Court Information

Court File No.: 768-15

Date: January 30, 2017

Ontario Court of Justice

Location: 7755 Hurontario Street, Brampton, Ontario

Before: Justice L.S. Parent

Parties and Counsel

Applicant: Shanae O'Connor

• Counsel: Antal Bakaity

Respondent: Christopher-Paul O'Connor

• Counsel: Shana Maiato

Hearing Date: December 21, 2016

Hearing Type: In Writing

Endorsement

Proceedings for Determination

[1] On December 21st, 2016, I heard the following motions:

(a) A motion by Mr. O'Connor, the Respondent/Father, seeking to expand his access to his children and to remove certain conditions attached to his access as contained in the existing temporary order granted November 16th, 2015 and an order for make-up access visits; and

(b) A motion by Mrs. O'Connor, the Applicant/Mother, seeking to set aside the November 16th, 2015 and seeking a new order incorporating all of the recommendations of section 112 Courts of Justice Act report from the Office of the Children's Lawyer ("OCL") and specifically seeking an order for sole custody and that access between Mr. O'Connor and the children be supervised by a professional agency.

Background

[2] The parties are the biological parents of two children, namely Lia O'Connor born March 24th, 2006 and Ciela O'Connor born May 17th, 2008. The children are currently ten (10) and eight (8) years old.

[3] On July 31st, 2015, Mrs. O'Connor commenced an application seeking sole custody, a fixed access schedule, table child support and an order permitting her to obtain documents and travel with the children without Mr. O'Connor's consent.

[4] On January 27th, 2016, Mrs. O'Connor filed an Amended Application adding her claim for section 7 child support expenses.

[5] On February 5th, 2016, Mr. O'Connor filed his Answer opposing the order sought by Mrs. O'Connor. He further requested an order for joint custody with the children's primary residence to be with their mother, access every second weekend from Friday at 6:00 p.m. to Sunday at 7:00 p.m. and two weeks during the summer school vacation, the non-removal of the children from the City of Mississauga without his consent, spousal support and that his child support obligation be pursuant to the Child Support Guidelines.

[6] On November 16th, 2015 a case conference was held.

[7] The parties, with the assistance of counsel, consented to an order providing that access between the children and their father would be every Sunday from 10:00 a.m. to 6:00 p.m. Furthermore, the consent, on a without prejudice basis, provided that this access would not occur at the paternal grandmother's home.

[8] The consent order also detailed access for the upcoming Christmas holiday. This access however could occur at the paternal grandmother's home.

[9] The consent order also contained a police enforcement clause, disclosure provisions, leave for the filing of the amended Application and Mr. O'Connor's responding materials.

[10] The November 16th, 2015 order continues to be the existing order regarding access.

[11] At a case conference held on January 22nd, 2016, an order was made requesting that the OCL become involved in this matter.

[12] On March 14th, 2016 the court received a letter from the OCL confirming acceptance of the referral by way of a section 112 Courts of Justice Act report.

[13] On June 22nd, 2016, Mrs. O'Connor filed a motion, on notice, to Mr. O'Connor, seeking leave to schedule a motion requesting the immediate implementation of the recommendations of the OCL report as provided earlier to the parties during a disclosure meeting.

[14] Mr. O'Connor filed materials opposing the motion.

[15] On June 27th, 2016, the OCL filed its report with the court.

[16] The OCL report listed seven (7) recommendations including that Mrs. O'Connor have sole custody of the children and that Mr. O'Connor's access be at least once per week and professionally supervised.

[17] My endorsement of July 8th, 2016 denied the motion on the basis that the evidence did not satisfy me that the threshold of urgency as defined under Rule 14(4.2) of the Family Law Rules had been met.

[18] The next meaningful court appearance occurred on July 29th, 2016.

[19] On July 29th, 2016, leave was given to Mr. O'Connor to bring a motion for (a) contempt and (b) a variation of the November 16th, 2015 access order, namely the removal of the prohibition that access not occur in the paternal grandmother's home, Christmas access and for make-up access.

[20] Leave was also given to Mrs. O'Connor to bring a motion for a variation of the existing order so as to incorporate the recommendations of the OCL report.

[21] Filing deadlines for both parties were ordered. The motions were scheduled to be heard on October 18th, 2016. Two hours was reserved.

[22] On October 6th, 2016, Mr. O'Connor filed a 14B motion, without notice to Mrs. O'Connor, seeking leave to file his Dispute to the OCL report and an extension of time to file his materials for the October 18th, 2016 motions.

[23] On October 7th, 2016, I denied the motion on the basis that it should not have been filed on a without notice basis.

[24] On October 18th, 2016, counsel for Mr. O'Connor sought leave to file the affidavit which was the subject of his October 6th, 2016 14B motion.

[25] Counsel on behalf of Mrs. O'Connor opposed the request for the filing of additional materials. In the alternative, counsel submitted that should the affidavit be permitted to be filed, an adjournment of the motions should be granted so as to permit his client to file a responding affidavit. Counsel also sought costs in the amount of $1,000.00.

[26] After hearing submissions from both counsel, I permitted the filing of the supplemental affidavit by Mr. O'Connor on terms, namely that Mrs. O'Connor file her affidavit in reply by November 18th, 2016 and costs of $600.00 payable by Mr. O'Connor by December 9th, 2016.

[27] Counsel on behalf of Mr. O'Connor confirmed that her client would not be proceeding with a contempt motion but rather would be seeking an order (a) requiring compliance by Mrs. O'Connor of the existing November 16th, 2015 order and (b) the variations to this order as noted in his notice of motion.

[28] The motions were adjourned to December 21st, 2016. Counsel were also ordered to file factums specifically addressing the issue of the implementation of an OCL report at a motion.

[29] In adjourning the motion to December 21st, 2016, I specifically advised the parties that I would be unable to release a decision prior to the 2016 Christmas holidays and likely not before the end of January, 2017. I directed the parties to discuss an arrangement for the upcoming Christmas holidays however no consent was reached.

[30] On December 21st, 2016, the motions proceeded as scheduled.

Position of the Parties

Mr. O'Connor

[31] Mr. O'Connor seeks an order requiring Mrs. O'Connor to comply with the existing order dated November 16th, 2015 which provides that access for the children with him be every Sunday from 10:00 a.m. to 6:00 p.m.

[32] It is not disputed that Mrs. O'Connor unilaterally stopped facilitating access between the children and Mr. O'Connor, as provided in the November 16th, 2015 order, on June 13th, 2016.

[33] It is not disputed that timing of Mrs. O'Connor's actions closely followed the disclosure meeting held by the clinical agent on behalf of the OCL wherein she advised the parties of her recommendations.

[34] Counsel on behalf of Mr. O'Connor submits that Mrs. O'Connor did not have the authority to withhold the children. Counsel submits that Mrs. O'Connor's actions have resulted in her client not seeing the children since June 13th, 2016.

[35] Mr. O'Connor therefore seeks make-up access on alternating Saturdays from 10:00 a.m. to 6:00 p.m. and one day mid-week from after-school until 8:00 p.m.

[36] Mr. O'Connor also seeks the removal of the condition in the existing order prohibiting him from exercising his access with the children at the paternal grandmother's home. It is not disputed that he has been residing in her home since prior to the granting of the November 16th, 2015 order.

[37] It is Mr. O'Connor's position that the report of the OCL is biased and therefore cannot be relied upon in determining the order which are in the best interest of his children.

[38] Mr. O'Connor filed his dispute to the OCL report dated August 19th, 2016 with the court on October 14th, 2016. In his dispute, he states that there was a mishandling of the investigation with regard to his mental health status thereby leading to erroneous and demonstrably biased findings and that the report lacks balance in its content.

[39] On September 7th, 2016, the OCL submitted to the court a letter of the same date acknowledging receipt of Mr. O'Connor's dispute and advising that the OCL found "no factual errors nor has any additional information been put forward" to cause the report filed June 27th, 2016 to be amended.

[40] In support of his position, Mr. O'Connor has filed the following documents:

(a) his Notice of Motion at Tab 1, Volume 2 of the Continuing Record;

(b) three affidavits with exhibits sworn August 26th, 2016, October 4th, 2016, and October 25th, 2016 located at Tabs 2 and 7, Volume 2, and Tab 3, Volume 3 of the Continuing Record;

(c) his Dispute to the OCL report located at Tab 2, Volume 3 of the Continuing Record; and

(d) a Factum and Book of Authorities.

Mrs. O'Connor

[41] Mrs. O'Connor seeks to set aside the November 16th, 2015 order in its entirety.

[42] Mrs. O'Connor seeks an order granting all the recommendations as outlined in the OCL report including an order granting her sole custody and a variation of the existing order so as to provide that Mr. O'Connor's access occur once per week and be professionally supervised.

[43] It is Mrs. O'Connor's position that her concerns regarding the safety of the children while in the care of their father have been confirmed and validated by an independent authority, namely the OCL, after a complete and exhaustive investigation. Accordingly, the implementation of the recommendations, even though not tested through cross-examination, must be ordered for the safety of and in the best interest of the children.

[44] In support of her position, Mrs. O'Connor has filed the following documents:

(a) her Notice of Motion located at Tab 3, Volume 2 of the Continuing Record;

(b) her affidavits sworn September 19th, 2016 and November 11th, 2016 located at Tab 4, Volume 2 and Tab 4, Volume 3 of the Continuing Record; and

(c) a Factum and Book of Authorities.

Report of the Office of the Children's Lawyer

[45] The author of the OCL report dated June 27th, 2016 is Ms. Tracy Majewski.

[46] Her recommendations, at pages 19 and 20, are as follows:

1. Ms. O'Connor should have sole custody of the children.

2. Mr. O'Connor should have professionally supervised access with the children at least once per week. This may be at the Supervised Access Centre or through a private agency such as Brayden Supervision Services.

3. Mr. O'Connor should be able to call the girls on Mondays and Thursdays at 8pm for a period of 5 minutes each. The purpose of this call should be to see how the children's week has been; it should not be for bible instruction.

4. The girls should attend FAME (Family Association of Mental Health Everywhere (905) 276-8316) to assist them to understand their father's illness and how it impacts their relationship with him.

5. Mr. O'Connor should have the right to get updates, school and medical information, about the children by calling them. He should not attend the girls' school/doctor's office.

6. Mr. O'Connor should seek treatment for his illness and attend counselling on a regular basis so he can start to work through some of his struggles with his mental health and develop insight and understanding into how he presents to others.

7. Mr. O'Connor should provide his medical treatment providers and his counselors with a copy of this report.

It should be noted that the OCL would be willing to take another look at this family in the future so long as Mr. O'Connor has completed at least a year of consistent and regular counselling with a mental health professional and he is able to demonstrate that [he] is ready to parent his children with more insight and in a manner that keeps them safe. An alternate route, to the legal path, might be that once Mr. O'Connor has completed this counselling is that Mr. O'Connor work with a therapist who is experienced in reunification therapy and mental health who can assess if Mr. O'Connor might be ready to move out of supervised access. Mr. O'Connor should not rush this process and try to move out of supervised access before he is ready; this could result in added stress and disappointment for himself and the children. (Emphasis in original)

[47] Mrs. O'Connor fully accepts the recommendations of Ms. Majewski.

[48] Mr. O'Connor disputes all of the recommendations of Ms. Majewski.

Issues

[49] Both parties are seeking a variation of the existing order dated November 16th, 2015.

[50] The issue in considering both parties' motions is what order is in the best interest of Lia and Ciela. In determining this issue, I must consider the relevance and the weight to be given to the OCL report in light of each party's request.

Analysis – Implementation of OCL Recommendations

[51] The record is clear that Mr. O'Connor disputes the recommendations of the report. The record is equally clear that Mrs. O'Connor supports the report in its entirety.

[52] The issue is therefore should Ms. Majewski's recommendations be implemented immediately and prior to the parties having the opportunity at a trial to test the evidence and her recommendations.

[53] Mr. O'Connor seeks a variation of the existing order by removing the condition that he not exercise access at the paternal grandmother's home where he resides. Counsel agree that given that this condition was consented to on a "without prejudice" basis, there is no need to establish that a material change in circumstances has occurred in order to remove this condition.

[54] Mr. O'Connor also seeks make-up visits given the absence of visits since June 13th, 2016. The issue is whether or not such make-up visits are in the best interests of the children.

[55] There is no dispute between counsel that the general principle supported by the caselaw is that recommendations through an assessment, which definition counsel concede captures OCL section 112 reports, are generally not to be relied upon by the court at an interim proceeding as the author of the report has not been subjected to cross-examination on her credentials, observations, investigation process, determinations and recommendations.

[56] To support this principle, counsel have each provided the authority of Genovesi v. Genovesi, (Ont.Ct. (Gen. Div.)), [1992] O.J. No. 1261.

[57] Submissions by counsel on behalf of Mr. O'Connor relies on the principle stated in Genovesi (supra). She submits therefore that the recommendations of Ms. Majewski not be considered by the court for the purposes of this motion.

[58] Counsel for Mrs. O'Connor has provided authority in support of the position that the principle in Genovesi (supra) has evolved through subsequent caselaw so as to support an order adopting the approach that recommendations for assessments, including an OCL report, prior to trial can be ordered by the court in "exceptional circumstances."

[59] Counsel for Mrs. O'Connor has provided the Ontario Superior Court decisions in Bos v. Bos 2012 ONSC 3425, [2012] O.J. No. 2704; Batsinda v. Batsinda 2013 ONSC 7899, [2013] O.J. No. 6120 and Krasaev v. Krasaev [2016] O.J. No 4859 to support his submissions.

[60] Counsel further cites Mitrow, J's decision in Bos (supra) to support his submission that the implementation of recommendations does not always require the determination that "exceptional circumstances" exist.

[61] In his decision, Mitrow, J. reviews the caselaw adopting such an approach and concludes at paragraphs 23 and 24 as follows:

[23] … In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are "exceptional circumstances" as set out in Genovesi. In fact, "exceptional circumstances" findings were not made in either Forte or Kerr.

[24] The court has a duty to make orders in a child's best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.

[62] The question for determination therefore is whether or not circumstances exist in this matter which support consideration of the OCL recommendations in whole, in part or not at all.

[63] Mrs. O'Connor seeks an order in accordance with all the recommendations provided by the OCL on the issues of custody, access and incidents of access. Submissions made on behalf of Mrs. O'Connor are clear that counsel seeks this order by relying on the observations and evidence of the OCL clinical agent as set out in her report.

[64] It is therefore correct to state that counsel seeks the court to rely on the OCL report in its entirety, namely the observations, determinations and recommendations.

[65] At pages 17 to 19 of her report, Ms. Majewski writes the following:

Unfortunately, this writer did develop some significant concerns around Mr. O'Connor in the process of this investigation.

1. At interview the girls did verify that; (i) Mr. O'Connor had bribed Ciela to stand alone at Canada's Wonderland while he and Lia went on the Behemoth; both girls did not want this to happen, but Mr. O'Connor ignored their requests; (ii) that Mr. O'Connor took Ciela swimming after she had vomited twice; (iii) Ciela verified (as did Mr. O'Connor) that Mr. O'Connor hitch hiked to this writer's office with her;' (iv) both girls verified that when their father is angry his driving scares them, that there was an occasion where they were double seat belted and there were other occasions where Lia and Ciela has (sic) not been sitting in their booster seats; Lia verified her father left her alone in a hotel room where she tried to call for help and could not as she did not know how to use the hotel phone; she was scared.

With regards to the above facts, I would like to say that it is not this writer's impression that the girls were simply repeating the words of their mother when they described these events; they seemed to use their own interpretations of how things occurred. In addition, It (sic) is important to state that when I addressed each of these issues with Mr. O'Connor, he consistently tried to rationalize each of the above situations and had a reason, or excuse, as to why each had occurred. In his responses, Mr. O'Connor never appeared to seem to think that there was risk in any of these behaviours and even when I challenged him, he seemed to have no insight into the potential dangers. For example when I asked Mr. O'Connor about the hitch hiking incident Mr. O'Connor agreed he had hitched a ride as Ciela was tired, but then went on to say if he had got a taxi Ciela would not have had a booster seat anyway. When I told him that I thought the concern was more about taking a 8 year old girl in the car with strangers, Mr. O'Connor stated that he checked the people out and they seemed very nice.

2. With regard to physical and emotional abuse it would seem that there are some indicators that it did occur. Ciela did acknowledge that her father hurt her when he moved her out of the way when she was standing in her dad's shoes; Lia also mentioned this incident. Ciela also spoke about a time when her dad hurt her mom and Ms. O'Connor needed an ice-pack. Both girls stated that their father was scarier than their mother. Also, it was this writer's impression that Ms. O'Connor was far more consistent and credible in her recounting of the marriage than Mr. O'Connor who often back tracked his recounting and often avoided answering questions directly. Ms. O'Connor was certainly able to consistently communicate that she felt controlled, demeaned and restricted in this relationship. Her descriptions of feeling like she was walking on egg-shells were palpable. She has participated in extensive counselling services since separation, where her stories have remained consistent also.

3. There was concern that Mr. O'Connor's mental health has been worse than he described. The concerns were; (i) the perseveration of religion, where there is a preoccupation about Satan and where Mr. O'Connor used religion to instill fear into the girls (and had no insight into this); inconsistencies in Mr. O'Connor's stories where there were times when Mr. O'Connor seemed to contradict himself or simply just not tell the truth for example, in all of the medical reports that I reviewed it appeared that Mr. O'Connor told his doctors he was in counselling and yet when I asked him about this he stated he had been seeing Michael Chang for years and still does on occasion; this is quite different to the records of Michael Chang; (iii) in this investigation process I did experience some inconsistency in Mr. O'Connor's moods – there were times when he was calm, polite and accommodating and other times where he seemed to have a difficult time with impulse control and focus; (iv) the report of Dr. Philip stated that he suspected that Mr. O'Connor was understating his symptoms of Bipolar Disorder, and; (iv) Michael Chang, Mr. O'Connor's psychotherapist stated that it was his opinion that Mr. O'Connor was in need of more counselling, but Mr. O'Connor stopped going.

4. When addressing Ms. O'Connor's allegations about Mr. O'Connor's family being unsuitable to be around the children, this writer asked for all people living with the parties to complete police checks. Initially and until after Mr. O'Connor moved, he delayed this request; then he became very unclear about who was going to be living with him and who was not. It seemed to this writer quite strange that Mr. O'Connor did not seem to know who would be living with him. Then he reported that he was only going to live with his mother after all and therefore other family members did not need to provide the police check.

5. Mr. O'Connor does not always seem to follow the court order of the Honourable Justice Parent, even when he is under the scrutiny of an OCL investigation. The order clearly states that access with the children is not to occur in the paternal grandmother's home. Since his move, Mr. O'Connor has been taking the girls to her home on every access visit. In addition, Mr. O'Connor is frequently late returning the girls home. Text evidence provided by Ms. O'Connor indicated that Mr. O'Connor acknowledged that he took the girls swimming in his pool at 5.50 p.m., when their return time is 6pm.

[66] Ms. Majewski states the following conclusions at page 19 of her report:

Having considered the evidence presented it would seem to this writer that there are many indications that Mr. O'Connor is not coping well with the demands of parenting alone and is often putting his children at risk. While no one event/fact is significant, when I consider all of its many pieces, I cannot confidently say that the children are not at risk when they are with their father. It could be that the difficulties Mr. O'Connor is having are indeed the result of his illness which may be more significant than he acknowledges. Or, it could be that he simply lacks insight and is not open to seeing his pattern of destructive and abusive behaviours. Whatever the reason however, a more protective kind of access is required for Lia and Ciela; they are not old enough or emotionally equipped enough to deal with the pressures and inadequacies their father gives them.

This is not an easy recommendation to make; it is clear the girls love their father and want to enjoy him. However, until they are mature enough to keep themselves emotionally and physically safe and/or Mr. O'Connor is able to make gains, develop insight and make changes into how he presents as a father, I have no choice but to recommend supervised access.

[67] The materials filed and submissions made on behalf of Mrs. O'Connor can be summarized as follows:

(a) The incidents noted at pages 17 to 19 of the OCL report are serious;

(b) Mr. O'Connor has failed to take responsibility for his behaviour which lead to these incidents;

(c) Mr. O'Connor has failed to take responsibility in addressing his mental health issues on a consistent basis; and

(d) Any efforts made by Mr. O'Connor since the release of the OCL report to address these concerns are not sincere but mere "window dressing."

[68] It is this behaviour, counsel on behalf of Mrs. O'Connor, submits, that creates "exceptional circumstances" which support the implementation of the OCL report at this temporary stage of the proceedings.

[69] Mr. O'Connor's indicates at paragraph 4 of his Dispute that the "… serious concerns as to the methodology of the investigative techniques utilized to formulate this report as well as the selective nature of information to be included in the Report which serious undermine the credibility of same and overall reliability of the recommendations."

[70] Mr. O'Connor states that the report is biased due to an absence of an observational visit in his home and the proper investigation and reporting of his mental health status. Specifically, Mr. O'Connor disputes the contents of paragraphs 1 to 5 inclusive and the conclusions reached as noted at pages 17 to 19 of the OCL report.

[71] Counsel on behalf of Mr. O'Connor submits that her client is managing his mental health and is seeking assistance for this issue. Furthermore, she submits that he is engaging voluntarily in community resources to enhance his parenting responsibilities.

[72] In support of these submissions and in support of Mr. O'Connor's position that the OCL report is biased and therefore unreliable, counsel relies on the evidence provided by her client by way of his three affidavits filed and exhibits such as the following:

(a) Exhibit "B" to the affidavit sworn August 26th, 2016 namely an e-mail from Alf Davis, an individual identified as a counsellor by Mr. O'Connor dated August 11th, 2016. The e-mail confirms 13 sessions starting June 21st, 2000 until February 17th, 2009;

(b) Exhibit "C" to the affidavit sworn August 26th, 2016 namely a letter confirming his attendance at a Region of Peel workshop with the topic "Raising Responsible Children – for parents of children 6 to 12";

(c) Exhibit "D" to the affidavit sworn August 26th, 2016 namely an e-mail responding to an inquiry regarding further workshops;

(d) Exhibit "E" to the affidavit sworn August 26th, 2016 namely a letter confirming 4 counselling sessions in July and August 2016 through Family Services of Peel;

(e) Exhibit "B" to the affidavit sworn October 4th, 2016 namely a letter Dr. Hala Saleem, dated September 28th, 2016;

(f) Exhibit "C" to the affidavit sworn October 4th, 2016 namely a letter from his treating physician, Dr. Hala Saleem, dated June 8th, 2016; and

(g) Exhibit "E" to the affidavit sworn October 4th, 2016 namely a letter from his pastor, Russell Umandap dated September 30th, 2016.

[73] The materials filed and submissions made on behalf of Mr. O'Connor can be summarized as follows:

(a) Mrs. O'Connor unilaterally suspended his access to his children as provided for in the order dated November 16th, 2015;

(b) This unilateral suspension was done without authority and has resulted that he has not seen his children since June, 2016;

(c) The OCL report is biased and the incidents described are "being blown out of proportion";

(d) Mr. O'Connor has acknowledged his parenting mistakes, is not "a perfect parent" and despite not agreeing with the OCL recommendations, he understands that he "may need to do things differently";

(e) Mr. O'Connor is managing his mental health as seen by the letters he attached to his affidavits from his family physician, pastor and prior counsellor;

(f) That supervised access may message his children that supervision is needed as without supervision, they are at risk. Accordingly, the remedy of supervised access is serious;

(g) Mrs. O'Connor has failed, as the children's custodial parent, to encourage the father/daughter relationship;

(h) Mrs. O'Connor is "blocking access"; and

(i) Mr. O'Connor is concerned that Mrs. O'Connor is alienating the children from him.

[74] Given the parties' respective positions, it is evident that Ms. Majewski's evidence will be seriously weighed by the trial judge. The question today is whether or not I can determine, without the benefit of direct and cross-examination of Ms. Majewski and the hearing of other evidence, whether the concerns raised by her regarding Mr. O'Connor behavior merit the acceptance of some, none or all of her recommendations regarding the issues of custody and access on a temporary basis.

[75] Ms. Majewski highlights in her report each parent's position regarding the other parent's recital of their marital relationship, events leading up to their separation, their post-separation relationship, parenting abilities, mental health issues, the children's adaptation to their parents' separation and the involvement of outside resources with this family.

[76] Ms. Majewski states as follows:

Regarding the children at page 15:

Lia and Ciela are two delightful and bright young girls whom were a pleasure to know. Both girls presented as polite, playful and fun-loving. They also had some anxiety about them and it appeared evident that the marital discord and separation process has been difficult for them. Both girls spoke of fears when being exposed to conflicts between their parents and a sense of relief now that this is over.

Regarding Mrs. O'Connor at page 17:

Ms. O'Connor was observed to be a lovely mother who had a good relationship with the children; they seemed happy and relaxed when they were with her and in interview it was clear both girls regarded her as a safe person. At interview, Ms. O'Connor, appeared to be anxious where she was very eager to express her fears for the children. It seemed to this writer she was very invested in keeping her children safe and was fighting to do so. Ms. O'Connor was always appropriate with this writer, was detail oriented and also appeared to be very honest. For example, when I asked her if she had been physically abusive towards Mr. O'Connor in the marriage as he alleged, she agreed that in the early marriage, she did try to protect herself and fought back when Mr. O'Connor was in a rage; but that was when she learned this no longer worked she stopped fighting back and tried to break away. Ms. O'Connor has been proactive with the children since separation in getting them some counselling and she herself has attended counselling. She is clear that she wants the children to have a relationship with their father but she wants them to be safe in this relationship. She does not feel that they are safe, yet she has kept to the court order and sends the girls to access.

If I were going to give Ms. O'Connor any advice it would be that she needs to ensure that her own anxiety is not affecting her children. She is very concerned for their safety and as such appears to perseverating over every comment the children make about their father. She also reported she is doing a great deal of safety planning with them to keep them safe. While Ms. O'Connor's behaviours are understandable, I would hate for her own anxieties to start to make her children anxious. It may be a better strategy that the girls have a counselor who can assist them with safety planning and listen to their thoughts and feelings in a less anxious and more balanced manner. Similarly, Ms. O'Connor is encouraged to continue to attend counselling to help her continue to adjust to her new life and role as a single mother.

Regarding Mr. O'Connor at page 17:

Mr. O'Connor was observed to have a good relationship with the girls also. They were seen to be smiling when they were with him and also often sat on his lap. Mr. O'Connor expressed that he loves the children and desperately wants to be a significant part of their everyday life so that he can enjoy them, teach them and share his religion and love of sports with them. I feel his intentions were sincere.

[77] As stated by Douglas, J. in his decision in Krasaev v. Krasaev [2016] O.J. No 4859 at paragraph 29:

There is ample authority to support the proposition that courts are highly reluctant to disrupt the existing status quo on interim motions, particularly where there is conflicting affidavit evidence and the court does not have the benefit of viva voce testimony and cross-examination (see Miranda v. Miranda, 2013 ONSC 4704 para.26, Grant v. Turgeon para. 15 and Papp v. Papp).

[78] He continues to state at paragraph 32:

The leading line of authorities suggests an assessor's recommendations should not be acted upon without a full trial except in "exceptional circumstances where immediate action is mandated by the assessor's report." (see: Genovesi v. Genovesi, [1992] O.J. No. 1261, Grant, supra, Stuyt v. Stuyt at para. 9 and Bos v. Bos, 2012 ONSC 3425 at para. 17 ). In cases in which immediate attention is required, the court must assess whether the existing arrangement is actually or potentially harmful to the child as well as whether the child's best interest requires an immediate change. In such exceptional cases, an assessor's recommendations should be acted upon immediately before there is a full and thorough investigation provided by a trial (see S v. HC, 2009 ONCJ 136).

[79] I have reviewed the OCL report in its entirety.

[80] At this stage of the matter, I have no evidence about Ms. Majewski's education, training, experience, or knowledge of child development, parental alienation, and mental health diagnosis and treatment. My knowledge is limited to the fact that Ms. Majewski is an accepted clinical agent by the OCL and identifies her qualifications following her signature on the report as "MSW, RSW".

[81] I note however that counsel for Mr. O'Connor did not raise an issue regarding Ms. Majewski's qualifications.

[82] Furthermore, counsel for Mr. O'Connor has not sought an adjournment in order to permit out of court cross-examination of Ms. Majewski. There is also no evidence before me to suggest that cross-examination was requested before the hearing of these motions. Both of these options were available for Mr. O'Connor to pursue.

[83] In reviewing the report, I do not find that Ms. Majewski only accepts without further investigation and/or repeats the allegations raised by both parents against the other. Rather she seriously considers the concerns raised by both parents and investigates them through discussion with each parent, the children and collateral sources.

[84] Of particular relevance is that the children confirmed the information provided by Mrs. O'Connor regarding the incidents at Canada's Wonderland, the hitchhiking incident, the hotel room incident, Mr. O'Connor's driving etc. Ms. Majewski states at page 18 of her report that the children were not merely repeating the "words of their mother" in describing these incidents and their feelings.

[85] Furthermore, Ms. Majewski states at page 7 of her report the following:

"Mr. O'Connor felt that Ms. O'Connor is making a whole barrage of complaints to demean his value as a parent to the children. He stated that Lia was left in the hotel room by herself for only about 30 seconds as a result of a miscommunication between himself and his brother, he felt Ciela was being watched by Wonderland staff when he went on Behemoth with Lia; he stated he does not drive erratically, he acknowledged that he sometimes does not use a booster seat for Ciela but felt that Ms. O'Connor does that too; he acknowledged that on one occasion he double seat belted the children for a brief drive, and, he also acknowledged he hitched a ride with Ciela but that he checked out the people he was getting a ride from."

[86] On this issue of telephone access and specifically Ms. O'Connor's concerns regarding Mr. O'Connor's behavior during this contact method, Ms. Majewski writes at pages 7 and 8 of her report the following regarding both parties' input on this issue as follows:

'Mr. O'Connor has a religious obsession which he uses as a means to scare and control the children. Ms. O'Connor is unsure if his extreme religious talk/belief is assign of poor mental health or just extreme religious belief. Examples Ms. O'Connor provided were:

• Mr. O'Connor told Ciela on the phone one day (when he was trying to come over to Ciela's home to drop something off on a PD Day and Ms. O'Connor would not allow this) that the enemy, Satan has the capability of ruining her gifts and talents and can influence her not to listen to her parents.

• Mr. O'Connor once told Lia over the phone that he was having a vision that he saw a snake (this represents the devil) in her room and told her to pray profusely, the children were then scared to go to bed at night.

• There are times when Mr. O'Connor talks in "tongues" to the children: they do not like it.

Mr. O'Connor felt very passionately about his faith and felt it was a positive thing for himself and the children. He stated that any language he uses with them is language that they heard and were comfortable with in the marriage.

[87] Counsel for Mr. O'Connor submits that her client has acknowledged his actions in his affidavits. She specifically refers to Mr. O'Connor's affidavit sworn August 26th, 2016 at paragraphs 10 to 15.

[88] My review of this evidence reveals that Mr. O'Connor, despite being fully aware of the details of the concerns raised by Ms. Majewski in her report, has not specifically addressed his actions and maintains his view that these concerns are merely being, as submitted by counsel on his behalf, "blown out of proportion."

[89] As previously indicated, it is not disputed that the children have not had any access with their father since June 13th, 2016. There has therefore not been any opportunity since that time for other concerns regarding access to possibly occur.

[90] Ms. Majewski's report notes that she obtained collateral information regarding Mr. O'Connor's mental health from Dr. Philip, a psychiatrist and Mr. Chang, a psychotherapist. She notes as follows in her report:

At page 23 – Dr. Philip:

"Dr. Philip indicated that he saw Mr. O'Connor on only one occasion for a consultation at the request of Dr. Saleem….

…Dr. Phillip felt that Mr. O'Connor had been down playing his symptoms which was understandable as he was trying to distance himself from his family history. Mr. O'Connor was resistant to taking medication but was encouraged to talk about that with his counselor and to research the subject further. Mr. O'Connor's prognosis was considered favourable provided that he complied with management suggestions."

At pages 24 and 25 – Mr. Chang:

"Mr. Chang indicated that he started working with Mr. O'Connor and Ms. O'Connor in January 2015; he worked with them until September 2015…

..Mr. Chang indicated that he worked very briefly with Mr. O'Connor after the separation; he was very down and did not feel that he could work. Mr. Chang felt that Mr. O'Connor seemed depressed both in and after the marriage; he felt his depression was in the moderate range. Mr. O'Connor was not seeing his doctor in regards to his depression. Mr. Chang was aware that Mr. O'Connor's mother had Bipolar disorder and that his brother suffered from depression. Mr. Chang wanted Mr. O'Connor to continue with the counselling but he did not; he even offered him free vocational counselling which Mr. O'Connor chose to decline".

[91] In his Dispute to the OCL report, Mr. O'Connor states that Dr. Philip conducted a mental health assessment following one visit with him. Accordingly, Mr. O'Connor submits Dr. Philips' opinion is inaccurate. Mr. O'Connor submits that the opinion of his family physician is more reliable given the frequency of contact with her.

[92] Furthermore, Mr. O'Connor questions in his Dispute the qualifications of Mr. Chang and the period of his involvement.

[93] I agree with submissions made by counsel for Mrs. O'Connor that Dr. Saleem, Mr. O'Connor's family physician, is capable to report to the court her contact with Mr. O'Connor, the medications she has prescribed, referrals to specialists and counsellors, compliance by Mr. O'Connor with his treatment plan and his behaviour as observed by her in her office when he is alone or with the children. I further agree however that the qualifications of Dr. Saleem, given her credentials, to assess his mental health status is an area of uncertainty.

[94] In reviewing the evidence provided regarding Mr. O'Connor's mental health issues, I find that there is evidence to support periods of compliance and periods of non-compliance by him. This evidence does support the conclusions reached by Ms. Majewski in her report that concerns exist currently regarding his mental health status.

[95] I further find that Mr. O'Connor also does not deny in his materials bringing the children to his residence, whom he shares with his mother, despite the prohibition contained in the order dated November 16th, 2015.

[96] In reviewing the entire evidentiary record before me and for the reasons noted above, I find that there does exist a serious basis of concern for the children should unsupervised visits continue to occur between the children and Mr. O'Connor.

[97] Although the report of Ms. Majewski do not expressly state an immediate implementation of her recommendations, I accept that the recommendations for supervised access and terms regarding telephone access are required immediately in the best interest of the children as claimed by Mrs. O'Connor.

[98] Accordingly, I am satisfied that Mrs. O'Connor has met the threshold of establishing that "exceptional circumstances" exist in this matter so as to implement some of the OCL recommendations at this temporary hearing given the existing unsupervised access order and the absence of access in light of the terms of this order.

[99] In making this determination, I find that the meeting of the threshold relates exclusively to the issue of access between Mr. O'Connor and the children. There is an absence of evidence to satisfy me that an order for sole custody and other non-access related relief she is seeking should be ordered at this stage.

Order

[100] For the reasons noted above, an order will go in accordance with paragraph 1(b) and (c) of Mrs. O'Connor's Notice of Motion dated September 16th, 2016 located at Tab 3 of Volume 2 of the Continuing Record, namely that paragraph 1 of the temporary order granted on consent of the parties on November 16th, 2015 is varied as follows:

(1) The Respondent, Christopher-Paul O'Connor, shall have supervised access to the children, namely, Lia Esther O'Connor, born March 24th, 2006 and Ciela Clarity O'Connor, born May 17th, 2008, once per week, either through a supervised access centre or private agency such as Brayden Supervision Services; and

(2) The Respondent, Christopher-Paul O'Connor, shall have telephone access to the children, namely, Lia Esther O'Connor, born March 24th, 2006 and Ciela Clarity O'Connor, born May 17th, 2008, at 8:00 p.m. on Monday and Thursday each week commencing immediately for a period of five (5) minutes each. The purpose of the calls should be to see how the children's week has been and not for bible instruction.

[101] The balance of the relief sought by Mrs. O'Connor is denied.

[102] The relief sought by Mr. O'Connor is his Notice of Motion dated August 26th, 2016 and located at Tab 1 of Volume 2 of the Continuing Record is denied.

[103] Counsel are encouraged to discuss and resolve any request for costs. In the absence of an agreement, counsel is to contact my assistant, Ms. Ana Boras by e-mail at ana.boras@ontario.ca by no later than February 13th, 2017 to arrange for a teleconference in order to set timelines for written submissions to be provided on this issue.

[104] As previously noted in my endorsement dated December 21st, 2016, this matter will proceed to a settlement conference on March 21st, 2017 at 10:00 a.m. in Courtroom #201.

Dated: January 30, 2017

Justice L.S. Parent