the court's inherent jurisdiction. This is particularly so in high conflict cases.

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

[80] To paraphrase the late former Israeli prime minister, Golda Meir, peace will come to Mr. Gauthier's extended family only when he decides that he loves his children more than he despises their mothers. While that happy event has yet to occur, it is hoped that a strict regime will bring home to Mr. Gauthier the consequences of his behavior. I reiterate to him the referral to counselling that Bellegham J. so wisely made to him in 2012. Sadly that recommendation appears to have been honoured only in the breach.

COSTS

[81] As the mother was successful in this proceeding, she is at liberty to seek costs of this hearing. She may serve and file a submission of up to three pages, exclusive of a bill of costs, within 14 days of the date of this decision. Mr. Gauthier may respond within 14 days of service of that submission.

Released: July 7, 2016

Signed: "Justice Marvin Kurz"

Pamela Robyn Lahey v. Michel Gauthier, 2016 ONCJ 417

Case Summary