Court File and Parties

Date: July 19, 2019

Court File No.: D72209/14

Ontario Court of Justice

Between:

Natnale Berhanu

Stephanie Okola, for the Applicant

Applicant

- and -

Linda Awanis

Sage Harvey, for the Respondent

Respondent

Heard: July 15-16, 2019

Justice: S.B. Sherr

Reasons for Judgment

Part One – Introduction

[1] This trial was about what parenting arrangements are in the best interests of the parties' five-year-old twin girls (the children).

[2] The applicant (the father) seeks to change the February 17, 2015 order of Justice Robert Spence (the custody order) where on consent, the respondent (the mother) was granted sole custody of the children. The father seeks an order changing custody of the children to him.

[3] The father also seeks to change the final order of Justice Roselyn Zisman, dated April 4, 2018 (the access order). The access order permitted the mother, on a without prejudice basis, to move to Niagara Falls with the children. It set up a process for clinical intervention, as the children were refusing to see the father. The father asks for an order requiring the mother to return with the children to the Greater Toronto Area. He also asks that the mother's access be in his discretion, in accordance with the best interests of the children. If the children are not placed with him, he seeks a shared parenting order.[1]

[4] The father also seeks incidents of custody and access, including the right to obtain third party information about the children and the right to travel outside of Canada with them without the mother's consent.

[5] The mother asks that the father's motion to change be dismissed. She proposed that the parties engage Pathstone Mental Health (Pathstone) for reintegration counselling – the cost to be equally shared between the parties.

[6] The parties agreed to a focused trial of the motion to change. The parties provided their direct evidence by affidavit. They agreed to time limits for supplementary direct evidence, cross-examinations and re-examinations. The mother called a community witness who participated by teleconference. The parties were both permitted to cross-examine a social worker, Stephen Cross, who provided counseling for the family.

[7] The parties agreed that there has been a material change in circumstances since the custody and access orders were made. Access has completely broken down. The father has not seen the children since October 13, 2018.

[8] The main issues for the court to determine are:

a) What custody order is in the children's best interests?

b) Is it in the best interests of the children to require them to return to the Greater Toronto Area?

c) What access orders are in the children's best interests?

d) What incidents of custody and access are in the best interests of the children?

Part Two – Background Facts

2.1 Facts Preceding the Start of the First Trial

[9] The father is 41 years old. He runs a company that provides youth soccer coaching and clinics. He presently lives on his own in Markham, Ontario.

[10] The mother is 39 years old. She has lived in her parents' home with the children in Niagara Falls since November 2017. The mother is in receipt of social assistance.

[11] The parties were married in December 2013.

[12] The children were born in April 2014. The parties have no other children.

[13] The parties separated in November 2014.

[14] The children have lived with the mother since the parties separated.

[15] The parties have been engaged in litigation with each other since December 2014.

[16] On February 17, 2015, on consent, the mother was granted final custody of the children. At the time, the temporary access order provided that the father see the children twice each week for two hours.

[17] Access did not go smoothly. Many visits were missed. The parties made multiple allegations blaming the other.

[18] On September 26, 2016, at a settlement conference, the parties agreed on a temporary basis that as of October 2016, the father's access would be every Tuesday and Thursday for three hours, as of January 2017 access would be increased to four hours and as of April 2017 it would be increased to five hours. The parties also agreed that the children spend four hours from 11:30 a.m. to 3:30 p.m. with the father on Father's Day, further time on Christmas, New Year's Day, the children's birthdays and other additional access as may be agreed. The parties settled child support on a final basis.

[19] On February 10, 2017, the father brought an urgent motion to prohibit the mother from relocating the children's residence to Niagara Falls or otherwise outside of the City of Toronto pending trial. A temporary without prejudice order was made for the non-removal of the children from Toronto by Justice Spence. The mother was ordered to pay the father's costs fixed at $5,000 at the rate of $500 per month.

[20] The mother subsequently resided in a motel in Toronto with the children.

[21] The father exercised his access until the parties had a confrontation on April 2, 2017. The police were called, but no charges were laid. The parties blamed each other for the incident. Shortly after, the children started refusing to go with the father. The situation deteriorated. Access stopped in May 2017 and the matter proceeded to trial.

2.2 The Temporary Trial Order

[22] The trial was started before Justice Zisman on November 28 and 29, 2017.

[23] On November 29, 2017, Justice Zisman adjourned the trial and made a temporary order, endorsing the following:

……..I have some doubts that the mother is doing what is required of her to encourage a relationship of these young children with their father. On the other hand I agree with the mother that the father coming to the visits with a video camera or phone pointed at the children is not helpful and may be scaring the children.

I am concerned that neither parent has presented a plan that will overcome the children's present reluctance to see their father. There has not been any attempt at third party intervention and simply to leave this situation up in the air is not in these children's best interests.

The mother lays all of the blame on the father and does not see that she can do more to assist the children in re-establishing a relationship with the father that she has testified she views as important. Whereas the father does not seem to have any concrete ideas of what he can do other than continue to show up, video the children and make offers to buy them things or take them places. I am also concerned that the present location of the exchange is not conductive to a pleasant situation for the children. If the mother is unable to help the children go on visits with their father then the father may be required to hire a professional third party to assist him in a reunification plan with the children. A child care worker or someone from a company such as Brayden supervised access or a similar organization in Niagara Falls would be appropriate. Although the father will be required to pay for the cost of this service initially and on a without prejudice basis, if it is my finding that the mother has not co-operated or followed any recommendations that have been made, then I will consider submissions that either the mother be responsible for the full cost or half of the cost of such services. It is my expectation that the mother as the custodial parent has a responsibility to ensure that the children go on the visits.

Therefore it is my intention to make a temporary order today and then resume the trial in March for further evidence only with respect to how access has progressed before a final order is made. I will then make a decision based on my findings as to my assessment as to which parent is complying with my temporary order.

[24] Justice Zisman made the following temporary order:

1. On a without prejudice basis, the mother shall be permitted to relocate to Niagara Falls with the children.

2. As of Saturday December 2, 2017 the father will have access to the children on Saturdays from 1:30 p.m. to 4:30 p.m. the pick-up and drop off shall be at the YMCA in Niagara Falls at 7150 Mont Rose Road. The father shall not video or otherwise record the children. The father may bring a third party to the visit.

3. If the mother has not moved to Niagara Falls by this Saturday, the exchange shall take place at a nearby mall or a McDonald's indoor playground.

4. If after the first visit, the children will not exercise access to the father, the father will obtain the services of a qualified professional through a private supervised access service. Although this is strictly not an order for supervised access for convenience it will be referred to as such. The father may employ such a service even if the children do agree to attend access in order to obtain assistance in rebuilding his bond with the children and in order to obtain help with caring for the children. The father shall initially be responsible for the cost of such a service on a without prejudice basis but the court will retain the discretion to determine that the mother should be responsible for the full or half of the costs depending on the court's assessment as to whether or not the mother is or has in the past interfered with the re-establishment of access.

5. If counselling is recommended to facilitate the relationship between the children and the father, the father shall be able to arrange such counselling in Niagara Falls and the mother will sign any necessary consents and facilitate the children attending.

6. There shall not be any cancellation of access by the mother or father unless there is a doctor's note that the children or either of the parents is too ill to attend access or in the event of hazardous driving conditions. If either party is required to cancel a visit a text message shall be sent to the other parent. At this time there will be no make-up visits.

7. As of Saturday January 26th 2018, the parties shall meet at the food court in the Oakville Mall at 240 Leighland Avenue in Oakville. The mother will be responsible for dropping off and picking up the children at the mall. The hours of the visit shall remain from 1:30 to 4:30 p.m.

8. The trial will resume in March 12, 2018 at 10:00 am. Each parent shall provide updating evidence about the access visits, provide copies of any texts between them with respect to cancelled visits, any reports regarding the access or counselling and evidence with respect to compliance with this order.

9. Costs are reserved.

2.3 The Trial Decision

[25] The therapeutic intervention did not work. The trial resumed on March 12, 2018. At the outset of the trial, the father consented to an order that the mother be permitted to relocate with the children to Niagara Falls. The trial proceeded only on the issue of the father's access and regarding details with respect to the location of access exchanges and who would be responsible for transportation.

[26] Justice Zisman made the following findings of fact in her reasons for decision:[2]

a) The mother had not taken any concrete steps to encourage or promote the children's relationship with the father, despite constantly professing her desire to promote this relationship.

b) The mother had engaged in a course of conduct that had ensured that the children would not have a relationship with the father and had made unfounded allegations against him.

c) Although the mother had complied with the court order to bring the children to access visits she had been either unwilling or unable to separate herself from the children and actively encourage them to have a relationship with the father.

d) The mother testified that the father should put more effort into establishing a relationship with the children however, it is difficult to conceive what else he could have done. Despite the children's rejection of him, he had been attending at access visits and attempted to retain third party professionals to assist him.

e) The mother was not a credible witness.

f) After the separation, the mother did not voluntarily permit access and the father was required to commence a court proceeding.

g) After the separation, the mother portrayed the father as abandoning the children and not providing any support for her and the children. But the father attempted to see the children and provided proof that for several months after the separation he paid the rent and provided supplies for the children.

h) The mother made unfounded allegations about the father's treatment of the children during access visits including physically harming and neglecting them. Yet these concerns were not reported to the children's aid society and when it suited her the mother offered daily access to the father if he would agree to her moving to Niagara Falls.

i) The mother made arrangements to move to Niagara Falls without prior notice to the father showing a total disregard for his relationship with the children. Justice Zisman specifically rejected her evidence that she advised the father verbally she was moving.

j) Once the court prohibited the mother from moving, the mother began a course of behaviour to punish the father by interfering with his relationship with the children.

k) Although the mother deposed that the father was violent with her and the children during the incident of April 2, 2017, the subsequent police report did not support this. The mother exaggerated the seriousness of this incident.

l) Based on the statements of the children that they blame the father for being required to live in a motel, Justice Zisman drew the inference that such young children could have only made these statements as a result of hearing their mother or third parties in their presence make such allegations.

m) The mother initially submitted that the father have his first 8 weeks of access at a supervised access facility in Niagara Falls before there was any expanded access without any details as to when supervised access might be available. This showed a complete disregard for a delay in re-establishing his relationship with the children.

n) The mother sabotaged the involvement of Brayden as a result of the serious allegation made by her against the supervisor for using physical force against the children. The mother never reported her concern to the police or the children's aid society. In view of the fact that Brayden supervises many other children and is a resource used by the courts and many other families, Justice Zisman expected the mother to report her concerns if they were legitimate. Further, the complaint about the supervisor being physical with the children only came after it was recommended that the location of visits be changed and after the director of Brayden was critical of the mother's behaviour.

o) The mother thwarted the involvement of Accendus Group even though the father was given the authority to retain a third party supervisor. This caused further delay in assisting the children to commence exercising access to the father.

p) Despite the court order giving the father the authority to retain a third party to assist him with access, the mother first attempted to ask the father to just suspend his access and recommended that Pathstone and then Abma counselling be involved. Further, the mother offered no evidence to refute the father's information and that of Accendus Group that Abma counselling did not do reintegration therapy or therapeutic access. The mother was content to simply suspend the father's access for an indeterminate amount of time with no concrete plan or any details about what services Pathstone or Abma counselling could offer to assist or when their services would be available.

q) Although the father has not been perfect, he had tried his best to re-establish a relationship with his children and he had followed the advice of the professionals he had retained.

r) The mother had been given several opportunities to assist in repairing the children's relationship with their father but had not on her own or with the assistance of professionals been willing or able to do so. Based on the evidence it did not appear that the children required individual counselling or therapy but simply needed the assurance of the mother that it was acceptable for them to have a relationship with their father.

[27] Justice Zisman ordered that within 7 days the parties jointly retain Stephen Cross to commence reintegration therapy and that both parties be responsible for half of his retainer of $4,500.[3] The current access order was to continue and the access exchanges would continue to be in Oakville although Mr. Cross could change the exact location.

[28] Justice Zisman wrote at paragraph 88 of her decision that if the mother did not fully co-operate with this process then the court might be required to take more drastic steps such as requiring her to move the children's residence closer to the father or even change custody.

[29] The access order included the following terms:

1. The Respondent will be permitted to move the children's residence to Niagara Falls but without prejudice to the Applicant's ability to require her to return to this jurisdiction if there is a breach of the order or if it is in the best interests of the children to do so.

2. The parties shall continue to engage Stephen Cross for reintegration therapy and to assist with the Applicant's access to the children on every Saturday from 1:30 p.m. to 4:30 p.m.

3. There will not be any cancellation of access by the Respondent unless there is a doctor's note that the children or the Respondent are too ill to attend or in the event of hazardous driving conditions. If either party is required to cancel an access visit, a text message or email shall be sent to the other parent with as much notice as possible. If the Respondent cancels a visit there shall be a make-up visit within the following two weeks. If the Applicant cancels a visit there will not be any make-up visits.

4. The parties shall fully co-operate with Stephen Cross and follow his recommendations. If he recommends that the children require individual therapy the parties will co-operate in arranging such therapy.

5. The Respondent shall be responsible for dropping off and picking up the children at a location in Oakville chosen by Mr. Cross or once his involvement terminates at a public location chosen by the Applicant.

6. If the services of Stephen Cross do not result in the Applicant being able to exercise access without the assistance of a third party professional, Mr. Cross shall prepare a report for the court outlining his involvement and recommendations for next steps.

Part Three – Facts Since the First Trial

[30] The clinical process designed by Justice Zisman started well. Both parties met regularly with Mr. Cross, actively engaged with him and expressed to him their desire to make the process work for the children.

[31] On May 4, 2018, Mr. Cross emailed the mother thanking her for being so supportive to the children during the visits. He said that he could see that she was trying to support them in their relationship with the father.

[32] The initial visits attempted in May and June 2018 did not go well. The children were very angry at the father. They refused to take treats from him, sit with him or even look at him when the mother was present. The children would falsely claim that the father hurt them.

[33] On May 19, 2018, after five visits, Mr. Cross reported to the parties that although some limited progress was evident, he was very concerned. He observed that the children are more comfortable with him than with the father. He said that he could see that the mother was making some attempts to redirect the children and very gently encourage them; however, he observed that something was very wrong here.

[34] On June 8, 2019, Mr. Cross wrote the mother's lawyer confirming that she had been cooperative with the process. However, he observed, the children were loathe to have any contact with the father and were most inappropriate in their interactions with the father. He said he was most concerned about continuing visits given the current circumstances.[4]

[35] Mr. Cross suggested that the mother transfer the children to the father at future visits and not remain for the visit.

[36] Mr. Cross observed that the mother struggled with letting the children go at access exchanges. The children would often start screaming, crying and yelling in public places. They would become hysterical and cling to the mother. If the father approached them, they would escalate their screaming. There were occasions where the children hit the father and spit on him. Their behaviour was so disturbing that total strangers who witnessed it would become distressed.

[37] Mr. Cross testified that he spent hours coaching the mother on how to prepare the children for the exchanges and for her to leave right away, before things escalated. He also said he did a lot of work with the mother about her messaging to the children, as some of her comments were adding to the children's distress. He coached her not to kiss the children so many times goodbye as it overdramatized the exchange. However, he said that she was unable or unwilling to consistently implement his coaching, which led to dramatic public incidents, cancelled visits and highly distressed children.

[38] Mr. Cross said that during this time the mother continued to be cooperative. She would attend at all meetings and brought the children to every visit.

[39] The visits improved on July 21 and 28, 2018. The mother exchanged the children and quickly left, as instructed by Mr. Cross. The children had positive visits with the father.

[40] Unfortunately, Mr. Cross was on vacation in August 2018 and the momentum gained in July was lost. Visits arranged for August 11 and August 18 reverted to the children screaming and yelling and refusing to go with the father. The parties blamed each other for this failure.

[41] The parties were able to navigate successful exchanges on August 25 and September 1, 2018. The children enjoyed the visits.

[42] Mr. Cross suggested that the length of the visits be expanded in order that the father could take on more of a caregiving role. He proposed that the visits be from 6 to 8 hours. From that point, the process began to unravel.

[43] The proposal to increase the duration of the visits led to significant disagreement and negotiation between the parties. The father wanted the visits to last for 8 hours – the mother 6 hours. The parties finally, at almost midnight on September 7, the day before the next scheduled visit on September 8, 2018, agreed to 6-hour visits.

[44] The September 8, 2018 visit went very poorly. The father came to the visit angry about the visit being only 6 hours.[5] His body language and voice tone were observed by Mr. Cross as being harsh. The children picked up on this and one of the children scolded him – she told him not to talk to the mother like that. The children clung to the mother and refused to go with the father. The mother made no efforts to leave. The visit did not take place.

[45] The father acknowledged at trial that Mr. Cross told him that his anger was inappropriate. He agreed and said that he learned from this and didn't do it again.

[46] Mr. Cross sent the parties an email criticizing both of them. He wrote:

It seems that you have both moved several steps backwards.

[47] Mr. Cross set up a meeting for the parties for September 22, 2019 to try and get the process back on track.

[48] At this meeting, the father expressed his dissatisfaction with the process and said that he would give it six more weeks.

[49] The parties agreed to set up a short visit for 90 minutes on September 29, 2018. It was agreed that the mother would quickly leave the visit.

[50] The September 29, 2018 visit also went poorly. The children refused to go with the father. They screamed and yelled hysterically in a restaurant. Staff and patrons became alarmed.[6] The father kept imploring the mother to just go. The mother would not leave. Mr. Cross testified that the children were traumatized for over a half-hour.

[51] Mr. Cross sent an email to the parties on October 2, 2018. He expressed his disappointment and surprise that the mother was unable to follow through with any of the transition plan – she made no effort to get up and leave and allowed the children to cling to her. He observed that the mother had previously shown she was capable of quickly exchanging the children. He noted that the father made a concerted effort to engage the girls, speak softly and reassure them. He said that he could not continue when his guidance, suggestions and directions around transitions were not being followed.

[52] The parties attempted a final exchange on their own on October 13, 2018. Mr. Cross was not present. This also went terribly. Again, the children were hysterical and clinging to the mother, who wouldn't leave. Restaurant management and patrons became alarmed. A witness who had been at the restaurant and who had no connection to the family testified. He said that the children were so distressed that he intervened and guided them outside together with the restaurant manager. He observed that the father was hostile and angry with the mother and the children. He felt that the children were afraid of him. He said that the mother was calmer, but upset. He tried to calm the father down outside but the father was not receptive and left.

[53] Mr. Cross then suggested having exchanges take place at his office – he would no longer do the exchanges in a public place given the children's behaviours.

[54] The mother wanted the visits to take place in a public place. She said that she didn't feel safe with the father at Mr. Cross' office. Mr. Cross proposed having a female therapist present at the access exchanges at his office.

[55] At this point, the communication between Mr. Cross and the mother deteriorated. Visits did not take place. Mr. Cross felt that the mother was unresponsive to his suggestions. The mother said that she kept asking Mr. Cross for suggestions for a female therapist, but he was unresponsive. On November 2, 2018, when she hadn't received an answer from Mr. Cross, she advised him through her counsel that she was willing to do the exchanges at Mr. Cross' office without the female therapist. However, by that point Mr. Cross was unwilling to do the exchanges at his office without the female therapist present.

[56] No visits have been attempted since October 13, 2018.

[57] On November 23, 2018, the father sent Mr. Cross an email advising him that he had made it very clear at their last meeting that he had no time and money and resources to keep on going when something is clearly not working. He indicated that he would return to court for direction.

[58] The mother said that she invited the father to the children's birthday party in April 2019, but he chose not to come. She has also sent him photos and cards.

[59] The father was dismissive of these efforts by the mother – he feels that she is just trying to look good for the court. He said he is unwilling to go to visits unless they are recommended by a third party or the court. He is also unwilling to have visits without a third party witness, as he says the mother will use the visits to make false allegations about him.

[60] Mr. Cross' report, dated January 19, 2019, was filed at trial.

Part Four – Legal Considerations

[61] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for varying a custody or access order. It states:

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

[62] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change custody or access as follows:

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[63] The parties agreed that the first part of the test has been met – there has been a material change in circumstances affecting the best interests of the children since the orders were made, specifically the total breakdown of the father's relationship with the children. Accordingly, the court must next assess what parenting orders are in the children's best interests.

[64] Subsection 24(1) of the Act provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.

[65] Subsection 24(2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148, (Ont. SCJ). The court must also consider subsection 24(3) of the Act that deals with past conduct relevant to parenting. The court has considered all of these relevant factors.

[66] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v. Leggatt, 2015 ONSC 4502.

[67] An unusual aspect of this case is that the mother has been living with the children in Niagara Falls since November 2017 – but her ability to move there was only given conditional approval. The move was permitted without prejudice to the court reviewing this issue at this trial. Accordingly, the court also considered the principles set out in the leading case of Gordon v. Goertz, supra in determining the mobility issue. Those principles are set out in paragraphs 49 and 50 as follows:

49 The law can be summarized as follows:

a) The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

b) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

c) Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.

d) The focus is on the best interests of the child, not the interests and rights of the parents.

e) More particularly, the judge should consider, inter alia:

1. the existing custody arrangement and relationship between the child and the custodial parent;

2. the existing access arrangement and the relationship between the child and the access parent;

3. the desirability of maximizing contact between the child and both parents;

4. the views of the child;

5. the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

6. disruption to the child of a change in custody;

7. disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.

[68] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, supra.

[69] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. See: Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[70] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

[71] An equal-parenting time plan (as sought by the father in the alternative) requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child (See my comments in Bokor v. Hidas, 2013 ONCJ 40).

[72] The court may make orders regarding travel in the child's best interests. See: Karol v. Karol, 2003 CarswellOnt 4832 (SCJ).

Part Five – Positions and Plans of the Parties

[73] The father's position is that the mother has deliberately done everything within her power to ensure that he does not have a relationship with the children. The father completely distrusts her.

[74] The father believes that unless custody of the children is reversed, he will never have a relationship with them.

[75] The father also wants the court to force the mother to return to the Greater Toronto Area, whether or not custody of the children is reversed. He believes that this move has been a major contributor to the disruption in his relationship with the children. He wants the mother to live close by so that access is more easily facilitated.

[76] The father asked that custody be changed on September 4, 2019 (the first day of school), with increases in access to take place during the summer.

[77] The father said that he is willing to move into more suitable accommodation if custody is transferred – "I can do it in an hour", he testified.

[78] The father said that he will retain a therapist to assist the children's transition into his home. He says that "he will do whatever is necessary".

[79] The father says that he will facilitate the children's relationship with the mother.

[80] The father testified that he is a workaholic. He runs his soccer coaching business. Most of his work takes place after school and on weekends. He also drives Uber at night. He said that he has many employees and will rearrange his schedule to make sure that the children are looked after.

[81] The mother's plan is to continue to live with the children in her parents' home in Niagara Falls. She testified that this is a four-bedroom-home and the children have their own rooms. She said that the children love their school and have many friends in the community. She has enrolled them in activities. She says that they are thriving.

[82] The mother completed, on her own initiative, the intake process with the Pathstone program in her community. Her plan is that the children will have individual therapy and she will have therapy as well. She says that she will follow the recommendations of the therapist as to when the father should become involved with the therapy and what form access would look like. She had no idea about a time frame for when access would begin. She testified that "baby steps" had to be taken to ensure that this process worked.

[83] The mother has been in receipt of social assistance for many years. She says that she is working with her social assistance worker to look for part-time work.

Part Six – Mr. Cross

[84] Witnesses who are not experts but who nevertheless have experience may present their observations and conclusions in the form of an opinion. It is usual for social workers in child protection cases to give opinions, based on their education and clinical experience, about a variety of issues including the quality of parent and child interactions, the emotional state of people, appropriate placement and adoption issues. See: Jewish Family and Child Service v. S.K., 2015 ONCJ 246.

[85] Mr. Cross did not testify as an expert. However, his evidence was very useful to the court for his observations, his coaching attempts and his perspective of the parties' involvement in the process.

[86] Mr. Cross is an experienced social worker. He has worked for many years for Halton Children's Aid Society and as a clinician for the Office of the Children's Lawyer. He runs a part-time private practice conducting mediation and providing counseling in high-conflict cases. He has prepared custody and access assessments under section 30 of the Act.

[87] Mr. Cross was very critical of the mother. He testified that:

a) There was no consistency to her ability to exchange the children.

b) She was unable to consistently follow his coaching to quickly leave at the exchanges and give positive messaging to the children.

c) Despite his coaching, she would not correct the children when they spoke negatively to the father.

d) There were occasions where she was able to successfully exchange the children, which informed him that she was capable of doing this when she wanted to.

e) She is controlling. She wouldn't leave many visits. She tried to control access exchange locations.

f) She became more resistant to his coaching as the process went on.

g) She threw up roadblocks to access as the process went on. She resisted his request to have access exchanges at his office and overly involved her lawyer in the process.

h) The access regressed as the process went on.

i) Success of the process was up to the mother as she is the children's primary attachment figure. The failure of the process was mostly due to her.

j) He doesn't feel that she wants the father to have a relationship with the children, despite her protestations to the contrary.

k) He doesn't feel she will permit the father to have a relationship with the children.

l) The children will not have a relationship with the children unless custody is reversed.

[88] Mr. Cross observed that the father was committed to re-establishing a healthy relationship with the children and was open to his suggestions and redirection.

[89] Mr. Cross observed that the parties are very angry with each other. The father is angry that the mother has damaged his relationship with the children. The mother remains angry that the father prevented her from going to Niagara Falls in 2017 and she had to live in a small motel room that year with the children.

[90] Mr. Cross said that the children are angry with the father, but they do not fear him. He did not feel that any individual counseling for the children would be useful.

[91] Many of Mr. Cross' observations are consistent with the previous findings of Justice Zisman and the court's own observations of the parties.

[92] However, the court had some concerns with Mr. Cross' evidence.

[93] It was clear that Mr. Cross became very frustrated with the mother. Much of that frustration is understandable. It was apparent to the court that she is difficult to deal with unless you agree with her. Mr. Cross invested a lot of his effort and skill to improve this situation for this family. He observed the severe distress of the children and the mother's exacerbation of their distress. The mother was unable or unwilling to consistently implement his coaching.

[94] Mr. Cross' report was not as balanced as it should have been. He did not include his observations at the outset that the mother was being supportive of the father's relationship with the children and was cooperative with the process. When the mother's lawyer asked him in June 2018 about what the mother could do further, he responded that she had been fully cooperative. Mr. Cross rationalized that there were hundreds of emails and he couldn't put everything in the report. This was unfair. He could have put in more positive observations of the mother.

[95] Listening to Mr. Cross, one would have thought that the mother disrupted the process from the outset. However, the evidence does not support this – at least prior to September 2018. He was complimenting her for her efforts in May and June 2018. Exchanges in late July went smoothly. Mr. Cross was away in August 2018.

[96] The report did not give the mother credit for improving the quality of the exchanges to the degree that Mr. Cross was able to recommend increased access time in September 2018 or for her agreement to double the length of the visits.

[97] His evidence also minimized that it was the father who was upset about the September 8, 2018 visit only being 6 hours and not 8 hours and its negative impact on that exchange. The father's reaction – that it was a reduction in his parenting time - was petulant and immature. He let this affect the visit. The children are very attuned to his moods and he bears significant responsibility for the failure of that visit.

[98] Mr. Cross also omitted in his report that it was the father who gave him six weeks to repair the situation – that the father said that he couldn't afford to continue like this. One would have thought from Mr. Cross' evidence that it was the mother who ended the process.

[99] It also became apparent that Mr. Cross was upset about the mother's reluctance to have access exchanges at his office and about a fee dispute he had with her. The court agrees with him that the mother was putting up roadblocks at that point, but his frustration with the mother also contributed to a breakdown in their relationship.

[100] On November 22, 2018, the mother's counsel emailed Mr. Cross confirming that the mother was not refusing visits at his office. Mr. Cross responded claiming that:

a) This was the first time he had heard that the mother was willing to do the exchanges at his office.

That was not the case. The mother's counsel had previously emailed him that the mother was willing to have the visits at his office without a female therapist on November 2, 2018. Mr. Cross even acknowledged her willingness to do this in an email he wrote to the parties on November 9, 2018.

b) He did not insist on a female therapist being present. He testified at trial, "It was just an idea".

However, his October 20, 2018 email to the mother clearly stated that he will not facilitate any further transitions until he has found a female therapist to be present.

c) The mother did not follow up with him about the female therapist and he was never asked to suggest a name.

That was not the case. The mother had previously emailed him on October 26, 2018 asking if he had had the chance to obtain a female therapist. Mr. Cross did not respond to that email.

d) He never asked the mother to pay for a female therapist.

On November 9, 2018, he cancelled a scheduled visit to take place at his office because the mother had not agreed to pay for the female therapist.

[101] Mr. Cross had advised the parties that visits would not take place without a female therapist present. It appeared to the court that he made minimal efforts to find one. What was mystifying was that he never reported to the parties that he was unable to find the female therapist. The following exchange took place when he was questioned about this by mother's counsel:

Q: Did you ever let them know you couldn't do it?

A: I was never asked that question.

Q: Wasn't it relevant to let them know?

A: I was not asked.

[102] As it turned out, the mother had been correct in the billing dispute and Mr. Cross acknowledged that he had unintentionally overbilled her.[7]

[103] The court found Mr. Cross' final recommendations to be unrealistic and unhelpful.

[104] His first recommendation was for the family to participate in a 7-day intensive therapy workshop run by Dr. Barbara Fidler. He did not investigate the cost. He testified that he knows it is expensive. The mother obtained information that the program costs between $35,000 and $50,000 – well beyond the means of these parties.

[105] In the alternative, Mr. Cross recommended that the children be placed in the father's primary care for an extended period of length of time (he did not specify how long that would be), with contact between the mother and the children to be carefully planned and supervised.

[106] He made this recommendation despite:

a) Having no idea about how the father planned to care for the children. He has never seen the father's home and had not reviewed his plan to care for the children.

b) Being unaware of the present circumstances of the children.

c) The father not having seen the children for the past nine months.

d) Obtaining no meaningful evidence about the trauma the children might suffer from being removed from the mother to a father that they hardly know. When asked how the children might react to a transfer in custody, he said, "If the children are distressed about one hour of play with the father, I can't imagine how they would react if removed and they can't see the mother".

e) Acknowledging that it was unlikely that the children would willingly go with the father. He said that they would need "individual attention".

Part Seven – Custody

[107] It is in the best interests of the children to remain in the custody of the mother for the following reasons:[8]

a) The children have an extremely close relationship with the mother. She is the parent who has raised them. Mr. Cross saw the children in their home and observed that they are closely and happily attached to the mother.

b) The children have a very good relationship with the maternal grandparents who live with them.

c) The children do not have a meaningful relationship with the father at this time.

d) The children want to live with the mother.

e) The mother has provided the children with a stable and secure home since November 2017. The father had no qualms with the mother's care of the children. The mother responsibly looks after their educational, medical and social needs.

f) With the big exception of the father's role in the children's lives, the mother has provided an appropriate plan to care for the children. She has the financial and emotional support of her parents.

g) The father offered a sparse and unrealistic plan for the children. He lives in a basement apartment. While he says that he can find appropriate accommodation in an hour, he provided no evidence about where he would live or where the children would attend school (other than saying they would go to a school in his catchment area). It was unclear who would look after the children as the father is admittedly a workaholic, working nights and weekends. He provided no names of persons who can assist him in caring for the children. The father's proposal that the children come into his care on the first day of school revealed a lack of understanding about how difficult a transition that would be for the children – to leave their mother and attend a new school on the same day. The father's insistence that the mother move to the Greater Toronto Area, even if he is granted custody, was evidence of controlling behaviour (the court also can't compel the mother to do this). The father said that he would retain Dr. Fidler to assist the children to integrate into his home, but provided no detail about the extent of services he would retain her for or how he would be able to pay for those services.

h) There is an unacceptable risk of emotional harm to removing the children from the mother.

[108] The mother has failed as a parent in facilitating the children's relationship with the father and bears most of the blame for this sad situation. She has been overprotective of the children, has been difficult for professionals to deal with and does not adequately value the children's relationship with the father. Although the mother's conduct in facilitating the father's relationship with the children is an important factor, it is one of many factors that the court must consider when determining the children's best interests.

[109] The father, to a lesser degree than the mother, has also demonstrated poor judgment and has contributed to this situation. He was unreasonably angry when the mother did not agree to an 8-hour visit and his hostility at the September 8, 2018 visit contributed to its breakdown. The independent community witness testified that the father acted in a similarly aggressive manner at the October 13, 2018 visit – distressing the children. The father acknowledged that he can be loud and intimidating.

[110] The father has also acted unreasonably by refusing to see the children for nine months pending this trial. He has put his own anger ahead of the children's needs to see him.

[111] Like the mother, the father externalized all responsibility for this situation.

[112] The parties agreed in closing submissions that the access parent should have direct access to third party information and an order will be made to permit the father to have direct access to information from the children's schools, medical practitioners and service providers.

Part Eight – Mobility

[113] The court finds that it is in the children's best interests to remain in Niagara Falls with the mother. The court repeats the best interests factors set out in paragraphs 107 to 111 above in coming to this conclusion.

[114] The children have had a secure and stable home in Niagara Falls since November 2017. They live in a comfortable home. They are doing well in school and have friends in the community.

[115] The mother receives considerable financial and emotional support in Niagara Falls from the maternal grandparents.

[116] The children are happy and functioning well in Niagara Falls. It would be disruptive to them to remove them from their home and community.

[117] The mother was not functioning as well in Toronto. She was on social assistance and had difficulty finding affordable housing. The housing situation is no better in Toronto today.

[118] The father claimed that the mother could find work and affordable housing in Toronto. Aside from his bald statements, he led no evidence to support this.

[119] The father claimed that access worked better when the mother lived in Toronto. Access has always been fractious between the parties. Competing motions to increase and decrease access were brought while the mother resided in Toronto. Distance is not the reason the visits aren't working. The mother brings the children on time to every visit. The problems are the mother's inability or unwillingness to facilitate this relationship and the father's frustrations with her that the children are sensitive to. Bringing the mother and children back to Toronto does not solve the underlying issues.

[120] The court will order that the children's residence not be removed from the Niagara region without prior court order or the written consent of the father.

Part Nine – Access and Incidents of Access

[121] The reasons why the court is not changing custody also apply to why the court will not grant the father's claim for shared parenting time. This claim is not realistic and is not child-focused. Further, the parents do not have anywhere close to the level of communication that is required to make a shared parenting plan work for the children.

[122] The mother's access proposal is also unrealistic. It is a rehash of her plan that was previously rejected by Justice Zisman. The mother provided no evidence about how long it would take to start individual counseling for the children at Pathstone or when the father's access would begin. Again, she wants to delay the father's access starting.

[123] At this stage, an indefinite plan is a bad plan.

[124] Further, the evidence informs the court that if the mother disagrees with any service provider about the terms of access, she will get into conflict with that service provider and we will be back in the same position that we are in today.

[125] The court often takes a gradual approach to increasing access with young children. However, after five years of litigation, that approach has been tried and tried again and it has failed. The court agrees with the father that a different approach is now required.

[126] It is in the best interests of the children to have a meaningful relationship with the father.

[127] The father's pain of being excluded from the children's lives was palpable at court. He sobbed through most of his direct evidence. He badly wants to play a role in their lives and is at a loss about what to do. His frustration is understandable.

[128] The father has a lot to offer the children. He was described by Mr. Cross as gentle and loving towards the children. He makes his living coaching soccer to children.

[129] The father is of Ethiopian heritage. He has much to teach the children about their roots and culture.

[130] The father has shown tremendous commitment to having a relationship with the children despite being treated abominably by them. He doesn't blame them for their behaviour. That is indicative of sensitive parenting.

[131] The court accepts Mr. Cross' evidence that the children are not afraid of the father and that when the mother is not present the visits are positive.

[132] The evidence is overwhelming that access will not work if the mother is anywhere in the vicinity of an access exchange. She inappropriately escalates the children's negative behaviours, is unable to redirect them and often sabotages the exchanges.

[133] The court finds that it is in the children's best interests to spend generous time with the father, free from the influence of the mother.

[134] The court order will provide that the mother must obtain a third party to exchange the children on visits. If she cannot find a family or community member, she is to pay for a therapist or a private supervised access service provider to conduct the exchange. The person conducting the exchange will be expected to deliver the children to the father and leave immediately, whether the children are clinging and crying or not. If the visits consistently take place for six months, the need for a third party to exchange the children will end.

[135] The first four weekly visits will take place in the mother's region. If the parties cannot agree to another location, the exchange shall take place in front of the main location of Pathstone. The visits will each be for four hours.

[136] After the four visits, there will be four more visits, each eight hours in length. The parties shall use a public exchange point in Oakville chosen by the father.

[137] After these four visits, the children shall spend alternate weekends with the father from Saturday at 10:00 a.m. until Sunday at 6 p.m., with the same exchange point in Oakville. The father will be expected to have suitable sleeping arrangements for the children.

[138] A holiday access schedule will be added starting in 2020.

[139] Starting in 2021, the father will be permitted to travel with the children outside of Canada for up to two weeks, on notice to the mother. The mother will be required to sign any necessary consents or documentation to facilitate the travel.

[140] The order will provide for make-up visits for the father for any visits cancelled by the mother.

Part Ten – Conclusion

[141] A final order shall go on the following terms:

a) The father's motion to change custody of the children is dismissed.

b) The mother shall within 14 days provide the father with the names, telephone numbers and addresses of the children's school, doctors, dentists or any service providers.

c) Within 10 days of being presented with the forms, the mother shall sign and return to the father any direction or authorization required for him to be able to speak directly to and obtain information from any of the children's schools, doctors, dentists or service providers.

d) The father may attend any parent-teacher meeting or attend any school function for the children.

e) The father's motion to require the mother to return with the children to Toronto is dismissed. The children may remain in Niagara Falls with the mother.

f) The mother is to not remove the children's residence from the Niagara region without prior court order or the written consent of the father.

g) The father's motion to change the access order is granted, in part, on the terms set out below.

h) The father shall have access to the children as follows:

i. Starting on Saturday July 27, 2019, he shall spend each Saturday with them from 10:00 a.m. until 2 p.m.

ii. Unless the parties agree to another location, the access exchanges are to take place at the front doors of Pathstone's primary location – whether Pathstone is open or not. The mother shall immediately notify the father about this address.

iii. After four visits, the visits shall take place each Saturday from 10:00 a.m. until 6 p.m.

iv. The access exchanges shall take place at a public location in Oakville chosen by the father.

v. After four more visits, the visits shall take place on alternate weekends from Saturday at 10:00 a.m. until Sunday at 6 p.m. The exchanges shall continue to take place at a public location in Oakville chosen by the father.

vi. The mother is not to participate in access exchanges in any way. This means she is not to attend at the exchange or drive with the children on the way to exchange.

vii. The mother shall have a third party exchange the children at all visits. If she cannot find a third party, she is to retain a therapist or a private supervised access provider at her own cost to conduct the exchange. She is to notify the father by text at least 48 hours in advance of the visit about who will be exchanging the children.

viii. The third party conducting the access exchange shall deliver the children to the father and leave immediately, even if the children are crying and clinging to them.

ix. Once the children have successfully had access exchanges with the father for six months, clauses vi, vii and viii above will terminate and the mother will be permitted to exchange the children.

i) Starting in 2020, the children shall spend holidays with the parties as follows:

i. If the father's access weekend falls when the Monday is a statutory holiday, his access will be extended until Monday at 6 p.m.

ii. In even-numbered years, the children will spend March break with the father, starting on Saturday at 10:00 a.m. until the following Sunday at 6 p.m. (8 days). In even-numbered years the children shall spend the March break with the mother.

iii. The children shall spend one exclusive week with the father in the summer (from Saturday at 6 p.m. until the following Sunday at 6 p.m. – 8 days). The father shall advise the mother by May 15th each year what week he is choosing.

iv. Starting in 2021, the children shall spend two exclusive weeks with the father in the summer. The father shall advise the mother by May 15th each year what weeks he is choosing.

v. The mother may spend two exclusive weeks in the summer with the children starting in 2020. She shall notify the father by May 30th each year what weeks she is choosing.

vi. The children shall spend equal time with the parents during the winter school break. The children shall spend the first half of the winter school break with the mother and the second half with the father in even-numbered years, starting in 2020. The children shall spend the first half of the winter school break with the father and the second half with the mother during odd-numbered years, starting in 2021. This is subject to the division of Christmas Eve and Christmas Day set out below.

vii. The parties shall alternate Christmas Day and Christmas Eve each year. Starting in 2020, during even-numbered years, the children shall reside with the mother from December 24th at 1 p.m. until December 25th at noon and with the father from noon on December 25th until 1 p.m. on December 26th. Starting in 2021, in odd-numbered years the child shall reside with the father from December 24th at 1 p.m. until December 25th at noon and with the mother from noon on December 25th until 1 p.m. on December 26th.

viii. The children shall spend Father's Day with the father, if it is not otherwise his parenting time, from 10:00 a.m. to 6:00 p.m.

ix. The children shall spend Mother's Day with the mother if it is not otherwise her parenting time, starting at 10:00 a.m.

j) The holiday schedule shall take priority to the regular access schedule.

k) The mother shall not cancel a visit unless there is a doctor's note that the children or she are too ill to attend or in the event of hazardous driving conditions. If a visit is cancelled, the visit shall be made up within the following two weeks.

l) A visit will not be made up if it is cancelled by the father.

m) If either party is required to cancel an access visit, a text message or email shall be sent to the other parent with as much notice as possible.

n) Starting in 2020, the mother may travel outside of Canada with the children, for vacation or family purposes, for up to two weeks, provided that it is not during the father's holiday time. The mother shall provide the father with 14 days written notice of travel, to include the departure and return dates. The mother may cancel two regular access visits each year for the purpose of such travel. These visits will be made up as provided for in this order.

o) Starting in 2021, the father may travel with the children outside of Canada for vacation or family purposes during his parenting time. If he intends to do this, he shall provide the mother with 14 days written notice and provide her with specific details about when he will be traveling and where the children will be each day.

p) The traveling parent shall provide contact numbers and permit the children to speak to the non-traveling parent a minimum of every other day.

q) The parties shall promptly sign any consents to permit the other to travel with the children.

r) The mother shall provide the father with all necessary documentation to permit him to travel with the children. The father shall return the documentation to the mother promptly upon his return.

s) The balance of the father's motion to change is dismissed.

[142] If either party seeks their costs, they shall serve and file their written costs submissions by August 2, 2019. The other party will then have until August 16, 2019 to respond (not to make their own costs submissions). The costs submissions shall not exceed three pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.

[143] Any future motions to change or enforcement orders will need to be brought where the children reside.

[144] Lastly, the court thanks counsel for their professional presentation of the case.

Released: July 19, 2019

Justice S.B. Sherr

Footnotes

[1] This was not claimed in the father's motion to change or requested in his draft order required for the trial. This relief was requested for the first time in closing submissions.

[2] See: Berhanu v. Awanis, 2018 ONCJ 505.

[3] Mr. Cross was the mother's choice to provide counseling. The father suggested someone else. Justice Zisman observed that the process had a better chance of success if the mother bought into it.

[4] Mr. Cross also sent the mother an email on May 4, 2018 thanking her for being supportive to the children during the visits and acknowledged that she was trying to support them in their relationship with the father.

[5] The father remained very angry about this at trial. He had wanted to take the children back to his home in Markham. He perceived the 6-hour visit as a reduction in his access.

[6] The mother testified that she couldn't leave because she was pinned in the booth between two children clinging to her. That was nonsense. She chose not to leave and contributed to the escalation of the children's behaviour.

[7] Mr. Cross had insisted on payment before proceeding and did not attend at the October 13, 2018 visit that went so poorly.

[8] This list addresses many of the factors set out in subsection 24(2) of the Act.