Court File and Parties

Ontario Court of Justice

Date: July 6, 2018

Court File No.: 22/08

Applicant Counsel: Samuel Cecil Baylis, Richard Gordner

Respondents: Aasha Shonek, Jennifer Rooke

Heard: July 4, 2018

Endorsement

Background and Motion

[1] Within a motion to change brought by the Respondent, the Applicant moves for a temporary order specifying how access exchanges with the parties' child are to take place. He also asks for an order that the Respondent be required to pay for 6 to 8 therapy sessions for the purpose of reconciling the child with the father and which are now ongoing.

[2] The evidence on the motion consisted of the Respondent's affidavit sworn June 8, 2018 and the Applicant's affidavit sworn June 20, 2018. There is much contradictory evidence contained within these two affidavits. The Applicant did not file a reply affidavit therefore a number of the statements contained in the Respondent's affidavit were not challenged.

[3] The parties are the parents of Samuel Cecil Baylis Jr., born October 18, 2006 ("child").

Prior Orders and Access History

[4] By order of McFayden J. dated September 15, 2008, made on consent, the Respondent ("mother") was granted custody of the child. The Applicant ("father") was granted supervised access to the child. This order was varied pursuant to Minutes of Settlement, by order of this Court dated December 4, 2012 (the "Order"). Pursuant to the Order the father's access was to be unsupervised including at the following times:

• a. Alternate weekends from Friday at 4:00 P.M. until Sunday at 5:00 P.M.;
• b. Defined holiday and special occasion access;
• c. Access exchanges were to take place at a supervised access centre; and
• d. Telephone access each Tuesday and Thursday between 6:00 P.M. and 6:30 P.M.

Father's Evidence: Expanded Access

[5] The father's evidence on this motion is that by January 2017 he had access with the child in excess of what was specifically provided for within the order:

• a. During football season the father took the child to all of his practices and games;
• b. The father was also involved with the child's school to assist him academically and socially;
• c. Weekday access was expanded to include Tuesdays and Thursdays from after school until 8:00 P.M.; and
• d. Access pick-up occurred at the school instead of at the supervised access centre.

[6] This enlarged access schedule continued until July 16, 2017. On that day the father stated that he asked the mother to allow him to start weekday access during the summer at 8:00 A.M. instead of 3:30 P.M. The mother refused the father's request.

Mother's Refusal and Child's Concerns

[7] The mother acknowledged that she did not agree to the father's request for this expanded weekday access. His initial request was for access every day during the summer months. She declined this request. He then asked for access all day on Tuesday and Wednesday during the summer. She also declined this request. Her reason for doing so was based upon the child's statements to her which she believed were true. The child did not want the access expanded as requested by the father. The mother understood from the child that the father made the child feel badly by belittling him about his weight and making him exercise excessively. He also felt pressured by the father to live with him.

[8] According to the father the mother has failed to facilitate any access since that date: she would not allow the father to pick-up the child at school nor would she take him to the supervised access centre.

Access Cessation and Resumption

[9] As a consequence the father did not have access to the child from July 16, 2017 until shortly after the parties agreed on March 15, 2018 at a Case Conference to a therapeutic intervention to attempt to restore access.

[10] The mother's evidence is that the father stopped going to the daycare to pick-up the child. He did so without notice to the daycare, child or her. He did not attempt to exercise access until January 2018 when a request was made through his counsel. In response to this request the mother asked for access exchanges to be returned to the supervised access centre.

Telephone Access Dispute

[11] The father also stated that he has been denied telephone access as provided for in the order. He does not have a telephone number for the child.

[12] In April 2018 the father bought a cellphone for the child. He stated that the mother monitored his conversations with the child and did not permit them to have a private conversation. The mother's evidence is the father bought the child a cellphone but deactivated it three days after giving it to him. The mother denied monitoring the conversations that took place between the father and child.

[13] The mother acknowledged that she did not give the father her telephone number so that he could make the access call. Her reason for doing so was that in the past when he had her telephone number she was harassed by him. She suggested other means of electronic communication that could take place between the father and child. In the past they used a computer application called Google Hangouts. A phone would not be necessary.

Mother's Account of Access History

[14] The mother's evidence is that the father had not attended for numerous access visits without reasons being provided. She described his access prior to January 2017 as being sporadic and inconsistent. She described that there were gaps in access lasting weeks or sometimes months. The mother attributed some of the child's negative behaviour in late 2016 to this sporadic and inconsistent exercise of access.

[15] The mother denied not being supportive of the father's access. She agreed to the expanded weekday access that took place even though there was animosity between the parents.

[16] She said that she encouraged the relationship. When the child was sad or upset she reminded him "he only has one father and they should try to 'work it out.'"

Birthday Party Incident

[17] The mother described a recent incident that she said exemplified the reason why the child is resistant to access. On April 29, 2018 the mother and child were at a birthday party. The father was also there to drop off his son from another relationship. The mother asked the child to go over and speak to his father. The child resisted. With the mother's encouragement the child did go speak with his father. Sometime later the mother went to check on the child and saw the father speaking aggressively to him. This caused the mother to tell the child to go back to the party. She told the father that the birthday party was not "the time or place for such a conversation." The father then started to yell at both the child and the mother. After this occurred, the child was mad, upset and angry with the mother because she made him go speak to the father.

Current Status

[18] The child, now 11 years of age, is resistant to going to access or even speaking with his father.

[19] The therapeutic counselling which the parties referred to as "open intervention" continues.

Father's Requested Relief

[20] The father argues that the mother is in breach of the Order. As such this allows the Court to invoke its jurisdiction under sub-rule 1(8) to impose the following order:

• a. The access pick-up should take place at the school during the school year;
• b. The Respondent should take the child to a supervised access center for other exchanges;
• c. The mother should be required to pay the therapist's costs for the next six to eight sessions;
• d. The mother should provide a cellphone at her expense to the child so that telephone access can take place and that she not be present during a telephone access call; and
• e. In the alternative to the mother paying the therapist's costs she pay costs to the father in the amount of $2,000.00.

Mother's Position

[21] The mother asks that the motion be dismissed. She denies being in breach of the Order because access difficulties are not of her making. She argues that the report of the therapist conducting the open intervention should be received before any attempt is made to force the child to attend access.

Legal Considerations

[22] A custodial parent has a positive obligation to do all that he or she can to ensure a reluctant child attends access as ordered: Godard v. Godard, 2015 ONCA 586.

[23] Where access has been determined to be in the child's best interest, the custodial parent cannot abdicate parent responsibility by leaving it to the child to decide whether to go or not: Karar v. Ella, 2016 ONSC 7926.

[24] If a person fails to obey an order in a case, sub-rule 1(8) of the Family Law Rules allows the Court to make any order it considers necessary for the just determination of the matter.

[25] The threshold issue the Court is to determine in deciding whether sub-rule 1(8) applies in the circumstances in this case is whether the Respondent failed to obey the Order by reason of her not having made sufficient efforts to have the child visit with the father as ordered: Michener v. Carter, 2018 ONSC 2780 at para 29.

[26] In Jackson v. Jackson, 2016 ONSC 3466, [2016] O.J. No. 2870, a contempt case, Justice Chappel suggested a four question inquiry at para. 63(d) to determine whether a parent took sufficient steps to ensure access took place:

1. Did the parent engage in a discussion with the child to determine why the child is refusing to go?
2. Did the parent communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?
3. Did the parent offer the child an incentive to comply with the order?
4. Did the parent articulate any clear disciplinary measures should the child continue to refuse to comply with the order?

[27] In support with the fourth question, the Court relied upon Godard, supra and Jackscha v. Funnell, 2012 CarswellOnt. 10467 (Ont. S.C.J.), also a contempt case. In Jackscha the court combined the 3rd and 4th questions as alternatives as follows:

17… Faced with a child who is unwilling to go with the other parent, the parent in care of the child must do more than simply acquiesce. At a minimum one might expect the following:

• A discussion with the child to determine why he does not want to go • Communication with the other parent to advise of the difficulty and discuss how it might be resolved • Offering the child an incentive to go, or some form of discipline should he continue to refuse [emphasis added]

[28] In Jackson at para. 63 (e) the court held that the determination "as to whether an alleged contemnor has taken reasonable steps to require the child to attend access visits ultimately depends upon the unique facts of every case. This analysis must take into account consideration of the child's age, their growing opinions and the evidence regarding their emotional status."

Analysis

[29] On the evidence in this motion I find that the mother has in certain respects not made a sufficient effort to have the child visit with the father but for the most part she has.

[30] When the mother told the child to "work it out" with that the father she abrogated her responsibility as a parent to assist in access taking place. The better response would have been to add "and I will help you do that because it is important."

[31] When she refused the father's request to enlarge summertime access she should have contacted the supervised access center and the father to reestablish that place as the access exchange center. She should have then insisted that the child attend with advice to him that she would speak to the father about the behavior the child found so concerning. She should have communicated the child's concerns to the father.

[32] In all other respects I am satisfied that the mother has made sufficient efforts to have the child visit with the father.

[33] The mother has engaged in discussions with the child to find out why he resists attending access. The child has told her about the type of conversations the father engages in with him. The child's perception, according to the mother, is that the father was critical of his weight and put pressure on him to move to his home. The father berated the child at the birthday party.

[34] The parents have communicated about the difficulties, through counsel, and have tried to resolve them. They agreed that they would engage with a therapist to conduct an open intervention. This is ongoing. There is no evidence that the therapist is prevented from working with the child or either parent. There is no evidence about the progress the therapist is making. However, from the father's request that the mother pay for the next six to eight sessions with the therapist I infer that it is a process he supports.

[35] This is not a case where I find on the record that the mother prevented the child from having permission to have a positive relationship with the father. The therapist can be helpful in understanding what has gone wrong and how to fix it.

[36] The third question in Jackson concerns incentives to the child to comply. The only evidence that approaches an incentive, that is a thing that motivates or encourages one to do something, occurred at the birthday party. The mother encouraged the child to speak with the father. I infer that the mother encouraged the child to have a relationship with the father. In the eyes of the child, gaining his mother's approval through following her request is a form of incentive, at least to an 11 year old child.

[37] There is no evidence that the mother told the child he would suffer a punishment if he did not go on access. In the circumstances of this case I am unable to find that the mother acted unreasonably in not doing so. Given the child's temperament as described in the evidence, the mother's encouragement and the child's resentment of the mother when forced to spend time with the father at the birthday party, I am not satisfied that punishment would be constructive at this stage.

[38] For these reasons I find that the Court has the jurisdiction to make an order under sub-rule 1(8) but one that is proportionate to the mother's actions and in the best interests of the child.

Court's Order

[39] I am of the view that it is in the child's best interest that electronic communication between the father and child be ordered but not by telephone. Through counsel, the father may direct the mother to make the child available on Tuesdays and Thursdays between 6:00 P.M. and 6:30 P.M. for electronic communication by such application as is directed by the father including Google Hangout, Skype, or any other similar computer video chat program. The mother is to ensure that the child is at a computer during those times.

[40] The parties are encourages to obtain a report from the therapist to the extent one can be provided at this time and to arrange for a Case Conference through trial coordination to review what therapeutic or clinical steps should be taken going forward.

[41] In anticipation of the resumption of access on some schedule and so that there will be no delay in its resumption, the parties are directed to re-register with the supervised access program, if they need to, so that supervised access exchanges may be able to begin without delay.

[42] I am sympathetic to the father's frustration with the delay in having access resume in a meaningful fashion. As the parties agreed to pursue the open intervention therapy, this matter should be returned before me as soon as practical after the release of a report or the availability of the therapist to participate in a case conference.

[43] In Michener at para. 45 the court rejected therapy in a parent alienation case as a solution claiming that it is "generally unsuccessful in dealing with reconciling children with the rejected parents in situations such as this..." The evidence in this case does not suggest that there is alienation. Michener can also be distinguished in that in the case at bar the parties agreed to this process and it is ongoing.

[44] I accept that the mother is supportive of the child having a relationship with the father. Her challenge and responsibility is to show greater leadership in that regard.

[45] If costs are sought written submissions are to be no more than 3 pages together with any offers and a bill of costs are to be delivered within 10 days.

Date released: July 6, 2018

Original Signed and Released

Tobin, J.