ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-04-052373-01
DATE: 20120608
B E T W E E N:
KRESIMIR MUSTAPIC
Self Represented
Applicant
- and -
JADRANKA KATHIE CAPIN
Self Represented
Respondent
HEARD: May 11, 12, 13, 2011, May 15, 16, 17, 18, 22, 23, 24, 25, 28, 2012
REASONS FOR DECISION
Mossip, J.
Introduction
[ 1 ] Once upon a time, there were two people who fell in love. Although they were both married to other people at the time, their love overcame obstacles and they became partners, and started to live together in December, 1990.
[ 2 ] The parties were very happy when they were first together. They had three beautiful children namely, I., born […] 1991; H., born […] 1994; and L., born […] 1998.
[ 3 ] Unlike a fairy tale, and more like real life, the parties started to have problems in their relationship; there were many arguments. The parties were physically and verbally abusive to each other. The children heard and saw this once happy relationship unravelling. They witnessed much bad behaviour by both parents. The parties no doubt were both hurt and angry by the way their former loving partner treated them.
[ 4 ] The mother gave the father an ultimatum in July, 2001. She told him that if he went to Croatia that summer, it would all be over when he came back to Canada. The father went to Croatia to visit his family and for a break. The locks on the doors on the home were changed when he returned from his holiday. The parties never resided together again; thereafter, the battle began.
[ 5 ] The mother is a high school teacher; the father a civil engineer. The parties both worked outside the home. The mother was able to take time off when the children were born because of her employment. The mother’s hours when she did teach made it possible for her to do the driving for the children to activities and to be more involved with the children’s school and activities.
[ 6 ] The father worked hard, often six days a week in his profession. He was successful and provided for his family financially. He was less involved with the children partly because of his work, and partly because the parties took on the “traditional” roles often assumed by mothers and fathers in relationships.
[ 7 ] After the separation, the children stayed in the former family home with the mother. The father, for approximately the first three years saw the children fairly regularly, including every other weekend and holidays. There were at times co-operation between the parents around access; there were also problems around access.
[ 8 ] Access visits started to go badly and the children, particularly the two older daughters, resisted a regular schedule of access with their father. The mother would say that the children did not want to go on the visits with their father because of how he treated them before and after the separation. The father would say his conduct had nothing to do with the children not wanting to be with him, and that it was all the mother’s doing; that she deliberately and flagrantly alienated the children from him.
[ 9 ] The matter eventually came to Court to regularize the father’s access. Allegations and counter-allegations against each other were made by the parents. Eventually Seppi, J. made an Interim Order dated October 18, 2005, which gave the parties joint custody of the children, with the primary residence of the children to be with the mother, and specified significant access time with the father. There were numerous other paragraphs in that Order that are often included in a joint custodial Order and which, among other things, encouraged the parents to be child-focused in dealing with each other.
[ 10 ] Seppi, J. also ordered that the Office of the Children’s Lawyer (OCL) be requested to prepare a s.112 Report pursuant to the Courts of Justice Act.
[ 11 ] There was a significant delay in getting the actual involvement of the OCL social worker who ultimately prepared a Report. The OCL did not do a full custody and access Assessment as is sometimes prepared under s. 30 of the Children’s Law Reform Act. A lawyer was appointed for the children and a social worker was appointed to “assist” the lawyer. I will have more to say later in this decision about the Affidavit of Ms. Wendy MacKenzie-Hall, sworn April 12, 2007. There is no dispute this Affidavit was before the Court when the parties came back before Quigley, J. on April 18, 2007 ostensibly to argue a long motion on custody and access issues.
[ 12 ] As a result of comments by the Court in front of the parties and the involvement of the OCL in Court, the father who was self-represented, and the mother who was represented by Counsel, entered into a final Consent Order dealing with their children. This Order again gave the parties joint custody of the three children. The primary residence of the children was to be with the mother. The father had generous and detailed access time with the children which was set out in the Court Order. The Order was very detailed as to what the parties were to do and not do with their children regarding the sharing of the children. Further, the Order provided that compliance with the Order by the mother was mandated or the father was entitled to come back to Court on a contempt motion or variation of custody motion.
[ 13 ] Following this order, access, at least with L., continued regularly for about 3½ years. There was less and less access between the father and the two daughters. There were also “struggles” during this period between the parties about visitation in all manner of degree.
[ 14 ] On the weekend of October 01, 2010, the father’s access with L. was not carried out in full. There are different versions of what happened that weekend and why, but everyone agrees, the father did not have full access to L. that weekend or thereafter in accordance with the order of Quigley, J. Ultimately, the father, at the end of November, 2010, brought a motion for contempt and a Motion to Change the Final Order of Quigley, J.
[ 15 ] The parties eventually settled their property issues on consent. The child support had been dealt with in the order of Quigley, J. There was a modification of the child support issues that was dealt with at a Settlement Conference on May 18, and July 4, 2011 and settled at that time.
[ 16 ] The relevant procedural history of this Trial will be outlined below. The Trial was heard over 12 days. The parties testified themselves and called numerous witnesses; they both filed voluminous materials. The parties made fulsome submissions at the end of the Trial and provided the Court with a written copy of those submissions.
[ 17 ] The Court is left to try to pick up the pieces of the broken family vase which was once whole and full of love. The mother and father actually loved each other very much at one time and the three children were born of that love.
[ 18 ] I did not start this decision as a fairy tale begins to be facetious or unkind. I did so to remind the parties where they began; that they once loved each other and were kind to each other; and that their children were born of love. If these parents could have remembered the beginning more, and focussed on the end less, their children would not have suffered so much as a result of the end of their “story” as a couple.
[ 19 ] How this family actually got to the place that I have heard about since May, 2011, only they will know; and they only know through their unique and individual perspectives. As Catherine Gildiner wrote in the preface to her book, After the Falls, (Toronto: Alfred A. Knopf Canada, 2009):
Memory is a tricky business. No two people remember things the same way. Memory is not a recording device; it is the brain’s way of allowing us to select moments in order to interpret our pasts. All the images on file in our brains pass through elaborate screens of unconscious needs and emerge as memories.
To that quote I would add that the filtering process we go through helps us “save” ourselves, so that we can present ourselves in the best light possible. It is only through years of often painful therapy that we can understand how much we may have filtered our own experiences to save ourselves. There is nothing insidious or wrong about this process; it is part of the human brain’s brilliance. It is not someone else telling us we are “wrong” in our memory that gives us insight; it is our own reflecting, with professional assistance, that leads us to that level of awareness and understanding about ourselves.
[ 20 ] The mother and father before me have very different memories of what happened in their 11 years of cohabitation and their 11 years post-separation. So too do their children have very different memories. As I just set out, there is nothing surprising or unusual about that fact. What is sad for the Court is the amount of time, money, energy, and emotional angst, that these parties have engaged in to convince themselves, the other party, the children, their friends, the professionals involved, and now the Court, that their truth is the “real truth”; that their version of events is what actually happened.
[ 21 ] Dr. Clive Chamberlain, a renowned psychiatrist who has specialized in children and adolescent issues for over 40 years testified before me on an alienation case several years ago. When he was asked about how the parties got to the place they were at trial, and who was to blame, I always recall his words, “That’s a bit of a mug’s game.” That expression means “a futile or unprofitable endeavour.” In other words, “Judge, don’t waste your time, you’ll never figure it out to anyone’s complete satisfaction. Let’s deal with what we have in front of us now.”
[ 22 ] It is for the above reasons and several others that this decision will not be deciding whose version of the “truth” is more accurate. In my view, such an attempt to microscopically look at 22 years of family dynamics would be a waste of time, would make no one happy with the result, but most importantly, would not in any way help the M. children, most of all L., who is the subject of the trial before me.
[ 23 ] I do not intend to summarize all of the evidence I heard and read at this trial in search for the elusive “truth” of this family’s history. I have indeed considered all of the evidence which the parties ably marshalled at the trial, in arriving at this decision.
[ 24 ] This decision will not vindicate one parent and disparage the other. This family did not get to where they are by the simplistic analysis presented by the father, which is, but for the mother’s bad behaviour the father would have a perfectly wonderful relationship with his three children. No, the issues in this family are far more complex and subtle than that. The “truth” will not set this family free, because there is no one single truth. Only the parties, working together in a therapeutic setting, can set this family free.
[ 25 ] This decision will deal with the following topics:
Brief Procedural History from the date of the Motions to Trial;
The MacKenzie-Hall Affidavit;
Issues of Children not Seeing a Parent after Separation;
Relief Requested by Each Parent;
Other Professional Reports, including recent OCL Report;
Motion for Contempt;
Order and Reasons.
(Decision text continues exactly as provided in the source.)
Mossip, J.
Released: June 8, 2012