Court Information
File No.: D45604/08 Date: 2016-09-26 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1
Parties
Between: O'Brien Delisser, Applicant, moving party (father)
-and- Azieb Tefferi, Respondent, responding party (mother)
Before: Justice Robert J. Spence
Heard: 23 September 2016
Reasons for Judgment released on: 26 September 2016
Applicant father: In person
Respondent mother: In person
Introduction
[1] The father is the moving party in this motion to change. He seeks expanded access to the parties' 9 year-old child, J..
[2] The final order made by this court on March 12, 2009 granted sole custody to the mother. It also provided for certain specified access to the father. In addition to that specified access, the order contained a requirement that the parents "agree to consider expanding access to alternating full weekends by the end of 2009".
[3] The father now seeks to change that final order by expanding that access and specifying it with greater particularity.
Material Change in Circumstances
[4] Section 29 of the Children's Law Reform Act permits a court to change a final order for custody or access if there has been a "material change in circumstances that affects or is likely to affect the best interests of the child".
[5] In this case I find that there has been a material change in circumstances for three reasons.
[6] First, the original order is no longer workable. As I noted above, that order provided, in part:
The parties consent and agree to consider expanding access to alternating full weekends by the end of 2009.
[7] The parties acknowledge that they are not able to "agree" to consider expanding access.
[8] Second, there has been a significant passage of time since the original order was propounded. That passage of time can, in and of itself, constitute a material change in circumstances. See for example, Brown v. Lloyd, 2015 ONCA 46. I find in this case that the passage of 7 years since the making of the original order, when the child was only 2 years old, constitutes a material change in circumstances.
[9] And third, the mother, who is the responding party in the motion to change, did not argue that there had not been a material change in circumstances. In fact, she argued for her own changes to the final order, changes to which I will refer shortly.
[10] In the leading case of Gordon v. Goertz, the Supreme Court of Canada held that once a court finds there has been a material change in circumstances, the court is then required to embark on an enquiry as to what is in the best interests of the child.
The Litigation History in This Motion to Change
[11] The father commenced the motion to change in August 2015. In that motion, he stated:
My son and I would like to have more time together. I ask that the current order is amended to clearly state and permit him to visit with me for alternating weekends for the entire weekend as well as over the Christmas holiday break for the entire break alternating with the mother each year. We would also like to be able to visit our family members who reside in the U.S.
[12] In her response to the motion to change, the mother sought the following relief:
For Mr. Delisser to only be permitted to have day visits with J.. on Saturdays and during the holidays with no overnight visits on alternating weekends, [and no] visits for the entire Christmas holiday break or visits to the United States.
[13] The first case conference was held before me on November 13, 2015. The parties outlined their respective positions, and the court then encouraged them to have discussions on that day with a view to attempting resolution. The parties were unable to reach any sort of temporary consent.
[14] The next case conference was held on December 10, 2015. Following discussions in the court, the parties reached consent to a temporary order, inter alia, as follows:
Father to have access on alternating weekends from Friday at 7:00 p.m. to Saturday at 7:00, with pickups and drop-offs by the father at mother's home.
Father to be responsible for all transportation.
Father to be the sole caregiver during his access weekends.
Father to have telephone access during the week on any day between 6:00 p.m. and 7:00 p.m.
[15] The matter was then adjourned to March 29, 2016 for a further case conference, to assess the parties' progress in moving toward resolution.
[16] On March 29, 2016 the parties again attended court. The father reported that the temporary access had been going well. He continued to seek expanded access.
[17] The mother expressed some concerns about the father's "ball python" snake, as being a potential hazard to J..
[18] Following the case conference, the parties consented to a further temporary order which expanded the access so that it was to occur from Friday at 7:00 p.m. until Sunday at 5:00 p.m. The parties also agreed that the snake would be kept securely in its tank and not be in the same room as J.. while he was sleeping.
[19] The matter was then adjourned to June 29, 2016. On that day the parties attended before me. The mother expressed her concern that the child was not being properly supervised during the access visits.
[20] Father disagreed with this assertion. Father also continued to seek an order allowing him to travel to the United States, as he had requested in his motion to change.
[21] Because it was apparent that further agreement was unlikely, the parties consented to a Rule 1 focused hearing[1] to determine the outcome of the motion to change on a final basis.
[22] The hearing was set for September 23, 2016.
Discussion and Analysis
[23] The father lives in his own 2-bedroom co-op together with his partner. He says he and his partner share one bedroom and the child has the second bedroom.
[24] The mother believes that the "bedroom" in which the child sleeps is, in reality, an entertainment room, in other words, more of a common element room rather than a discrete bedroom for J..
[25] In my view, nothing turns on this insofar as the parties' respective positions are concerned regarding access.
[26] The mother says that J.. is not properly supervised during access. The father denies this. There is no meaningful evidence which supports the mother's position that J.. is not adequately cared for during the access visits.
[27] However, the court did hear very concerning evidence about the father's attitude toward the mother, an attitude which is so toxic that it has, more likely than not, spilled over onto J..
[28] On one occasion when the father attended the mother's home for a 7:00 p.m. pickup on Friday, the mother told the father that J.. had taken his weekend bag and was playing basketball with his brother[2] at a basketball court close to the home. She suggested that father simply go to the nearby court to pick up the child for the start of his access weekend.
[29] The father refused to go to that location and, instead, he called the police to complain about mother's breach of a court order. He testified that the order required the mother to make the child available at 7:00 p.m., at her home, and because the child was at the basketball court instead of the home, she was in breach of a court order.
[30] The police attended the residence and when the child returned home he was present to see the police involvement with his parents.
[31] The father denied that this had any negative effect on the child. In fact, he stated that it was "fine" for J.. to be witnessing the police presence at the home.
[32] For some reason which the father failed to explain in court, he felt it was better to call the police and complain rather than simply going over to the basketball court to pick up his son to start the weekend with J.. He was holding mother to the strict letter of the court order which provided for pickup at the home.
[33] The father demonstrated no insight into how his behavior in calling the police on this occasion was entirely inappropriate and could have serious negative consequences for his son.
[34] His behavior might have been somewhat more understandable[3] if the mother had been engaging in similar behavior toward him. However, the evidence is actually quite different.
[35] In fact, the mother has shown considerable flexibility toward the father and has not made an issue of father's change in plans from time to time; nor has she denied him expanded access on certain occasions when he has requested it.
[36] On one occasion when the father was returning from New York, he texted the mother from the Toronto airport, well after the 7:00 p.m. Friday pickup time to say that he would be late. The mother did not make an issue of this, essentially responding that he could pick up J.. whenever he was able to get to the home.
[37] On another occasion, when the father came to the house for a pickup, J.. was having a birthday party in the home. The mother invited father into the home to stay at the party for a while, and to meet J..'s friends. The father absolutely refused to enter the house.
[38] When the father testified about this incident, he seemed derisive of the very idea that he would go into the mother's home, even if it were to involve himself in the child's birthday party and to meet the child's friends.
[39] He was unable to set aside his hostile feelings toward the mother for the sake of participating in his child's party and meeting his child's friends.
[40] Overall, I conclude that mother has demonstrated consideration and flexibility toward the father.
[41] On the other hand, father has demonstrated inflexibility and rigidity toward the mother.
[42] On yet another occasion mother asked father not to talk to the child about what was going on in court or in the proceedings between them. Father responded by saying to the mother: "You're a piece of shit and J.. will know everything you said".
[43] This kind of response by father demonstrates such poor judgment, that the court is almost at a loss for words to explain to father why this is so. But since father will hopefully be reading these reasons, I will attempt that explanation.
[44] Disputes by parents which involve children, and which take the parents into the courtroom, are adult matters. They are not matters for children. It is a fundamental premise that parents must make all necessary efforts to shield their children from these disputes.
[45] Children who are exposed to parental conflict risk becoming emotionally harmed by that conflict. This risk of harm is so patently obvious that it has been recognized repeatedly by courts for many years. See, for example, S.A.S. v. J.J.S..
[46] Furthermore, a parent who believes that a child, at the age of only 9 years, is capable of understanding the basis for parental conflict, has no real appreciation for the ages and stages of child development.
[47] Additionally, when a parent sets out to tell his child "everything" the other parent said, he has no appreciation of the damage he is creating, either to his own relationship with that child, or the relationship between the other parent and the child.
[48] The fact that the father in this case was prepared to acknowledge the foregoing statement, and to not apologize for it, or to not appreciate why it was so clearly the wrong thing to do, demonstrates not only very poor judgment, but also a complete lack of insight.
[49] In court, during the course of testimony, the father called the mother a "crazy controlling person".
[50] A statement like this is, unfortunately, entirely consistent with the anger and poor judgment the father displayed when he insisted that the mother was a "piece of shit" and that he was going to tell the child "everything you said".
[51] If the father is prepared to make statements like this in a courtroom, in front of a judge, the court can only shudder at what the father might be saying to the mother, or about her, away from the court's scrutiny.
[52] The father's anger and hostility toward the mother is palpable. The court's concern is the extent to which this anger and hostility is impacting the child, and the extent to which that may have actually resulted in emotional harm to J..
[53] The father acknowledged that he has never asked the mother how the child is doing in school. He made it clear that his reason for failing to make such inquiries of her is that he wishes to have no contact with the mother.
[54] He said he can get whatever information he needs directly from the child himself.
[55] And yet, it appears that he has not taken it upon himself to obtain information about the child's schooling.
[56] He testified to his belief that J.. is in grade 3 when in fact the child is in grade 4.
[57] He has never been to the child's school or met any of the child's teachers.
[58] He acknowledged that he has never taken the child for back-to-school shopping or Halloween shopping.[4]
[59] And yet, there is evidence before the court which suggests that there is a beneficial relationship between J.. and his father. It does appear that J.. enjoys spending time with his father.
[60] However, it is unclear to the court how much of that time is about just "hanging out" together and doing fun things, and how much of it is devoted to the hard work involved in being a parent – for example, involvement in school-related matters.
[61] The evidence in this case suggests that the father's involvement is more of the former, rather than the latter.
[62] The court appreciates that an access parent may have only limited time to spend with his child. And this limited time may incline a parent to simply doing "fun things" with his child, rather than concentrating on the more arduous tasks.
[63] However, a child is entitled to meaningful guidance from both parents. One parent should not limit himself to being the child's buddy simply because he spends less time with the child than the custodial parent.
[64] What the court is left with in this case is the following:
The father's unremitting anger and vitriol toward the mother is undoubtedly spilling over onto J.., the extent of which is not currently known.
The father has a complete lack of insight into how his anger and attitude toward the mother can be very damaging to his son.
The father's unwillingness to communicate with the mother in a civil and respectful way contributes to his lack of information about his son's schooling.[5]
Despite the foregoing, the father genuinely appears to love J.. And the court concludes that the relationship between J.. and his father is a beneficial relationship, at least on some level.
[65] The foregoing presents the court with competing tensions.
[66] On the one hand, if the court accedes to mother's request to limit access to days only – which in this case would be a significant step backwards for father[6] – there is a risk of even greater anger and hostility on father's part toward mother.
[67] If father sees himself as the "loser" in this case, he will most likely tell J.. "everything" in his own way, doubtless spinning it as the mother's fault. If this were to happen, the risk of emotional harm to J.. would increase accordingly.
[68] On the other hand, if the court allows the status quo to continue, or even expands access to include holidays and travel to the United States, the court runs the risk of tacitly approving father's behavior and his open hostility toward the mother.
[69] Neither of these outcomes would be in J..'s best interests.
[70] Accordingly, the court must craft an order which will attempt to preserve the father-child relationship while, at the same time, conveying to the father, the court's abhorrence with the father's toxic behavior and his open willingness to allow this behavior to envelop his son.
Disposition
[71] With all of that in mind, the court makes the following final order which is intended to address the competing tensions in this case.
The father shall have alternating weekend access provided for in paragraph 1 of the temporary order dated March 29, 2016 (the details of which are to be set out in the formal order taken out in this proceeding).
The father shall have such additional access to J.. as the mother may, in her sole discretion, agree to in advance in writing – which includes electronic format.
Paragraph 2 of the temporary order dated March 29, 2016, which pertains to the pet snake shall continue (the details of which are to be set out in the formal order taken out in this proceeding).
Under no circumstances, barring the clear commission of a criminal act, shall the father contact the police to complain about the mother or about any aspect of this access order.
The father shall refrain absolutely, either directly or indirectly, or through any other person or electronic means, from conveying to J.. any information about this litigation, or from doing or saying anything to J.. which could reasonably be interpreted as a denigration of the mother or of any of the mother's friends, associates or family members.
During his access times with J.., the father shall ensure that he is J..'s primary caregiver.
During his access weekends with J.., the father shall ensure that J..'s homework and any necessary school studying or projects are fully completed before he returns J.. to the mother's residence at the conclusion of access.
In the event of any emergency involving J.. during the course of father's access, he shall forthwith notify mother by text or email.
Father's pickups and drop-offs shall be conducted in a timely fashion. However, in the case of an unavoidable emergency which delays either the pickup or the drop-off, the father shall immediately notify the mother as soon as he becomes aware of the emergency.
The parties shall keep each other informed of any changes in their home address, their telephone numbers – including cell phone numbers – and their email addresses.
The father's claims for additional holiday access times and travel permission are dismissed, subject to the mother's sole discretion to allow additional access to the father, as set out in paragraph 2 of this order.
The mother's claims for decreased access are dismissed, apart from what is contained in this order.
Final Words
[72] It is absolutely imperative that the father read these reasons with an open mind. It is critical that he understand how his current behavior risks doing serious emotional damage to his son who, I have no doubt, he loves.
[73] The father must develop an understanding that regardless of his negative feelings toward the mother, maturity and being child-focused necessitates that he puts those feelings on the back-burner when it comes to J.. and the manner in which he involves himself in J..'s life.
[74] The father needs to understand that J.. is entitled to two loving parents, both of whom are required to nurture and sustain J..'s relationship with the other parent - in other words, doing the opposite of what he has been doing so far, namely, denigrating the mother and exposing J.. to his own hostility toward the mother.
[75] The father also must understand that unless he assimilates this information and changes his behavior, the risk of harm to J.. may become so great that the court could ultimately be left with no choice but to suspend or even terminate his access entirely.
[76] If this were to occur, the ultimate loser would be J.., the person with whom the court is necessarily most concerned – and the person about whom father should be most concerned.
[77] I encourage the mother to continue to demonstrate her flexibility toward the father where it is appropriate to do so in J..'s best interests.
[78] I have no doubt the mother will continue to act as she has done in the past.
[79] For the father, however, the court strongly urges a greater generosity of spirit toward the mother, not just for its own sake but, more importantly, for the sake of the healthy development of his son.
Justice Robert J. Spence
September 26, 2016
Footnotes
[1] Rule 1 (7.2) of the Family Law Rules is a procedural Rule which permits the court to set parameters for hearings.
[2] J.. has an older brother who is not the father's child.
[3] Although not justifiable.
[4] Although it does appear that he is paying child support to the mother.
[5] And likely other matters which pertain to J..'s progress in life.
[6] Whether it would be a backwards step for J.. begs the ultimate question.