Court File and Parties
Court File No.: DFO-16-14067 Date: 2018-02-14
Ontario Court of Justice
Re: Davianne Daniel – Applicant And: Gerard L. Henlon – Respondent
Before: Justice S. O'Connell
Counsel: Victoria Boger-Mull for the Applicant Respondent, acting in person
Endorsement
Dated February 14, 2018
Motion heard on February 1, 2018
Introduction
[1] The applicant mother, Ms. Daniel, has brought a motion for an order to terminate the respondent father's mid-week access to the child Wint Theodore Henlon ("Wint"), born July 5, 2013[1], until the father has completed the parenting course "Nobody's Perfect" and provides proof of completion.
[2] The applicant mother brought this motion following the completion of the investigation and report by the Office of the Children's Lawyer ("OCL"). The OCL clinical investigator completed her report on January 3, 2018. The report has now been filed with the Court, in accordance with section 112 of the Courts of Justice Act.
[3] The mother's motion seeks to incorporate one of the recommendations set out in the OCL Report regarding access. Following the completion of her investigation, the clinical investigator recommended that the father's mid-week Wednesday access be terminated.
[4] The Respondent father, Mr. Henlon, has also brought a motion to terminate spousal support. However, spousal support was one of the issues before me in a viva voce focused hearing heard previously. I have reserved my decision on that issue and it will be released shortly.
Brief Background
[5] The parties met on an online dating website in July of 2012. At the time, the mother was residing in London, England with her two children of a previous relationship and the father was residing in Toronto. Both parties were previously married. The mother has two daughters from a previous relationship, who lived with her in England at the time the parties met. The father does not have any children, other than the child who is the subject of this motion (Wint).
[6] The parties met in person when the mother traveled to Toronto in August of 2012 for a family wedding. She returned to England after the wedding. Mr. Henlon visited Ms. Daniel in England in September of 2012.
[7] On October 4, 2012, the mother and her youngest daughter Jan-Ai, who was almost seven years old at the time, moved to Toronto and started living with Mr. Henlon. Ms. Daniels' older daughter Ianthe, who was 14 years old at the time, remained in England and moved in with her biological father.
[8] Wint was born on July 5, 2013, nine months after the parties started living together. The parties separated in November of 2015. The parties never married. After the parties separated, the mother's oldest daughter Ianthe moved to Canada in or about 2017 to live with her mother and her siblings.
[9] The parties' separation was very difficult for both of them. Both parties described difficulties in their relationship although it is not disputed that the culminating event leading to their separation occurred on November 9, 2015. On that night, when Mr. Henlon returned home from work, he read Jan-Ai's diary, which she had left on the dining room table. Jan-Ai was nine years old at the time. Mr. Henlon saw that Jan-Ai had written some negative things about him. Both parents were very upset about the incident and they argued. The next day Jan-Ai informed her teacher that Mr. Henlon was mean to her and that he threatened to remove Ms. Daniel and the children from the home. The teacher contacted the children's aid society who then involved Toronto Police Services.
[10] It is not disputed that the children's aid society and the police verified that there had been no physical abuse. Ms. Daniels acknowledges this and this is confirmed in children aid society and police records. However, Ms. Daniels states that Mr. Henlon was verbally and emotionally abusive. She states that he became very upset upon reading Jan-Ai's diary and that he handled this incident very poorly.
[11] Mr. Henlon's denies being verbally abusive and states that he was completely shocked and very upset about what he read in Jan-Ai's diary. He states that he did not feel supported by Ms. Daniel. He believes that she handled the incident very poorly. He further denies that he ordered anyone to leave the house.
[12] This incident and the parties' differing responses to it led to an irreconcilable breakdown in the parties' relationship. They agreed to separate. Mr. Henlon and Jan-Ai have not spoken since Mr. Henlon read her diary in November of 2015. Jan-Ai is now 12 years old.
[13] Following this incident, Ms. Daniel and the children went to stay with her cousin for three days. She and the children then returned to the house and stayed in the basement until November 30, 2015 when Ms. Daniel secured an apartment for herself and the children. Mr. Henlon agreed to pay first and last month's rent for the apartment and continued to pay the rent and provide other financial assistance until the parties' first court appearance, at which time the parties entered into temporary spousal and child support orders on consent.
[14] Commencing July 1, 2016, Mr. Henlon paid child and spousal support to Ms Daniel in the global amount of $4,060.00 per month, pursuant to the Temporary Consent Order dated June 8, 2016. Mr. Henlon significantly reduced these payments after he was laid off in February of 2017 by his employer. A separate ruling on the adjustment of support going forward and arrears will be released shortly.
[15] Following the separation, the parties disagreed regarding the father's parenting time with Wint. The father stated that it was greatly reduced as a result of the mother's attempts to frustrate and limit his time with Wint. The mother disagrees.
[16] On June 8, 2016, the first case conference on this matter, the parties entered into a temporary parenting schedule on consent which provided that Mr. Henlon would have access to Wint on alternating weekends from Friday at 4 p.m. until Sunday at 7 p.m. and every alternate Wednesday, with pick up from daycare at 4 p.m. until Thursday, drop off at daycare between 8 and 8:45 a.m.
[17] This temporary access order access remained in place until July 20, 2017. By all accounts it proceeded without incident. Neither party brought a motion to change the access order during this time.
[18] On July 20, 2017, the parties entered into a new temporary order following the mother's move to Pickering, Ontario, resulting in a change of daycare and school for Wint and Jan-Ai. The parties agreed to the following temporary access order between Wint and the father, according to the Consent filed:
The father shall have alternate weekends from Friday at 3:30 p.m., pickup from the child's school, to Sunday at 7 p.m., pickup at the Tim Horton's located in Pickering, Ontario. The applicant mother to provide the father through counsel with the address of the child's new school;
The father shall have alternate mid-week access on Wednesdays, commencing Wednesday, September 13, 2017, pickup from school at 3:30 p.m. and drop off at 9 a.m. at the school.
[19] In the same Consent Order, the parties also agreed to refer the custody and access issues to the Office of the Children's Lawyer to conduct a section 112 investigation and report. The parties further agreed and the court ordered that the father shall not video or audio record during the pick-up and drop-off of the child and that the parties shall use the program 'Family Wizard' to communicate regarding parenting issues.
The OCL Report
[20] As indicated, the Office of the Children's Lawyer accepted the referral and completed its report on January 3, 2018. The clinical investigator, Ms Carolyn Cahan, made a number of recommendations regarding custody and access, set out at pages 13 to 15 of the Report. The recommendations relevant to the mother's motion are set out as follows:
The mother shall have sole custody of Wint. It is recommended that the father be informed and consulted when possible.
The father shall continue to have alternate weekend access with Wint.
The father's mid-week access should be terminated.
"Due to the concerns about Wint's behavior after spending time with his father, it is advised that Mr. Henlon attend a parenting course. It is suggested that Mr. Henlon participate in the course Nobody's Perfect which is offered by Toronto Health. Following completion of this course, midweek access may resume. It is important that Mr. Henlon provide proof of completion of the course to Ms. Daniel's counsel."
[21] In the discussion portion of her report, the clinical investigator makes the following observations and conclusions:
Wint appears to be bright, energetic and well-adjusted. He does not present with any significant social, emotional or behavioral concerns. He loves playing with miniature cars, trucks, and other transportation vehicles. He had a difficult transition to junior kindergarten but his teacher reports that his behavior continues to improve and that he has made a few friends.
Wint has been diagnosed with sleep apnea and has bowel issues. According to both parents, he has had appropriate medical care and that there are no outstanding medical issues that need to be resolved. Wint presented as comfortable in both homes and is affectionate with both his mother and father. Both parents seem to have his best interests at heart and he appears to be attached to Ms. Daniel and Mr. Henlon.…
The school's account of Wint's behavior being significantly more difficult following visits with his father is very concerning and cannot be ignored. According to Wint's teacher, Wint's behavior is more aggressive, defiant and angry after he has been in the care of Mr. Henlon. He often appears tired and Wint's teacher claims that it takes him a few days to settle down after he has had visits with his father. This information was raised with Mr. Henlon who has asserted that he disagrees with this information and states that there is an alliance between the school and Ms. Daniel. He has also expressed that he felt the school might be more inclined to support Ms. Daniel because she is Catholic and he is not of this religion.
This clinical investigator suggested that Mr. Henlon consider taking a parenting course in order to strengthen his parenting skills. Mr. Henlon's said that he would be open to taking a parenting course if it could be proven that Wint's behavior is different after his visits with him.
[22] The clinical investigator also noted the following at pages 12 to 13 of her report:
This clinical investigator had concerns about Mr. Henlon's level of anger and animosity towards Ms. Daniel. She raised her concerns with Mr. Henlon and recommends that he considers engaging with a professional therapist. It was pointed out to Mr. Henlon that some of his actions and reactions seem to lack judgment and an alternative perspective may be helpful to him. It should be noted that this clinical investigator sees the strong bond between Mr. Henlon and his son and believes that Wint should have access to his father. Mr. Henlon's intentions for the best interests of Wint are genuine and sincere.
It is also strongly recommended that the parents engage a parenting coordinator so that a mental health professional can continue to monitor the situation and facilitate communication with the parents. Due to the animosity, lack of trust and high level of conflict between the parents, it is the opinion of this clinical agent that joint decision-making is not possible. It is recommended that Ms. Daniel be awarded sole custody as she has shown that she is capable of making child focused decisions that are in the best interests of Wint. It is recommended that Mr. Henlon be informed of all major decisions and that he be consulted when possible. Mr. Henlon should have access to important information including medical documents and report cards.
The Law and Governing Principles
[23] The variation of temporary orders of custody and access is governed by section 29 of the Children Law Reform Act, which provides as follows:
"29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child." R.S.O. 1990, c. C.12, s. 29.
[24] It is clear from the legislation that in order to vary a temporary custody and access order merely "a change" in circumstances is not sufficient. There must be a "material" change in circumstances.
[25] On a temporary motion, a material change in circumstances means it must be "substantially important". Moreover, even if the change is material or substantially important, that may not be enough to justify varying the terms of the existing order. The material change in circumstances must affect, or must be likely to affect the best interests of the child or children. The onus is on the person seeking to change the order to persuade the court on the basis of the evidence that a change is required. The evidence has to meet the civil standard of a balance of probabilities. See McIsaac v. Pye, 2011 ONCJ 6284, per Kukurin, J. at paragraphs 13 to 16.
[26] It is well established in the case law that in custody and access cases, it is generally not in the best interests of children to disturb the status quo on a temporary motion pending a trial without compelling reasons. The moving party must demonstrate that there is material and compelling evidence that the child's best interests demand an immediate change to the status quo or the existing parenting arrangement pending a trial, particularly if the status quo has been in place for a significant period of time and a temporary order is already in place. See the well-known cases of Grant vs. Turgeon, 2000 ONSC 2000; Genovesi v. Genovesi.
[27] Compelling reasons to change the status quo on a temporary basis pending a trial could include serious mental health issues in connection with one of the parents, drug or alcohol addictions on the part of one of the parents, the child being at risk of physical or emotional harm in parent's care, or demonstrable evidence that the child is doing very poorly under the temporary parenting order.
The Reliance on the OCL Report for the Temporary Motion
[28] Is the completion of an assessment or an OCL report a material change in circumstance that could trigger a change in a temporary custody and access order pending trial? The use of assessment reports or OCL reports on interim motions to change temporary custody and access orders has been canvassed extensively in the case law. As a general rule, courts should be very cautious about relying on conclusions and recommendations set out in untested assessment reports at a temporary motion pending trial, and about implementing even some of the recommendations in a report at the temporary motion stage. See Batsinda v. Batsinda, 2013 ONSC 7899, at paragraph 32, per Justice Deborah Chappel; Marcy v. Belmore, 2012 ONSC 4696, at par. 16, per Justice Alex Pazaratz.
[29] The rationale for this approach is explained by Justice Pazaratz in Marcy v. Belmore, supra, where he states at paragraphs 15 and 16 of this decision:
"Assessments and section 112 reports are generally prepared for consideration at trial-where the report will form part of the evidence. The trial affords an opportunity for thorough evaluation of all aspects of the experts report including the author's credentials, methodology, observations, factual findings, theories and recommendations. There is no equivalent opportunity for such testing and analysis at the motions stage. Nor is there the opportunity to assess credibility and factual disputes; or consider the weight to be given to the assessment in the context of the overall evidence which will be available at trial. Genovesi v. Genovesi; Grant v. Turgeon."
[30] There is a significant body of case law that asserts it is only in exceptional circumstances that an assessor's recommendations should be implemented immediately before the parties both have an opportunity to fully test the assessor's evidence and recommendations. Even in those cases, courts should act with caution, implementing only such changes as may be required to rectify an urgent situation which cannot be allowed to continue until trial. See Batsinda v. Batsinda, supra, Marcy v. Belmore, supra.
[31] However, there have been some cases where courts have drawn a distinction between the issues of custody and access. These courts have relied on recommendations of the assessor or clinical investigator on temporary motions for access only. For example, in Abrego v. Moniz, 2006 ONCJ 500, Justice June A. Maresca admitted and relied upon an OCL Report on the father's motion for interim access, without cross-examination. She distinguished between those cases dealing with custody and those dealing with access, where interim motions for access were granted largely on the basis of the recommendations of the assessor. See also Verma v. Chander, 2009 ONCJ 136, per Justice Manjusha Pawagi. In both of those cases, the courts relied upon the clinical investigator's recommendations to expand access.
[32] However, rather than drawing a distinction between custody and access, Justice Roselyn Zisman states the following in Benko v. Torok, 2012 ONCJ 152, when considering the use of an assessment or OCL report at an interim motion:
"With respect to those judges that have drawn this distinction, in my view the relevant consideration is not whether there are recommendations regarding custody or access but what issue will be determined at trial and whether or not a court should make an order relying on the untested observations and recommendations of an assessor…
The cases where a court has relied on an assessment at an interim motion also draw a distinction between relying on the observations and evidence of the assessor as opposed to the conclusions of the assessor. However, in this case, the observations themselves are being questioned due to the deficiencies in the investigation." [Paragraphs 33 and 34 of the decision].
[33] Further, in F.I. v. S.P.P., 2010 ONCJ 473, Justice Theo Wolder states the following when refusing to rely on an assessment report on a motion brought by the father seeking temporary access in accordance with the assessor's recommendations:
"I an persuaded that although a motion for temporary relief has to be based on the child's best interests, it should never disturb the existing status quo unless there is such urgency that it is necessary to do so, in the child's best interests." [Paragraph 13 of the decision.]
[34] In Bos v. Bos, 2012 ONSC 3425, Justice Victor Mitrow adopts a more flexible approach and emphasizes that at both interim motions and trials, the court has an absolute obligation to address and safeguard the best interests of the child. Justice Mitrow held that where a court is being asked to consider an assessment at a temporary motion without making a finding that exceptional or urgent circumstances exist, the motions judge should weigh all appropriate factors within the context of that particular case, including the following, as set out at paragraph 26 of his decision:
How significant is the change being proposed as compared to the interim status quo?
What other evidence is before the court to support the change requested?
Is the court being asked to consider the entire report and recommendations or is it necessary for the purpose of the motion to only consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge?
Are the portions of the recommendations which are sought to be relied on contentious and if so, has either party requested an opportunity to cross examine the assessor?
[35] In a subsequent decision, Taylor v. Clark, 2017 ONSC 1235, Justice Mitrow also highlights the important distinction between an OCL report and an assessment. An OCL report is not an expert report nor is it an assessment. An OCL report is largely a fact gathering exercise. The statute expressly provides for an investigation to be made and for a report that includes recommendations. In determining whether to use an OCL report at an interim motion, the court should not focus on the recommendations but on the factual aspects of the OCL report. [See paragraph 53.]
[36] Applying the factors set out in Bos v. Bos, supra, Justice Mitrow relied on the factual aspects of the OCL report at the temporary motion to implement the OCL recommendations in the case before him, as the change being made to the regular parenting schedule was not significant, there was affidavit evidence supporting the change, only some factual aspects of the OCL report were being considered, not the recommendations, and those portions of the OCL report that were being considered were largely non-contentious. See Taylor v. Clark, supra at paragraph 53 and 59.
[37] Although this is a more flexible approach regarding the use of OCL reports on temporary motions to vary custody and access orders, in my view, caution must still be exercised, particularly if the observations or facts relied upon by the clinical investigator to formulate her recommendations are highly contentious, questionable, or deficient, the status quo and existing temporary order have been in place for a considerable period of time, and there are no compelling, urgent or exceptional circumstances justifying a variation to the temporary order pending trial or a final disposition.
Application of the Law to the Facts of This Case
[38] In the case before me the existing status quo has been in place since June of 2016, pursuant to the first temporary order granting the father alternating weekends and mid-week Wednesday access. Both the temporary orders granting the father overnight mid-week Wednesday access were made on consent of the parties. This is a period of approximately twenty months.
[39] Until the receipt of the OCL Report, the mother did not bring to the court's attention any concerns about the child's apparent behavioral problems or tiredness following access with the father. By all accounts the access proceeded without incident.
[40] Further, the OCL investigator made the following factual findings regarding Wint and his interaction with his parents, based on her own direct observations:
Wint appears to be bright, energetic and well-adjusted. He does not present with any significant social, emotional or behavioral concerns. [page 11]
Wint presented as comfortable in both homes and he is affectionate with both his mother and father. He appears to be attached to both parents. [page 11]
There is a strong bond between the father and Wint. The father's intentions for the best interests of Wint are genuine and sincere. [page 12]
The mother is also looking out for the best interests of her son. Wint appears to be stable, happy, well cared for and thriving in the mother's home. [page 12]
[41] In reviewing the report, it appears that the OCL investigator recommended the termination of the father's mid-week Wednesday access based solely on her one discussion with Wint's current teacher. At page 12 of the Report, Ms. Callahan reports that the teacher claims that Wint's behavior is more aggressive, defiant and angry after he has been in the care of the father and that he often appears tired following access with the father. The teacher further reported that it takes Wint a few days to settle down following access with his father.
[42] This is the only collateral interviewed that raised this issue. The clinical investigator never directly observed this behavior herself. She did not conduct observation visits with Wint at school following a weekend or midweek access visit with his father.
[43] Mr. Henlon strongly disagrees with this interpretation of Wint's behavior by the current schoolteacher. It is not disputed that in August 2017, the mother moved to Pickering and changed Wint's school and daycare. The mother's unilateral move to Pickering with very little notice to the father was also contentious. It is further not disputed that Wint started at his new school in September 2017.
[44] According to the same teacher in the same discussion with the clinical investigator, Wint had a difficult start to the school year. He seemed very angry and often kicked and screamed when he was upset. This teacher further reported to the clinical investigator that Wint's behavior has improved significantly since September and that she has observed fewer incidents of anger outbursts.
[45] It is also not disputed that the clinical investigator conducted her investigation during the time period that Wint was transitioning to his new school.
[46] Further, it is clear from reviewing the OCL Report that Wint's previous teachers and daycare providers did not report any behavioural difficulties or tiredness with Wint following the father's mid-week access.
[47] According to the previous supervisor at the Montessori daycare where Wint was a student from September 2015 to March 2016, Wint presented as a happy, intelligent boy who enjoyed the Montessori activities and was content at school. He interacted well with his peers and teachers. The staff did not observe any behavioral challenges while he was at the program. Both parents were involved, supportive and interested in Wint's progress at the school.
[48] This directly contradicts the statements made by the current teacher and fails to consider the very difficult transition that Wint had when he moved to a new school in September 2017.
[49] There is also no explanation in the OCL Report regarding how and why the parenting course 'Nobody's Perfect' could assist the father around mid-week access issues or what he needs to do differently, if anything. Nor was it clear from the Report whether this was explored with the father or whether the mother or Wint's teacher had communicated with the father about issues with Wint following his mid-week access. It appears that the first time that the father became aware of this issue was at the OCL disclosure meeting in December of 2017.
[50] If there is an issue with Wint being too tired after his Wednesday access with the father, then this should have been immediately communicated so that various options, including starting the bed-time routine earlier, could be explored. The recommendation to immediately eliminate Wednesday mid-week access seems harsh and detrimental to Wint's best interests without a further exploration of these issues, particularly given the clinical investigator's direct observations of what she described as the "strong bond" between Wint and his father.
[51] If the mother did have concerns, there is no evidence on the motion before me that these concerns were communicated to the father. Although the parties were ordered to use the 'OurFamilyWizard' program in July 2017, there was no evidence filed that the mother specifically raised these concerns with respect to mid-week or weekend access with the father through the Family Wizard.
[52] The only evidence filed, on consent of the parties, was a message sent to the father by the mother through Family Wizard on September 13, 2017 which reads as follows:
"Wint was having a hard time in school today and did not want to go to school. Please let me know how he is when you collect him. He cried a lot."
[53] However, this message was sent on Wednesday morning, after Wint was with his mother on Tuesday night, and not following his access with his father. There is nothing in the message that tells the father that Wint is having a hard time or is tired after his mid-week access. Further, this message was sent approximately one week after Wint had started at his new school, which everyone acknowledged was a difficult transition for him.
[54] During oral submissions, the mother states that she and the teacher communicated these concerns to the father in a separate communication book used by the parents and the teacher at Wint's school. The father denies this. The communication book was not produced in evidence on the motion. This would have been very helpful evidence.
[55] It was also concerning to me that, according to the OCL Report, Wint's current teacher advised the clinical investigator that she is reluctant to email with the father on a regular basis regarding's Wint's progress although she appears to have regular communication with the mother. This statement lends some credence to the father's submission that the teacher is not acting independently and sharing the same information with both parents. However, it was clarified to me during oral submissions that the teacher does not use email as a form of communication and simply prefers face-to-face or telephone communication.
[56] Finally the only other evidence that the mother relies upon to support the termination of the father's midweek access is her affidavit in which she states, "I have noticed that Wint struggles to adjust back to his routine when he returns from the respondent father's home." Respectfully, that is not a sufficient evidentiary basis to completely eliminate the child's mid-week access with his father.
[57] In my view, in accordance with the above legal principles and analysis, the temporary access order should not be varied on a temporary basis solely on the basis of the OCL Report. The factual basis upon which the OCL recommendation to terminate the father's mid-week access is questionable and untested. It is contradicted by other evidence and would represent a significant change to a status quo that has been in place for more than one and one-half years. The father and Wint have enjoyed mid-week access without incident and the clinical investigator observed a strong bond between Wint and his father. The clinical investigator also observed that Wint appears bright, energetic and well-adjusted.
[58] Having said that, the court agrees with the clinical investigator's observation that there is a lack of trust and a high level of conflict between these parents. It is very apparent that they do not communicate well or at all. There is no question that as Wint grows older, he will become aware of the conflict between his parents and their failure to communicate with each other regarding his best interests, if he has not already done so.
[59] I urge the parties, particularly the father, to communicate regarding Wint's welfare and best interests and to respect each other's concerns. It is clear that both parents love Wint very much and have his best interests at heart. However, it has become very apparent to me throughout the case management process that the father has been unable to move past his hurt, anger and sense of betrayal regarding the parties' relationship and separation. He is incapable of trusting anything that the mother says. This does not bode well for Wint's future and the father needs to move forward.
[60] I urge the parties to use the communication book and OurFamilyWizard to keep each other fully apprised of any significant issues in Wint's life. I further urge both parties and in particular, the father, to set aside their animosity and mistrust for the sake of their son. It is imperative that the parties established a civil and working relationship to communicate about Wint.
Conclusion and Order
[61] For the above reasons, the mother's motion to terminate the father's mid-week access is dismissed, without prejudice to being renewed should there be more compelling and reliable evidence that an immediate change is required.
S. O'CONNELL
DATE: February 14, 2018
[1] The mother's notice of motion and supporting affidavit state that Wint's date of birth is May 7, 2013, but this is obviously an error, as it is not disputed that Wint's date of birth is July 5, 2013.
